Tenant Improvements. Tenant will furnish or perform those items of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"), and in no event shall Landlord have any obligation to pay for any costs of the Tenant Improvements in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Lease Agreement

Tenant Improvements. ~~Tenant will furnish or perform those items of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the~~ All Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"), and in no event shall Landlord have any obligation to pay for any costs of the Tenant Improvements in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be ~~paid~~ performed by Tenant~~. Further~~’s contractor, ~~Tenant shall repay Landlord for $1,337,600.00~~ at Tenant’s sole cost and expense (~~$19 psf)~~ subject to Landlord’s obligations with respect to any portion of the TI ~~Allowance~~Allowance and in accordance with the Approved Plans (as defined below), together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this ~~Addendum~~Work Letter. To the extent that the total projected cost (as projected by Landlord) of the Base Building Improvements exceeds the Base Building Allowance (such excess, the “Excess Base Building Costs,” Tenant shall advance to Landlord any Excess Base Building Costs within ten (10) days ~~thereafter cause~~ after receipt of an invoice therefor, but in any case before Tenant commences the ~~letter~~ Base Building Improvements. If the actual Excess Base Building Costs are less than the Excess Base Building Costs paid by Tenant to Landlord, Landlord shall credit Tenant with the overage paid by Tenant against Tenant’s Rent obligations, beginning after Landlord has completed the final accounting for the Tenant Improvements. If the actual Excess Base Building Costs at any point during the construction of ~~credit~~ the Base Building Improvements are or are projected to be ~~restored~~ more than the previously estimated Excess Base Building Costs, Tenant shall advance to ~~its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively.~~ Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years any such additional Excess Base Building Costs within ten (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (6010) days ~~prior to such expiration date, or prior to any anniversary~~ after receipt of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New Yorkan invoice therefor. To the extent that the total projected cost (as projected by Landlord) of the Premises Improvements exceeds the Premises Allowance, and provided that such excess cost is not ~~inconsistent~~ due to Landlord Delay, (such excess, the “Excess Premises Costs” and together with the ~~express terms hereof~~Excess Base Building Costs, the “Excess TI Costs,” Tenant shall pay the costs of the Premises Improvements on a pari passu basis with Landlord as such costs become due, in the proportion of Excess Premises Costs payable by Tenant to the Premises Allowance. If Tenant fails to pay, or is late in paying, any sum due to Landlord or any third party under this ~~Letter~~ Work Letter, then Landlord shall have all of ~~Credit~~ the rights and remedies set forth in the Lease for nonpayment of Rent (including the right to interest and the right to assess a late charge), and for purposes of any litigation instituted with regard to such amounts the same shall be ~~governed by~~considered Rent. All material and equipment furnished by Tenant or its contractors as the Tenant Improvements shall be new or “like new;” the Tenant Improvements shall be performed in a first-class, workmanlike manner; and the quality of the Tenant Improvements shall be of a nature and character not less than the Building Standard. Tenant shall take, and ~~construed in accordance with~~shall require its contractors to take, commercially reasonable steps to protect the ~~terms~~ Premises during the performance of any Tenant Improvements, including covering or temporarily removing any window coverings so as to guard against dust, debris or damage. Any and all amounts associated with remediation of Pre-Existing Hazardous Conditions shall be paid solely by Landlord and shall not be paid out of the ~~Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and~~ TI Allowance or included as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:Excess TI Costs.

Appears in 1 contract

Samples: Lease (Alnylam Pharmaceuticals, Inc.)

Tenant Improvements. Unless specified otherwise herein, Tenant ~~will furnish or perform those items~~ shall bear and pay the cost of the Tenant Improvements (which cost shall include, without limitation, the costs of construction as provided for in the Tenant Improvement Contractor’s contract, the cost of permits, and ~~those improvements~~ all architectural, design, space planning, and engineering services obtained by Tenant in connection with Tenant Improvements); provided that so long as Tenant is not in monetary or material non-monetary default under the Lease, Landlord shall contribute a maximum of $145 per rentable square foot, for an aggregate maximum of $10,557,740 (the "“Tenant Improvement Allowance”). For the avoidance of confusion, the foregoing shall not be read to prevent Tenant from curing the applicable default and once the default is cured (if such cure is completed within the applicable cure period, if any, expressly set forth in this Lease), Landlord shall be obligated to make the applicable contribution from the Tenant Improvement Allowance. The Tenant Improvement Allowance shall be utilized for the hard and soft costs of the Tenant Improvements", including without limitation building improvements to the Building, the cost of obtaining permits, costs of preparing any plans or drawings, the cost of performing the Tenant Improvements including labor and material costs, cost of any third party consulting or contracting fees (including without limitation costs of Tenant’s architect and engineers), costs with respect to the Tenant Improvement Project Manager, and any other hard costs of the Tenant Improvements; provided, however, the Tenant Improvement Allowance will not be used for signage, furniture costs, any telecom/cabling costs, and shall be available to Tenant only until one year after the Lease Commencement Date, which date shall be extended for Landlord Delays and/or Force Majeure, after which Landlord shall have no further obligation to provide any portion of the Tenant Improvement Allowance. Subject to such deadline, and based upon applications for payment prepared, certified and submitted by Tenant as described below, Landlord shall make progress payments from the Tenant Improvement Allowance to Tenant in accordance with the provisions of this Paragraph 3, (but in no event more than $145 per square foot for the applicable space under construction), as follows: (i) ~~specified~~ Not later than the 25th day of each month Tenant shall submit applications for payment to Landlord in a form reasonably acceptable to Landlord, including Tenant Improvement Contractor’s Application and Certification for Payment AIA G702 certified by Tenant Improvement Architect, certified as correct by an officer of Tenant and by Tenant’s architect, for payment of that portion of the cost of the Tenant Improvements allocable to labor, materials and equipment incorporated in the Building during the period from the first day of the same month projected through the last day of the month. Each application for payment shall set forth such information and shall be accompanied by such supporting documentation as shall be reasonably requested by Landlord, including the following: (A) Invoices. (B) Fully executed conditional lien releases in the form prescribed by law from the Tenant Improvement Contractor and all subcontractors and suppliers furnishing labor or ~~referenced~~ materials during such period and if applicable, fully executed unconditional lien releases from all such entities covering the prior payment period. (C) Tenant Improvement Contractor’s worksheets showing percentages of completion. (D) Tenant Improvement Contractor’s certification as follows: “There are no known mechanics’ or materialmen’s liens outstanding at the date of this application for payment, all due and payable bills with respect to the Building have been paid to date or shall be paid from the proceeds of this application for payment, and there is no known basis for the filing of any mechanics’ or materialmen’s liens against the Building or the Property, and, to the best of our knowledge, waivers from all subcontractors are valid and constitute an effective waiver of lien under applicable law to the extent of payments that have been made or shall be made concurrently herewith.” (ii) On or before the 30th day following submission of the application for payment, so long as Tenant is not in ~~Exhibit 2 attached hereto.~~ default under the terms of this Work Letter or the Lease, Landlord shall pay a share of such payment determined by multiplying the amount of such payment by a fraction, the numerator of which is the amount of the Tenant Improvement Allowance, and the denominator of which is the sum of (i) estimated construction cost of all Tenant Improvement work and materials for the entire Leased Premises, and (ii) the estimated cost of all professional services, fees and permits in connection therewith. Tenant shall pay the balance of such payment, provided that at such time as Landlord has paid the entire Tenant Improvement Allowance on account of such Tenant Improvement work, all xxxxxxxx shall be paid entirely by Tenant. If upon completion of the Tenant Improvements and payment in full to the Tenant Improvement Contractor, the architect and engineer, and payment in full of all fees and permits, the portion of the cost of the Tenant Improvements including, without limitation, architects’ and engineers’ fees, permits and fees theretofore paid by Landlord is less than the Tenant Improvement Allowance, Landlord shall promptly reimburse Tenant for costs expended by Tenant for Tenant Improvements up to ~~a maximum~~ the amount by which the Tenant Improvement Allowance exceeds the portion of ~~$1,760,000.00 (~~such cost theretofore paid by Landlord. Landlord shall have no obligation to advance the ~~"TI Allowance"), and in~~ Tenant Improvement Allowance to the extent it exceeds the total cost of the Tenant Improvements. In no event shall Landlord have any ~~obligation to pay~~ responsibility for ~~any costs~~ the cost of the Tenant Improvements in excess of ~~such amount~~the Improvement Allowance. If Landlord shall have no obligation to make any payments to Tenant Improvement Contractor’s material suppliers or subcontractors or to determine whether amounts due them from Tenant Improvement Contractor in connection with the ~~cost~~ Tenant Improvements have, in fact, been paid. (iii) Landlord acknowledges that if Landlord fails to pay any portion of the Tenant ~~Improvements exceeds~~ Improvement Allowance as and when it is obligated to do so under this Work Letter, and Landlord thereafter fails to pay such ~~amount~~portion of the Tenant Improvement Allowance within ten (10) business days after Landlord’s receipt of a written notice from Tenant describing Landlord’s failure to pay such portion of the Tenant Improvement Allowance (a “Payment Notice”), ~~any estimated overage in excess of such amount~~ then Tenant shall be ~~paid~~ entitled to deduct from Base Monthly Rent payable by Tenant under the Lease, the amount Landlord was obligated (but failed) to pay, but limited each month to an amount not to exceed 25% of each payment of Base Monthly Rent, until fully paid. If, however, Landlord delivers to Tenant~~. Further~~, within ten (10) business days after Landlord’s receipt of a Payment Notice, a written objection to the requested payment setting forth with reasonable particularity Landlord’s reasons for its claim that such payment did not have to be made (an “Objection Notice”), then Tenant shall not then be entitled to such deduction from Base Monthly Rent unless and until such dispute is resolved in accordance with the procedures set forth below; provided, however, Tenant shall ~~repay Landlord for $1,337,600.00~~ be entitled to offset any undisputed amounts ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INCthe foregoing 25% limitation) as provided above. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant parties shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days ~~thereafter cause the letter of credit to be restored to its original amount. The form~~ after Tenant’s receipt of the ~~Letter of Credit~~Objection Notice, ~~Sight Draft, Drawing Request~~ meet and ~~Notice of Assignment are attached hereto as Annex II-1, II-2, II-3~~ confer and ~~II-4 respectively. Landlord will release~~ attempt to resolve the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediatelymatter promptly, and ~~expiring on~~ if the ~~close of~~ dispute is not resolved within five (5) business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 heretodays after such meeting, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests either party may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood require that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may dispute be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Sublease Agreement (Kodiak Sciences Inc.)

Tenant Improvements. ~~Tenant will furnish or perform those items~~ Twenty-five percent (25%) of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"), and in no event shall Landlord have any obligation all obligations to pay ~~for any costs of the Tenant Improvements in excess of such amount. If~~ the cost of ~~the Tenant Improvements exceeds such amount,~~ any ~~estimated overage~~ tenant improvement work owed or to be owed in ~~excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ connection with new leases of the ~~TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over~~ Building executed after the ~~Lease Term of $28,923.00 (~~date hereof or the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end result of the ~~Lease term or~~renewal of the Lease, ~~if it is for less than~~ the ~~full~~ extension of the term of the Lease, the expansion of the premises demised by the Lease to space within the Building or the exercise of an option to lease additional space in the Building set forth in the Lease occurring after the date hereof, which costs shall include, but not be limited to, all sums expended by Highwoods for such tenant improvement work (including all overhead costs incurred by Highwoods or its affiliates in connection with the performance of the work related to such tenant improvements not to exceed five percent (5%) of the cost of such tenant improvements) and a profit not to exceed ten percent (10%) of the cost of such tenant improvements shall be ~~renewed~~ assumed and paid by ~~Tenant at least 30 days prior~~ the Distributees on the Closing Date by reimbursing Highwoods for the costs of such tenant improvements previously paid by Highwoods in connection with new leases, renewals, extensions, relocations, expansions, or the exercise of an option to ~~its expiration during~~ lease additional space in the Building occurring after the date hereof or if the cost of such tenant improvements are not yet due and payable by paying the same when they otherwise become due without an adjustment to the value of the capital interest of the Distributees in Highwoods to be reduced as a result of this transaction. Notwithstanding the foregoing, to the extent any portion of the term of ~~the~~ a Lease~~. The letter of credit shall provide that it may be drawn down upon by Landlord at~~ , and renewals, extensions, expansions and relocations for which any ~~time Landlord delivers its site draft~~ tenant improvement work is completed prior to the ~~bank. If Landlord sells or conveys~~ Closing Date, the ~~Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms~~ amount of the ~~Lease and this Addendum, Tenant shall within ten (10) days thereafter cause~~ value of the ~~letter~~ capital interest of ~~credit~~ the Distributees in Highwoods to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using reduced as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter result of ~~Credit shall~~ this transaction will be reduced ~~annually on~~ by a pro rata ~~basis~~ share of such tenant improvement work based upon the percentage of such term (exclusive of any renewal options) which occurs prior the Closing Date. If any tenant improvement work is in ~~accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx~~process on the Closing Date, ~~Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client~~Highwoods shall be responsible for completing the construction thereof, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereofprovided, the ~~"Letter of Credit Amount"), effective immediately, and expiring on~~ Distributees shall be responsible for the ~~close of business at our office at the address~~ costs thereof as set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:above.

Appears in 1 contract

Samples: Partnership Agreement (Highwoods Properties Inc)

Tenant Improvements. All Tenant ~~will furnish or perform those items~~ Improvements shall be performed by Landlord’s contractor, at Tenant’s sole cost and expense (subject to Landlord’s obligations with respect to any portion of ~~construction and those improvements (~~the "TI Allowance used by Landlord in completing the Tenant Improvements") ~~specified or referenced~~ and in ~~Exhibit 2 attached hereto. Landlord shall pay for~~ substantial accordance with the ~~Tenant Improvements up to a maximum amount of $1,760,000.00~~ Approved Plans (~~the "TI Allowance"~~as defined below), the Lease and ~~in no event shall Landlord have any obligation to pay for any costs~~ this Work Letter. To the extent that the total projected cost of the Tenant Improvements (as projected by Landlord) exceeds the TI Allowance (such excess, the “Excess TI Costs”), Tenant shall advance to Landlord any Excess TI Costs within ten (10) days after receipt of an invoice therefor. The parties agree that the Excess TI Costs shall be advanced in ~~excess~~ three (3) tranches pursuant to invoices issued by Landlord; the first tranche shall be in an amount equal to 25% of the Excess TI Costs and shall be advanced before Landlord commences the Tenant Improvements, the second tranche shall be in an amount equal to 50% of the Excess TI Costs and shall be advanced when the Tenant Improvements are approximately 50% complete; the third tranche shall be in an amount equal to 25% of the Excess TI Costs and shall be advanced when the Tenant Improvements are approximately 75% complete. If Landlord is delayed in commencing the Tenant Improvements due to Tenant’s failure to timely pay the Excess TI Costs to Landlord, Landlord shall be entitled to a day-for-day extension to achieve Substantial Completion of the Tenant Improvements for the period of such ~~amount~~delay. If the actual Excess TI Costs are less than the Excess TI Costs paid by Tenant to Landlord, Landlord shall credit Tenant with the overage paid by Tenant against Tenant’s Rent obligations, beginning after Landlord has completed the final accounting for the Tenant Improvements. If the cost of the Tenant Improvements ~~exceeds such amount~~(as projected by Landlord) increases over Landlord’s initial projection and said increase has not been included in the calculation of the tranches mentioned above, ~~any estimated overage in excess of such amount shall be paid by Tenant. Further,~~ then Landlord may notify Tenant and Tenant shall ~~repay Landlord for $1,337,600.00 ($19 psf) of the~~ advance such additional Excess TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall Costs within ten (10) days ~~thereafter cause the letter~~ after receipt of ~~credit~~ an invoice therefor. If Tenant fails to ~~be restored~~ pay, or is late in paying, any sum due to ~~its original amount. The form~~ Landlord under this Work Letter, then Landlord shall have all of the ~~Letter~~ rights and remedies set forth in the Lease for nonpayment of ~~Credit, Sight Draft, Drawing Request~~ Rent (including the right to interest and ~~Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release~~ the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as right to assess a ~~base year the financial statements attached as Annex II-6~~late charge), ~~as established by audited financial statements; 3. No decrease in operating margin during~~ and for purposes of any litigation instituted with regard to such amounts the ~~period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit~~ same shall be ~~reduced annually on a pro rata basis in accordance with Annex II-5~~considered Rent. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (All material and equipment furnished by Landlord or its contractors as the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on Tenant Improvements shall be new or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you “like new,” and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference Tenant Improvements shall be ~~deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred~~ performed in ~~this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part~~a first-class, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:workmanlike manner.

Appears in 1 contract

Samples: Lease (Intellia Therapeutics, Inc.)

Tenant Improvements. a. Possession of areas of the Additional Premises necessary for utilities, services, safety and operation of the New Building is reserved to Landlord. b. Tenant ~~will furnish or perform those items of construction and those~~ shall cause to be constructed the tenant improvements in the Additional Premises (the "“Tenant Improvements"”) ~~specified or referenced in~~ pursuant to the Work Letter attached as Exhibit ~~2 attached hereto.~~ B hereto at a cost to Landlord ~~shall pay for the Tenant Improvements up to a maximum amount of $1,760,000.00~~ (the "“Tenant Improvement Allowance”) not to exceed Thirty Dollars ($30) per rentable square foot of Additional Premises. The Total TI Allowance (as defined below) shall be used solely to pay the costs of (i) construction, (ii) project management by Landlord (which fee shall not exceed two percent (2%) of the Total TI Allowance"), (iii) third party project management fees, (iv) IT installation, (v) space planning, architect, engineering and ~~in no event shall Landlord have any obligation to pay for any costs of the Tenant Improvements in excess of such amount~~other related services and (vi) building permits and other planning and inspection fees. If the total cost of the Tenant Improvements exceeds ~~such amount~~the Total TI Allowance, ~~any estimated~~ then the overage ~~in excess of such amount~~ shall be paid promptly by Tenant. ~~Further,~~ Tenant shall ~~repay Landlord for $1,337,600.00 ($19 psf)~~ have until December 31, 2007, to expend the unused portion of the Total TI Allowance, ~~together with interest at 10.75% per annum~~after which date Landlord’s obligation to fund such costs shall expire. If Tenant does not utilize the entire Tenant Improvement Allowance, monthly Base Rent for the Additional Premises shall be decreased as of January 1, 2008, by the amount of such unused Tenant Improvement Allowance, amortized on a straight line basis over the period commencing on January 1, 2008, and ending on the Expiration Date; provided, however, that Tenant shall be required, no later than December 31, 2007, to, in ~~equal monthly installments~~ accordance with Landlord’s building standards, (x) construct at least one (1) module of laboratory improvements in the currently unfinished portion of the Additional Premises and (y) finish construction (including, without limitation, drywall, repainting of interior walls and replacement of carpeting) of office improvements in the current office portion of the Additional Premises. c. In addition to the Tenant Improvement Allowance, Landlord shall make available to Tenant Ten Dollars ($10) per rentable square foot (the “Additional TI Allowance” and, collectively with the Tenant Improvement Allowance, the “Total TI Allowance”) of Additional Premises to construct the Tenant Improvements. Tenant shall pay to Landlord, as Additional Rent, the Additional TI Allowance amortized over the Lease Term with respect to the Additional Premises at an interest rate of ~~$28,923.00~~ nine percent (~~the "TI Amortization"~~9%). . d. Tenant shall ~~have~~ select the ~~right to select its own contractors~~ architect, engineer, general contractor and major subcontractors performing the Tenant Improvements, subject to Landlord~~'s consent of such contractors~~’s prior written approval, which approval Landlord shall not unreasonably withhold. e. Notwithstanding any other provision herein or in the Lease to the contrary, (a) with regard to the Additional Premises, Tenant shall be ~~unreasonably withheld~~responsible for all liabilities, costs and expenses arising out of or in connection with the compliance of the Tenant Improvements with the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ~~-4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16~~(together with regulations promulgated pursuant thereto, ~~1996~~the “ADA”), ~~BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST~~ and ~~INSYNC SYSTEMS~~Tenant shall indemnify, ~~INC~~defend and hold harmless Landlord from and against any loss, cost, liability or expense (including reasonable attorneys’ fees and disbursements) arising out of any failure of the Tenant Improvements to comply with the ADA and (b) Landlord shall be responsible for all liabilities, costs and expenses arising out of or in connection with the compliance of the Project’s parking lots, common area walkways and landscaped areas surrounding the New Building (collectively, the “Landlord Areas”) with the ADA, and Landlord shall indemnify, defend and hold harmless Tenant from and against any loss, cost, liability or expense (including reasonable attorneys’ fees and disbursements) arising out of any failure of the Landlord Areas to comply with the ADA. The ~~Additional Security Deposit~~ provisions of this Section 7(e) shall ~~be in~~ survive the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term expiration or earlier termination of the Lease, as amended by this Amendment. f. Landlord shall ~~be renewed by Tenant~~ provide at ~~least 30 days prior to~~ its ~~expiration during~~ sole cost and expense a “storefront” entrance on the ~~term~~ south side of the ~~Lease. The letter of credit shall provide that it~~ New Building through which Tenant may ~~be drawn down upon by Landlord at any time Landlord delivers its site draft to~~ access the ~~bank. If Landlord sells or conveys the~~ Additional Premises, ~~Tenant shall, at~~ which entrance shall match Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are ’s existing building standard for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:Building.

Appears in 1 contract

Samples: Brisbane Technology Park Lease (Intermune Inc)

Tenant Improvements. Landlord shall construct improvements for Tenant ~~will furnish or perform those items of construction and those improvements~~ in the First Floor Space pursuant to the plans identified as follows: "Project 845 - Jay Street, Building A, Firxx Floor Tenant Improvements, Permit 2, dated 1/12/99, by DES Architects" (the "~~Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance~~Plans"), and at a cost to be paid by Landlord which is expected to be $447,561.00. Except as provided below in ~~no event shall Landlord have any obligation~~ regard to ~~pay~~ changes to the Plans which cause increased expenses, or unless Tenant otherwise causes increased expense, Tenant will not be responsible for any cost of construction in excess of this amount. If Tenant wishes changes in the Plans, any increased expenses of constructing the improvements as a result of Tenant's requested changes shall be paid by Tenant under the provisions of Exhibit "B" to the Lease, the -------------------------------------------------------------------------------- First Amendment To Lease Page 9 of 16 -------------------------------------------------------------------------------- Improvement Agreement, Paragraph 5A and B. Such expenses shall include, but not be limited to, all hard construction costs, architecture costs, engineering costs, City fees, and any and all other expenses reasonable and normally incurred in conjunction with such construction. Such construction shall be conducted pursuant to the following additional terms and conditions: A. The provisions of Exhibit B, the Interior Improvement Agreement, shall not apply to construction of Tenant Improvements for Tenant in the First Floor Space except as specifically adopted and incorporated herein. B. Landlord and Tenant will consult on the Plans, and Tenant will have a reasonable opportunity to request and obtain changes therein, and will thereafter execute an approved set of Plans as modified and a memorandum approving any increase in costs occasioned by the modifications to the Plans, if any. Thereafter, any changes to the Plans will be made only on written Change Order, executed by both parties and containing agreement to Tenant's payment of additional costs of such Change Orders. In each case, at the time of agreement to the changes, Tenant will pay Landlord the agreed amount of additional cost at the times specified above C. In the event of any changes or modifications to the Plans which increase the cost of construction, Tenant will pay Landlord, in addition to all other amounts specified hereunder, Landlord's construction management fee of Four Percent (4%) of the hard costs of construction on such increased costs. D. Upon Landlord's completion of the Tenant Improvements ~~in excess of such amount~~called for hereby, Landlord and Tenant shall walk through the First Floor Space, using reasonable efforts to locate and identify any defective or incomplete construction. ~~If the cost of the Tenant Improvements exceeds such amount~~Thereafter, ~~any estimated overage in excess of such amount~~ an agreement shall be ~~paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ executed which will contain a list of all "punch list" items which the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit parties agree are to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth corrected by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediatelyLandlord, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:--------------------------------------------------------------------------------

Appears in 1 contract

Samples: Executive Retention Agreement (Cylink Corp /Ca/)

Tenant Improvements. ~~Tenant will furnish or perform those items~~ The amounts in the Escrow Account allocated for tenant improvements and miscellaneous leasing costs (as set forth in clause (iv) of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"Section 2.2 hereof), ~~and in no event~~ shall ~~Landlord have any obligation~~ be disbursed by Escrow Holder to pay ~~for any~~ the costs thereof to contractors and vendors providing labor or material, or in the event Seller has paid such costs itself, to reimburse Seller provided Seller submits to Buyer and Escrow Holder reasonable evidence of Seller's payment of such amounts, after the following conditions have been satisfied; 3.2.1.1 The portion of the ~~Tenant Improvements~~ tenant improvements for which disbursement is requested must have been constructed substantially in ~~excess of such amount. If~~ conformance with the ~~cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid~~ plans and specifications therefor approved by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractorsBuyer, which approval shall not be unreasonably withheld~~. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16~~. 3.2.1.2 Interim disbursements for tenant improvements will be in the amount of ninety percent (90%) of labor and one hundred percent (100%) of materials furnished to be computed at the maximum following rates: (i) the applicable rates set forth on Exhibit "B-1" for Vacant Leased Space, ~~1996~~and (ii) the amounts set forth on Schedule 1 to Exhibit "B" for Unleased Space, ~~BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC~~in each case less miscellaneous leasing costs theretofore disbursed from the Escrow Account with respect to the Approved Lease for which disbursement is sought. The ~~Additional Security Deposit~~ tenant improvement allowances shall be used for the hard and soft costs of constructing tenant improvements and related coats, including without limitation design fees, cost of plans and specifications, permit fees and construction costs, as well as miscellaneous leasing costs, including without limitation attorneys' fees, but shall exclude leasing commissions, broker's or finder's fees. Interim disbursements for tenant Improvements will be made not more often than one (1) time per month. Notwithstanding anything to the contrary set forth herein, if the Tenant under an Approved Lease is doing all or any part of the leasehold improvements in its respective premises and the Approved Lease provides that the landlord is to provide a tenant improvement allowance to such Tenant, the amount of tenant improvement allowance deposited hereunder shall be disbursed in accordance with the terms of the Approved Lease and to the extent Seller has paid such tenant improvement allowance, such amount shall be payable to Seller provided that Seller provides Buyer and Escrow Holder with reasonable evidence of Seller's payment of such tenant improvement allowance. Each request for disbursement shall be on an Application and Certification for Payment of Tenant Improvements, containing a certification by Seller that all tenant improvement work for which payment is requested has been satisfactorily completed and upon payment of the amounts set forth in the application will be paid in full and shall be accompanied by lien waivers executed by all the parties who performed work or supplied materials and who are to be paid by such disbursement. Such Application and Certification shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as ~~Annex II-1, II-2, II-3~~ Exhibit "D" and ~~II-4 respectively. Landlord will release~~ shall also be approved by Buyer (as evidenced by Buyer signing thereon before the ~~letter~~ disbursement is made). 3.2.1.3 As a condition to disbursement of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Furtherany interim amounts for tenant improvements, the ~~Letter of Credit~~ Title Insurer shall issue an endorsement to Buyer's title insurance policy insuring that there are no unbonded mechanics' or materialmen's liens relating to the work for which the disbursement is sought. 3.2.1.4 The final disbursement for tenant improvements for each Tenant shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter the balance of ~~Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (~~the ~~"Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor~~ amount held back for ~~an amount up to but not exceeding~~ the ~~aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (~~respective tenant space as ~~reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address~~ set forth ~~above one year~~ on Exhibits "B" and "B-1" hereto, subject to Seller delivering to Buyer an estoppel certificate from the ~~date hereof unless renewed as hereinafter provided. Funds under this Letter~~ Tenant confirming that all Landlord work required by the Approved Lease has been completed and a final, unconditional certificate of ~~Credit are available to you on~~ occupancy (or ~~prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto~~its equivalent, ~~indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (~~such ~~sight draft and request, together referred to~~ as a "~~Drawing Request"), sight draft(s), completed~~ final" Inspection Record issued by the City of Lakewood) for each space that is the subject of the disbursement and final lien waivers signed by ~~one of your officers~~the general contractor and all subcontractors performing work or providing materials for improvements for such tenant improvements. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking Seller shall not be responsible for any tenant improvement costs for Approved Leases executed during the Subsequent Leasing Period in ~~any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter~~ excess of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:amounts deposited hereunder.

Appears in 1 contract

Samples: Agreement for Purchase and Sale of Real Property (Inland Western Retail Real Estate Trust Inc)

Tenant Improvements. Landlord shall provide Tenant ~~will furnish or perform those items~~ with a onetime tenant improvement allowance in the amount of ~~construction and those improvements~~ $17,646.00 ($2.00 per square foot) (the "“Allowance”) for the costs relating to construction of the Tenant ~~Improvements") specified or referenced in Exhibit 2 attached hereto~~Improvement Work, as hereinafter defined. Landlord shall ~~pay~~ perform the improvements shown on the space plan prepared by Xxxx Xxxxx Associates dated August 7, 2014, attached hereto as Exhibit “B” (the “Tenant Improvement Work”), which shall be completed in accordance with the Standard Tenant Finish Specifications attached hereto as Exhibit “C”. The current estimate for the Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"), and in no event shall Landlord have any obligation to pay for any costs of the Tenant Improvements in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it Improvement Work is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debtForty Thousand Three Hundred Forty-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand Two and No/100 Dollars ($~~635,000~~40,342.00) (~~as reduced from time~~ the “Total Projected Cost”). Tenant shall fund the cost of any Tenant Improvement Work that exceeds the Allowance. Tenant shall pay to ~~time in accordance with~~ Landlord at execution of the ~~terms hereof~~Amendment the estimated overage of the Tenant Improvement Work equal to the Total Projected Cost less the Allowance, which is currently estimated to be Twenty-Two Thousand Six Hundred Ninety-Six and No/100 Dollars ($22,696.00) (the “Estimated Tenant Overage”). Landlord and Tenant agree, that upon determination of the actual costs of the Tenant Improvement Work, the ~~"Letter~~ unused portion of ~~Credit Amount")~~the Estimated Tenant Overage collected from Tenant, ~~effective immediately~~if any, ~~and expiring on~~ will either be returned to Tenant or applied towards Tenant’s Base Rent obligation within thirty (30) days. In the ~~close of business at our office at~~ event, the ~~address set forth above one year from~~ Tenant Improvement Work exceeds the ~~date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your~~ Estimated Tenant Overage, Tenant shall have thirty (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (6030) days ~~prior~~ after receipt of invoice from Landlord to ~~such expiration date, or prior~~ pay to Landlord the balance due for any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds cost of the ~~Applicant~~ Tenant Improvement Work that exceeded the Total Projected Cost. The Tenant Improvement Work shall begin after execution of the Amendment by both Tenant and Landlord and shall be ~~available to such drawers, endorsers~~completed per a mutually agreeable schedule. XxXxxxxx Construction Services shall be the General Contractor for all construction, and ~~bona fide holders,~~ XxXxxxxx Development Company will oversee the construction process. Except as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance withexpressly modified hereby, the ~~terms of~~ Lease shall remain in full force and effect, Landlord and Tenant ratifying and affirming the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:same.

Appears in 1 contract

Samples: Lease Agreement (Clearside Biomedical, Inc.)

Tenant Improvements. Tenant ~~will furnish~~ shall be responsible for any and all Improvements or ~~perform those items~~ Alterations to the Future Expansion Premises suitable for Tenant’s occupation and use of ~~construction and those improvements~~ the Future Expansion Premises, for the uses permitted pursuant to the Lease (the ~~"Tenant~~ “Future Expansion Improvements~~") specified or referenced in Exhibit 2 attached hereto~~”). ~~Landlord shall pay for the Tenant~~ All such Future Expansion Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"), and in no event shall Landlord have any obligation to pay for any costs of the Tenant Improvements in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be ~~paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ approved and completed in accordance with the provisions of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term Section 8 of the Lease, ~~shall be renewed~~ except to the extent that the following provisions supersede Section 8. (a) Landlord has provided for a Tenant Allowance for the Second Expansion Premises (the “Second Expansion Improvements”) in the Fourth Amendment (the “Existing Allowance”), which Existing Allowance has not been drawn by Tenant ~~at least 30 days prior~~ and remains available to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the PremisesTenant, ~~Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant~~ subject to the terms and conditions of the ~~Lease~~ Fourth Amendment. (b) Landlord shall provide an additional allowance equal to the sum of (i) $504,300.00 (the “Additional Allowance”) and ~~this Addendum~~(ii) in consideration of the extension of Term of the Second Expansion Premises, an amount equal to $0.50 per Rentable Square Foot located in the Second Expansion Premises (the “Extension Allowance” and, together with the Existing Allowance and the Additional Allowance, the “Initial Tenant Allowance”). Tenant may use the Initial Tenant Allowance towards funding the Second Expansion Improvements and the Future Expansion Improvements within the Third Expansion Premises and the Fourth Expansion Premises, and no other portion of the Premises. (c) Upon the Fifth Expansion Premises Commencement Date, Landlord shall provide an additional allowance equal to $0,50 per Rentable Square Foot of the Fifth Expansion Premises (the “Second Tenant Allowance” and with the Initial Tenant Allowance, the “Tenant Allowance”) for each month then remaining of the Term that Tenant may use towards funding the Future Expansion Improvements within the Fifth Expansion Premises, and no other portion of the Premises. In the event that Tenant exercises Tenant’s Termination Option, Tenant shall not be entitled to the Second Tenant Allowance and no additional allowance shall be provided by Landlord. Fifty percent (50%) of the respective Tenant Allowance shall be paid upon completion of all rough inspections by the City of Boston Inspectional Services Department within the particular Expansion Premises, and the remaining fifty percent (50%) shall be paid upon delivery to Landlord of (i) a final Certificate of Occupancy issued by Boston Inspectional Services for the respective Expansion Premises and (ii) lien waivers from all contractors or other satisfactory evidence that all contractors have been paid or will be paid in full for all work that has been done to the Premises. All payments to Tenant by Landlord shall be made within ten (10) business days ~~thereafter cause the letter~~ of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth billing by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit NoTenant._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Lease Agreement (Soaring Eagle Acquisition Corp.)

Tenant Improvements. ~~Tenant will furnish or perform those items of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto.~~ Landlord shall construct and, except as provided below to the contrary, pay for the entire cost of constructing the tenant improvements (“Tenant ~~Improvements up~~ Improvements”) to ~~a maximum amount of $1,760,000.00~~ the Premises and certain improvements to the Building described by the plans and specifications identified in Schedule “1” attached hereto (the ~~"TI Allowance"~~“Plans”); provided, ~~and in no event~~ however, any items specified as “Tenant Alternates” on the Plans selected by Tenant shall ~~Landlord have any obligation to pay for any costs~~ not be included as part of the Tenant Improvements ~~in excess of such amount. If the cost~~ constructed by Landlord at Landlord’s cost, and shall instead be included as part of the Tenant ~~Improvements exceeds such amount~~Improvements, but paid for by Tenant at Tenant’s sole cost and expense. Tenant may request changes to the Plans provided that (a) the changes shall not be of a lesser quality than Landlord’s standard specifications for tenant improvements for the Building attached hereto as Schedule “2”, as the same may be changed from time to time by Landlord (the “Standards”); (b) the changes conform to applicable governmental regulations and necessary governmental permits and approvals can be secured; (c) the changes do not require building service beyond the levels normally provided to other tenants in the Building; (d) the changes do not have any ~~estimated overage~~ adverse affect on the structural integrity or systems of the Building; (e) the changes will not, in ~~excess~~ Landlord’s opinion, unreasonably delay construction of ~~such amount~~ the Tenant Improvements; and (f) Landlord has determined in its sole discretion that the changes are of a nature and quality consistent with the overall objectives of Landlord for the Building. The Standards attached hereto as Schedule “2” shall ~~be paid~~ serve only as a reference for Building standard finishes and conditions not previously addressed in the Plans attached hereto as Schedule “1”, and in the event of a conflict between Schedule “1” and Schedule “2”, the provisions of Schedule “2” shall prevail. If Landlord approves a change requested by Tenant~~. Further~~, then, as a condition to the effectiveness of Landlord’s approval, Tenant shall ~~repay~~ pay to Landlord ~~for $1,337,600.00 ($19 psf)~~ upon demand by Landlord the increased cost attributable to such change, as reasonably determined by Landlord. To the extent any such change results in a delay of completion of construction of the ~~TI Allowance~~Tenant Improvements, ~~together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant~~ then such delay shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from constitute a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed delay caused by Tenant ~~at least 30 days prior to its expiration during the term of the Lease~~as described below. ~~The letter of credit shall provide that it may be drawn down upon by~~ In addition, Landlord ~~at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant~~ shall, at Landlord~~'s request, cooperate~~ ’s sole cost and expense (subject to inclusion in ~~having the letter of credit transferred~~ Operating Expenses to the ~~purchaser~~extent permitted in Paragraph 3(c)) make the improvements and/or deliver the Premises and the Building to Tenant in the condition described below in Subparagraphs (a) through (c). (a) Landlord shall deliver the Premises to Tenant with the existing base-Building HVAC systems and water source heat pumps, base building electrical and fire sprinkler serving and within the Premises (collectively, the “Operating Systems”) in good operating condition. If If, within the ~~letter~~ first six (6) months after delivery of ~~credit~~ the Premises to Tenant, it is ~~ever drawn upon~~ determined by Landlord ~~pursuant to the terms~~ that any of the ~~Lease~~ Operating Systems do not have a remaining useful life of at least the Initial Term, then, promptly after receipt of written notice from Tenant as to any malfunction of any component of the Operating Systems, as Landlord’s sole obligation, Landlord shall repair (or if it is determined that repair is not possible, then Landlord shall replace) the malfunctioning component of the Operating System; provided, however, Landlord shall have no liability hereunder for repairs or replacements necessitated by the acts or omissions of Tenant or any of its agents, contractors, employees, business invitees or licensees. (b) Landlord shall remodel the existing restrooms on the twelfth (12th) and ~~this Addendum~~thirteenth (13th) floors of the Building comprising the Premises to current Building standards, including the addition of fixtures such that each women’s restroom has three (3) toilets and each men’s restroom has two (2) toilets and two (2) urinals. (c) Landlord shall upgrade the cosmetic condition of the showers in the parking structure serving the Building, consistent with Building standards. Subject to Force Majeure Delays (as described in Section 5 below) and Tenant Delays (as described in Section 4 below), Landlord shall ~~within ten~~ substantially complete such shower upgrade no later than ninety (1090) days ~~thereafter cause~~ after the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit NoCommencement Date._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Office Lease (Encore Capital Group Inc)

Tenant Improvements. All Tenant ~~will furnish or perform those items~~ Improvements shall be performed by Tenant’s contractor, at Tenant’s sole cost and expense (subject to Landlord’s obligations with respect to any portion of ~~construction~~ the TI Allowance and ~~those improvements~~ in accordance with the Approved Plans (as defined below), the ~~"Tenant Improvements") specified or referenced in Exhibit 2 attached hereto~~Lease and this Work Letter. ~~Landlord shall pay for~~ To the extent that the total projected cost of the Tenant Improvements ~~up to a maximum amount of $1,760,000.00~~ (as reasonably agreed by Landlord and Tenant) exceeds the "TI ~~Allowance"~~Allowance (such excess, the “Excess TI Costs”), ~~and in no event~~ Tenant shall ~~Landlord have any obligation to~~ pay ~~for any~~ the costs of the Tenant Improvements on a pari passu basis with Landlord as such costs become due, in ~~excess~~ the proportion of ~~such amount~~Excess TI Costs payable by Tenant. If In the ~~cost~~ event that the Excess TI Costs are less than projected, Landlord shall reimburse Tenant from the TI Allowance within thirty (30) days after completion of the Tenant Improvements ~~exceeds such amount, any estimated overage in excess~~ for the amount of ~~such amount shall be paid~~ Excess TI Costs overpaid by Tenant. ~~Further~~If Tenant fails to pay, ~~Tenant~~ or is late in paying, any sum due to Landlord under this Work Letter, then Landlord shall ~~repay Landlord for $1,337,600.00 ($19 psf)~~ have all of the ~~TI Allowance, together with interest at 10.75% per annum,~~ rights and remedies set forth in ~~equal monthly installments over~~ the Lease ~~Term~~ for nonpayment of ~~$28,923.00~~ Rent (subject to applicable cure periods in the ~~"TI Amortization"~~Lease, and including the right to interest and the right to assess a late charge), and for purposes of any litigation instituted with regard to such amounts the same shall be considered Rent. All material and equipment furnished by Tenant or its contractors as the Tenant Improvements shall be new or “like new;” the Tenant Improvements shall be performed in a first-class, workmanlike manner; and the quality of the Tenant Improvements shall be of a nature and character not less than the Building Standard. Tenant shall ~~have~~ take, and shall its contractors to take, commercially reasonable steps to protect the ~~right~~ Premises during the performance of any Tenant Improvements, including covering or temporarily removing any window coverings so as to ~~select its own contractors subject~~ guard against dust, debris or damage. Subject to Landlord~~'s consent of such contractors~~’s approval, which shall not be unreasonably withheld~~. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16~~, ~~1996~~conditioned or delayed, ~~BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST~~ Tenant may install an exhaust duct vertically on the exterior of the east or north side of the Building to support Tenant’s first floor vivarium operation; provided that (a) such duct shall, in Landlord’s reasonable determination, match the façade of the Building, (b) Landlord and ~~INSYNC SYSTEMS~~Tenant shall reasonably agree on the path and location of the duct and (c) upon Landlord’s request, ~~INC. The Additional Security Deposit~~ Tenant shall ~~be in~~ remove such duct upon the ~~form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end~~ expiration or earlier termination of the Lease ~~term or~~at its sole cost and expense and repair any damage caused thereby. As part of the Tenant Improvements, Tenant may, subject to Applicable Laws and at its sole cost and expense, install a one thousand five hundred (1,500) liter liquid nitrogen tank (the “Liquid Nitrogen Tank”) in the location outlined on Exhibit D attached hereto and, if ~~it is for less than~~ necessary, Landlord may relocate the ~~full term of the Lease, shall be renewed by Tenant~~ bike rack located in that area to another location at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease Tenant’s sole cost and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit Noexpense._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Lease (BIND Therapeutics, Inc)

Tenant Improvements. All Tenant ~~will furnish or perform those items~~ Improvements shall be performed by Landlord’s contractor, at Tenant’s sole cost and expense (subject to Landlord’s obligations with respect to any portion of the Base TI Allowance and, if properly requested by Tenant pursuant to the terms of the Lease, the Additional TI Allowance) and in substantial accordance with the Approved Plans (as defined below), the Lease and this Work Letter. The construction ~~and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay~~ contract for the Tenant Improvements ~~up to~~ shall be open book, and at Landlord’s election, a design-build or guaranteed maximum ~~amount~~ price contract. To the extent that the total projected cost of ~~$1,760,000.00~~ the Tenant Improvements (as projected by Landlord) exceeds the "TI ~~Allowance"~~Allowance (such excess, the “Excess TI Costs”), ~~and in no event~~ Tenant shall ~~Landlord have any obligation to~~ pay ~~for any~~ the costs of the Tenant Improvements on a pari passu basis with Landlord as such costs become due, in ~~excess~~ the proportion of ~~such amount~~Excess TI Costs payable by Tenant to the Base TI Allowance (and, if properly requested by Tenant pursuant to the Lease, the Additional TI Allowance) payable by Landlord. If the cost of the Tenant Improvements ~~exceeds such amount~~(as projected by Landlord) increases over Landlord’s initial projection, then Landlord may notify Tenant and Tenant shall deposit any additional Excess TI Costs with Landlord in the same way that Tenant deposited the initial Excess TI Costs. If Tenant fails to pay, or is late in paying, any ~~estimated overage in excess of such amount~~ sum due to Landlord under this Work Letter, then Landlord shall ~~be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ have all of the ~~TI Allowance, together with interest at 10.75% per annum,~~ rights and remedies set forth in ~~equal monthly installments over~~ the Lease ~~Term~~ for nonpayment of ~~$28,923.00~~ Rent (~~the "TI Amortization"). Tenant shall have~~ including the right to ~~select its own contractors subject~~ interest and the right to ~~Landlord's consent~~ assess a late charge), and for purposes of any litigation instituted with regard to such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit amounts the same shall be in considered Rent. All material and equipment furnished by Landlord or its contractors as the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, Tenant Improvements shall be ~~renewed by~~ new or “like new,” and the Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit Improvements shall be ~~reduced annually on~~ performed in a ~~pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx~~first-class, ~~Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No~~workmanlike manner._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Lease (Omega Therapeutics, Inc.)

Tenant Improvements. Tenant ~~will furnish or perform those items~~ shall be responsible for the design and construction of ~~construction and those~~ all initial improvements to the Premises (the "“Tenant ~~Improvements"~~Improvement Work”) ~~specified or referenced~~ and shall use diligent efforts to cause the construction of the Tenant Improvement Work in ~~Exhibit 2 attached hereto~~a first class manner and in compliance with all Applicable Laws. Without limiting any other provision of this Lease, all of the provisions of this Article 9 and of Article 10 (Liens) shall apply to the Tenant Improvement Work. Landlord shall ~~pay for~~ provide to Tenant a Tenant Improvement Allowance in the ~~Tenant Improvements up to a maximum~~ amount of $~~1,760,000.00 (the "TI Allowance")~~11.40 per square foot of Rentable Area, ~~and~~ for a total Tenant Improvement Allowance of $500,000. Any costs in ~~no event shall Landlord have any obligation to pay for any costs~~ excess of the Tenant ~~Improvements in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount~~ Improvement Allowance shall be paid by Tenant. ~~Further~~The Tenant Improvement Allowance shall be used for the cost of developing and constructing the improvements to the Premises as set forth in the Site Plan dated May 14, ~~Tenant shall repay~~ 2004 and hereby approved by Landlord ~~for $1,337,600.00~~ (~~$19 psf~~including architects, design, inspection, construction and project management costs and related services and expenses, insurance and utilities) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which and shall not be ~~unreasonably withheld~~used for any items of personal property. ~~-4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16~~Landlord shall pay the Tenant Improvement Allowance to Tenant after the later of: (a) the date Tenant occupies the Premises and commences its business operations from the Premises, ~~1996~~and (b) the Rent Commencement Date; provided that Tenant has provided to Landlord (x) an itemized statement of Tenant Improvement Work expenses, ~~BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST~~ accompanied by reasonably detailed invoices and ~~INSYNC SYSTEMS~~other supporting information as is reasonably requested by Landlord, ~~INC. The Additional Security Deposit shall be~~ and (y) either (i) unconditional lien releases in the form ~~of an unconditional~~required under California Civil Code Section 3262 from all contractors, ~~irrevocable letter of credit from a bank reasonably acceptable to Landlord~~subcontractors and materialmen who shall have furnished materials or supplies or performed work or services in connection with the Tenant Improvement Work or (ii) evidence that Tenant has bonded over any liens that are in good faith disputed by Tenant. ~~The letter of credit shall either provide that it~~ In the event Tenant does not ~~expire until the end~~ expend all of the ~~Lease term or, if it is for less than the full term~~ Tenant Improvement Allowance in construction of the ~~Lease~~Tenant Improvement Work, Landlord shall ~~be renewed by~~ pay such excess amount to Tenant ~~at least 30 days prior to its expiration during~~ with the ~~term~~ payment of the ~~Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises,~~ expended Tenant ~~shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord~~ Improvement Allowance pursuant to the ~~terms of~~ foregoing sentence. Notwithstanding the ~~Lease and this Addendum~~foregoing, Landlord shall have no obligation to pay the Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior Improvement Allowance to the ~~expiry date against presentation by you of your~~ extent that (i) ~~sight drafts drawn on us in the form~~ an Event of ~~Annex 1 hereto, indicating~~ Default by Tenant exists under this ~~Letter of Credit number and~~ Lease; (ii) ~~request in the form of Annex 2 hereto (such sight draft and request, together referred to as~~ a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, lien has been filed with respect to the ~~following facsimile number_____________________________. You may present~~ Tenant Improvement Work that has not been released (subject to ~~us one or more Drawing Requests from time~~ Tenant’s right to ~~time prior to the expiry date~~ bond over any liens that are in ~~an aggregate amount~~ good faith disputed by Tenant); (iii) Tenant is not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of all applicable permits for the Tenant Improvement Work; or (iv) the insurance required under this ~~Letter~~ Lease is not in full force and effect; in each case until such Event of ~~Credit that such drafts~~ Default or failure to comply is cured, at which time payment will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:made.

Appears in 1 contract

Samples: Commercial Lease (Jazz Pharmaceuticals Inc)

Tenant Improvements. Prior to the Lease Commencement Date, Landlord shall make the improvements to the Premises described in the Plans and Specifications to be developed under the heading "Tenant ~~will furnish or perform those items of construction and those improvements~~ Improvements" (~~the~~ "Tenant Improvements") ~~specified~~ in the Work Letter attached as Schedule C, in accordance with the then-current Baltimore City building, health, fire, and other codes, rules and ordinances applicable to office buildings in downtown Baltimore City regardless of the applicability of such codes generally to real property owned by the State of Maryland or ~~referenced in Exhibit 2 attached hereto~~its agencies or instrumentalities. Landlord shall ~~pay for~~ bear the cost of the Tenant Improvements up in an amount not to exceed Eighty-five Thousand Dollars ($85,000.00). Any cost in Tenant Improvements in excess of $85,000 shall be the sole responsibility of Tenant. Landlord and Tenant have agreed that Landlord shall finance the Tenant Improvements ("Tenant Improvement Financing") in an amount not to exceed Eighty- five Thousand Dollars ($85,000.00) at an interest rate of seven percent (7%) per annum in accordance with the schedule for repayment attached hereto as Schedule D. The Tenant Improvement Financing shall be secured by a ~~maximum~~ letter of credit, in an amount equal to the unamortized portion of the Tenant Improvement Financing, which letter of credit shall be obtained by Tenant from a lender and on terms satisfactory to Landlord. The Tenant Improvement Financing shall be prepaid upon the occurrence of an Event of Default under this Lease or in the event this Lease is terminated and Landlord has not otherwise been paid the full outstanding amount of ~~$1,760,000.00 (~~the ~~"TI Allowance"),~~ Tenant Improvement Financing from insurance proceeds or taking awards. Landlord and ~~in no event shall Landlord have any obligation to pay for any~~ Tenant acknowledge the desirability of limiting the costs of the Tenant Improvements to $85,000 (the "Budget"), thereby limiting Tenant's exposure for excess costs. Landlord and Tenant shall use all reasonable efforts to cause the architect designing the Tenant Improvements to produce Plans and Specifications describing Tenant Improvements which can be constructed within the Budget. Landlord shall keep Tenant informed during the process of soliciting and reviewing bids from contractors for performing the Tenant Improvements. In the event the contractor submitting the best bid acceptable to both Landlord and Tenant estimates the total cost of constructing the Tenant Improvements in accordance with the Plans and Specifications to exceed the Budget, Landlord and Tenant shall cooperate in good faith to reduce the total cost to Budget through value engineering. Tenant covenants and agrees to promptly pay to Landlord upon receipt of invoice any excess of ~~such amount~~the cost of Tenant Improvements over the Budget. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is ~~for~~ less than the ~~full term of~~ Budget, the ~~Lease,~~ Tenant Improvement Financing shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit Noappropriately adjusted._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Full Service Office Lease (Physicians Quality Care Inc)

Tenant Improvements. ~~Tenant will furnish or perform those items of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto.~~ Landlord shall ~~pay for~~ endeavor to deliver the Initial Premises to Tenant ~~Improvements up to a maximum amount~~ on the Commencement Date with Initial Landlord’s Work substantially complete. As used herein, “Initial Landlord’s Work” shall mean the management of ~~$1,760,000.00 (~~the ~~"TI Allowance"), and in no event shall Landlord have any obligation to pay for any costs~~ construction of the Tenant Improvements plan in ~~excess~~ substantial compliance with Initial Premises identified in the attached Exhibit A. Upon notice from Tenant, Landlord shall endeavor to deliver the Expansion Premises with Expansion Landlord’s Work substantially complete within a mutually agreeable time period in substantial compliance to a floor plan to be provided by Tenant and approved by Landlord in its sole and absolute discretion. As used herein, “Expansion Landlord’s Work” shall mean the management of ~~such amount~~the construction of the Tenant Improvements plan in substantial compliance with the floor plan of the Expansion Premises. Landlord shall provide Tenant an allowance of __1 (“Expansion Allowance”) for the construction of Expansion Landlord’s Work by the contractor retained by Landlord and approved by Tenant for the construction of the Expansion Landlord’s Work. Substantial completion shall mean the completion of Initial Landlord’s Work or Expansion Landlord’s Work, subject only to punch list items which do not materially affect Tenant’s use of the Premises. With a corresponding adjustment in Base Rent described below, Landlord shall make available to Tenant an allowance (the “Tenant Improvement Allowance”) in the maximum amount of $ per rentable square foot of the Premises. If Tenant draws the full amount of the Tenant Improvement Allowance, Landlord shall provide an additional allowance of up to $ per rentable square foot of the Premises (“Additional Tenant Improvement Allowance”) for use by Tenant without a rent adjustment, The Expansion Allowance, Tenant Improvement Allowance, and the Additional Tenant Improvement Allowance may be used by Tenant only in connection with the design and construction of improvements to the Premises in accordance with designs and plans submitted by Tenant and approved by Landlord (the “Tenant Improvements”). The Tenant Improvements shall be designed and constructed by architects and contractors selected by Landlord and approved by Tenant. All disbursements of the Expansion Allowance, Tenant Improvement Allowance, and the Additional Tenant Improvement Allowance and the construction of the Tenant Improvements shall be in accordance with a work letter to be executed by Landlord and Tenant concurrently with the execution of the Lease. In addition to the other amounts payable by Tenant to Landlord under the Lease, Tenant shall pay to Landlord as administrative rent out of the Expansion Allowance, Tenant Improvement Allowance, and the Additional Tenant Improvement Allowance the amount of 5% of the total cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit NoImprovements._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Sublease (Atossa Genetics Inc)

Tenant Improvements. All Tenant Improvements shall be performed by Landlord’s contractor, at Tenant’s sole cost and expense; provided that Landlord will ~~furnish or perform those items~~ contribute an amount up to the TI Allowance toward the cost of ~~construction and those improvements (~~completing the "Tenant Improvements~~") specified or referenced in Exhibit 2 attached hereto~~. ~~Landlord shall pay for the~~ All Tenant Improvements ~~up to a maximum amount of $1,760,000.00~~ shall be constructed in substantial accordance with the Approved Plans (~~the "TI Allowance"~~as defined below), the Lease and ~~in no event shall Landlord have any obligation to pay for any costs~~ this Work Letter. To the extent that the total projected cost of the Tenant Improvements (as projected by Landlord) exceeds the TI Allowance (such excess, the “Excess TI Costs”), Tenant shall advance to Landlord any Excess TI Costs within ten (10) days after receipt of an invoice therefor, but in ~~excess~~ any case before Landlord commences the Tenant Improvements. If Landlord is delayed in performing the Tenant Improvements due to Tenant’s failure to timely pay the Excess TI Costs to Landlord, Landlord shall be entitled to a day-for-day extension to achieve Substantial Completion of the Tenant Improvements for the period of such ~~amount~~delay. If the actual Excess TI Costs are less than the Excess TI Costs paid by Tenant to Landlord, Landlord shall credit Tenant with the overage paid by Tenant against Tenant’s Rent obligations, beginning after Landlord has completed the final accounting for the Tenant Improvements. If the cost of the Tenant Improvements ~~exceeds such amount~~(as projected by Landlord) increases over Landlord’s initial projection, then Landlord may notify Tenant and Tenant shall deposit any additional Excess TI Costs with Landlord in the same way that Tenant deposited the initial Excess TI Costs. If Tenant fails to pay, or is late in paying, any ~~estimated overage in excess of such amount~~ sum due to Landlord under this Work Letter, then Landlord shall ~~be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ have all of the ~~TI Allowance, together with interest at 10.75% per annum,~~ rights and remedies set forth in ~~equal monthly installments over~~ the Lease ~~Term~~ for nonpayment of ~~$28,923.00~~ Rent (~~the "TI Amortization"). Tenant shall have~~ including the right to ~~select its own contractors subject~~ interest and the right to ~~Landlord's consent~~ assess a late charge), and for purposes of any litigation instituted with regard to such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit amounts the same shall be in considered Rent. All material and equipment furnished by Landlord or its contractors as the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, Tenant Improvements shall be ~~renewed by~~ new or “like new,” and the Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit Improvements shall be ~~reduced annually on~~ performed in a ~~pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx~~first-class, ~~Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No~~workmanlike manner._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Lease Agreement (Carbylan Therapeutics, Inc.)

Tenant Improvements. Tenant ~~will furnish or perform those items of~~ agrees that it currently occupies, and shall continue to occupy, the Revised Complete Premises in its "as is" condition without any further improvements thereto except as otherwise provided herein. Landlord shall, subject to the terms herein, supervise the construction and ~~those~~ installation of the initial improvements in the 2006 Expansion Space (the 2006 Improvements") in accordance with Tenants plans and specifications for the design, construction, and installation of the 2006 Improvements (the "~~Tenant Improvements~~Plans"~~) specified or referenced in Exhibit 2 attached hereto~~), as such plans have been reviewed and approved by Landlord and Tenant, such approval not to be unreasonably withheld. Landlord shall ~~pay for~~ substantially complete the ~~Tenant~~ 2006 Improvements in accordance with said Plans and in a good and workmanlike manner, such substantial completion to be certified by Landlords engineer. Landlord shall contribute up to a maximum ~~amount~~ of $1,760,000.00 (the "TI Allowance"), and in no event shall Landlord have any obligation to pay for any costs of the Tenant Improvements in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand Seventeen and No/100 Dollars ($~~635,000~~17.00) per rentable square foot of the 2006 Expansion Space (the 2006 Expansion Allowance toward only the following costs: (i) any cost of installing the 2006 Improvements on an "as ~~reduced from time to time~~ completed" basis which is performed in accordance with the ~~terms hereof~~Plans and related to the work to be done for the purpose of preparing the 2006 Expansion Space for Tenants occupancy and use, (ii) the ~~"Letter~~ cost of ~~Credit Amount")~~preparing the Plans, ~~effective immediately~~(iii) design costs for architectural, mechanical, plumbing and electrical design, (iv) construction documents and permits, and ~~expiring on~~ (v) a construction management fee equal to four percent (4%) of the ~~close~~ total cost of ~~business at our office at~~ constructing the ~~address set forth above one year from~~ 2006 Improvements to be paid to Landlord; provided, however, in no event shall the ~~date hereof unless renewed as hereinafter provided~~2006 Expansion Allowance be used for any costs associated with Tenant's personal property, equipment, trade fixtures or other items of a non-permanent nature installed in the 2006 Expansion Space, including without limitation, telephone and data cable lines. ~~Funds under this Letter of Credit are available to you on or~~ In the event that either prior to the ~~expiry date against presentation by you~~ commencement of ~~your (i) sight drafts drawn on us~~ the installation of the 2006 Inprovements or at any time during or following the installation of the 2006 Improvements, the cost of the 2006 Improvements exceeds the 2006 Expansion Allowance or Tenant requests any change to the aforementioned Plans which has resulted or might result in an increase in the ~~form~~ cost of ~~Annex 1 hereto~~the installation of such 2006 Improvements so that the cost exceeds the 2006 Expansion Allowance, ~~indicating this Letter~~ then Tenant shall be exclusively responsible for the payment of ~~Credit number~~ such amount and shall promptly deliver the necessary funds to defray such excess cost to Landlord no later than fifteen (ii15) ~~request~~ days after Landlord demands same. Notwithstanding the foregoing, any change order(s) requested by Tenant which will result in an increase in the ~~form~~ cost of ~~Annex 2 hereto~~ the construction and installation of the 2006 Improvements shall be agreed to in advance by Landlord and Tenant, and Tenant shall be obligated to pay Landlord an additional construction management fee relative to such change order(s) equal to four percent (~~such sight draft~~ 4%) of any increase in the cost of the construction and ~~request, together referred~~ installation of the Tenant Improvements. Any savings or unused portion of the 2006 Expansion Allowance after the 2006 Improvements are completed shall be made available to ~~as a "Drawing Request"), sight draft(s), completed and signed by one of your officers~~Tenant for additional permanent improvements to the Revised Complete Premises. ~~Presentation of your Drawing Requests~~ Tenant acknowledges that Landlord may be ~~made by you to us at~~ supervising the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds construction of the ~~Applicant~~ 2006 Improvements while Tenant occupies the 2006 Revised Premises and Landlord agrees that it shall ~~be available~~ use reasonable efforts to minimize any interference with Tenants business operations within the 2006 Revised Premises while constructing such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:improvements.

Appears in 1 contract

Samples: Lease (Cross Country Healthcare Inc)

Tenant Improvements. All Tenant ~~will furnish or perform those items~~ Improvements shall be performed by Tenant’s contractor, at Tenant’s sole cost and expense (subject to Landlord’s obligations with respect to any portion of ~~construction~~ the TI Allowance) and ~~those improvements~~ in accordance with the Approved Plans (as defined below), the ~~"Tenant Improvements") specified or referenced in Exhibit 2 attached hereto~~Lease and this Work Letter. ~~Landlord shall pay for~~ To the extent that the total projected cost of the Tenant Improvements ~~up to a maximum amount of $1,760,000.00~~ (as projected by Landlord) exceeds the "TI ~~Allowance"~~Allowance (such excess, the “Excess TI Costs”), ~~and in no event~~ Tenant shall ~~Landlord have any obligation to~~ pay ~~for any~~ the costs of the Tenant Improvements on a pari passu basis with Landlord as such costs become due, in ~~excess~~ the proportion of ~~such amount~~Excess TI Costs payable by Tenant to the TI Allowance payable by Landlord. If the cost of the Tenant Improvements ~~exceeds such amount~~(as projected by Landlord) increases over Landlord’s initial projection, ~~any estimated overage in excess~~ then Landlord may notify Tenant and Tenant’s pari passu share of ~~such amount~~ the costs of the Tenant Improvements shall be increase accordingly. If the actual Excess TI Costs are less than the Excess TI Costs paid by Tenant~~. Further~~, Landlord shall credit Tenant with the overage paid by Tenant against Tenant’s Rent obligations (any such credit, the “Excess TI Costs Overage Credit”), beginning after Landlord has completed the final accounting for the Tenant Improvements; provided, however, that in no event shall ~~repay Landlord for~~ such credit exceed an amount equal to the difference between (a) the amount of the available TI Allowance (i.e., $~~1,337,600.00~~ 600,000) and (~~$19 psf~~b) the amount of the TI ~~Allowance~~Allowance actually paid by Landlord in connection with the Tenant Improvements. If Tenant fails to pay, ~~together with interest at 10.75% per annum~~or is late in paying, any sum due under this Work Letter, then Landlord shall have all of the rights and remedies set forth in ~~equal monthly installments over~~ the Lease ~~Term~~ for nonpayment of ~~$28,923.00~~ Rent (including the ~~"TI Amortization"~~right to interest and the right to assess a late charge), and for purposes of any litigation instituted with regard to such amounts the same shall be considered Rent. All material and equipment furnished by Tenant or its contractors as the Tenant Improvements shall be new or “like new;” the Tenant Improvements shall be performed in a first-class, workmanlike manner; and the quality of the Tenant Improvements shall be of a nature and character not less than the Building Standard. Tenant shall ~~have~~ take, and shall require its contractors to take, commercially reasonable steps to protect the ~~right~~ Premises during the performance of any Tenant Improvements, including covering or temporarily removing any window coverings so as to ~~select its own contractors subject to Landlord's consent of such contractors~~guard against dust, ~~which shall not be unreasonably withheld~~debris or damage. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit All Tenant Improvements shall be performed in accordance with Article 18 of the Lease; provided that, notwithstanding anything in the ~~form~~ Lease or this Work Letter to the contrary, in the event of ~~an unconditional, irrevocable letter of credit from~~ a ~~bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term~~ conflict between this Work Letter and Article 18 of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Work Letter ~~of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and~~ shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:govern.

Appears in 1 contract

Samples: Lease (Ardelyx, Inc.)

Tenant Improvements. All Tenant ~~will furnish or perform those items~~ Improvements shall be performed by Tenant’s contractor, at Tenant’s sole cost and expense (subject to Landlord’s obligations with respect to any portion of ~~construction~~ the TI Allowance) and ~~those improvements~~ in accordance with the Approved Plans (as defined below), the "Lease and this Work Letter. To the extent that the total projected cost of the Tenant Improvements (as reasonably projected by Landlord) exceeds the TI Allowance (such excess, the “Excess TI Costs”), Tenant shall advance to Landlord any Excess TI Costs within ten (10) days after receipt of an invoice therefor, but in any case before Tenant commences the Tenant Improvements~~") specified or referenced in Exhibit 2 attached hereto~~. If the actual Excess TI Costs are less than the Excess TI Costs paid by Tenant to Landlord, Landlord shall ~~pay~~ credit Tenant with the overage paid by Tenant against Tenant’s Rent obligations, beginning after Landlord has completed the final accounting for the Tenant Improvements ~~up to a maximum amount of $1,760,000.00~~ (which final accounting shall be completed within thirty (30) days following the ~~"TI Allowance"), and in no event shall Landlord have any obligation to pay for any costs~~ completion of the Tenant ~~Improvements in excess of such amount~~Improvements). If the cost of the Tenant Improvements ~~exceeds such amount~~(as reasonably projected by Landlord) increases over Landlord’s initial projection, then Landlord may notify Tenant and Tenant shall deposit any additional Excess TI Costs with Landlord in the same way that Tenant deposited the initial Excess TI Costs. If Tenant fails to pay, or is late in paying, any ~~estimated overage~~ sum due to Landlord under this Work Letter (and Tenant fails to cure such non-payment within three (3) business days after notice from Landlord), then Landlord shall have all of the rights and remedies set forth in ~~excess~~ the Lease for nonpayment of Rent (including the right to interest and the right to assess a late charge), and for purposes of any litigation instituted with regard to such ~~amount~~ amounts the same shall be ~~paid~~ considered Rent. All material and equipment furnished by ~~Tenant. Further~~Tenant or its contractors as the Tenant Improvements shall be new or “like new;” the Tenant Improvements shall be performed in a first-class, ~~Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ workmanlike manner; and the quality of the ~~TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over~~ Tenant Improvements shall be of a nature and character not less than the ~~Lease Term of $28,923.00 (the "TI Amortization")~~Building Standard. Tenant shall ~~have~~ take, and shall require its contractors to take, commercially reasonable steps to protect the ~~right~~ Premises during the performance of any Tenant Improvements, including covering or temporarily removing any window coverings so as to ~~select its own contractors subject to Landlord's consent of such contractors~~guard against dust, ~~which shall not be unreasonably withheld~~debris or damage. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit All Tenant Improvements shall be performed in accordance with Article 17 of the Lease; provided that, notwithstanding anything in the ~~form~~ Lease or this Work Letter to the contrary, in the event of ~~an unconditional, irrevocable letter of credit from~~ a ~~bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term~~ conflict between this Work Letter and Article 17 of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Work Letter ~~of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and~~ shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:govern.

Appears in 1 contract

Samples: Lease (Protagonist Therapeutics, Inc)

Tenant Improvements. Landlord has granted to Tenant ~~will furnish or perform those items~~ an allowance of ~~construction~~ up to Sixteen and ~~those improvements~~ No/100 Dollars ($16.00) per rentable square foot for Suite 1300, for a total allowance of up to Seventy-Six Thousand Seven Hundred Fifty-Two and No/100 Dollars ($76,752.00) (the "Tenant ~~Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI~~ Improvement Allowance"), ~~and~~ for completion of slab-to-slab Tenant Improvements in no accordance with the Space Plan. Except as provided herein, the Tenant Improvement Allowance is for Tenant Improvements in the Premises. In the event the Tenant Improvement Allowance is not used on or before December 31, 2000, Landlord shall ~~Landlord have any obligation to pay for any costs~~ retain such unused portion of the Tenant ~~Improvements in excess of such amount~~Improvement Allowance, and Tenant shall have no further rights thereto or hereunder. If In the event that the cost of the Tenant Improvements exceeds ~~such amount~~the Tenant Improvement Allowance, ~~any estimated overage in excess of such amount shall be paid by~~ Landlord shall, at Tenant~~. Further~~'s written option, provide Tenant ~~shall repay Landlord for $1,337,600.00 ($19 psf)~~ with an additional allowance, above the Tenant Improvement Allowance, to apply towards payment of the ~~TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over~~ excess costs of the ~~Lease Term of $28,923.00~~ Tenant Improvements (the "~~TI Amortization~~Excess Allowance"). , and Tenant shall ~~have~~ deposit with Landlord funds sufficient to cover any additional projected excess costs and promptly pay to Landlord any costs in excess thereof. Notwithstanding the ~~right to select its own contractors subject to Landlord's consent of such contractors~~above, ~~which~~ the Excess Allowance shall not ~~be unreasonably withheld~~exceed Five Dollars ($5.00) per rentable square foot for Suite 1300. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in Any portion of the ~~form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit~~ Excess Allowance paid by Landlord shall either ~~provide that it does not expire until~~ be (i) amortized on a straight-line basis over the ~~end of the Lease term or, if it is for less than the full~~ remaining rent paying term of the Lease, ~~shall be renewed~~ with interest at the rate of Twelve Percent (12%) per annum, payable by Tenant ~~at least 30 days prior~~ to ~~its expiration during~~ Landlord as additional rent, or (ii) paid for directly by the ~~term of the Lease~~Tenant. ~~The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises~~Upon completion, Tenant ~~shall~~agrees to execute the Lease Commencement Date Statement attached hereto as Appendix B. Landlord shall have the work depicted in the Tenant Space Plan attached hereto as Appendix A (the "Tenant Work") constructed with, ~~at Landlord's request~~unless otherwise specified, ~~cooperate~~ building standard materials and in ~~having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord~~ a good and workmanlike manner pursuant to the ~~terms~~ schedule provided for herein, subject, however, to extensions equal to the delays suffered by Landlord and caused by Tenant or by strike, lockouts, fire or other casualty loss, acts of ~~the Lease and this Addendum~~God, ~~Tenant shall within ten (10) days thereafter cause the letter~~ unavailability of ~~credit to be restored to its original amount~~materials, hostile or war-like action, riot or other causes beyond Landlord's reasonable control. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6)Work, as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced modified from time to time ~~in accordance with~~ pursuant to the ~~terms hereof~~provisions of this Workletter, shall be known as the "~~Letter~~ Tenant Improvements". The cost of ~~Credit Amount"), effective immediately,~~ preparing the Space Plan and ~~expiring on~~ any other architectural or engineering fees shall be paid for out of the ~~close~~ Tenant Improvement Allowance as part of ~~business at our office at~~ the ~~address set forth above one year~~ costs of the Tenant Improvements. Landlord agrees to pay Tenant's contractor directly by paying Fifty Percent (50%) of the invoices presented and the remaining Fifty Percent (50%) after Landlord receives acceptable lien waivers from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number contractor and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:subcontractors.

Appears in 1 contract

Samples: Lease (Matrix Bancorp Inc)

Tenant Improvements. Landlord is providing the Premises (including the Expansion Space) to Tenant ~~will furnish~~ in its current “AS IS” condition, without representation or ~~perform those items~~ warranty of ~~construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto~~any kind. Landlord shall ~~pay for~~ have no obligation to make any modifications or alterations to the Premises (including the Expansion Space) except as expressly provided herein, the Lease, and including paragraph 8 (Roof Replacement) below. Landlord acknowledges that Tenant ~~Improvements up~~ intends to ~~a maximum amount of $1,760,000.00~~ construct certain improvements in the Expansion Space (the ~~"TI Allowance"~~“Tenant Improvements”)~~, and in no event shall Landlord have any obligation to pay for any~~ . The costs of the Tenant Improvements shall be paid by Tenant; provided, however, that Landlord shall make available to Tenant an allowance of up to Two Hundred Thousand Dollars and no/100 Dollars ($200,000.00) (the “Allowance”). After the Expansion Date, upon receipt of paid receipt invoices, lien waivers, and any other information or documentation reasonably requested by Landlord, Landlord shall reimburse Tenant from the Allowance for Tenant’s actual costs relating to the construction of the Tenant Improvements. The Allowance may not be used to offset Rent, or to reimburse Tenant for any costs or expenses not directly related to the construction of the Tenant Improvements. The Tenant Improvements shall be constructed (i) in ~~excess of such amount~~accordance with the plans and specifications that have been approved by Landlord in writing (which approval shall not be unreasonably withheld, conditioned or delayed), (ii) in a good and workmanlike manner using only new and first-grade materials, (iii) in compliance with all other applicable provisions in the Lease, and (iv) in compliance with all applicable governmental laws, ordinances, rules and regulations. If the cost of the Tenant Improvements exceeds ~~such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further~~the Allowance, Tenant shall ~~repay Landlord~~ have sole responsibility for ~~$1,337,600.00 ($19 psf)~~ the payment of such excess cost. If the cost of the TI Tenant’s Improvements is less than the Allowance, ~~together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization").~~ Tenant ~~shall have the right to select its own contractors subject to Landlord's consent of such contractors, which~~ shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior entitled to any ~~anniversary of~~ payment or credit for such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New Yorkexcess amount. To the extent any portion of the Allowance has not ~~inconsistent with~~ been advanced to Tenant by March 1, 2009, the ~~express terms hereof, this Letter~~ remaining portion of ~~Credit~~ the Allowance as of said date shall be ~~governed by~~forfeited to Landlord, and ~~construed in accordance with,~~ Tenant shall be solely responsible for the ~~terms~~ costs of any Tenant Improvements on and after said date. Tenant’s taking possession of the ~~Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit~~ Expansion Space shall be ~~governed by~~ conclusive evidence as against Tenant that the Expansion Space and ~~construed~~ Premises were in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:satisfactory condition when Tenant took possession.

Appears in 1 contract

Samples: Lease (Vascular Solutions Inc)

Tenant Improvements. a. Tenant ~~will furnish or perform those items of construction~~ shall cause to be constructed the tenant improvements in the Premises and ~~those improvements~~ Additional Premises (the "“Tenant Improvements"”) ~~specified~~ pursuant to the Work Letter at a cost to Landlord (the “TI Allowance”) not to exceed Sixty-Six Thousand Eight Hundred Eighty-Five Dollars ($66,885) (based upon Five Dollars ($5) per rentable square foot of the Premises and Additional Premises), which amount shall include the costs of (a) construction, (b) project review by Landlord (which fee shall equal two percent (2%) of the TI Allowance), (c) space planning, architect, engineering and other related services and (d) building permits and other taxes, fees, charges and levies by Governmental Authorities for permits or ~~referenced in Exhibit 2 attached hereto. Landlord shall pay~~ for inspections of the Tenant ~~Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"), and in~~ Improvements. In no event shall ~~Landlord have~~ the TI Allowance be used for (w) the purchase of any ~~obligation to pay for~~ furniture, personal property or other non-building system equipment, (x) the cost of work that is not authorized by the approved plans or otherwise approved in writing by Landlord, (y) costs resulting from any default by Tenant of its obligations under the Lease or (z) costs ~~of the~~ that are recoverable or reasonably recoverable by Tenant ~~Improvements in excess of such amount~~from a third party (e.g., insurers, warrantors, or tortfeasors). If the total cost of the Tenant Improvements exceeds ~~such amount~~the TI Allowance, ~~any estimated~~ then the overage ~~in excess of such amount~~ shall be paid by ~~Tenant~~Tenant to Landlord prior to the Term Commencement Date. ~~Further,~~ Tenant shall ~~repay Landlord for $1,337,600.00~~ have until eight (~~$19 psf)~~ 8) months after the Execution Date to expend the unused portion of the TI Allowance, ~~together with interest at 10.75% per annum~~after which date Landlord’s obligation to fund such costs shall expire. To the extent that the total projected cost of the Tenant Improvements (as projected by Landlord) exceeds the TI Allowance (such excess, ~~in equal monthly installments over~~ the ~~Lease Term~~ “Excess TI Costs”), Tenant shall pay for Tenant Improvements to the extent of ~~$28,923.00 (~~such Excess TI Costs before Landlord shall have any obligation to advance any sums on account of the "TI ~~Amortization")~~Allowance. Tenant shall ~~have~~ deliver to Landlord (i) a certificate of occupancy for the ~~right to select its own contractors subject to Landlord's consent~~ Additional Premises suitable for the Permitted Uses and (ii) a Certificate of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be Substantial Completion in the form of ~~an unconditional~~the American Institute of Architects document G704, ~~irrevocable letter~~ executed by the project architect and the general contractor. Possession of ~~credit from a bank reasonably acceptable~~ areas of the Premises necessary for utilities, services, safety and operation of the Building is reserved to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Agreement of Lease (Usa Technologies Inc)

Tenant Improvements. All Tenant ~~will furnish or perform those items~~ Improvements shall be performed by Tenant’s contractor, at Tenant’s sole cost and expense (subject to Landlord’s obligations with respect to any portion of ~~construction~~ the TI Allowance and ~~those improvements~~ in accordance with the Approved Plans (as defined below), the ~~"Tenant Improvements") specified or referenced in Exhibit 2 attached hereto~~Lease and this Work Letter. ~~Landlord shall pay for~~ To the extent that the total projected cost of the Tenant Improvements ~~up to a maximum amount of $1,760,000.00~~ (as projected by Landlord) exceeds the "TI ~~Allowance"~~Allowance (such excess, the “Excess TI Costs”), ~~and in no event~~ Tenant shall ~~Landlord have any obligation to~~ pay ~~for any~~ the costs of the Tenant Improvements on a pari passu basis with Landlord as such costs become due, in ~~excess~~ the proportion of ~~such amount~~Excess TI Costs payable by Tenant to the TI Allowance payable by Landlord. If the cost of the Tenant Improvements ~~exceeds such amount~~(as projected by Landlord) increases over Landlord’s initial projection, then Landlord may notify Tenant and Tenant shall pay any additional Excess TI Costs with Landlord in the same way that Tenant deposited the initial Excess TI Costs. If Tenant fails to pay, or is late in paying, any ~~estimated overage~~ sum due to Landlord under this Work Letter, then Landlord shall have all of the rights and remedies set forth in ~~excess~~ the Lease for nonpayment of Rent (including the right to interest and the right to assess a late charge), and for purposes of any litigation instituted with regard to such ~~amount~~ amounts the same shall be ~~paid~~ considered Rent. All material and equipment furnished by ~~Tenant. Further~~Tenant or its contractors as the Tenant Improvements shall be new or “like new;” the Tenant Improvements shall be performed in a first-class, ~~Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ workmanlike manner; and the quality of the ~~TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over~~ Tenant Improvements shall be of a nature and character not less than the ~~Lease Term of $28,923.00 (the "TI Amortization")~~Building Standard. Tenant shall ~~have~~ take, and shall require its contractors to take, commercially reasonable steps to protect the ~~right~~ Premises during the performance of any Tenant Improvements, including covering or temporarily removing any window coverings so as to ~~select its own contractors subject to Landlord's consent of such contractors~~guard against dust, ~~which shall not be unreasonably withheld~~debris or damage. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit All Tenant Improvements shall be performed in accordance with Article 17 of the Lease; provided that, notwithstanding anything in the ~~form~~ Lease or this Work Letter to the contrary, in the event of ~~an unconditional, irrevocable letter of credit from~~ a ~~bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term~~ conflict between this Work Letter and Article 17 of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Work Letter ~~of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and~~ shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:govern.

Appears in 1 contract

Samples: Lease (Epizyme, Inc.)

Tenant Improvements. ~~Tenant will furnish or perform those items~~ Advances of ~~construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall~~ Loan proceeds to pay for Tenant Improvements (“Tenant Improvement Advances”), shall be made to Borrower upon the following terms and conditions: (1) Borrower shall have submitted to Administrative Agent (i) the Approved Lease for which the Tenant Improvements up are to ~~a maximum amount of $1,760,000.00 (the "TI Allowance")~~be constructed, and ~~in no event shall Landlord have any obligation to pay for any costs~~ (ii) a schedule of the Tenant Improvements setting forth in ~~excess~~ detail satisfactory to Administrative Agent (A) each item of Tenant Improvements which Borrower intends to undertake, (B) the estimated cost of each such ~~amount~~item, and (C) the time schedule for completing the Tenant Improvements. If In no event shall Borrower be entitled to Tenant Improvements Advances for amounts attributable to ordinary and customary operating costs and expenses. (2) In addition to satisfaction of the ~~cost~~ conditions set forth elsewhere in this Exhibit ”F”, Administrative Agent’s obligation to make any Tenant Improvements Advance shall be subject to the satisfaction of the following conditions precedent at the time of each such Tenant Improvements Advance: (A) Borrower may request a Tenant Improvement Advance for any portion of the Tenant Improvements ~~exceeds~~ which has been performed to the satisfaction of Administrative Agent prior to the date a Tenant Improvements Advance is requested, and such ~~amount, any estimated overage in excess of such amount shall be paid by Tenant. Further,~~ Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit Improvements shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) ~~sight drafts drawn on us in~~ the ~~form of Annex 1 hereto~~plans approved by Administrative Agent and the tenant under the applicable Approved Lease, ~~indicating this Letter of Credit number~~ and (ii) all applicable Laws. (B) Administrative Agent shall have verified to its satisfaction the cost of such Tenant Improvements. (C) Administrative Agent, at Administrative Agent’s election and at Borrower’s sole cost and expense, shall have inspected and approved such Tenant Improvements. (D) Borrower shall not use any Tenant Improvements Advance, or any portion of any Tenant Improvements Advance, for payment of any other cost or expense except as specifically set forth in a request for a Tenant Improvements Advance approved by Administrative Agent in writing. Administrative Agent shall have no duty or obligation to fund Tenant Improvements Advances except in accordance with this Agreement and only for expenses incurred in arrears. (E) Requests for Tenant Improvements Advances shall specify the ~~form of Annex 2 hereto (such sight draft~~ amount requested and ~~request~~shall be accompanied by appropriate invoices, ~~together referred to as a "Drawing Request")~~bills paid affidavits, ~~sight draft(s)~~lien waivers, ~~completed~~ title endorsements and ~~signed~~ other documents reasonably required by ~~one of your officers~~Administrative Agent. ~~Presentation of your Drawing Requests~~ Tenant Improvements Advances may be made for payment of costs and expenses incurred and invoiced but not yet paid by ~~you~~ Borrower. (F) If require by Administrative Agent, the tenant under the Approved Lease with respect to ~~us at~~ which the ~~address set forth above or may be made~~ final Tenant Improvements Advance is sought shall have executed and delivered to Administrative Agent a tenant estoppel certificate in form satisfactory to and approved by ~~facsimile transmission~~Administrative Agent. (G) With respect to Approved Leases which provide for the payment by landlord of an “Allowance” for Tenant Improvements upon completion of the Tenant Improvements by tenant, upon delivery to Administrative Agent that all of the requirements in the applicable Lease have been satisfied to entitle tenant to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds payment of the ~~Applicant~~ Allowance together with bills paid affidavits, lien waivers, title endorsements and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received other documents reasonably required by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:Administrative Agent.

Appears in 1 contract

Samples: Loan Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)

Tenant Improvements. Landlord agrees to effect a program of Alterations for the renovation of the Premises as soon after the Commencement Date as the mutual best efforts of Landlord and Tenant ~~will furnish or perform those items~~ shall allow. All such Alterations effected as part of ~~construction and those improvements (~~the renovation program being hereinafter referred to as the "Tenant Improvements~~") specified or referenced~~ ." The renovation program shall be accomplished in accordance with the provisions of Section 11 of this Lease and the provisions of a work letter agreement to be agreed upon by Landlord and Tenant no later than June 1, 1998, to be marked Exhibit ~~2 attached hereto. Landlord shall pay for the Tenant Improvements up to a maximum amount of $1,760,000.00~~ C (~~the "TI Allowance"~~Work Letter), and to be attached hereto and incorporated herein, in ~~no event~~ form and substance similar to Exhibit B (Work Letter) which is attached hereto and incorporated herein, subject to the following provisions: (a) Tenant shall ~~Landlord have any obligation to pay for any costs of the Tenant Improvements in excess of such amount. If~~ bear the cost of the Tenant Improvements ~~exceeds~~ and the cost of architectural and engineering consultants in connection therewith, provided however that Landlord shall contribute an amount not to exceed Five Dollars ($5.00) per square foot of Building (specifically not including Warehouse) space (the "Unrestricted Tenant Improvement Allowance") to be applied to the construction of new tenant improvements together with the cost of architectural and engineering consultants in connection therewith. (b) In addition to the Unrestricted Tenant Improvement Allowance, Landlord agrees to contribute an amount not to exceed Two Dollars ($2.00) per square foot of Building (specifically not including Warehouse) space (the "Restricted Tenant Improvement Allowance") for the removal and demolition of existing tenant improvements located in the Premises on the Commencement Date and the upgrading of the Premises to comply with Legal Requirements (as defined in Section 6 hereof) in effect as of the date of this Lease, including but not limited to compliance with the ADA, Title 24 of the California Code of Regulations, and the Uniform Building Code (collectively the "Upgrading Requirements"). By way of example and not by way of limitation, the Restricted Tenant Improvement Allowance would be available to pay for the installation of smoke detectors, door handles, door locks, signage, handicapped accessibility, lighting and lighting controls if and to the extent such ~~amount~~items are required by Legal Requirements in place as of the date of this Lease. Notwithstanding the foregoing, ~~any estimated overage~~ the Restricted Tenant Improvement Allowance shall not be used for compliance with Legal Requirements in ~~excess~~ the construction of ~~such amount shall~~ new tenant improvements but only in causing the compliance with Legal Requirements of the existing improvements, it being the intention of the parties hereto that the cost of compliance with Legal Requirements in the construction of new tenant improvements be paid ~~by Tenant. Further~~out of the Unrestricted Tenant Improvement Allowance. (c) If and to the extent that either (i) the cost of the new tenant improvements to be constructed in the Premises (inclusive of the cost of architectural and engineering consultants in connection therewith) exceeds the Unrestricted Tenant Improvement Allowance or (ii) the cost of improvements to be constructed in the Premises pursuant to the provisions of Section 43(b) exceed the aggregate of the Restricted Tenant Improvement Allowance, Tenant shall ~~repay~~ reimburse Landlord for ~~$1,337,600.00~~ such excess within fifteen (~~$19 psf~~15) days following receipt by Tenant of invoices for such excess. (d) Landlord represents and warrants that as of the ~~TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over~~ date of completion of the ~~Lease Term of $28,923.00~~ Tenant Improvements (i) the ~~"TI Amortization").~~ Premises and the Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit Improvements shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all ~~lease terms during the three years; 2. An increase in gross sales~~ applicable Legal Requirements and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be ~~reduced annually on~~ built in a ~~pro rata basis in accordance~~ good and workmanlike manner with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time good materials in accordance with the ~~terms hereof~~plans therefore, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) ~~request in~~ the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you equipment and the ~~Applicant~~ building systems serving the Premises are in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modifiedgood working order, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:and

Appears in 1 contract

Samples: Industrial Lease (Sandisk Corp)

Tenant Improvements. a. Tenant ~~will furnish or perform those items~~ hereby agrees to accept the Premises in its “as-is” condition existing on the Commencement Date, subject to Landlord’s completion of ~~construction and those~~ “Improvements” defined in subsection (b) below. b. Landlord shall construct improvements (~~the~~ "~~Tenant~~ Improvements") ~~specified or referenced in Exhibit 2 attached hereto. Landlord shall pay~~ for the ~~Tenant Improvements up to a maximum amount of $1,760,000.00 (~~Premises in accordance with the "TI Allowance"), and in no event shall Landlord have any obligation to pay for any costs of the Tenant Improvements in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Work Letter ~~of Credit, Sight Draft, Drawing Request and Notice of Assignment are~~ Agreement attached hereto as ~~Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria:~~ Schedule 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6)In connection thereto, ~~as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter~~ Landlord hereby grants to Tenant an “Improvement Allowance” of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to ~~but not exceeding the aggregate sum of Six~~ One Hundred ~~Thirty-Five~~ Thousand and No/100 Dollars ($~~635,000~~100,000.00) which Improvement Allowance shall be used only for the items specified in the Cost Breakdown, as that term is defined in the Work Letter Agreement, and for telephone and data cabling and wiring in the Premises. In the event the total cost of construction of the Improvements exceeds the Improvement Allowance, Tenant shall pay to Landlord the sum in excess of the Improvement Allowance by cashier's check, which payment shall be made within five (5) days of Landlord's notice to Tenant that Landlord is prepared to commence construction. In the event the actual cost of the Improvements is less than the Improvement Allowance, the unused portion of the Improvement Allowance shall not be paid or refunded to Tenant or be available to Tenant as ~~reduced from time~~ a credit against any obligations of Tenant under the Lease. c. To the extent the Improvements are not substantially completed by the Commencement Date, Landlord shall permit Tenant to ~~time~~ move into the Premises as of the Commencement Date provided Tenant agrees to pay any additional costs incurred by Landlord to complete the Improvements after the Commencement Date due to Tenant’s occupancy of the Premises during such construction. Tenant hereby acknowledges that the Improvements may be constructed in accordance with this Paragraph while Tenant is in occupancy of the ~~terms hereof, the "Letter of Credit Amount"), effective immediately~~Premises, and ~~expiring on the close~~ Landlord's actions in connection with such Improvements shall in no way constitute a constructive eviction of Tenant or entitle Tenant to any abatement of rent. Unless directly caused by Landlord’s or Landlord’s agents gross negligence or willful misconduct, Landlord shall have no responsibility or for any reason be liable to Tenant for any direct or indirect injury to or interference with Tenant's business ~~at our office at the address set forth above one year~~ arising from the ~~date hereof unless renewed as hereinafter provided. Funds under this Letter~~ construction of ~~Credit are available to you on or prior to~~ the ~~expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto~~Improvements, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may nor shall Tenant be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior entitled to any ~~anniversary of~~ compensation or damages from Landlord for any inconvenience or annoyance occasioned by such ~~date~~construction or Landlord's actions in connection with such construction. Notwithstanding the foregoing, ~~we notify both you~~ Landlord shall use commercially reasonable efforts to minimize unreasonable interference with Tenant’s use and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds occupancy of the ~~Applicant and shall be available to~~ Premises during any such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:construction.

Appears in 1 contract

Samples: Lease Agreement (Rexahn Pharmaceuticals, Inc.)

Tenant Improvements. ~~Tenant will furnish or perform those items of construction~~ Lessor shall provide the base building improvements and ~~those improvements~~ a tenant improvement allowance (the "Tenant ~~Improvements~~Improvement Allowance") ~~specified or referenced in Exhibit 2 attached hereto~~equal to Fifty Thousand Eight Hundred Seventy-Two and No/100ths Dollars ($50,872.00). ~~Landlord shall pay~~ All additional improvements to the base building will be so-called "Tenant Improvements" to be installed by Lessor but to be selected by Lessee as hereinafter set forth and paid for by Lessee subject to Lessor providing the Tenant ~~Improvements up~~ Improvement Allowance (as hereinafter defined). Lessee acknowledges and agrees that items to ~~a maximum amount~~ be paid for by Lessee from the Tenant Improvement Allowance include the cost of ~~$1,760,000.00 (~~space planning, construction document preparation, the ~~"TI Allowance")~~cost of the design work and construction drawing work, all costs of obtaining permits, and ~~in no event shall Landlord have any obligation to pay for any costs~~ reimbursables, and the cost of one-half (1/2) of the ~~Tenant Improvements~~ demising wall to be constructed in ~~excess~~ the building of ~~such amount~~which the Premises are a part. If the ~~cost~~ price of the Tenant Improvements exceeds ~~such amount~~the Tenant Improvement Allowance, ~~any estimated overage~~ Lessee shall pay Lessor, in ~~excess of such amount shall be paid by Tenant. Further~~cash, ~~Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ upon substantial completion of the TI Tenant Improvements, the amount by which the price of the Tenant Improvements exceeds the Tenant Improvement Allowance~~, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization")~~. Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16On or before September 20, 1996, ~~BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS~~Lessee shall provide to Lessor a space plan of the Tenant Improvements which Lessee desires for Lessor to construct, ~~INC. The Additional Security Deposit~~ which space plan shall be ~~in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable~~ subject to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at LandlordLessor's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant approval and shall be ~~available~~ adequate for the preparation by Lessor of working drawings for construction of such Tenant Improvements. Such space plan shall show in reasonable detail the design and appearance of the tenant finishing materials to ~~such drawers, endorsers~~be used in the Exhibit C (Page 1 of 5) construction thereof, and ~~bona fide holders,~~ such other detail or description as may be necessary to adequately outline the ~~case may be, on or before noon, New York time,~~ scope of the Tenant Improvements. Lessee shall be responsible for Lessor's costs (including lost rent) arising out of delays in completing the Tenant Improvements caused by Lessee. Lessee also agrees to refrain from ordering long lead time items which would delay substantial completion of the Tenant Improvements. Lessee acknowledges that any air com- pressors to be installed either on the ~~Business Day (defined below) next following~~ interior or the ~~date on which such drafts are received~~ exterior of the Premises by ~~us. "Business Day" shall mean any day which is not a Saturday, Sunday~~ Lessor or ~~day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit~~ Lessee shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay subject to the ~~order~~ prior written consent of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:Lessor.

Appears in 1 contract

Samples: Lease (Papa Johns International Inc)

Tenant Improvements. ~~Tenant will furnish or perform those items~~ Except for the Landlord's Work, as hereinafter defined, the Premises are being leased on an "as is" basis. Landlord agrees to provide an allowance of ~~construction and those improvements~~ up to $52,308.00 ($3.00 per rentable square feet of space in the Premises (the "~~Tenant Improvements~~Allowance") ~~specified or referenced~~ for the acquisition and installation of the Leasehold Improvements to the Premises all as more specifically described in Exhibit 2 LI attached hereto. Landlord ~~shall pay for the Tenant Improvements up~~ agrees to ~~a maximum amount of $1,760,000.00~~ construct at Tenant's expense (the "TI Allowance"), and in no event shall Landlord have any obligation to pay for any costs of the Tenant Improvements in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's ~~consent~~ payment of ~~such contractors~~the Allowance), the improvements to the Premises set forth in EXHIBIT B, attached hereto and incorporated herein by this reference. Disbursements of the Allowance will occur in the manner set forth in Exhibit LI attached hereto. Tenant agrees to reimburse Landlord for the Allowance actually expended by paying to Landlord on the first day of each month during the Term, as Additional Rent, the amount necessary to amortize fully the Allowance over the initial five (5) year Term plus annual interest thereon of ten percent (10.0%) per annum. In addition to the Allowance, Landlord agrees to build any demising walls which ~~shall not~~ may be ~~unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16~~required and to make certain carpeting and wall finish/painting improvements to the Common Area (all finish work, ~~1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST~~ materials selection and ~~INSYNC SYSTEMS, INC. The Additional Security Deposit~~ scope of work shall be at Landlord's sole discretion) (as defined in Exhibit LI, the ~~form of an unconditional~~"Landlord's Work"), ~~irrevocable letter of credit from a bank reasonably acceptable~~ as Landlord and Tenant mutually agree, prior to ~~Landlord. The letter of credit shall either provide that it does not expire until~~ the ~~end~~ commencement of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shallTerm, at Landlord's ~~request, cooperate~~ cost. The Landlord's Work is included in ~~having~~ the ~~letter of credit transferred to the purchaser. If the letter of credit~~ Base Rent and is ~~ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit~~ not to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided reimbursed by Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase or included in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit NoAdjustments due under Section 10._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Lease (National Transaction Network Inc)

Tenant Improvements. Landlord has granted to Tenant ~~will furnish or perform those items~~ an allowance of ~~construction~~ up to Five and ~~those improvements~~ 91/100 Dollars ($ 5.91 ) per rentable square foot of the Premises, for a total allowance of up to One Hundred Forty Thousand Three Hundred Ninety-two and 05/100 Dollars ($ 140,392.05 ) (the "Tenant ~~Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI~~ Improvement Allowance"), ~~and~~ for completion of slab-to-slab Tenant Improvements in no accordance with the Space Plan. Except as provided herein, the Tenant Improvement Allowance is for Tenant Improvements in the Premises. In the event the Tenant Improvement Allowance is not used on or before May 1, 2000, Landlord shall ~~Landlord have any obligation to pay for any costs~~ retain such unused portion of the Tenant ~~Improvements in excess of such amount~~Improvement Allowance, and Tenant shall have no further rights thereto or hereunder. If In the event that the cost of the Tenant Improvements ~~exceeds such amount~~exceed the Tenant Improvement Allowance, ~~any estimated overage in excess of such amount shall be paid by Tenant. Further~~Landlord shall, at Landlord's written option, provide Tenant ~~shall repay Landlord for $1,337,600.00 ($19 psf)~~ with an additional allowance, above the Tenant Improvement Allowance, to apply towards payment of the ~~TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over~~ excess costs of the ~~Lease Term of $28,923.00~~ Tenant Improvements (the "~~TI Amortization~~Excess Allowance"). , and Tenant shall ~~have~~ deposit with Landlord funds sufficient to cover any additional projected excess costs and promptly pay to Landlord any costs in excess thereof. Any portion of the ~~right to select its own contractors subject to~~ Excess Allowance paid by Landlord shall, at Landlord's ~~consent of such contractors~~sole option, ~~which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16~~either be, ~~1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in~~ (i) amortized on a straight-line basis over the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full remaining rent paying term of the Lease, ~~shall be renewed~~ with interest at the rate of Eleven Percent (11%) per annum, payable by Tenant ~~at least 30 days prior~~ to ~~its expiration during~~ Landlord as additional rent, or (ii) paid for directly by the ~~term of~~ Tenant. Landlord shall have the ~~Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to~~ work depicted in the ~~bank. If Landlord sells or conveys~~ Tenant Space Plan attached hereto as Appendix A (the ~~Premises~~"Tenant Work") constructed with, ~~Tenant shall~~unless otherwise specified, ~~at Landlord's request, cooperate~~ Building standard materials and in ~~having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord~~ a good and workmanlike manner pursuant to the ~~terms~~ schedule provided for herein, subject, however, to extensions equal to the delays suffered by Landlord and caused by Tenant or by strike, lockouts, fire or other casualty loss, acts of ~~the Lease and this Addendum~~God, ~~Tenant shall within ten (10) days thereafter cause the letter~~ unavailability of ~~credit to be restored to its original amount~~materials, hostile or war-like action, riot or other causes beyond Landlord's reasonable control. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6)Work, as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced modified from time to time ~~in accordance with~~ pursuant to the ~~terms hereof~~provisions of this Workletter, shall be known as the "~~Letter~~ Tenant Improvements". The cost of ~~Credit Amount"), effective immediately,~~ preparing the Space Plan and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on any other architectural or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference engineering fees shall be ~~deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are~~ paid for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds out of the ~~Applicant and shall be available to such drawers, endorsers, and bona fide holders,~~ Tenant Improvement Allowance as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms part of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws costs of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:Tenant Improvements.

Appears in 1 contract

Samples: Lease Agreement (Matrix Bancorp Inc)

Tenant Improvements. Seller shall be responsible for paying all tenant improvement costs and reimbursements payable under all Tenant Leases executed prior to the Second Closing Date with respect to the Development Properties. In the case of tenant improvement work, tenant improvement allowances or other reimbursements to be paid or performed by the landlord under any other Tenant Lease, the relevant Buyer shall be responsible for paying for and performing such work and paying such allowances and reimbursements after the Adjustment Time, and (A) if the Tenant Lease was executed (or the renewal, extension or additional space option requiring such work or reimbursement was exercised or executed) prior to the date of this Agreement, the relevant Buyer will ~~furnish or perform those items of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay~~ receive a credit for the ~~Tenant Improvements up to a maximum~~ cost of performing such work after the Adjustment Time and the amount of ~~$1,760,000.00~~ any such reimbursements and allowances not paid by the relevant Seller prior to the Adjustment Time; and (B) if the ~~"TI Allowance")~~Tenant Lease was executed (or the renewal, extension or additional space option requiring such work or reimbursement was exercised or executed) on or after the date of this Agreement but prior to the Adjustment Time, the cost of performing such work (whether to be performed before or after the Adjustment Time) and such reimbursements and allowances will be apportioned between the relevant Seller and the relevant Buyer, with the relevant Seller to be allocated the proportion of such costs, reimbursements and allowances that is equal to the proportion that the term of such Tenant Lease that is prior to the Adjustment Time bears to the entire term of such Tenant Lease, and the relevant Buyer to be allocated the remainder of such costs, reimbursements and allowances. The references to "term of such Tenant Lease" in ~~no event shall Landlord have any obligation~~ the immediately preceding sentence mean the term of such Tenant Lease that includes the Adjustment Time and commences on the latest to ~~pay for any costs~~ occur of: the first day of the original term of the Tenant ~~Improvements in excess~~ Lease for which fixed rent is payable and the first day of the latest renewal or extension of such ~~amount~~Tenant Lease for which fixed rent is payable. If The relevant Seller shall receive a credit for the ~~cost of~~ amount by which the ~~Tenant Improvements exceeds such amount~~costs, ~~any estimated overage in excess of such amount shall~~ reimbursements and allowances actually paid or to be paid by ~~Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ the relevant Seller exceed the relevant Seller's apportioned share of the ~~TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over~~ total costs of performing such work (based on the ~~Lease Term of $28,923.00 (~~relevant Seller's budgeted cost for such work) and the ~~"TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent~~ total of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST reimbursements and ~~INSYNC SYSTEMS, INC~~allowances. The ~~Additional Security Deposit~~ relevant Buyers shall ~~be in~~ receive a credit for the ~~form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until~~ amount by which the ~~end~~ relevant Seller's apportioned share of the ~~Lease term or~~total costs of performing such work (based on the relevant Seller's budgeted cost for such work) and the total of such reimbursements and allowances exceeds the costs, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells reimbursements and allowances actually paid or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed paid by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:relevant Seller.

Appears in 1 contract

Samples: Asset Purchase Agreement (Weeks Corp)

Tenant Improvements. Tenant ~~will furnish or perform those items of~~ agrees that it currently occupies, and shall continue to occupy, the Complete Premises in its “as is” condition without any further improvements thereto except as otherwise provided herein. Landlord shall, at its sole cost and expense, supervise the construction and ~~those~~ installation of the initial tenant improvements in the Additional Second Floor Expansion Space as herein provided (collectively, the ~~"Tenant~~ “Additional Improvements~~") specified or referenced~~ ”), all in ~~Exhibit 2 attached hereto~~accordance with Tenant's plans and specifications for the design, construction and installation of the Additional Improvements (“Plans”), as such plans and specifications have been reviewed and approved by Landlord and Tenant, such approval not to be unreasonably withheld. Landlord shall ~~pay for~~ substantially complete the ~~Tenant~~ Additional Improvements ~~up to a maximum amount of $1,760,000.00 (the "TI Allowance"),~~ in accordance with said Plans and in no a good and workmanlike manner, such substantial completion to be certified by Landlord's engineer and Tenant's architect inspecting the work. In the event ~~shall Landlord have any obligation~~ that either prior to ~~pay for any costs~~ the commencement of the installation of any Additional Improvements or at any time during or following the installation of the Additional Improvements, Tenant ~~Improvements~~ requests any change to the aforementioned Plans which has resulted or might result in ~~excess of such amount. If~~ an increase in the cost of the installation of such Additional Improvements, then Tenant ~~Improvements exceeds~~ shall promptly deliver the necessary funds to defray such ~~amount~~excess cost to Landlord no later than fifteen (15) days after Landlord demands same. Notwithstanding the foregoing, any ~~estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf~~change order(s) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed requested by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate which will result in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No an increase in the ~~debt-to-total-capital ratio over~~ cost of the ~~period. Further, the Letter~~ construction and installation of ~~Credit~~ any Additional Improvements shall be ~~reduced annually on a pro rata basis~~ agreed to in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand advance by Landlord and ~~No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately~~Tenant, and ~~expiring on the close~~ Tenant shall be obligated to pay Landlord an additional construction management fee relative to such change order(s) equal to four percent (4%) of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us any increase in the ~~form~~ cost of ~~Annex 1 hereto, indicating this Letter~~ the construction and installation of ~~Credit number and (ii) request in~~ the ~~form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers~~Additional Improvements. ~~Presentation of your Drawing Requests~~ Tenant acknowledges that Landlord may be ~~made by you to us at~~ supervising the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds construction of the ~~Applicant~~ Additional Improvements while Tenant occupies the Complete Premises and Landlord agrees that it shall ~~be available~~ use reasonable efforts to minimize any interference with Tenant's business operations within the Complete Premises while constructing such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:improvements.

Appears in 1 contract

Samples: Lease (Cross Country Healthcare Inc)

Tenant Improvements. All Tenant ~~will furnish or perform those items~~ Improvements shall be performed by Landlord’s contractor, at Tenant’s sole cost and expense (subject to Landlord’s obligations with respect to any portion of ~~construction and those improvements (~~the "Base TI Allowance and, if properly requested by Tenant pursuant to the terms of the Lease, the Additional TI Allowance used by Landlord in completing the Tenant Improvements") ~~specified or referenced~~ and in ~~Exhibit 2 attached hereto. Landlord shall pay for~~ substantial accordance with the ~~Tenant Improvements up to a maximum amount of $1,760,000.00~~ Approved Plans (~~the "TI Allowance"~~as defined below), the Lease and ~~in no event shall Landlord have any obligation to pay for any costs~~ this Work Letter. To the extent that the total projected cost of the Tenant Improvements (as projected by Landlord) exceeds the TI Allowance (such excess, the “Excess TI Costs”), Tenant shall advance to Landlord any Excess TI Costs within ten (10) days after receipt of an invoice therefor, but in ~~excess~~ any case before Landlord commences the Tenant Improvements. If Landlord is delayed in commencing the Tenant Improvements due to Tenant’s failure to timely pay the Excess TI Costs to Landlord, Landlord shall be entitled to a day-for-day extension to achieve Substantial Completion of the Tenant Improvements for the period of such ~~amount~~delay. If the actual Excess TI Costs are less than the Excess TI Costs paid by Tenant to Landlord, Landlord shall credit Tenant with the overage paid by Tenant against Tenant’s Rent obligations, beginning after Landlord has completed the final accounting for the Tenant Improvements. If the cost of the Tenant Improvements ~~exceeds such amount~~(as projected by Landlord) increases over Landlord’s initial projection, then Landlord may notify Tenant and Tenant shall deposit any additional Excess TI Costs with Landlord in the same way that Tenant deposited the initial Excess TI Costs. If Tenant fails to pay, or is late in paying, any ~~estimated overage in excess of such amount~~ sum due to Landlord under this Work Letter, then Landlord shall ~~be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ have all of the ~~TI Allowance, together with interest at 10.75% per annum,~~ rights and remedies set forth in ~~equal monthly installments over~~ the Lease ~~Term~~ for nonpayment of ~~$28,923.00~~ Rent (~~the "TI Amortization"). Tenant shall have~~ including the right to ~~select its own contractors subject~~ interest and the right to ~~Landlord's consent~~ assess a late charge), and for purposes of any litigation instituted with regard to such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit amounts the same shall be in considered Rent. All material and equipment furnished by Landlord or its contractors as the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, Tenant Improvements shall be ~~renewed by~~ new or “like new,” and the Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit Improvements shall be ~~reduced annually on~~ performed in a ~~pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx~~first-class, ~~Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No~~workmanlike manner._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Lease (Ignyta, Inc.)

Tenant Improvements. ~~Tenant will furnish or perform those items~~ The amounts in the Escrow Account allocated for tenant improvements and miscellaneous leasing costs (as set forth in clause (iv) of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"Section 2.2 hereof), ~~and in no event~~ shall ~~Landlord have any obligation~~ be disbursed by Escrow Holder to pay ~~for any~~ the costs thereof to contractors and vendors providing labor or material, or in the event Seller has paid such costs itself, to reimburse Seller provided Seller submits to Buyer and Escrow Holder reasonable evidence of Seller's payment of such amounts, after the following conditions have been satisfied: 3.2.1.1 The portion of the ~~Tenant Improvements~~ tenant improvements for which disbursement is requested must have been constructed substantially in ~~excess of such amount. If~~ conformance with the ~~cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid~~ plans and specifications therefor approved by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractorsBuyer, which approval shall not be unreasonably withheld~~. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16~~. 3.2.1.2 Interim disbursements for tenant improvements will be in the amount of ninety percent (90%) of labor and one hundred percent (100%) of materials furnished to be computed at the maximum following rates: (i) the applicable rates set forth on Exhibit "B-1" for Vacant Leased Space, ~~1996~~and (ii) the amounts set forth on Schedule 1 to Exhibit "B" for Unleased Space, ~~BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC~~in each case less miscellaneous leasing costs theretofore disbursed from the Escrow Account with respect to the Approved Lease for which disbursement is sought. The ~~Additional Security Deposit~~ tenant improvement allowances shall be used for the hard and soft costs of constructing tenant improvements and related costs, including without limitation design fees, cost of plans and specifications, permit fees and construction costs, as well as miscellaneous leasing costs, including without limitation attorneys' fees, but shall exclude leasing commissions, broker's or finder's fees. Interim disbursements for tenant improvements will be made not more often than one (1) time per month. Notwithstanding anything to the contrary set forth herein, if the Tenant under an Approved Lease is doing all or any part of the leasehold improvements in its respective premises and the Approved Lease provides that the landlord is to provide a tenant improvement allowance to such Tenant, the amount of tenant improvement allowance deposited hereunder shall be disbursed in accordance with the terms of the Approved Lease and to the extent Seller has paid such tenant improvement allowance, such amount shall be payable to Seller provided that Seller provides Buyer and Escrow Holder with reasonable evidence of Seller's payment of such tenant improvement allowance. Each request for disbursement shall be on an Application and Certification for Payment of Tenant Improvements, containing a certification by Seller that all tenant improvement work for which payment is requested has been satisfactorily completed and upon payment of the amounts set forth in the application will be paid in full and shall be accompanied by lien waivers executed by all the parties who performed work or supplied materials and who are to be paid by such disbursement. Such Application and Certification shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as ~~Annex II-1, II-2, II-3~~ Exhibit "D" and ~~II-4 respectively. Landlord will release~~ shall also be approved by Buyer (as evidenced by Buyer signing thereon before the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6disbursement is made), ~~as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further~~which approval shall not be unreasonably withheld or delayed. 3.2.1.3 As a condition to disbursement of any interim amounts for tenant improvements, the ~~Letter of Credit~~ Title Insurer shall issue an endorsement to Buyer's title insurance policy insuring that there are no unbonded mechanics' or materialmen's liens relating to the work for which the disbursement is sought. 3.2.1.4 The final disbursement for tenant improvements for each Tenant shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter the balance of ~~Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (~~the ~~"Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor~~ amount held back for ~~an amount up to but not exceeding~~ the ~~aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (~~respective tenant space as ~~reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address~~ set forth ~~above one year~~ on Exhibits "B" and "B-1" hereto, subject to Seller delivering to Buyer an estoppel certificate from the ~~date hereof unless renewed as hereinafter provided. Funds under this Letter~~ Tenant confirming that all Landlord work required by the Approved Lease has been completed and a final, unconditional certificate of ~~Credit are available to you on~~ occupancy (or ~~prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto~~its equivalent, ~~indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (~~such ~~sight draft and request, together referred to~~ as a "~~Drawing Request"), sight draft(s), completed~~ final" Inspection Record issued by the City of Lakewood) for each space that is the subject of the disbursement and final lien waivers signed by ~~one of your officers~~the general contractor and all subcontractors performing work or providing materials for improvements for such tenant improvements. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking Seller shall not be responsible for any tenant improvement costs for Approved Leases executed during the Subsequent Leasing Period in ~~any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter~~ excess of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:amounts deposited hereunder.

Appears in 1 contract

Samples: Escrow and Leasing Agreement (Inland Western Retail Real Estate Trust Inc)

Tenant Improvements. A. Tenant ~~will furnish or perform those items~~ Improvements for the Initial Premises ("INITIAL TENANT IMPROVEMENTS") shall be constructed pursuant to Tenant's plans for the Premises approved by Landlord to the extent and in the manner set forth in Exhibit D. Landlord shall enter into the contract with the Initial Tenant Improvements contractor, who shall be selected in accordance with the provisions of ~~construction~~ Exhibit D. Tenant is aware that its selection of an Initial Tenant Improvements contractor other than the Shell and ~~those improvements~~ Core Contractor may result in delays in completion of the Initial Tenant Improvements. B. Landlord shall provide Tenant with an allowance (the "ALLOWANCE") of Thirty and 15/100 Dollars ($30.15) per square foot of usable area in the Initial Premises (i.e. $30.00 per usable square foot for tenant improvements and $0.15 per usable square foot for the space planning allowance). The Allowance may be applied to costs of designing and constructing the tenant Improvements, Tenant's signage costs and the acquisition and installation of Tenant's furniture, fixtures and equipment. The Landlord shall contract with the contractor chosen by Tenant to construct the Tenant Improvement (the terms and conditions of which contract shall be subject to Tenant's prior written approval, acting reasonably) and shall pay all payments owed to such contractor when and as due; provided that at such time as Landlord has paid the total sum of the Allowance to such contractor, or to others at the direction of Tenant, Tenant shall thereafter be responsible to pay the balance owed to the contractor, which balance shall be paid by Tenant to Landlord, for payment to the contractor, on or before the same day that payments are owed by Landlord to such contractor in connection with the construction of the Tenant Improvements~~") specified~~ . Any unused portion of the Allowance may be taken as a credit against Rent or ~~referenced~~ may be applied to additional build-out, wiring or cabling costs, as Tenant may elect. Any costs of constructing Tenant Improvements in ~~Exhibit 2 attached hereto.~~ excess of the Allowance shall be borne solely by Tenant. C. Landlord ~~shall pay~~ and Tenant mutually agree on the selection of JPC, Incorporated as Tenant's architect to plan, design, and complete construction documents for the Initial Tenant ~~Improvements up~~ Improvements. The cost for such services as well as engineering costs attributable to ~~a maximum amount~~ the same shall be charged against the Allowance; provided that the contract with JPC, Incorporated, as well as with any engineer, the costs of ~~$1,760,000.00 (~~which will be charged against the ~~"TI~~ Allowance"), shall be subject to the prior written approval of Tenant, acting reasonably. D. All disputes, controversies and ~~in no event shall Landlord have any obligation~~ claims arising out of or relating to ~~pay for any costs~~ the construction of the Tenant Improvements in ~~excess of such amount. If~~ the ~~cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount~~ Initial Premises shall be ~~paid~~ settled by ~~Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum,~~ expedited mandatory arbitration as set forth in ~~equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"~~this Section 6(D). ~~Tenant shall have the right to select its own contractors subject to Landlord's consent~~ All statutes of ~~such contractors,~~ limitations which ~~shall not~~ would otherwise be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST applicable and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down any limitations upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address claims set forth ~~above one year from the date hereof unless renewed as hereinafter provided. Funds~~ in this Agreement shall apply to any arbitration proceeding under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"Section 6(D), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:.

Appears in 1 contract

Samples: Lease Agreement (Bsquare Corp /Wa)

Tenant Improvements. Tenant ~~will furnish or perform those items of construction~~ improvements for the Additional Leased Premises, Suites A, B, D, F, H, and ~~those improvements~~ Basement Room A, shall be completed according to the following terms and conditions: (~~the "~~a) Tenant ~~Improvements") specified or referenced in Exhibit 2 attached hereto.~~ shall provide Landlord ~~shall pay~~ with plans and specifications for the Tenant ~~Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance")~~improvements for Suites A, B, D, F, H, and ~~in no event shall~~ Basement Room A. Landlord have any obligation to pay for any costs of the Tenant Improvements in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to ~~select its own contractors subject to Landlord's consent of such contractors~~approve said plans and related specifications, which approval shall not be unreasonably withheld. ~~-4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16~~Landlord shall cause the construction of the Tenant improvements pursuant to said approved plans and related specifications. (b) Landlord shall bear the cost of such Tenant improvements up to an amount equal to $10 per square foot of net rentable space of Suites A, ~~1996~~B, ~~BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST~~ D, F, and ~~INSYNC SYSTEMS~~H, ~~INC~~16,064 square feet, for a total tenant improvement allowance for Suites A, B, D, F, and H of $160,640.00 (One Hundred Sixty Thousand Six Hundred Forty Dollars). The ~~Additional Security Deposit~~ cost of tenant improvement for Suites A, B, D, F, and H in excess of $160,640.00 (One Hundred Sixty Thousand Six Hundred Forty Dollars) shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed borne by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be ~~available to such drawers, endorsers,~~ paid upon substantial completion of the Tenant improvements. The cost of the Tenant improvements shall include all "hard" and ~~bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us.~~ "~~Business Day~~soft" ~~shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent~~ cost associated with the ~~express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms~~ construction of the ~~Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500"~~Tenant improvements as those terms are defined in Paragraph 1(b) ~~and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws~~ of the ~~State~~ Office Lease. Landlord shall complete the Tenant improvements in a good and workmanlike manner. (c) Landlord shall bear the cost of ~~New York~~such Tenant improvements for Basement Room A, subject to amortization of these improvement costs as additional rent for Basement Room A pursuant to Paragraph 5(c). ~~Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to~~ The cost of the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the Tenant improvements shall include all "~~Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:~~hard" and

Appears in 1 contract

Samples: Office Lease (Qad Inc)

Tenant Improvements. ~~Tenant will furnish or perform those items of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto.~~ Landlord shall ~~pay for the~~ provide Tenant ~~Improvements up to~~ with a maximum Tenant Improvement Allowance in the amount of Twenty Eight Dollars ($~~1,760,000.00 (the "TI Allowance")~~28) per rentable square foot of Premises, ~~and in no event shall~~ to be applied by Landlord ~~have any obligation to pay for any costs of the Tenant Improvements in excess of such amount. If~~ towards the cost of the ~~Tenant Improvements exceeds such amount~~design, ~~any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ purchase and construction of the ~~TI Allowance~~Tenant Improvements, ~~together with interest at 10.75% per annum~~including without limitation, ~~in equal monthly installments over the Lease Term of $28,923.00~~ design, engineering and consulting fees (collectively, the "~~TI Amortization~~Tenant Improvement Costs"). The Tenant Improvement Allowance shall ~~have~~ be used by Landlord for payment of the ~~right to select its own contractors subject~~ following Tenant Improvement Costs: (i) Review by Landlord's Architect of the Preliminary Plans and the Working Drawings as provided in Section 2 of this Work Letter; - Prior to Landlord's ~~consent of such contractors~~selecting the Contractor, ~~which~~ and without limiting Landlord's right in its sole discretion to select the Contractor. Landlord shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit review with Tenant the various contractor bids received by Landlord. (i) Tenant shall be ~~in the form of an unconditional~~liable for, ~~irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit~~ and shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall (within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. after written demand therefor) reimburse Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth for any amounts actually paid by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. FurtherLandlord as, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number Early Completion Bonus; and (ii) ~~request in~~ the ~~form~~ amount of ~~Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed~~ any Late Completion Penalty actually realized by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn Landlord under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the ~~Uniform Customs~~ Construction Contract shall accrue to the benefit of Tenant, with regard to the first $10,000 of such Late Completion Penalty, and ~~Practice for Commercial Documentary Credits~~ to the benefit of both Landlord and Tenant on a 50/50 basis, to the extent that such Late Completion Penalty exceeds $10,000, with Landlord to pay to Tenant that portion of the Late Completion Penalty to which Tenant is entitled within tan (~~1993 Revision)~~10) days after the amount of same is known. (ii) Including, ~~I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed~~ without limitation, all fees charged by the ~~UCP 500~~City or the County (including, ~~this Letter~~ without limitation, fees for building permits and plan checks)in connection with the Tenant Improvement work in the Premises; (iii) Construction work for completion of ~~Credit~~ the Tenant Improvements as reflected in the Construction Contract; (iv) All contractors' charges, general conditions, performance bond premiums and construction fees; and (v) Design and engineering services performed by Rengxx & Xompany on behalf of Tenant, not to exceed a total of $1.50 per rentable square foot of the Premises. Tenant shall be ~~governed by and construed~~ responsible for any charges or fees from Rengxx & Xompany in ~~accordance with the laws~~ excess of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:this limit.

Appears in 1 contract

Samples: Lease (Broadcom Corp)

Tenant Improvements. All Tenant ~~will furnish or perform those items~~ Improvements shall be performed by Tenant’s contractor, at Tenant’s sole cost and expense (subject to Landlord’s obligations with respect to any portion of ~~construction~~ the TI Allowance and ~~those improvements~~ in accordance with the Approved Plans (as defined below), the ~~"Tenant Improvements") specified or referenced in Exhibit 2 attached hereto~~Lease and this Work Letter. ~~Landlord shall pay for~~ To the extent that the total projected cost of the Tenant Improvements ~~up to a maximum amount of $1,760,000.00~~ (as projected by Landlord) exceeds the "TI ~~Allowance"~~Allowance (such excess, the “Excess TI Costs”), ~~and in no event~~ Tenant shall ~~Landlord have any obligation to~~ pay ~~for any~~ the costs of the Tenant Improvements as such costs become due, and Landlord shall reimburse Tenant (or pay directly to Tenant’s contractor) on a pari passu basis, in ~~excess~~ the proportion of ~~such amount~~Excess TI Costs payable by Tenant to the TI Allowance payable by Landlord. If the cost of the Tenant Improvements ~~exceeds such amount, any estimated overage in excess of such amount shall be paid~~ (as projected by ~~Tenant. Further~~Landlord) increases over Landlord’s initial projection, Tenant shall ~~repay Landlord for $1,337,600.00 ($19 psf)~~ promptly notify Landlord, and Landlord’s payment of the TI ~~Allowance~~Allowance shall be on an adjusted pari passu basis based on the additional Excess TI Costs. All material and equipment furnished by Tenant or its contractors as the Tenant Improvements shall be new or “like new;” the Tenant Improvements shall be performed in a first-class, ~~together with interest at 10.75% per annum~~workmanlike manner; and the quality of the Tenant Improvements shall be of a nature and character not less than the Building Standard, as set forth in ~~equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization")~~Exhibit B-2. Tenant shall ~~have~~ take, and shall require its contractors to take, commercially reasonable steps to protect the ~~right~~ Premises during the performance of any Tenant Improvements, including covering or temporarily removing any window coverings so as to ~~select its own contractors subject to Landlord's consent of such contractors~~guard against dust, ~~which shall not be unreasonably withheld~~debris or damage. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit All Tenant Improvements shall be performed in accordance with Article 16 of the Lease; provided that, notwithstanding anything in the ~~form~~ Lease or this Work Letter to the contrary, in the event of ~~an unconditional, irrevocable letter of credit from~~ a ~~bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term~~ conflict between this Work Letter and Article 16 of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Work Letter ~~of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and~~ shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:govern.

Appears in 1 contract

Samples: Lease (PMV Pharmaceuticals, Inc.)

Tenant Improvements. A. Lessor shall provide, at no cost to Lessee, the base building improvements for the Premises, which shall consist of the installation of a 2' x 4' ceiling grid, 2' x 2' acoustical tiles stockpiled on the floor, 2' x 4' parabolic fluorescent light fixtures stockpiled on the floor (at one (1) fixture per 80 usable square feet), the installation of the primary distribution of the HVAC system and the shell building fire protection sprinkler system, and mini blinds stockpiled on the floor. All of the foregoing items shall be either stockpiled or installed, as applicable, using Lessor's building standard improvements. All additional improvements to the base building will be so-called "Tenant ~~will furnish or perform those items of construction~~ Improvements" to be installed by Lessor but to be selected by Lessee as hereinafter set forth and ~~those improvements~~ paid for by Lessee subject to Lessor providing the Tenant Improvement Allowance (as hereinafter defined). Lessor shall provide a tenant improvement allowance (the "Tenant ~~Improvements~~Improvement Allowance") ~~specified or referenced in Exhibit 2 attached hereto~~equal to the product of Nineteen and No/100ths Dollars ($19.00) multiplied by the useable area of the Premises. ~~Landlord shall pay~~ Lessor shall, with respect to all major subcontracts, cause Lessor's general contractor to solicit bids for the Tenant Improvements ~~up to a maximum amount of $1,760,000.00~~ from three (~~the "TI Allowance")~~3) qualified subcontractors, and ~~in no event~~ shall ~~Landlord have any obligation~~ provide Lessee with the opportunity to ~~pay for any costs of the Tenant Improvements in excess of such amount.~~ examine said bids upon request by Lessee. B. If the ~~cost~~ price of the Tenant Improvements exceeds ~~such amount~~the Tenant Improvement Allowance, ~~any estimated overage~~ Lessee shall pay Lessor, in ~~excess~~ cash, upon substantial completion of the Tenant Improvements, the amount by which the price of the Tenant Improvements exceeds the Tenant Improvement Allowance. C. disapproval of such ~~amount~~ working drawings shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right limited to ~~select its own contractors subject to Landlord's consent of such contractors,~~ those items which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the ~~express terms hereof, this Letter of Credit~~ Space Plan. Lessee shall be ~~governed by, and construed~~ responsible for Lessor's costs (including lost rent) arising out of delays in ~~accordance with,~~ completing the ~~terms~~ Tenant Improvements caused by Lessee. Lessee also agrees to refrain from ordering long lead time items which would delay substantial completion of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:Tenant Improvements.

Appears in 1 contract

Samples: Office Lease (Udc Homes Inc)

Tenant Improvements. All Tenant ~~will furnish or perform those items~~ Improvements shall be performed by Tenant’s contractor, at Tenant’s sole cost and expense (subject to Landlord’s obligations with respect to payment of ~~construction~~ the Base TI Allowance and, if properly requested by Tenant pursuant to the terms of the Lease, the Additional TI Allowance) and ~~those improvements~~ in accordance with the Approved Plans (as defined below), the ~~"Tenant Improvements") specified or referenced in Exhibit 2 attached hereto~~Lease and this Work Letter. ~~Landlord shall pay for~~ To the extent that the total projected cost of the Tenant Improvements ~~up to a maximum amount of $1,760,000.00~~ (as projected by Landlord) exceeds the "TI ~~Allowance"~~Allowance (such excess, the “Excess TI Costs”), ~~and in no event~~ Tenant shall ~~Landlord have any obligation to~~ pay ~~for any~~ the costs of the Tenant Improvements on a pari passu basis with Landlord as such costs become due, in ~~excess~~ the proportion of ~~such amount~~Excess TI Costs payable by Tenant to the Base TI Allowance (and, if properly requested by Tenant pursuant to the Lease, the Additional TI Allowance). If the cost of the Tenant Improvements ~~exceeds such amount~~(as projected by Landlord) increases over Landlord’s initial projection, then Landlord may notify Tenant and Tenant shall pay any additional Excess TI Costs in the same way that Tenant paid the initial Excess TI Costs. If Tenant fails to pay, or is late in paying, any ~~estimated overage~~ sum due to Landlord under this Work Letter, then after notice and the expiration of a ten (10) business day cure period, Landlord shall have all of the rights and remedies set forth in ~~excess~~ the Lease for nonpayment of Rent (including the right to interest and the right to assess a late charge), and for purposes of any litigation instituted with regard to such ~~amount~~ amounts the same shall be ~~paid~~ considered Rent. All material and equipment furnished by ~~Tenant. Further~~Tenant or its contractors as the Tenant Improvements shall be new or “like new;” the Tenant Improvements shall be performed in a first-class, ~~Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ workmanlike manner; and the quality of the ~~TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over~~ Tenant Improvements shall be of a nature and character not less than the ~~Lease Term of $28,923.00 (the "TI Amortization")~~Building Standard. Tenant shall ~~have~~ take, and shall require its contractors to take, commercially reasonable steps to protect the ~~right~~ Premises during the performance of any Tenant Improvements, including covering or temporarily removing any window coverings so as to ~~select its own contractors subject to Landlord's consent of such contractors~~guard against dust, ~~which shall not be unreasonably withheld~~debris or damage. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit All Tenant Improvements shall be performed in accordance with Article 17 of the Lease; provided that, notwithstanding anything in the ~~form~~ Lease or this Work Letter to the contrary, in the event of ~~an unconditional, irrevocable letter of credit from~~ a ~~bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term~~ conflict between this Work Letter and Article 17 of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Work Letter ~~of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and~~ shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:govern.

Appears in 1 contract

Samples: Lease Agreement (La Jolla Pharmaceutical Co)

Tenant Improvements. All Tenant ~~will furnish or perform those items~~ Improvements shall be performed by Landlord’s contractor, at Tenant’s sole cost and expense (subject to Landlord’s obligations with respect to any portion of ~~construction and those improvements (~~the "Base TI Allowance and, if properly requested by Tenant pursuant to the terms of the Lease, the Additional TI Allowance used by Landlord in completing the Tenant Improvements", but subject to the last sentence of Section 4.7 of the Lease) ~~specified or referenced~~ and in ~~Exhibit 2 attached hereto~~substantial accordance with the Approved Plans (as defined below), the Lease and this Work Letter. ~~Landlord shall pay for~~ To the extent that the total projected cost of the Tenant Improvements ~~up to a maximum amount of $1,760,000.00~~ (as projected by Landlord) exceeds the "TI ~~Allowance"~~Allowance (such excess, the “Excess TI Costs”), ~~and in no event~~ Tenant shall ~~Landlord have any obligation to~~ pay ~~for any~~ the costs of the Tenant Improvements on a pari passu basis with Landlord as such costs become due, in ~~excess~~ the proportion of ~~such amount~~Excess TI Costs payable by Tenant to the Base TI Allowance (and, if properly requested by Tenant pursuant to the Lease, the Additional TI Allowance) payable by Landlord. If the cost of the Tenant Improvements ~~exceeds such amount~~(as projected by Landlord) increases over Landlord’s initial projection, then Landlord’s and Tenant’s respective pari passu shares shall be adjusted accordingly. If Tenant fails to pay, or is late in paying, any ~~estimated overage in excess of such amount~~ sum due to Landlord under this Work Letter, then Landlord shall ~~be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ have all of the ~~TI Allowance, together with interest at 10.75% per annum,~~ rights and remedies set forth in ~~equal monthly installments over~~ the Lease ~~Term~~ for nonpayment of ~~$28,923.00~~ Rent (~~the "TI Amortization"). Tenant shall have~~ including the right to ~~select its own contractors subject~~ interest and the right to ~~Landlord's consent~~ assess a late charge), and for purposes of any litigation instituted with regard to such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit amounts the same shall be in considered Rent. All material and equipment furnished by Landlord or its contractors as the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, Tenant Improvements shall be ~~renewed by~~ new or “like new,” and the Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit Improvements shall be ~~reduced annually on~~ performed in a ~~pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx~~first-class, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under workmanlike manner and in compliance with ~~the terms of this Letter of Credit that such drafts will be duly honored upon presentation~~ Applicable Laws to the ~~drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders,~~ extent required by applicable Governmental Authorities as ~~the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not~~ a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay condition to the ~~order~~ issuance of ~~SECURITY CAPITAL INDUSTRIAL TRUST~~a certificate of occupancy or its substantial equivalent (i.e., a final sign off on permits for the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"Tenant Improvements)~~, hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:~~.

Appears in 1 contract

Samples: Lease Agreement (Codex DNA, Inc.)

Tenant Improvements. All Tenant ~~will furnish or perform those items~~ Improvements shall be performed by Landlord’s contractor, at Tenant’s sole cost and expense (subject to Landlord’s obligations with respect to any portion of ~~construction and those improvements (~~the "TI Allowance used by Landlord in completing the Tenant Improvements") ~~specified or referenced~~ and in ~~Exhibit 2 attached hereto~~substantial accordance with the Approved Plans (as defined below), the Lease and this Work Letter. ~~Landlord shall pay for~~ To the extent that the total projected cost of the Tenant Improvements ~~up to a maximum amount of $1,760,000.00~~ (as projected by Landlord) exceeds the "TI ~~Allowance"~~Allowance (such excess, the “Excess TI Costs”), ~~and in no event~~ Tenant shall ~~Landlord have any obligation to~~ pay ~~for any~~ the costs of the Tenant Improvements on a pari passu basis with Landlord as such costs become due, in ~~excess~~ the proportion of Excess TI Costs payable by Tenant to the TI Allowance payable by Landlord. In the event Tenant wishes to value engineer the Tenant Improvements prior to its approval of the budget for the Tenant Improvements, Tenant will be permitted to do so; provided that any delay caused by such ~~amount~~value engineering shall be a Tenant delay and the date of Substantial Completion of the Tenant Improvements for purposes of calculating the Expansion Commencement Date will be deemed to be the date that Substantial Completion would have occurred absent such delay. If the cost of the Tenant Improvements ~~exceeds such amount~~(as projected by Landlord) increases over Landlord’s initial projection, then Landlord may notify Tenant and Tenant shall deposit any additional Excess TI Costs with Landlord in the same way that Tenant deposited the initial Excess TI Costs. If Tenant fails to pay, or is late in paying, any ~~estimated overage in excess of such amount~~ sum due to Landlord under this Work Letter, then Landlord shall ~~be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ have all of the ~~TI Allowance, together with interest at 10.75% per annum,~~ rights and remedies set forth in ~~equal monthly installments over~~ the Lease ~~Term~~ for nonpayment of ~~$28,923.00~~ Rent (~~the "TI Amortization"). Tenant shall have~~ including the right to ~~select its own contractors subject~~ interest and the right to ~~Landlord's consent~~ assess a late charge), and for purposes of any litigation instituted with regard to such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit amounts the same shall be in considered Rent. All material and equipment furnished by Landlord or its contractors as the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, Tenant Improvements shall be ~~renewed by~~ new or “like new,” and the Tenant ~~at least 30 days prior to its expiration during the term of the Lease. The letter of credit~~ Improvements shall ~~provide that it may~~ be ~~drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises~~performed in a first-class, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectivelyworkmanlike manner. Landlord will ~~release~~ complete the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are final accounting for the ~~Applicant's account. This Letter~~ Tenant Improvements promptly after Substantial Completion of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:same.

Appears in 1 contract

Samples: Sublease Agreement (Locust Walk Acquisition Corp.)

Tenant Improvements. ~~Tenant will furnish or perform those items~~ Prior to commencement of ~~construction and those improvements (~~the ~~"Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord~~ term, Lessor shall ~~pay for~~ fit up the Premises with the Tenant Improvements ~~up to a maximum amount of $1,760,000.00 (~~indicated in the ~~"TI Allowance"),~~ Outline Specifications attached hereto as Exhibit D and in no accordance with the Plans attached hereto as Exhibit E. Lessee shall pay Lessor the sum of Two Hundred Ten Thousand Six Hundred and 00/100 Dollars ($210,600.00) upon substantial completion of such Tenant Improvements as Lessee's share of the cost of such improvements. In the event ~~shall Landlord have~~ Lessee desires any ~~obligation to pay for any costs~~ Tenant Improvements having a price in excess of the Tenant Improvements set forth in the Outline Specifications and if Lessor agrees to install same, Lessee shall also pay such excess ~~of such amount. If the cost of the Tenant Improvements exceeds such~~ amount, ~~any estimated overage~~ in ~~excess of such amount shall be paid by Tenant~~cash, upon substantial completion. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant Lessee shall have the ~~right~~ responsibility to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16make any selections required by said Outline Plans and Specifications on or before June 15, 1996. Notwithstanding anything contained herein, ~~BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit~~ Lessee shall be responsible for all of Lessor's increased costs or damages (including lost rent) arising out of any failure of Lessee to make such selections and reach agreement with Lessor as above required on or before June 15, 1996. Further. whether or not Lessee exercises its expansion rights granted in Article XXVIII hereof, as set forth in Exhibits D and E, Lessor agrees to provide an additional interior partition wall (front to back) for the ~~form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord~~Premises at Lessor's sole cost and expense. ~~The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant~~ Lessee may remove same at ~~least 30 days prior to its expiration~~ any time during the term of at Lessee's sole cost. Such wall shall be sheetrocked on the ~~Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank~~east side only. If ~~Landlord sells or conveys~~ Lessee elects a man door in such wall and additional sheetrock on the ~~Premises~~west side and paint on the west side, ~~Tenant shall, at Landlord's request, cooperate in having~~ Lessee shall pay the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase extra cost thereof in the ~~debt-to-total-capital ratio over the period~~amount of $3,200. ~~Further, the Letter of Credit~~ Such election shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before ~~noon~~June 15, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:1996.

Appears in 1 contract

Samples: Office/Warehouse Lease (Fargo Electronics Inc)

Tenant Improvements. All Extension Term Tenant ~~will furnish or perform those items~~ Improvements shall be performed by Tenant’s contractor, at Tenant’s sole cost and expense (subject to Landlord’s obligations with respect to any portion of ~~construction~~ the Extension Term TI Allowance) and ~~those improvements~~ in accordance with the Approved Plans (as defined below), the "Lease and this Work Letter. To the extent that the total projected cost of the Extension Term Tenant ~~Improvements"~~Improvements (as projected by Landlord) ~~specified or referenced in Exhibit 2 attached hereto. Landlord~~ exceeds the Extension Term TI Allowance (such excess, the “Excess TI Costs”), Tenant shall pay ~~for~~ the ~~Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"), and in no event shall Landlord have any obligation to pay for any~~ costs of the Extension Term Tenant Improvements on a pari passu basis with Landlord as such costs become due, in ~~excess~~ the proportion of ~~such amount~~Excess TI Costs payable by Tenant to the Extension Term TI Allowance payable by Landlord. If the cost of the Extension Term Tenant Improvements ~~exceeds such amount~~(as projected by Landlord) increases over Landlord’s initial projection, then Landlord may notify Tenant and Tenant shall pay any additional Excess TI Costs in the same way that Tenant pays the initial Excess TI Costs. If Tenant fails to pay, or is late in paying, any ~~estimated overage~~ sum due to Landlord under this Work Letter, then Landlord shall have all of the rights and remedies set forth in ~~excess~~ the Lease for nonpayment of Rent (including the right to interest and the right to assess a late charge), and for purposes of any litigation instituted with regard to such ~~amount~~ amounts the same shall be ~~paid~~ considered Rent. All material and equipment furnished by ~~Tenant. Further~~Tenant or its contractors as the Extension Term Tenant Improvements shall be new or “like new;” the Extension Term Tenant Improvements shall be performed in a first-class, ~~Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ workmanlike manner; and the quality of the ~~TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over~~ Extension Term Tenant Improvements shall be of a nature and character not less than the ~~Lease Term of $28,923.00 (the "TI Amortization")~~Building Standard. Tenant shall ~~have~~ take, and shall require its contractors to take, commercially reasonable steps to protect the ~~right~~ Premises during the performance of any Extension Term Tenant Improvements, including covering or temporarily removing any window coverings so as to ~~select its own contractors subject to Landlord's consent of such contractors~~guard against dust, ~~which shall not be unreasonably withheld~~debris or damage. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit All Extension Term Tenant Improvements shall be performed in accordance with Article 17 of the Lease; provided that, notwithstanding anything in the ~~form~~ Lease or this Work Letter to the contrary, in the event of ~~an unconditional, irrevocable letter of credit from~~ a ~~bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term~~ conflict between this Work Letter and Article 17 of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Work Letter ~~of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and~~ shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:govern.

Appears in 1 contract

Samples: Lease (Momenta Pharmaceuticals Inc)

Tenant Improvements. If Tenant timely exercises the Option, Tenant may elect to perform the Work as to the Tenant Improvements on the 12th Floor and the Tenant Improvements on the 13th Floor at the same or different times so long as such Work may reasonably completed on or before the commencement date that is applicable to the Expansion Space on such Floor. The Tenant Improvements will ~~furnish or perform those items of construction~~ be designed and ~~those improvements (the~~ constructed as described in this Exhibit "D". Tenant ~~Improvements") specified or referenced in Exhibit 2 attached hereto.~~ and Landlord shall ~~pay~~ solicit bids for the Tenant Improvements up from no less than three (3) but not more than five (5) general contractors as mutually approved by Tenant and Landlord (which may include some or all of the general contractors listed in the definition of "Contractor" above). All subcontracted work (except for fire alarm, sprinkler work, Building automation system(s) connections, Building roof work and work associated with existing warranties) will be competitively bid by a minimum of three (3) qualified subcontractors in each trade of work. Tenant will have the right, but not the obligation, to attend contractor interviews, review or prepare the invitation to bid (with Landlord's reasonable approval), review the bid documents, and be present at the bid opening. Tenant and Landlord will mutually agree on the selection of the Contractor to be the general contractor for the Tenant Improvements. Upon selection of the Contractor, Landlord will enter into a ~~maximum amount of $1,760,000.00~~ construction contract with the Contractor to perform the Work and making advances to Contractor from the Improvement Allowance (unless Tenant elects to hire its own project manager to manage the ~~"TI Allowance")~~construction, as outlined below, and in ~~no event~~ that case, Tenant will enter into a construction contract with the Contractor to perform the Work and make advances to Contractor. Tenant will submit invoices, check copies and lien releases for reimbursement from Improvement Allowance). Landlord shall ~~Landlord have any obligation to pay~~ not be liable for any ~~costs~~ defects in the Tenant Improvements, cost overruns by Contractor or delays in the completion of the Tenant Improvements (other than to the extent caused by a Landlord Delay). Tenant will pay all costs of preparing the Space Plans, construction document preparation, negotiation of the construction contract with the Contractor, design, Plans and Specifications as well as all direct and indirect costs Landlord incurs in ~~excess of such amount. If~~ connection with the ~~cost~~ design and construction of the Tenant Improvements ~~exceeds such amount~~subject to the application of the Improvement Allowance. Such costs Landlord incurs may include, ~~any estimated overage~~ without limitation, all costs of general conditions, labor, materials, and other EXHIBIT D – TENANT IMPROVEMENTS AGREEMENT construction costs, the fees (on an hourly basis) of Contractor's project manager and site superintendent for the Tenant Improvements, and all costs incurred in ~~excess~~ connection with obtaining permits for the Tenant Improvements. For all purposes of ~~such amount shall~~ ownership, including risk of loss thereto, the Tenant Improvements will immediately upon installation be ~~paid by Tenant. Further, Tenant shall repay~~ and remain a part of the Building and the property of Landlord ~~for $1,337,600.00~~ (~~$19 psf~~subject to Section 15 (c) of the ~~TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"~~Lease). Tenant will notify Landlord in writing no later than November 15, 2012, if Tenant elects to have Landlord's construction manager, Xxxxx Interests, manage the construction of the Tenant Improvements; it being understood that Tenant may determine to manage or hire its own project manager for the construction of the Tenant Improvements for the Expansion Space, in which event the fee described below shall be reduced to one percent (1%); and agrees that such construction manager shall receive a fee for such services in an amount equal to three percent (3%) of the hard costs of construction. Such construction management services shall include, without limitation, the following: (a) preparing budgets and advising Tenant on costs and building conditions affecting cost and schedule; (b) reviewing Tenant's plans and specifications for comment and approval; (c) arrange for and attend contractor pre-construction interviews for selection of bidders; (d) in collaboration with Tenant's representative, receive/analyze/summarize contractors bids/proposals and make firm selection recommendation; (e) recommend cost and time saving adjustments to meet budget and schedule objectives, (f) attend weekly construction meetings and arrange for documenting progress; (g) coordinate Building access and operations with that of the Tenant Improvements and Tenant's contractors and vendors; (h) provide regular construction cost updates (construction cost summaries and accounting against the allowance, including final accounting) to Tenant including submitting and processing construction cost change orders to Tenant for approval; (i) arrange for preparation of schedules including regular updates; (j) identify Substantial Completion and provide for the timely identification and completion of punch list items; and (k) arrange for the delivery of close-out documentation including electronic as-built plans, certificate of occupancy, operation and maintenance manuals, warranties, final waivers and release of liens. The Contractor and Tenant shall have (i) the right to ~~select its~~ use existing communication conduit within and between the floors, (ii) access to the Building telecom risers and pathways (horizontal and vertical), conduits and cabling, (ii) the right to improve elevator lobbies, restrooms and stairwells on those floors of the Building in which the Tenant has leased the entire floor; (iii) the right to purchase and install Tenant's own ~~contractors~~ cosmetic/decorative materials, including, but not limited to, floor coverings, paint and wall coverings; (iv) perform core drilling contemplated by the Plans and Specifications during periods other than Normal Business Hours, (v) where contemplated by the Plans and Specifications, add structural support to increase floor loading; (vi) the right to install Tenant's own security card system for access to the Premises (which security system may be installed in a manner that is compatible with the Building's security system so that Tenant's security card system will provide access to both the Building and the Premises); (vii) the right to secure the Building's stairwells on the floors in which Tenant has leased the entire floor, subject in all events to ~~Landlord~~compliance with the Rules and Regulations and applicable Laws. With the exception of core drilling and excessive noise activities, construction of the Tenant Improvements will be conducted during Normal Business Hours. Access to the Building loading dock and vertical transportation shall be available to Contractor 24/7 at no additional cost. Contractor will coordinate with the Building's ~~consent~~ property manager to obtain reasonable access to floors contiguous to the Premises for the purpose of ~~such contractors~~installing floor outlets, water lines, taps, drains, etc., to the Premises. Tenant shall also have the option to connect to the existing generator for back up emergency power in the capacity of 100 amps three phase 480 volts. Tenant will have the right, but not the obligation, to review and approve the construction contract with the Contractor, which approval shall not be unreasonably withheld, conditioned or delayed. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:EXHIBIT D – TENANT IMPROVEMENTS AGREEMENT

Appears in 1 contract

Samples: Office Lease Agreement (FSP Galleria North Corp)

Tenant Improvements. Tenant will furnish or perform those items of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"), and in no event shall Landlord have any obligation All obligations to pay ~~for any costs of the Tenant Improvements in excess of such amount. If~~ the cost of ~~the Tenant Improvements exceeds such amount,~~ any ~~estimated overage~~ tenant improvement work owed or to be owed in ~~excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ connection with new leases of the ~~TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over~~ Building executed after the ~~Lease Term of $28,923.00 (~~date hereof or the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end result of the ~~Lease term or~~renewal of the Lease, ~~if it is for less than~~ the ~~full~~ extension of the term of the Lease, ~~shall be renewed by Tenant at least 30 days prior to its expiration during~~ the ~~term~~ expansion of the ~~Lease. The letter~~ premises demised by the Lease to space within the Building or the exercise of ~~credit~~ an option to lease additional space in the Building set forth in the Lease occurring after the date hereof, which costs shall ~~provide that it may~~ include, but not be ~~drawn down upon~~ limited to, all sums expended by ~~Landlord at~~ Highwoods, WSI, or WSI, II for such tenant improvement work (including all overhead costs incurred by them or any ~~time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate~~ of their affiliates in ~~having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms~~ connection with their performance of the ~~Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit~~ work related to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount tenant improvements not to exceed five percent (5%) of the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary cost of such ~~date~~tenant improvements), ~~unless at least sixty~~ and a profit not to exceed ten percent (6010%) ~~days prior to such expiration date, or prior to any anniversary~~ of the cost of such ~~date~~tenant improvements, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be ~~deemed to incorporate herein~~ assumed and paid by ~~reference any document~~ G-T Gateway on the Date of Closing by reimbursing Highwoods, WSI or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in partWSI, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holdersII, as the case may be, on for the costs of such tenant improvements previously paid by them in connection with new leases, renewals, extensions, relocations, expansions, or ~~before noon~~the exercise of an option to lease additional space in the Building occurring after the date hereof or if the cost of such tenant improvements are not yet due and payable by paying the same when they otherwise become due without an adjustment to the Purchase Price. Notwithstanding the foregoing, ~~New York time~~to the extent any portion of the term of the Lease, and renewals, extensions, expansions and relocations for which any tenant improvement work occurs prior to the date of Closing, the amount of the Purchase Price will be reduced by a pro rata share of such tenant improvement work based upon the percentage of such term (exclusive of any renewal options) which occurs prior to Closing. If any tenant improvement work is in process on the ~~Business Day (defined below) next following the~~ date ~~on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday~~of Closing, ~~Sunday~~ WSI or ~~day on which we are required or authorized by law to be closed in New York~~WSI, ~~New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit~~ II shall be ~~governed by~~responsible for completing the construction thereof, ~~and construed in accordance with~~provided, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit G-T Gateway shall be ~~governed by and construed in accordance with~~ responsible for the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:costs thereof as set forth above.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Highwoods Properties Inc)

Tenant Improvements. Provided that Tenant ~~will furnish or perform those items of construction and those improvements (~~is not in default under the ~~"Tenant Improvements") specified or referenced in Exhibit 2 attached hereto.~~ Lease, Landlord shall ~~pay for the Tenant Improvements up to~~ contribute a maximum amount (“Tenant Finish Allowance”) of $~~1,760,000.00~~ 81,905.00 (i.e., $5 per rentable office square foot of the Premises (i.e., 16,381 rsf)) to be used by Tenant for Tenant’s actual third party out-of-pocket costs to related to the following improvements to the Premises (the ~~"TI Allowance"),~~ “Premises Improvements”): (a) Flooring: Supply and install flooring. Remove and dispose of existing flooring. (b) Paint: Prepare all paintable surfaces for new paint. Paint such surfaces. All paint will be water based and antimicrobial – mildew resistant. (c) Such other items as are approved in ~~no event shall~~ writing by Landlord ~~have any obligation to pay for any costs of the Tenant Improvements~~ in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization")its sole and absolute discretion. Tenant shall have the option, exercisable by written notice to Landlord on or before August 1, 2014 to increase the amount of the Tenant Finish Allowance by up to an additional amount of $150,000.00 (the “Additional Allowance”). If Tenant exercises its right to increase the Tenant Finish Allowance, then all references in this Lease to Tenant Finish Allowance shall mean and refer to the Tenant Finish Allowance and Additional Allowance. If Tenant exercises such option, monthly Basic Rent payable by Tenant throughout the initial Term shall be increased by an amount sufficient to fully amortize such increase in the Additional Allowance throughout said initial Term based upon equal monthly payments of principal and interest, with interest imputed on the outstanding principal balance at the rate of five and one-half percent (5.5%) per annum. In no event shall Landlord be obligated to make disbursements pursuant to this Lease in a total amount which exceeds the Tenant Finish Allowance and, if applicable, the Additional Allowance. Tenant shall have the sole and absolute responsibility for the payment of any excess of the cost of the Premises Improvements over the amount of the Tenant Finish Allowance. Tenant shall select ~~its own contractors~~ the licensed architect and contractor for such work, subject to Landlord~~'s consent of such contractors~~’s prior written approval, which shall not be unreasonably withheld; provided that, in any event, Tenant must contract with Landlord’s base building subcontractors for any electrical, life safety, structural, heating, ventilation, and air-conditioning work in the Premises, if the Landlord’s subcontractors pricing is competitive in the marketplace after a competitive bid process has been completed. ~~-4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16~~Tenant shall deliver all plans and signage proposals related to the Premises Improvements to Landlord for Landlord’s prior written approval. Landlord’s review of the plans and signage proposals shall be for its sole purpose and shall not imply Landlord’s review of the same, ~~1996~~or obligate Landlord to review the same, ~~BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS~~for quality, ~~INC~~design, compliance with Requirements or other like matters. The ~~Additional Security Deposit~~ Premises Improvements shall be owned by the Landlord and shall remain in the Premises upon any termination. The Premises Improvements shall comply in all respects with the following: (i) the applicable laws, rules, statutes, regulations and requirements, as applicable according to the rulings of the controlling public official, agent or other person; (ii) applicable standards of the American Insurance Association (formerly, the National Board of Fire Underwriters) and the National Electrical Code; and (iii) building material manufacturer’s specifications (collectively, the “Requirements”). Landlord shall have the right to inspect the Premises Improvements at all times; provided, however, that Landlord’s failure to inspect the Premises Improvements shall in no event constitute a waiver of any of Landlord’s rights hereunder nor shall Landlord’s inspection of the Premises Improvements constitute Landlord’s approval of the same. Should Landlord disapprove any portion of the Premises Improvements, Landlord shall notify Tenant in writing of such disapproval and shall specify the items disapproved. Any defects or deviations in, and/or disapproval by Landlord of, the Premises Improvements shall be rectified by Tenant at no expense to Landlord. Tenant shall cause the Premises Improvements to be completed in a timely and workmanlike manner, in accordance with the plans and proposals approved by Landlord. Tenant’s indemnity of Landlord as set forth in this Lease shall also apply with respect to any and all costs, losses, damages, injuries and liabilities related in any way to the construction of the Premises Improvements and any act or omission of Tenant or Tenant’s employees, agents or contractors, or anyone directly or indirectly employed by any of them, or in connection with Tenant’s non payment of any amount arising out of the Premises Improvements. All of Tenant’s agents or contractors shall carry worker’s compensation insurance covering all of their respective employees, and shall also carry public liability insurance, including property damage, all with limits, in form and with companies as are required to be carried by Tenant as set forth in Paragraph 14. Upon completion of ~~an unconditional~~the Premises Improvements and in any event prior to December 31, ~~irrevocable letter~~ 2014, Tenant shall furnish Landlord with (i) final unconditional waivers of ~~credit~~ liens in such form as may be reasonably required by Landlord and Landlord’s title insurance company from all parties performing labor or supplying materials or services in connection with the Premises Improvements showing that all of said parties have been compensated in full and are waiving all liens in connection with the Premises and the Building; (ii) temporary or permanent certificate of occupancy or equivalent as required by the local government to occupy the Premises, if applicable; (iii) “as built” drawings, if applicable; and (iv) a ~~bank~~ detailed breakdown of Tenant’s total construction costs, including invoices for such costs, that is reasonably acceptable to Landlord. ~~The letter~~ Landlord and Tenant shall enter into a Disbursement Agreement in the form attached hereto as Exhibit “C” (“Disbursement Agreement”) with Nevada Construction Services and Tenant’s general contractor, which Disbursement Agreement shall provide the terms and conditions for the payment of ~~credit shall either provide that it does not expire until the end~~ costs of construction of the ~~Lease term or~~Premises Improvements. Tenant shall be responsible for any alterations, ~~if it is~~ additions or improvements required by Requirements to be made by Landlord to or in the Premises or the Building as a result of Tenant’s proposed alterations, additions, or improvements. Notwithstanding anything to the contrary contained herein or in the Disbursement Agreement, in the event the Tenant Finish Allowance has not been expended pursuant to the terms of this Section 59, (i) Tenant shall not be entitled to a credit or other payment for ~~less than the full term~~ any unused portion of the ~~Lease~~Tenant Finish Allowance after December 31, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises2014, ~~Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon~~ and (ii) all undistributed amounts deposited by Landlord pursuant to the ~~terms~~ Disbursement Agreement shall be promptly returned to Landlord after December 31, 2014 in a manner directed by Landlord without the need for any further instruction or consent of Tenant and the ~~Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The~~ form of ~~the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are~~ Disbursement Agreement attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit Exhibit “C” shall be ~~reduced annually on~~ modified to include a ~~pro rata basis~~ provision providing for such return in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up a form acceptable to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times Landlord in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:sole discretion.

Appears in 1 contract

Samples: Industrial Real Estate Lease (Galaxy Gaming, Inc.)

Tenant Improvements. ~~Tenant will furnish or perform those items of construction and those~~ Prior to the Lease Commencement Date, Landlord ------------------- shall make the improvements to the Premises (~~the~~ "Tenant Improvements") ~~specified or referenced~~ described in ~~Exhibit 2 attached hereto. Landlord shall pay for~~ the ~~Tenant Improvements up to a maximum amount of $1,760,000.00~~ plans and specifications prepared by GHK, Inc. dated August 15,2000 as amended September 22, 2000 (~~the~~ "~~TI Allowance~~Plans and Specifications"), such Plans and Specifications being attached hereto as Schedule B and made a part of this Lease ---------- and having been approved in ~~no event~~ writing by Landlord and Tenant. All materials shall be building-standard materials unless otherwise specified in Schedule B. Except ---------- as otherwise specifically provided in this Lease, Landlord ~~have any obligation~~ shall not be responsible for performing or paying for the moving or installation of telephone and computer systems, wiring or cabling, or the acquisition, moving or installation of Tenant's furnishings, fixtures and equipment in the Premises. Landlord agrees to ~~pay for any costs of the Tenant Improvements in excess of such amount. If~~ bear the cost of the Tenant Improvements ~~exceeds such amount~~in an amount not to exceed Fifty-two Thousand Eight Hundred Four Dollars and Seventy Cents ($52,804.70) ("Tenant Allowance"), provided no modifications are made to the Plans and Specifications described herein. In the event Tenant shall request any ~~estimated overage~~ modifications to the Plans and Specifications which increase the cost of completing the Tenant Improvements, Tenant covenants and agrees to pay to Landlord, as Additional Rent, all costs and expenses incurred by Landlord in excess of the Tenant Allowance, and to make such ~~amount~~ payment within thirty (30) days after receipt of an invoice for same from Landlord. Any excess of the Tenant Allowance over the total cost of constructing the Tenant Improvements shall belong solely to Landlord. Any other initial improvements to the Premises not shown on the Plans and Specifications are subject to Landlord's prior written approval and such improvements shall be performed by Landlord, and the cost thereof shall be paid by ~~Tenant~~Tenant to Landlord within thirty (30) days following receipt of an invoice for same from Landlord. ~~Further,~~ Any amounts payable by Tenant hereunder shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to include Landlord's ~~consent~~ standard construction management fee computed on the total cost of ~~such contractors~~construction, ~~which~~ including but not limited to the cost of developing, preparing and modifying construction drawings. In the event this Lease shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable terminate for any reason whatsoever prior to ~~Landlord. The letter of credit shall either provide that it does not expire until~~ the end of the Term or this Lease ~~term or~~is assigned, conveyed or transferred to another entity (except for any transfers which Landlord may permit under Section 25 hereof), Tenant shall be required to repay Landlord, upon demand, the unamortized amount of the Tenant Allowance and Broker's commission (if ~~it is for less than~~ any) determined by multiplying the total amount of the Tenant Allowance and Broker's commission incurred by Landlord by a fraction, the numerator of which shall be the amount of the unexpired Term remaining in the Lease, and the denominator of which shall be the full ~~term~~ Term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Massachusetts Full Service Office Lease (Harbor Global Co LTD)

Tenant Improvements. All Tenant ~~will furnish or perform those items~~ Improvements shall be performed by Landlord’s contractor, at Tenant’s sole cost and expense (subject to Landlord’s obligations with respect to any portion of ~~construction and those improvements (~~the "Base TI Allowance and, if properly requested by Tenant pursuant to the terms of the Lease, the Additional TI Allowance used by Landlord in completing the Tenant Improvements~~") specified or referenced~~ ), in ~~Exhibit 2 attached hereto~~a good and workmanlike manner in compliance with all Applicable Laws, and in substantial accordance with the Approved Plans (as defined below), the Lease and this Work Letter. ~~Landlord shall pay for~~ To the extent that the total projected cost of the Tenant Improvements ~~up to a maximum amount of $1,760,000.00~~ (as projected by Landlord) exceeds the "TI ~~Allowance"~~Allowance (such excess, the “Excess TI Costs”), ~~and in no event~~ Tenant shall ~~Landlord have any obligation to~~ pay ~~for any~~ the costs of the Tenant Improvements on a pari passu basis with Landlord as such costs become due within thirty (30) days of Landlord’s invoice therefor, in ~~excess~~ the proportion of Excess TI Costs payable by Tenant to the TI Allowance. If Landlord is delayed in commencing the Tenant Improvements due to Tenant’s failure to timely pay the Excess TI Costs to Landlord, Landlord shall be entitled to a day-for-day extension to achieve Substantial Completion of the Tenant Improvements for the period of such ~~amount~~delay and it shall be deemed a Tenant Delay. If the actual Excess TI Costs are less than the Excess TI Costs paid by Tenant to Landlord, Landlord shall credit Tenant with the overage paid by Tenant against Tenant’s Rent obligations, beginning after Landlord has completed the final accounting for the Tenant Improvements. If the cost of the Tenant Improvements ~~exceeds such amount~~(as projected by Landlord) increases over Landlord’s initial projection, then Landlord may notify Tenant and Tenant shall deposit any additional Excess TI Costs with Landlord in the same way that Tenant deposited the initial Excess TI Costs. If Tenant fails to pay, or is late in paying, any ~~estimated overage in excess of such amount~~ sum due to Landlord under this Work Letter, then Landlord shall ~~be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ have all of the ~~TI Allowance, together with interest at 10.75% per annum,~~ rights and remedies set forth in ~~equal monthly installments over~~ the Lease ~~Term~~ for nonpayment of ~~$28,923.00~~ Rent (~~the "TI Amortization"). Tenant shall have~~ including the right to ~~select its own contractors subject~~ interest and the right to ~~Landlord's consent~~ assess a late charge), and for purposes of any litigation instituted with regard to such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit amounts the same shall be in considered Rent. All material and equipment furnished by Landlord or its contractors as the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, Tenant Improvements shall be ~~renewed by~~ new or “like new,” and the Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit Improvements shall be ~~reduced annually on~~ performed in a ~~pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx~~first-class, ~~Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No~~workmanlike manner._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Lease Agreement (Selecta Biosciences Inc)

Tenant Improvements. Tenant will furnish or perform those items of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"), and in no event shall Landlord have any obligation to pay for any costs of the Tenant Improvements in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. ~~-4- <PAGE>~~ ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: : 1. Timely compliance with all lease terms during the three years; ; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; ; 3. No decrease in operating margin during the period; ; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. ~~<PAGE>~~ ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust ~~00000 X. 00xx Xxxxx Xxxxxx~~14100 E. 35th Place Aurora, ~~Xxxxxxxx 00000~~ Colorado 80011 Attention: ~~Xxx Xxx Re~~Tom Ray Xx: ~~Irrevocable Transferrable Letter~~ Xxxxxxxxxxx Xxxxxxxxxxxxx Xxtter of ~~Credit~~ Credix No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:.

Appears in 1 contract

Samples: Lease Agreement (Celerity Group Inc)

Tenant Improvements. Tenant ~~will furnish or perform those items of construction and those~~ shall cause to be constructed the tenant improvements in the Building (the "“Tenant Improvements"”) ~~specified or referenced~~ pursuant to the Work Letter at a cost to Landlord not to exceed Seven Million Seven Hundred Thousand Dollars ($7,700,000.00) (based upon One Hundred Forty Dollars ($140.00) per rentable square foot and subject to adjustment in ~~Exhibit 2 attached hereto. Landlord shall pay for the Tenant Improvements up to a maximum amount of $1,760,000.00~~ Rentable Area as provided in Section 4.7 herein) (the ~~"TI~~ “Tenant Improvement Allowance~~"), and in no event~~ ”) which shall ~~Landlord have any obligation to pay for any costs of the Tenant Improvements in excess of such amount. If~~ include the cost of ~~the Tenant Improvements exceeds such amount~~construction, ~~any estimated overage in excess~~ cost of ~~such amount shall be paid by Tenant. Further~~space planning, ~~Tenant shall repay Landlord for $1,337,600.00~~ architect, engineering and other related services, building permits, signage, consulting fees, equipment ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractorsincluding personal property and trade fixtures, which shall not ~~be unreasonably withheld~~exceed fifteen percent (15%) of the Tenant Improvement Allowance), relocation costs, furniture, cabling and other planning and inspection fees. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit Any costs incurred in performing the Tenant Improvements described in the Work Letter in excess of the Tenant Improvement Allowance shall be ~~in the form of an unconditional~~borne solely by Tenant; provided, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shallhowever, at ~~Landlord's request~~Tenant’s option, ~~cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by~~ Landlord ~~pursuant to the terms of the Lease and this Addendum, Tenant~~ shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (fund such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date excess in an ~~aggregate~~ amount not to exceed Twenty-Five Dollars ($25.00) per rentable square foot (the ~~Letter of Credit Amount then in effect (it being understood that~~ “Additional Allowance,” and together with the ~~honoring by us of each Drawing Request shall reduce~~ Tenant Improvement Allowance, the ~~Letter of Credit Amount then in effect~~“Combined Allowance”). ~~This Letter~~ The Additional Allowance shall be repaid by Tenant monthly as Additional Rent beginning with Tenant’s first Rent payment, in a monthly amount equal to the Additional Allowance fully amortized at an interest rate of ~~Credit~~ twelve percent (12%) per annum over twelve (12) years. Tenant may prepay the remaining Additional Allowance at any time without penalty, and shall repay the remaining Additional Allowance in full upon expiration of the Lease Term. Any unused portion of the Tenant Improvement Allowance shall be credited against Monthly Rent payments as such Monthly Rent payments become due. In addition to the Tenant Improvement Allowance and Additional Allowance, Landlord will ~~be automatically renewed~~ provide Tenant with an additional allowance of up to 15/100 Dollars ($0.15) per rentable square foot for purposes of Xxxxxx-Xxxxxx Architects preparing a ~~one~~preliminary space planning “test-~~year period~~ fit,” payable upon ~~the expiration date set forth above and upon each anniversary~~ Landlord’s receipt of such ~~date, unless at least sixty (60) days~~ test-fit prior to ~~such expiration date, or prior to~~ construction of any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:tenant improvements.

Appears in 1 contract

Samples: Lease (Nuvelo Inc)

Tenant Improvements. All Tenant ~~will furnish or perform those items~~ Improvements shall be performed by Tenant's contractor, at Tenant's sole cost and expense (subject to Landlord's obligations with respect to payment of ~~construction~~ the TI Allowance) and ~~those improvements~~ in accordance with the Approved Plans (as defined below), the Lease and this Work Letter. To the extent that the total projected cost of the applicable Tenant Improvements (as reasonably projected by Landlord) exceeds the TI Allowance (such excess, the "~~Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the Tenant Improvements up to a maximum amount of $1,760,000.00 (the "~~Excess TI ~~Allowance~~Costs"), ~~and in no event~~ Tenant shall ~~Landlord have any obligation to~~ pay ~~for any~~ the costs of the Tenant Improvements on a pari passu basis with Landlord as such costs become due, in the proportion of Excess TI Costs payable by Tenant to the TI Allowance. If the actual Excess TI Costs are less than the Excess TI Costs paid by Tenant to Landlord, Landlord shall promptly return such excess ~~of such amount~~to Tenant after Landlord has completed the final accounting for the Tenant Improvements. If the cost of the Tenant Improvements ~~exceeds such amount~~(as projected by Landlord) increases over Landlord's initial projection, then Landlord may notify Tenant and Tenant shall deposit any additional Excess TI Costs with Landlord in the same way that Tenant deposited the initial Excess TI Costs. If Tenant fails to pay, or is late in paying, any ~~estimated overage~~ sum due to Landlord under this Work Letter, then Landlord shall have all of the rights and remedies set forth in ~~excess~~ the Lease for nonpayment of Rent (including the right to interest and the right to assess a late charge), and for purposes of any litigation instituted with regard to such ~~amount~~ amounts the same shall be ~~paid~~ considered Rent. All material and equipment furnished by ~~Tenant. Further~~Tenant or its contractors as the Tenant Improvements shall be new or "like new;" the Tenant Improvements shall be performed in a first-class, ~~Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ workmanlike manner; and the quality of the ~~TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over~~ Tenant Improvements shall be of a nature and character not less than the ~~Lease Term of $28,923.00 (the "TI Amortization")~~Building Standard. Tenant shall ~~have~~ take, and shall require its contractors to take, commercially reasonable steps to protect the ~~right~~ Premises during the performance of any Tenant Improvements, including covering or temporarily removing any window coverings so as to ~~select its own contractors subject to Landlord's consent of such contractors~~guard against dust, ~~which shall not be unreasonably withheld~~debris or damage. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit All Tenant Improvements shall be performed in accordance with Article 17 of the Lease; provided that, notwithstanding anything in the ~~form~~ Lease or this Work Letter to the contrary, in the event of ~~an unconditional, irrevocable letter of credit from~~ a ~~bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term~~ conflict between this Work Letter and Article 17 of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Work Letter ~~of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and~~ shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:govern.

Appears in 1 contract

Samples: Lease Agreement (Natera, Inc.)

Tenant Improvements. Tenant shall be solely responsible for the installation of its FF&E, cabling and networking, and any additional IT installations within the First Floor Expansion Premises. Any Alterations made to the First Floor Expansion Premises shall be subject to Landlord’s prior consent and the terms of Article 10 of the Initial Lease, provided, however, (i) as part of its request for Landlord’s approval of an Alteration to the First Floor Expansion Premises, Tenant shall include a request that Landlord determine if Landlord will ~~furnish~~ require the removal of such Alteration prior to the expiration or ~~perform those items~~ earlier termination of ~~construction~~ the Lease and ~~those improvements~~ (ii) for any Alterations to the "First Floor Expansion Premises Tenant ~~Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord~~ shall pay Landlord an oversight fee (“Oversight Fee”) equal to $1.00 per RSF of the First Floor Expansion Premises. In addition to the Oversight Fee, Tenant shall reimburse Landlord for the actual out-of-pocket costs incurred by Landlord in connection with any third party review of Tenant’s plans, specifications, drawings and similar documentation (“Third Party Review Costs”). In the event the Oversight Fee exceeds $36,490.00, then Tenant ~~Improvements up to~~ shall pay Landlord for such additional work on a ~~maximum amount~~ time and materials basis at the rate of $~~1,760,000.00~~ 195/hour (“Oversight Excess”), in addition to the ~~"TI Allowance"~~Third Party Review Costs. For the avoidance of doubt, any Oversight Excess shall be in addition to (and not in lieu of) the Oversight Fee. Notwithstanding anything to the contrary contained in the Lease, with respect to the First Floor Expansion Premises only, unless otherwise stated by Landlord in writing as part of its consent, Tenant shall be required to remove any Alteration to the First Floor Expansion Premises, restore the effected portion of the First Floor Expansion Premises to the condition prior to the construction of such Alteration (reasonable wear and tear excepted), and ~~in no event shall Landlord have~~ repair any ~~obligation to pay for any costs of~~ damage caused by such Alteration or the ~~Tenant Improvements in excess of such amount. If the cost of the Tenant Improvements exceeds such amount~~removal thereof, any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to ~~its~~ the expiration ~~during the term~~ or earlier termination of the Lease. ~~The letter of credit~~ Landlord shall ~~provide that it may~~ have the option, to be ~~drawn down upon~~ exercised by ~~Landlord at~~ written notice to Tenant any time between July 1, 2026 and July 31, 2026, Landlord ~~delivers~~ to deliver to Tenant its ~~site draft~~ estimate (“Restoration Estimate”) of the commercially reasonable (inclusive of copies of third-party bids for the work in question) cost to restore the First Floor Expansion Premises to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or condition which existed prior to the ~~expiry date against presentation by you of your (i~~Alteration(s) ~~sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred~~ required to ~~as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may~~ be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn removed under ~~and in compliance with~~ the terms of this ~~Letter of Credit~~ Section 9. The Restoration Estimate shall be accompanied by reasonable backup documentation supporting Landlord’s estimate and the process Landlord used to ensure that such ~~drafts will be duly honored upon presentation~~ estimate is commercially reasonable. If Landlord delivers the Restoration Estimate to ~~the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers~~Tenant, ~~endorsers, and bona fide holders, as the case may be~~then Tenant, on or before ~~noon~~the Lease Expiration Date (i.e. December 31, ~~New York time~~2026, on subject to the ~~Business Day~~ exercise of any Renewal Options) shall deliver to Landlord a check (~~defined below~~or other immediately available funds) ~~next following~~ (“Restoration Check”) in an amount equal to the ~~date on which such drafts are~~ Restoration Estimate. If Tenant timely delivers the Restoration Check, then Tenant shall no longer be required to remove the applicable Alteration(s) from the First Floor Expansion Premises, provided, however, Tenant shall otherwise remain obligated to surrender the First Floor Expansion Premises in the condition required by Section 10.5 of the Initial Lease. Tenant’s failure to timely deliver the Restoration Check (if applicable) and/or surrender the First Floor Expansion Premises in the condition required in the Lease shall result in a holdover tenancy solely with respect to the First Floor Expansion Premises and Tenant shall be subject to the’ terms of Section 25 of the Initial Lease until the Restoration Check is received by ~~us. "Business Day" shall mean any day which is not a Saturday, Sunday~~ Landlord (if applicable) or ~~day on which we are~~ Tenant restores and repairs the First Floor Expansion Premises as required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:herein.

Appears in 1 contract

Samples: Office Lease (Airbnb, Inc.)

Tenant Improvements. Tenant ~~will furnish or perform those items of construction~~ and ~~those~~ Landlord agree that Landlord shall make improvements to the Tenant's Premises according to the space plan attached hereto as Exhibit B and by this reference made a part hereof (the "Tenant Improvements"). Landlord agrees to pay up to an allowance of One Hundred Seventy Five Thousand Nine Hundred Twenty Dollars and 00/100 ($175,920.00) ~~specified~~ (the "Maximum Allowance") associated with Tenant's Premises (Suite 100) at its sole cost and expense related to such Tenant Improvements. In the event the cost of Tenant Improvements exceed the Maximum Allowance, Tenant hereby agrees to pay promptly when due the cost overage for such Tenant Improvements above the Maximum Allowance, if any, provided Tenant has approved such overage in writing prior to incurring such overage. Landlord agrees to pay the tenant improvement invoices as they become due with Tenant reimbursing Landlord for all amounts over the Maximum Allowance stated above provided Tenant has approved such overage in writing prior to incurring such overage. IT IS EXPRESSLY AGREED TO HEREIN THAT NO WORK WILL BE AUTHORIZED FOR OVER THE MAXIMUM ALLOWANCE WITHOUT PRIOR WRITTEN APPROVAL OF BOTH LANDLORD AND TENANT. Tenant Improvements shall be defined as all costs associated with improving the Premises, as it relates to Exhibit B, including new carpeting and padding (if applicable), general conditions of the contractor (including overhead and profit), wall installation and/or removal, wall preparation, painting, floor plan preparations and review, permits, hard surface floor covering, relites, doors, door jambs, door hardware, Tenant signage, sprinklers, vapor/noise barriers, smoke detectors, fire dampers/stops, light fixtures, code required modifications, electrical installation or ~~referenced in Exhibit 2 attached hereto~~reconfiguration, ceiling tiles (new or repainted), ceiling T-grids, securing tenant improvements for earthquake codes, installation of wood work or cabinetry, window blinds repair or replacement, general clean-up, and other items mutually agreed to by Tenant and Landlord, and any applicable sales taxes. In no event shall any of the Maximum Allowance allocation be utilized for furniture, furniture installation, demountable furniture partitions, and other moving costs. All of the furniture related costs are to be at the sole cost of Tenant and are not part of the Maximum Allowance allocation. Landlord shall utilize Landlord's tenant improvement contractor to perform the Tenant Improvement work on the Premises, except for telephone and/or networking cabling which shall be contracted by Tenant. Once the Tenant improvement work has been completed, and should the total cost associated with the Tenant Improvements and other items permitted herein, total less than the Maximum Allowance amount, any savings in the total cost to improve the Premises shall belong to Landlord. Tenant and Landlord agree that the Base Monthly Rent described in item above is based in part upon Landlord's obligation to pay for ~~the~~ Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"), and in no event shall Landlord have any obligation to pay for any costs of the Tenant Improvements in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the ~~Letter~~ Maximum Allowance specified herein. If, In the event, the cost to install the Tenant Improvements, to which Landlord is obligated to pay and which Tenant and Landlord have mutually approved to include in such cost, is in excess of ~~Credit Amount then~~ the Maximum Allowance, Tenant shall pay for all such costs directly. Once the Tenant Improvements are substantially completed in ~~effect (it being understood that the honoring~~ areas where access is desired by ~~us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will~~ Tenant even though other areas may not be ~~automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date~~substantially completed, ~~unless at least sixty (60) days~~ prior to the Lease Commencement, Tenant may enter the space for installation of its fixturing, cabling or other furniture installations, to the extent such ~~expiration date~~activities do not interfere with or delay the completion of Tenant Improvements directed by Landlord or it's contractors, agents, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:employees.

Appears in 1 contract

Samples: Lease Agreement (Cellular Technical Services Co Inc)

Tenant Improvements. Unless specified otherwise herein, Tenant ~~will furnish or perform those items~~ shall bear and pay the cost of the Tenant Improvements,(which cost shall include, without limitation, the costs of construction as provided for in the Tenant Improvement Contractor’s contract, the cost of permits, all architectural, design, space planning, and ~~those improvements~~ engineering services obtained by Tenant in connection with Tenant Improvements, laboratory and office improvements, wiring and cabling costs, and cubicle costs and the construction supervision fee payable to Landlord in an amount equal to the lesser of (i) $150,000, and (ii) 1.5% of the cost (excluding such fee) of the Tenant Improvements; provided that so long as Tenant is not in default under the Lease beyond all applicable notice and cure periods, Landlord shall contribute a maximum of $150 per rentable square foot, for an aggregate maximum of (a) $15,121,200 (the "“Tenant ~~Improvements"~~Improvement Allowance”), which shall be utilized only building improvements to the Building, the Generator and for any related costs, including but not limited to design, engineering, construction, furniture and equipment appurtenant to the Leased Premises, cabling, project management fees, moving expenses, and signage, plus (b) ~~specified~~ the additional sum of $350,000 (the “Elevator Allowance”) to be used by Tenant to partially defray the cost of the freight elevator to be installed by Tenant. The Tenant Improvement Allowance shall be available to Tenant until the later of (i) December 1, 2022, as may be delayed by Force Majeure and Landlord Delays, and (ii) the date that is thirty (30) months after the Lease Commencement Date (the “TI Allowance Deadline”), after which Tenant shall have no further right to request any unrequested portion of the Tenant Improvement Allowance. The Elevator Allowance shall be available to Tenant until December 31, 2026, as may be delayed by Force Majeure and Landlord Delays (the “Elevator Allowance Deadline”; together with the TI Allowance Deadline, each an “Allowance Deadline”), after which Tenant shall have no further right to request any unrequested portion of the Elevator Allowance. Landlord acknowledges that Tenant may complete pre-construction, construction and installation of the freight elevator in phases over the course of the Term of the Lease, and agrees to make payments (which may be in multiple draws) of the Elevator Allowance to Tenant in accordance with this Paragraph 3. Subject to the applicable Allowance Deadline, based upon applications for payment prepared, certified and submitted by Tenant as described below, Landlord shall make progress payments from the Tenant Improvement Allowance or ~~referenced~~ Elevator Allowance to Tenant in accordance with the provisions of this Paragraph 3 as follows: (i) Not later than the 25th day of each month Tenant shall submit applications for payment to Landlord in a form reasonably acceptable to Landlord, including Tenant Improvement Contractor’s Application and Certification for Payment AIA G702 certified by Tenant Improvement Architect, certified as correct by an authorized representative of Tenant and by Tenant’s architect, for payment of Landlord’s pro rata portion (as determined pursuant to subsection (iii) below) of the cost of the Tenant Improvements allocable to labor, materials and equipment incorporated in the Building during the period from the first day of the same month projected through the last day of the month. Each application for payment shall set forth such information and shall be accompanied by such supporting documentation as shall be reasonably requested by Landlord, including the following: Exhibit ~~2 attached hereto~~C 110015197v.8 (A) Invoices and canceled checks. (B) Fully executed conditional lien releases in the form prescribed by law from the Tenant Improvement Contractor and all subcontractors and suppliers furnishing labor or materials during such period and fully executed unconditional lien releases from all such entities covering the prior payment period. (C) Tenant Improvement Contractor’s worksheets showing percentages of completion. (D) Tenant Improvement Contractor’s certification as follows: “There are no known mechanics’ or materialmen’s liens outstanding at the date of this application for payment, all due and payable bills with respect to the Building have been paid to date or shall be paid from the proceeds of this application for payment, and there is no known basis for the filing of any mechanics’ or materialmen’s liens against the Building or the Property, and, to the best of our knowledge, waivers from all subcontractors are valid and constitute an effective waiver of lien under applicable law to the extent of payments that have been made or shall be made concurrently herewith.” (ii) Tenant shall submit with each application for payment all documents necessary to effect and perfect the transfer of title to the materials or equipment for which application for payment is made. (iii) Prior to the TI Allowance Deadline, on or before the 30th day following submission of the application for payment, so long as Tenant is not in monetary default, or material non-monetary default beyond the expiration of any notice and cure periods expressly set forth in the Lease or this Work Letter, under the terms of this Work Letter or the Lease, Landlord shall pay a share of such payment pari passu with Tenant, determined by multiplying the amount of such payment by a fraction, the numerator of which is the amount of the Tenant Improvement Allowance, and the denominator of which is $20,000,000 (i.e., the total amount set forth in the “Initial TI Budget,” defined herein as a budget including in reasonable detail the estimated construction cost of all Tenant Improvement work and materials for the entire Leased Premises, and the estimated cost of all professional services, fees and permits in connection therewith). In this regard, it shall be a condition to Landlord’s obligation to make any disbursement of the Tenant Improvement Allowance that Tenant first shall have finalized and delivered to Landlord the Initial TI Budget. Tenant shall pay the balance of such payment, provided that at such time as Landlord has paid the entire Tenant Improvement Allowance on account of such Tenant Improvement work, all bxxxxxxx shall be paid entirely by Tenant. If upon completion of the Tenant Improvement Work and payment in full to the Tenant Improvement Contractor, the architect and engineer, and payment in full of all fees and permits, the portion of the cost of the Tenant Improvement Work, architects’ and engineers’ fees, permits and fees theretofore paid by Landlord is less than the Tenant Improvement Allowance, Landlord shall reimburse Tenant for costs expended by Tenant for Tenant Improvement work up to the amount by which the Tenant Improvement Allowance exceeds the portion of such cost theretofore paid by Landlord. Landlord shall ~~pay for~~ have no obligation to advance the Tenant ~~Improvements up~~ Improvement Allowance to ~~a maximum amount~~ the extent it exceeds the total cost of ~~$1,760,000.00 (~~the ~~"TI Allowance"), and in~~ Tenant Improvement Work. In no event shall Landlord have any ~~obligation to pay~~ responsibility for ~~any costs of the Tenant Improvements in excess of such amount. If~~ the cost of the Tenant ~~Improvements exceeds such amount, any estimated overage~~ Improvement Work in excess of ~~such amount~~ the Improvement Allowance. Landlord shall ~~be paid~~ have no obligation to make any payments to Tenant Improvement Contractor’s material suppliers or subcontractors or to determine whether amounts due them from Tenant Improvement Contractor in connection with the Tenant Improvement work have, in fact, been paid. Exhibit C 110015197v.8 (iv) Following the TI Allowance Deadline until the Elevator Allowance Deadline, Landlord shall pay the amounts requested by Tenant~~. Further~~, ~~Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ on or before the 30th day following submission of the ~~TI Allowance~~application for payment, ~~together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization").~~ so long as Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn default under ~~and in compliance with~~ the terms of this Work Letter ~~of Credit that such drafts will be duly honored upon presentation~~ or the Lease (beyond all applicable notice and cure periods). Landlord shall have no obligation to advance the Elevator Allowance to the ~~drawee from our own funds~~ extent it exceeds the total cost of Tenant’s freight elevator, including, without limitation, all costs of pre-construction, construction, installation, equipment and ~~not~~ assembly thereof. In no event shall Landlord have any responsibility for the ~~funds~~ cost of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed freight elevator in ~~New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms~~ excess of the ~~Uniform Customs~~ Tenant Improvement Allowance and ~~Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (~~the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:Elevator Allowance.

Appears in 1 contract

Samples: Lease Agreement (Personalis, Inc.)

Tenant Improvements. All Tenant ~~will furnish or perform those items~~ Improvements shall be performed by Tenant’s contractor, at Tenant’s sole cost and expense (subject to Landlord’s obligations with respect to any portion of ~~construction~~ the TI Allowance and ~~those improvements~~ the Test Fit Allowance) and in accordance with the Approved Plans (as defined below), the ~~"Tenant Improvements") specified or referenced in Exhibit 2 attached hereto~~Lease and this Work Letter. ~~Landlord shall pay for~~ To the extent that the total projected cost of the Tenant Improvements ~~up to a maximum amount of $1,760,000.00~~ (as projected by Landlord) exceeds the "TI ~~Allowance"~~Allowance (such excess, the “Excess TI Costs”), ~~and in no event~~ Tenant shall ~~Landlord have any obligation to~~ pay ~~for any~~ the costs of the Tenant Improvements on a pari passu basis with Landlord as such costs become due, in ~~excess~~ the same proportion that the Excess TI Costs payable by Tenant represent of ~~such amount~~the total cost of the Tenant Improvements. In other words, if the total cost of the Tenant Improvements is $100,000, and the Excess TI Costs are $25,000, then the Excess TI Costs comprise 25% of the total cost of the Tenant Improvements, and therefore Tenant would pay 25% of the costs of the Tenant Improvements as they come due. If the cost of the Tenant Improvements ~~exceeds such amount~~(as projected by Landlord) increases over Landlord’s initial projection (the “Increased TI Costs”), ~~any estimated overage in excess of such amount shall be paid by Tenant. Further,~~ then Landlord may notify Tenant and Tenant shall ~~repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance~~deposit with Landlord, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days ~~thereafter cause~~ after receipt of an invoice therefore, the ~~letter~~ portion of ~~credit~~ such Increased TI Costs that would have been required to be ~~restored~~ paid by Tenant had such Increased TI Costs been included in the initial determination of Excess Costs and Tenant had been required to ~~its original amount. The form~~ pay the costs of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase Improvements in the ~~debt-to-total-capital ratio over~~ proportion that the ~~period~~Excess TI Costs and the Increased TI Costs, in the aggregate, represent of the total cost of the Tenant Improvements. ~~Further~~Thereafter, the ~~Letter~~ remaining balance of ~~Credit~~ such Increased TI Costs shall be ~~reduced annually~~ included as part of the Excess TI Costs to thereafter be paid by Tenant on a ~~pro rata~~ pad passu basis in accordance with ~~Annex II-5~~this Section. ~~<PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx~~In other words, ~~Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter~~ if the Excess TI Costs originally comprised 25% of ~~Credit No._______________________________________ Beneficiary: By order~~ the total cost of ~~our client~~the Tenant Improvements and subsequently Landlord notifies Tenant of Increased TI Costs that when combined with the original Excess TI Costs comprise 30% of the total cost of the Tenant Improvements, ~~Insync Systems~~then Tenant shall pay the difference (i.e. an additional five percent (5%) of the costs incurred to date) to Landlord and thereafter be required to pay 30% of the costs of the Tenant Improvements as they become due. If Tenant fails to pay, ~~Inc.~~ or is late in paying, any sum due to Landlord under this Work Letter, then Landlord shall have all of the rights and remedies set forth in the Lease for nonpayment of Rent (including the ~~"Applicant"~~right to interest and the right to assess a late charge), ~~we hereby establish this Irrevocable Transferrable Letter~~ and for purposes of ~~Credit No.______________________________in your favor for an amount up~~ any litigation instituted with regard to ~~but~~ such amounts the same shall be considered Rent. All material and equipment furnished by Tenant or its contractors as the Tenant Improvements shall be new or “like new;” the Tenant Improvements shall be performed in a first-class, workmanlike manner; and the quality of the Tenant Improvements shall be of a nature and character not ~~exceeding~~ less than the ~~aggregate sum~~ Building Standard. Tenant shall take, and shall require its contractors to take, commercially reasonable steps to protect the Premises during the performance of ~~Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (~~any Tenant Improvements, including covering or temporarily removing any window coverings so as ~~reduced from time~~ to ~~time~~ guard against dust, debris or damage. All Tenant Improvements shall be performed in accordance with Article 17 of the ~~terms hereof~~Lease; provided that, notwithstanding anything in the "Lease or this Work Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the ~~expiry date against presentation by you of your (i) sight drafts drawn on us~~ contrary, in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us event of a ~~Notice~~ conflict between this Work Letter and Article 17 of ~~Assignment in~~ the ~~form of Annex 3 hereto. <PAGE> We hereby agree with the drawers~~Lease, ~~endorsers, and bona fide holders of drafts drawn under and in compliance with~~ the terms of this Work Letter ~~of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and~~ shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:govern.

Appears in 1 contract

Samples: Lease (Silverback Therapeutics, Inc.)

Tenant Improvements. All Tenant ~~will furnish or perform those items~~ Improvements shall be performed by Tenant’s contractor, at Tenant’s sole cost and expense (subject to Landlord’s obligations with respect to any portion of ~~construction~~ the Base TI Allowance and, if properly requested by Tenant pursuant to the terms of the Lease, the Additional TI Allowance and ~~those improvements~~ in accordance with the Approved Plans (as defined below), the ~~"Tenant Improvements"~~Lease and this Work Letter, provided that any vivarium shown on the Approved Plans shall not exceed ten percent (10%) ~~specified or referenced in Exhibit 2 attached hereto~~of rentable area of the Premises. ~~Landlord shall pay for~~ To the extent that the total projected cost of the Tenant Improvements ~~up to a maximum amount of $1,760,000.00~~ (as projected by Landlord) exceeds the "TI ~~Allowance"~~Allowance (such excess, the “Excess TI Costs”), ~~and in no event~~ Tenant shall ~~Landlord have any obligation to~~ pay ~~for any~~ the costs of the Tenant Improvements on a pari passu basis with Landlord as such costs become due, in ~~excess~~ the proportion of ~~such amount~~Excess TI Costs payable by Tenant to the Base TI Allowance and, if properly requested by Tenant pursuant to the terms of the Lease, the Additional TI Allowance payable by Landlord. If the cost of the Tenant Improvements ~~exceeds such amount~~(as projected by Landlord) increases over Landlord’s initial projection, then Landlord may notify Tenant and Tenant shall pay any additional Excess TI Costs with Landlord in the same way that Tenant deposited the initial Excess TI Costs. If Tenant fails to pay, or is late in paying, any ~~estimated overage~~ sum due to Landlord under this Work Letter, then Landlord shall have all of the rights and remedies set forth in ~~excess~~ the Lease for nonpayment of Rent (including the right to interest and the right to assess a late charge), and for purposes of any litigation instituted with regard to such ~~amount~~ amounts the same shall be ~~paid~~ considered Rent. All material and equipment furnished by ~~Tenant. Further~~Tenant or its contractors as the Tenant Improvements shall be new or “like new;” the Tenant Improvements shall be performed in a first-class, ~~Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ workmanlike manner; and the quality of the ~~TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over~~ Tenant Improvements shall be of a nature and character not less than the ~~Lease Term of $28,923.00 (the "TI Amortization")~~Building Standard. Tenant shall ~~have~~ take, and shall its contractors to take, commercially reasonable steps to protect the ~~right~~ Premises during the performance of any Tenant Improvements, including covering or temporarily removing any window coverings so as to ~~select its own contractors subject to Landlord's consent of such contractors~~guard against dust, ~~which shall not be unreasonably withheld~~debris or damage. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit All Tenant Improvements shall be performed in accordance with Article 17 of the Lease; provided that, notwithstanding anything in the ~~form~~ Lease or this Work Letter to the contrary, in the event of ~~an unconditional, irrevocable letter of credit from~~ a ~~bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term~~ conflict between this Work Letter and Article 17 of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Work Letter ~~of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and~~ shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:govern.

Appears in 1 contract

Samples: Lease (Monte Rosa Therapeutics, Inc.)

Tenant Improvements. ~~Tenant will furnish or perform those items of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the~~ All Tenant Improvements up shall be performed by Tenant’s contractor, at Tenant’s sole cost and expense (subject to ~~a maximum amount~~ Landlord’s obligations with respect to any portion of ~~$1,760,000.00 (~~the "TI Allowance") and in accordance with the Approved Plans (as defined below), the Lease and ~~in no event shall Landlord have any obligation to pay for any costs of~~ this Work Letter. To the ~~Tenant Improvements in excess of such amount. If~~ extent that the total projected cost of the Tenant Improvements (as projected by Landlord) exceeds the TI Allowance (such ~~amount~~excess, ~~any estimated overage in excess of such amount shall be paid by Tenant. Further~~the “Excess TI Costs”), Tenant shall ~~repay~~ advance to Landlord ~~for $1,337,600.00 ($19 psf) of the~~ any Excess TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall Costs within ten (10) days ~~thereafter cause~~ after receipt of an invoice therefor, but in any case before Tenant commences the ~~letter of~~ Tenant Improvements. If the actual Excess TI Costs are less than the Excess TI Costs paid by Tenant to Landlord, Landlord shall credit Tenant with the overage paid by Tenant against Tenant’s Rent obligations, beginning after Landlord has completed the final accounting for the Tenant Improvements.. If Tenant fails to ~~be restored~~ pay, or is late in paying, any sum due to ~~its original amount. The form~~ Landlord under this Work Letter, then Landlord shall have all of the ~~Letter~~ rights and remedies set forth in the Lease for nonpayment of ~~Credit~~Rent (including the right to interest and the right to assess a late charge), ~~Sight Draft~~and for purposes of any litigation instituted with regard to such amounts the same shall be considered Rent. All material and equipment furnished by Tenant or its contractors as the Tenant Improvements shall be new or “like new;” the Tenant Improvements shall be performed in a first-class, ~~Drawing Request~~ workmanlike manner; and ~~Notice~~ the quality of ~~Assignment are attached hereto as Annex II-1~~the Tenant Improvements shall be of a nature and character not less than the Building Standard. Tenant shall take, ~~II-2~~and shall its contractors to take, ~~II-3 and II-4 respectively. Landlord will release~~ commercially reasonable steps to protect the ~~letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms~~ Premises during the ~~three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6)~~performance of any Tenant Improvements, as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on including covering or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to temporarily removing any ~~anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to~~ window coverings so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to ~~matters not governed by the UCP 500~~guard against dust, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:debris or damage.

Appears in 1 contract

Samples: Lease Agreement (Bionovo Inc)

Tenant Improvements. ~~Tenant will furnish or perform those items of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto.~~ Landlord shall construct and, except as provided below to the contrary, pay for the entire cost of constructing the following tenant improvements in the Premises (collectively, the “Tenant Improvements”): • remove seven (7) offices (See Exhibit A); • patch and repair of ceiling by way of replacement. Ceiling grid in the area of the demolition will be replaced and repaired using new materials consisting of equal quality, structure, color, texture and appearance (to the extent such materials are still available) to ensure a consistent “matched’ appearance throughout the Premises; • new carpet and base throughout the Premises (utilizing a mutually agreed upon Building-Standard carpet and base that is in stock); • cap any remaining floor cores unused by Tenant’s furniture and cover with the new carpet; and • touch-up paint as needed throughout the Premises. Tenant may request changes to the Tenant Improvements ~~up to~~ provided that (a) the changes shall not be of a ~~maximum amount of $1,760,000.00~~ lesser quality than Landlord’s standard specifications for tenant improvements for the Building, as the same exists on the Effective Date (the ~~"TI Allowance"~~“Standards”), ; (b) the changes conform to applicable governmental regulations and necessary governmental permits and approvals can be secured; (c) the changes do not require building service beyond the levels normally provided to other tenants in ~~no event shall Landlord~~ the Building; (d) the changes do not have any ~~obligation to pay for any costs~~ adverse effect on the structural integrity or systems of the Building; (e) the changes will not, in Landlord’s opinion, unreasonably delay construction of the Tenant ~~Improvements~~ Improvements; and (f) Landlord has determined in ~~excess~~ its sole but reasonable discretion that the changes are of ~~such amount~~a nature and quality consistent with the overall objectives of Landlord for the Building. If ~~the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid~~ Landlord approves a change requested by Tenant~~. Further~~, then, as a condition to the effectiveness of Landlord’s approval, Tenant shall ~~repay~~ pay to Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon demand by Landlord ~~at any time Landlord delivers its site draft~~ the increased actual cost attributable to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6)such change, as ~~established~~ reasonably determined by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New YorkLandlord. To the extent any such change results in a delay of completion of construction of the Tenant Improvements, then such delay shall constitute a delay caused by Tenant as described below. Concurrently with construction of the Tenant Improvements, but not ~~inconsistent with~~ as a part thereof, Landlord shall allow the ~~express terms hereof~~installation of Tenant’s security system for access to the Premises in the Building elevators serving the Premises by Tenant, ~~this Letter of Credit~~ utilizing Tenant’s security installation vendor(s), provided such installation shall be ~~governed by~~under the supervision of Landlord. All costs of such installation, and ~~construed in accordance with,~~ the ~~terms~~ removal thereof upon Tenant’s vacation of the ~~Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision)~~Premises, ~~I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit~~ shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:Tenant’s responsibility.

Appears in 1 contract

Samples: Office Lease (Tandem Diabetes Care Inc)

Tenant Improvements. Landlord and Tenant hereby agree that Landlord shall not be constructing improvements to the Expansion Space on Tenant’s behalf. If improvements are desired by Tenant to be constructed in the Expansion Space, (A) Tenant will ~~furnish or perform those items of~~ be responsible for such construction ~~and those improvements~~ (~~the "Tenant Improvements"~~using contractors) ~~specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"~~reasonably approved by Landlord), and ~~in no event shall Landlord have any obligation to pay~~ (B) Tenant will prepare preliminary plans for any ~~costs of~~ such improvements for Landlord’s review and reasonable approval and, once approved, prepare applicable construction documents and specifications for the Tenant Improvements in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 Expansion Space (the ~~"TI Amortization"). Tenant shall have the right~~ “Expansion Space Documents”) (consistent with such approved preliminary plans) to ~~select its own contractors subject to Landlord's consent of~~ be approved by Landlord (such ~~contractors, which shall~~ approval not be unreasonably withheld~~. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16~~, ~~1996~~conditioned, ~~BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS~~or delayed) (collectively, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively“Tenant’s Work”). Landlord will ~~release the letter~~ provide Tenant a maximum improvement allowance of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debtFive Hundred Fifty-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Thousand Three Hundred ~~Thirty-~~Twenty- Five ~~Thousand~~ and No/100 Dollars ($~~635,000~~556,325.00) (the “Tenant Improvement Allowance”). Such Tenant Improvement Allowance is to be applied against all hard and soft constructions costs and such other costs as ~~reduced from time~~ are reasonably related to ~~time~~ Tenant’s use and occupancy of the Expansion Space, which costs include, but are not limited to, costs associated with the preparation and procurement of construction documents and permits, labor, materials, and construction management fees as incurred to construct the Tenant’s Work. Landlord shall reimburse Tenant (i) with respect to construction costs, on the completion of Tenant’s Work and delivery of a final certificate of occupancy for the Expansion Space within twenty (20) days following written demand (and reasonable documentation thereof) for any costs incurred by Tenant to construct the Tenant’s Work, up to the maximum amount of the Tenant Improvement Allowance, and (ii) with respect to other costs, within twenty (20) days following written demand. In the event the actual cost requested by Tenant and reimbursed by Landlord in accordance with the ~~terms hereof~~preceding sentence is less than the Tenant Improvement Allowance, ~~the "Letter~~ at Tenant’s request, such difference shall be paid by Landlord to Tenant. For clarity, should Tenant elect to not perform any Tenant Work, Tenant shall provide written notice of ~~Credit Amount"), effective immediately,~~ such fact to Landlord and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior Landlord will pay Tenant an amount equal to the ~~expiry date against presentation by you~~ Tenant Improvement Allowance within thirty (30) days of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary receipt of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:notice.

Appears in 1 contract

Samples: Lease Agreement (Ensemble Health Partners, Inc.)

Tenant Improvements. ~~Tenant will furnish or perform those items of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the~~ All Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"), and in no event shall Landlord have any obligation to pay for any costs of the Tenant Improvements in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be ~~paid~~ performed by Tenant~~. Further~~’s contractor, ~~Tenant shall repay Landlord for $1,337,600.00~~ at Tenant’s sole cost and expense ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable ’s obligations with respect to ~~Landlord. The letter of credit shall either provide that it does not expire until the end~~ any portion of the ~~Lease term or~~Base TI Allowance and, if ~~it is for less than the full term of the Lease, shall be renewed~~ properly requested by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. FurtherLease, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand Additional TI Allowance) and ~~No/100 Dollars ($635,000) (as reduced from time to time~~ in accordance with the ~~terms hereof~~Approved Plans (as defined below), the ~~"Letter of Credit Amount"), effective immediately,~~ Lease and ~~expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under~~ this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New YorkWork Letter. To the extent ~~not inconsistent~~ that the total projected cost of the Tenant Improvements (as projected by Landlord) exceeds the TI Allowance (such excess, the “Excess TI Costs”), Tenant shall pay the costs of the Tenant Improvements on a pari passu basis with Landlord as such costs become due, in the ~~express terms hereof~~proportion of Excess TI Costs payable by Tenant to the Base TI Allowance (and, if properly requested by Tenant pursuant to the Lease, the Additional TI Allowance) payable by Landlord. If Tenant fails to pay, or is late in paying, any sum due to Landlord under this ~~Letter~~ Work Letter, then Landlord shall have all of ~~Credit~~ the rights and remedies set forth in the Lease for nonpayment of Rent (including the right to interest and the right to assess a late charge), and for purposes of any litigation instituted with regard to such amounts the same shall be ~~governed by~~considered Rent. All material and equipment furnished by Tenant or its contractors as the Tenant Improvements shall be new or “like new;” the Tenant Improvements shall be performed in a first-class, workmanlike manner; and the quality of the Tenant Improvements shall be of a nature and character not less than the Building Standard. Tenant shall take, and ~~construed in accordance with~~shall its contractors to take, commercially reasonable steps to protect the ~~terms~~ Premises during the performance of ~~the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision)~~any Tenant Improvements, ~~I.C.C. Publication No. 500 (the "UCP 500") and~~ including covering or temporarily removing any window coverings so as to ~~matters not governed by the UCP 500~~guard against dust, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:debris or damage.

Appears in 1 contract

Samples: Lease Agreement (Depomed Inc)

Tenant Improvements. Landlord shall provide Tenant ~~will furnish or perform those items~~ the following tenant improvement allowances: (a) Landlord shall provide to Tenant a tenant improvement allowance of ~~construction~~ up to, but not to exceed, five dollars ($5.00) per square foot of Rentable Area for Suite 400 and ~~those improvements~~ Floor 5, based on a mutually acceptable space plan of the Premises and in accordance with Exhibit A (Workletter); (b) Landlord shall provide to Tenant a tenant improvement allowance of up to, but not to exceed, twenty dollars ($20.00) per square foot of Rentable Area for the Expansion Space (Suite 410), based on a mutually acceptable space plan of the Premises and in accordance with Exhibit A (Workletter); (c) Landlord shall provide to Tenant a tenant improvement allowance of up to, but not to exceed, ten dollars ($10.00) per square foot of Rentable Area for Suite 610, based on a mutually acceptable space plan of the Premises and in accordance with Exhibit A (Workletter). Third Lease Amendment (Lease Extension) - Insightful Corporation June 8, 2007 Landlord shall permit Tenant to combine the total of all tenant improvement allowances provided herein (the "“Tenant ~~Improvements") specified~~ Improvement Allowance”), and Tenant may use the proceeds of the Tenant Improvement Allowance to improve any portion of the Premises as provided for herein and pursuant to Exhibit A (Workletter). The Tenant Improvement Allowance shall be used only for space planning or ~~referenced~~ construction of improvements including, but not limited to, build-out, carpeting, painting, HVAC upgrades, electrical upgrades, data or phone cabling, security systems or any other improvement based on a mutually acceptable space plan of the Premises and in accordance with Exhibit ~~2 attached hereto~~A (Workletter). No portion of the Tenant Improvement Allowance may be used to purchase or install furniture. Tenant may not apply any unused Tenant Improvement Allowance to Rent. The Tenant Improvement Allowance shall be available for space planning upon execution of this Amendment; the Tenant Improvement Allowance shall be available for construction of improvements to the Premises pursuant to Exhibit A (Workletter). On January 1, 2009, any unused portion of the Tenant Improvement Allowance shall be considered exhausted and there shall be no further Tenant Improvement Allowance. Tenant may at its option and subject to approval by Landlord contract directly with contractors for the installation of low voltage, phone or data cabling or any other tenant improvement expense approved by Landlord. The cost for any such work shall be paid by Landlord as a portion of the Tenant Improvement Allowance. Tenant shall submit any contractor’s invoices for such work to Landlord in a timely manner; Landlord shall make payment for any such work directly to Tenant’s contractors. Landlord shall pay as its separate cost and expense for pre-cleaning, abatement, monitoring during work, post clean-up, or removal of any asbestos-containing materials required by construction of the ~~Tenant Improvements up~~ improvements pursuant to ~~a maximum amount of $1,760,000.00~~ Exhibit A (~~the "TI Allowance"~~Workletter), ~~and in no event~~ such as demo, drywall, electrical wiring above the ceiling, installation of new lighting fixtures, or HVAC modifications; however, Landlord shall ~~Landlord have any obligation to~~ not pay for ~~any costs of the Tenant Improvements in excess of~~ such ~~amount. If the~~ cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is solely the result of demolition or installation of low voltage, phone or data cabling unless such work takes place in an area already requiring asbestos-related work for ~~less than~~ demo, drywall, electrical wiring above the ~~full term~~ ceiling, installation of new lighting fixtures, or HVAC modifications. Any cost for pre-cleaning, abatement, monitoring during work, post clean-up, or removal of any asbestos-containing materials which is solely the ~~Lease~~result of demolition or installation of low voltage, phone or data cabling shall be ~~renewed by Tenant at least 30 days prior to its expiration during~~ the ~~term~~ sole cost and expense of ~~the Lease~~Tenant. ~~The letter of credit shall provide that it may be drawn down upon~~ Any tenant improvement, build-out or construction performed by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be ~~reduced annually on~~ performed in a ~~pro rata basis in accordance~~ good and workmanlike manner and shall comply with ~~Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx~~any government building codes or ordinances, ~~Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc.~~ including the Americans with Disabilities Act (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect“ADA”). ~~This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date~~Third Lease Amendment (Lease Extension) - Insightful Corporation June 8, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:2007

Appears in 1 contract

Samples: Lease Amendment (Insightful Corp)

Tenant Improvements. Tenant will furnish or perform those items of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"), and in no event shall Landlord have any obligation All obligations to pay ~~for any costs of the Tenant Improvements in excess of such amount. If~~ the cost of ~~the Tenant Improvements exceeds such amount,~~ any ~~estimated overage~~ tenant improvement work owed or to be owed in ~~excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ connection with new leases of the ~~TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over~~ Building executed after the ~~Lease Term of $28,923.00 (~~date hereof or the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end result of the ~~Lease term or~~renewal of the Lease, ~~if it is for less than~~ the ~~full~~ extension of the term of the Lease, the expansion of the premises demised by the Lease to space within the Building or the exercise of an option to lease additional space in the Building set forth in the Lease occurring after the date hereof, which costs shall include, but not be limited to, all sums expended by Highwoods for such tenant improvement work (including all overhead costs incurred by Highwoods or its affiliates in connection with the performance of the work related to such tenant improvements not to exceed five percent (5%) of the cost of such tenant improvements) and a profit not to exceed ten percent (10%) of the cost of such tenant improvements shall be ~~renewed~~ assumed and paid by ~~Tenant at least 30 days prior~~ the Distributees on the Closing Date by reimbursing Highwoods for the costs of such tenant improvements previously paid by Highwoods in connection with new leases, renewals, extensions, relocations, expansions, or the exercise of an option to ~~its expiration during~~ lease additional space in the Building occurring after the date hereof or if the cost of such tenant improvements are not yet due and payable by paying the same when they otherwise become due without an adjustment to the value of the capital interest of the Distributees in Highwoods to be reduced as a result of this transaction. Notwithstanding the foregoing, to the extent any portion of the term of ~~the~~ a Lease~~. The letter of credit shall provide that it may be drawn down upon by Landlord at~~ , and renewals, extensions, expansions and relocations for which any ~~time Landlord delivers its site draft~~ tenant improvement work occurs prior to the ~~bank. If Landlord sells or conveys~~ Closing Date, the ~~Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms~~ amount of the ~~Lease and this Addendum, Tenant shall within ten (10) days thereafter cause~~ value of the ~~letter~~ capital interest of ~~credit~~ the Distributees in Highwoods to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using reduced as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter result of ~~Credit shall~~ this transaction will be reduced ~~annually on~~ by a pro rata ~~basis~~ share of such tenant improvement work based upon the percentage of such term (exclusive of any renewal options) which occurs prior the Closing Date. If any tenant improvement work is in ~~accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx~~process on the Closing Date, ~~Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client~~Highwoods shall be responsible for completing the construction thereof, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereofprovided, the ~~"Letter of Credit Amount"), effective immediately, and expiring on~~ Distributees shall be responsible for the ~~close of business at our office at the address~~ costs thereof as set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:above.

Appears in 1 contract

Samples: Partnership Agreement (Highwoods Properties Inc)

Tenant Improvements. a. Effective as of the Effective Date, Landlord shall reimburse Tenant ~~will furnish or perform those items of construction~~ in an amount up to Five Hundred Thirty-Three Thousand Seven Hundred Ninety and ~~those improvements~~ 00/100 Dollars ($533,790.00) (the "“Tenant ~~Improvements"~~Allowance”) ~~specified or referenced~~ for improvements and modifications to the Retained Premises, to include, without limitation, separately demising the Retained Premises and submetering the Premises for electricity and water as set forth in ~~Exhibit 2 attached hereto~~Section 2.e of this First Amendment. ~~Landlord shall pay for~~ Except as specifically provided below, the Tenant ~~Improvements up to a maximum amount~~ Allowance may be applied towards actual, hard costs of ~~$1,760,000.00 (the "TI Allowance")~~Tenant's construction, ~~and~~ and, in no event ~~shall Landlord have any obligation to pay for any costs of the Tenant Improvements in excess of such amount~~towards its furniture, fixtures or equipment. ~~If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount~~ The improvements and modifications shall be ~~paid~~ performed by ~~Tenant. Further,~~ Tenant ~~shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together~~ in accordance with ~~interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors~~ and subject to ~~Landlord's consent~~ the provisions of ~~such contractors~~this Section 3, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST as well as Article 8 (“Changes and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term Alterations”) and any other applicable provisions of the Lease. ~~The letter~~ Landlord shall have the reasonable right to oversee the construction of ~~credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to~~ the ~~bank. If Landlord sells or conveys the Premises, Tenant shall,~~ improvements (at Landlord's ~~request~~sole cost, ~~cooperate in having the letter of credit transferred~~ subject to ~~the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms~~ Section 8.2 of the ~~Lease and this Addendum, Tenant shall within ten (10~~Lease) ~~days thereafter cause the letter of credit~~ to ~~be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment~~ ensure that same are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and constructed in compliance with the ~~terms~~ Lease (including this First Amendment) and all applicable Laws. Tenant understands that the modifications to the Retained Premises will take place while Tenant is in possession of ~~this Letter~~ the Retained Premises. Provided that no Event of ~~Credit~~ Default is then occurring beyond applicable notice and cure periods, after the work is completed, Landlord shall reimburse Tenant from the Tenant Allowance for the cost of improvements made to the Retained Premises, provided that such ~~drafts will be duly honored upon presentation~~ reimbursement or payment shall not exceed, in the aggregate, the Tenant Allowance. To obtain such reimbursement, Tenant shall deliver a statement to ~~the drawee from our own funds and not the funds of the Applicant~~ Landlord which shows, in reasonable detail, all costs incurred and shall be ~~available to such drawers~~accompanied by paid invoices of each contractor, ~~endorsers~~subcontractor, supplier or vendor for which reimbursement or payment is sought, and ~~bona fide holders~~a final lien waiver and a certificate, as from each contractor and subcontractor whose contract has an aggregate value equal to or greater than $5,000, certifying that all payments due such contractor or subcontractor and to laborers, materialmen and subcontractors under it have been made. Disbursement shall be made from the ~~case may be,~~ Tenant Allowance on or before ~~noon~~thirty (30) days after Landlord receives Tenant's complete and correct statements with all required supporting documentation. Tenant shall not be entitled to any credit or payment for any unused portion of the Tenant Allowance; provided that it may apply up to Fifty Thousand and 00/100 Dollars ($50,000.00) toward the earliest due Basic Rent due under the Lease. In the event the entire Tenant Allowance is not, ~~New York time~~within six (6) months after the Extension Term Commencement Date, on either (i) used and invoiced by Tenant for the ~~Business Day~~ above-described improvements; or (~~defined below~~ii) ~~next following the date on which such drafts are received~~ designated in writing by ~~us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law~~ Tenant to be ~~closed in New York~~credited toward payment of Basic Rent, ~~New York. To~~ Tenant shall forfeit any right it may have to any unused portion of the ~~extent not inconsistent with the express terms hereof, this Letter of Credit~~ Tenant Allowance. b. Tenant shall be ~~governed by~~responsible, at its sole cost and ~~construed in accordance with,~~ expense (not subject to reimbursement from the ~~terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision~~Tenant Allowance), ~~I.C.C. Publication No. 500 (~~for the ~~"UCP 500") and as to matters not governed by the UCP 500~~cost of any Xcel fees, ~~this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours~~card readers, ~~[NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received~~electric strikes, ~~at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST~~magnetic locks, ~~the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________~~CCTV, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:alarm wiring or security systems.

Appears in 1 contract

Samples: Lease Agreement (Wells Real Estate Fund Xiii L P)

Tenant Improvements. Pursuant to Article VII, Section 3 of the Lease, Tenant ~~will furnish or perform those items of construction~~ has the right to construct a clean room upon the leased premises and ~~those~~ other related improvements approved by Landlord (the "Tenant Improvements"~~) specified or referenced in Exhibit 2 attached hereto~~). Landlord ~~shall pay~~ has agreed to provide Tenant with an improvement allowance (the "Tenant Improvement Allowance") in an amount not to exceed Six Hundred and Forty Thousand and no/100 ($640,000.00) Dollars (the "Maximum Tenant Improvement Allowance") for the construction of the clean room and other related items approved by Landlord. Within forty-five (45) days (the "Determination Date") from the execution of this Lease, Tenant will provide Landlord with the proposed budget (the "Budget") and the actual Tenant Improvement Allowance (the "Actual Tenant Improvement Allowance") it will require for the Tenant ~~Improvements up~~ Improvements. In the event the Actual Tenant Improvement Allowance exceeds the Maximum Tenant Improvement Allowance, Tenant shall be solely liable for such excess amounts. Upon Landlord's receipt of the Budget and Actual Tenant Improvement Allowance, Landlord and Tenant will enter into to ~~a maximum~~ an amendment to the Lease to replace this Addendum to Lease and to reflect the amount of ~~$1,760,000.00~~ the improvement rent (the "~~TI Allowance~~Improvement Rent"), and in no event shall Landlord have any obligation to pay for any costs of the Tenant Improvements in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount ) which shall be paid by ~~Tenant. Further,~~ Tenant ~~shall repay~~ to Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms Term of the Lease and the other terms and conditions in this ~~Addendum,~~ Addendum to Lease. The Improvement Rent shall be determined as follows: (a) The Actual Tenant ~~shall within~~ Improvement Allowance will be amortized over the ten (10) ~~days thereafter cause the letter of credit to be restored to its original amount. The form~~ year term of the ~~Letter of Credit~~Lease at eight and one half (8.5%) and such payments will be made monthly to Landlord in addition to the base rent. For example, ~~Sight Draft~~if the Actual Tenant Improvement Allowance required by Tenant is $640,000.00, ~~Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release~~ the ~~letter of credit after three years provided~~ Tenant ~~meets~~ shall pay the ~~following criteria: 1. Timely compliance with all lease terms~~ Improvement Rent during the ~~three years; 2. An increase in gross sales and net worth by 50% over the three years (using~~ one hundred twenty month period as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attentionfollows: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of ~~[Amount~~ Nine Hundred Fifty Two Thousand and Ninety Three and 80/100 ($952,093.80) Dollars, payable in ~~words] [Amount~~ monthly installments of Seven Thousand Nine Hundred Thirty Four and 11/100 ($7,934.11) Dollars, due and payable on the first day (1st) day of each and every month commencing as defined in ~~Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________~~Article II, ~~199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______~~Section 1, ~~199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit"~~(which first month's additional rental has already been received) ~~The undersigned~~ for the next one hundred nineteen (~~the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer"~~119) ~~that:~~consecutive months.

Appears in 1 contract

Samples: Lease Agreement (Advanced Photonix Inc)

Tenant Improvements. The Premises are being provided by the Landlord in their current as-is condition together with, but not necessarily limited to, all existing demising and interior partitions, doors, frames and hardware, ceilings, electrical fixtures and distribution wiring, HVAC distribution systems and controls, sprinkler systems, fire alarm systems and controls exit lighting, interior finishes, built-in millwork, and any and all other improvements located therein. The Landlord shall provide the Tenant ~~will furnish or perform those items of~~ with all necessary Working Drawings, permits, demolition, general, mechanical, electrical and plumbing construction and ~~those improvements~~ interior finishes (the "~~Tenant Improvements~~TENANT IMPROVEMENTS") ~~specified~~ to construct, modify, alter or ~~referenced~~ otherwise improve and prepare that portion of the Premises shown on EXHIBIT A as the area of construction in ~~Exhibit 2 attached hereto. Landlord shall pay~~ accordance with the final Working Drawings as described in PARAGRAPH 27.01, provided however the Landlord's obligation for the cost of said Tenant Improvements ~~up to a maximum amount of~~ shall not exceed SIXTY THREE THOUSAND SIX HUNDRED NINETY AND 00/100 dollars ($~~1,760,000.00~~ 63,690.00) (the "~~TI Allowance~~TENANT IMPROVEMENT ALLOWANCE")~~, and in no event shall Landlord have any obligation to pay for any costs~~ . The cost of the Tenant Improvements shall be determined by the Landlord after mutual agreement by the Landlord and the Tenant of the Working Drawings and prior to the commencement of any work or construction by the Landlord. In the event the cost of the Tenant Improvements exceed the Landlord's obligation as herein described, or in the event the actual cost to construct the Tenant Improvements exceed the Landlord's obligation due to changes requested by the Tenant to the final Working Drawings, then, in such event, the Tenant shall be responsible for the additional cost in excess of the Landlord's obligation and shall reimburse the Landlord for such ~~amount~~excess immediately upon completion of the Tenant Improvements. If Any excess cost due from the Tenant shall be considered as Additional Rent and shall be due and payable upon the first installment of Rent and subject to all provisions, terms and conditions of Rent and Additional Rent as herein provided. In the event the cost of Tenant Improvements exceeds the Landlord's obligation and the Tenant disputes the Landlord's cost estimate of the Tenant Improvements, or refuses to pay the excess cost, or requires the Landlord to redesign, modify, or otherwise change the final Working Drawings in an effort to reduce cost, or requests the Landlord to obtain additional cost estimates of the Tenant Improvements, the Landlord may do so, however, such redesigning, modifications or changes shall be considered a delay to the Landlord as provided in SECTION 27.01 and the Commencement Date of the Term of this Lease shall not be delayed by such action. Notwithstanding anything to the contrary contained herein this PARAGRAPH 39.01, in the event the cost of the Tenant Improvements exceeds NINETY THOUSAND AND 00/100 DOLLARS ($90,000.00), the Landlord shall increase the Tenant Improvement Allowance up to a maximum increase of TEN THOUSAND AND 00/100 DOLLARS ($10,000.00) and such ~~amount, any estimated overage in excess of such~~ increase amount shall be ~~paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments~~ amortized over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of this Lease at an annual rate of 9.5% and the ~~Lease. The letter of credit~~ monthly amortized amount shall ~~provide that it may~~ be ~~drawn down upon by Landlord at any time Landlord delivers its site draft~~ added to the ~~bank. If Landlord sells or conveys~~ monthly Rent amounts stipulated in PARAGRAPH 53.01-1, however in no event shall the ~~Premises, Tenant shall, at~~ Landlord's ~~request, cooperate in having~~ total contribution towards the ~~letter~~ cost of ~~credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum,~~ Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars Improvements exceed SEVENTY THREE THOUSAND SIX HUNDRED NINETY AND 00/100 DOLLARS ($~~635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"~~73,690.00), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Lease Agreement (Neomedia Technologies Inc)

Tenant Improvements. Upon execution of this Lease by Tenant ~~will furnish or perform those items of construction~~ and ~~those~~ the delivery thereof to Landlord, Landlord shall make improvements to the Premises (~~the~~ "Tenant Improvements") in accordance with Plans and Specifications to be prepared by Landlord and approved in writing by Tenant, which approval shall not be unreasonably withheld. Once the Plans and Specifications are acceptable to both parties, it is agreed that same shall be attached hereto and become a part of this Lease, being identified as Schedule B. All materials shall be building-standard materials unless otherwise specified in Schedule B. Except as otherwise specifically provided in this Lease, Landlord shall not be responsible for performing or ~~referenced~~ paying for the moving or installation of telephone and computer systems, wiring or cabling, or the acquisition, moving or installation of Tenant's furnishings, fixtures and equipment in ~~Exhibit 2 attached hereto~~the Premises. Landlord ~~shall pay for~~ agrees to bear the cost of the Tenant Improvements up in an amount not to ~~a maximum amount~~ exceed Four Dollars and Fifty Cents ($4.50) per square foot of ~~$1,760,000.00~~ the Rental Area of the Premises (~~the~~ "TI Tenant Allowance"), . Tenant covenants and ~~in no event shall Landlord have any obligation~~ agrees to pay ~~for any~~ to Landlord all costs of and expenses incurred by Landlord in performing the Tenant Improvements in excess of the Tenant Allowance and to make such ~~amount~~payment within thirty (30) days after receipt of an invoice for same from Landlord. ~~If the cost~~ Any excess of the Tenant Allowance over the total cost of constructing the Tenant Improvements ~~exceeds~~ shall belong solely to Landlord. Any other initial improvements to the Premises not shown on the Plans and Specifications or any special equipment installed in the Premises on behalf of Tenant (i.e. UPS power supply, supplemental HVAC, etc.) shall be subject to Landlord's prior written approval and such ~~amount~~improvements and/or equipment shall be constructed or installed by Landlord, ~~any estimated overage in excess of such amount~~ and the cost thereof shall be paid by Tenant to Landlord within thirty (30) days following receipt of an invoice for same from Landlord. Any amounts payable by Tenant hereunder shall include Landlord's standard construction management fee, not to exceed thirteen and one-half percent (13-1/2%), computed on the total cost of construction, including but not limited to the cost of developing, preparing and modifying construction drawings. Landlord covenants and agrees to competitively bid the Tenant Improvement work and, upon request by Tenant~~. Further~~, provide Tenant with copies of all bids and/or contracts for construction services, provided, Tenant ~~shall repay~~ understands and agrees that Landlord ~~for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant~~ shall have the right to ~~select its own contractors subject~~ make the final selection from all bids submitted to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Office Lease (Quepasa Com Inc)

Tenant Improvements. ~~Tenant will furnish or perform those items of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the~~ All Tenant Improvements up shall be performed by Tenant’s contractor, at Tenant’s sole cost and expense (subject to ~~a maximum amount of $1,760,000.00 (~~Landlord’s obligations with respect to the "TI Allowance") and in accordance with the Approved Plans (as defined below), the Amended Lease and ~~in no event shall Landlord have any obligation to pay for any costs~~ this Work Letter. To the extent that the total projected cost of the Tenant Improvements (as projected by Landlord) exceeds the TI Allowance (such excess, the “Excess TI Costs”), Tenant shall advance to Landlord any Excess TI Costs within ten (10) days after receipt of an invoice therefor, but in any case before Tenant commences the Tenant Improvements. If the actual Excess TI Costs are less than the Excess TI Costs paid by Tenant to Landlord, Landlord shall return such excess ~~of such amount~~to Tenant as provided in Section 6.1 below. If the cost of the Tenant Improvements ~~exceeds such amount~~(as projected by Landlord) increases over Landlord’s initial projection, then Landlord may notify Tenant and Tenant shall deposit any additional Excess TI Costs with Landlord in the same way that Tenant deposited the initial Excess TI Costs. If Tenant fails to pay, or is late in paying, any ~~estimated overage~~ sum due to Landlord under this Work Letter, then Landlord shall have all of the rights and remedies set forth in ~~excess~~ the Amended Lease for nonpayment of Rent (including the right to interest and the right to assess a late charge), and for purposes of any litigation instituted with regard to such ~~amount~~ amounts the same shall be ~~paid~~ considered Rent. All material and equipment furnished by ~~Tenant. Further~~Tenant or its contractors as the Tenant Improvements shall be of a quality equal to the building standard; the Tenant Improvements shall be performed in a first-class, ~~Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ workmanlike manner; and the quality of the ~~TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over~~ Tenant Improvements shall be of a nature and character not less than the ~~Lease Term of $28,923.00 (the "TI Amortization")~~building standard. Tenant shall ~~have~~ take, and shall require its contractors to take, commercially reasonable steps to protect the ~~right~~ Premises during the performance of any Tenant Improvements, including covering or temporarily removing any window coverings so as to ~~select its own contractors subject to Landlord's consent of such contractors~~guard against dust, ~~which shall not be unreasonably withheld~~debris or damage. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit All Tenant Improvements shall be performed in accordance with Section 10.05 of the Lease; provided that, notwithstanding anything in the ~~form~~ Amended Lease or this Work Letter to the contrary, in the event of ~~an unconditional, irrevocable letter of credit from~~ a ~~bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term~~ conflict between this Work Letter and Section 10.05 of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Work Letter ~~of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and~~ shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:govern.

Appears in 1 contract

Samples: Lease (Metabolix, Inc.)

Tenant Improvements. ~~Tenant will furnish or perform those items of construction~~ In the event that the Cash Allowance (as defined ------------------- in Exhibit "E") exceeds Nineteen and ~~those improvements~~ No/100 dollars ($19.00) per square foot ----------- (the "~~Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI~~ Excess Cash Allowance"), ~~and in no event shall Landlord have any obligation to pay~~ as security for ~~any costs~~ the repayment of the ~~Tenant Improvements in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further~~Excess Cash --------------------- Allowance, Tenant shall ~~repay~~ deliver to Landlord ~~for $1,337,600.00 ($19 psf)~~ concurrently with the execution of ~~the TI Allowance~~this Lease, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditionala clean, irrevocable letter of credit in favor of Landlord in the principal amount of the Excess Cash Allowance from a bank or other financial institution reasonably acceptable to ~~Landlord~~Landlord (the "Cash Allowance Letter of ------------------------ Credit"). ~~The letter of credit~~ In the event that Tenant is in Monetary Default (as hereinafter ------ defined in Section 8.1), then Landlord shall ~~either provide that it does not expire until~~ be entitled to draw the ~~end~~ entire amount of the ~~Lease term or, if it is for less than the full term~~ Cash Allowance Letter of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells Credit or ~~conveys the Premises, Tenant shall~~a portion thereof, at Landlord's ~~request~~election, ~~cooperate~~ for the payment of any such Rent in ~~having~~ default or for any other sum which Landlord may expend or be required to expend by reason of Tenant's Monetary Default, including, without limitation, any damages or deficiency in the ~~letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms~~ reletting of the ~~Lease~~ Premises, whether such damages or deficiency may accrue before or after reentry by Landlord. It is expressly understood and ~~this Addendum~~agreed that the Cash Allowance Letter of Credit is not an advance rental deposit or a measure of Landlord's damages in case of Tenant's default. Upon Landlord's draw of all or any part of the Cash Allowance Letter of Credit deposited as security hereunder, Tenant shall ~~within ten (10) days thereafter cause~~ take such action with the ~~letter~~ issuing bank for the Cash Allowance Letter of ~~credit~~ Credit as necessary to ~~be restored~~ restore the Cash Allowance Letter of Credit to its ~~original~~ current amount. ~~The form~~ Any draw by Landlord under the Cash Allowance Letter of Credit shall not be deemed to have cured Tenant's default by reason of which the application is made, until such time as the current amount of the Cash Allowance Letter of ~~Credit~~Credit is fully restored. Actions by Landlord against Tenant for breach of this Lease shall in no way be limited to or restricted by the amount of the Cash Allowance Letter of Credit and any draw under the Cash Allowance Letter of Credit shall not waive any other rights or constitute an election of remedies which Landlord may have. Provided Tenant is not in Monetary Default hereunder, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the this Cash Allowance Letter of Credit shall be reduced ~~annually on~~ to a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attentioncertain percentage of its initial amount as follows: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the ~~address set forth above one year from~~ end of the ~~date hereof unless renewed as hereinafter provided. Funds under this Letter~~ first Lease Year to eighty percent (80%) of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us its initial value; at the ~~address set forth above or may be made by facsimile transmission,~~ end of the second Lease Year to sixty percent (60%) of its initial value; at the ~~following facsimile number_____________________________. You may present~~ end of the third Lease Year to ~~us one or more Drawing Requests from time~~ twenty-five percent (25%) of its initial value; at the end of the fourth Lease Year to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a twelve and one-~~year period upon the expiration date set forth above and upon each anniversary~~ half percent (12.5%) of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant initial value; and shall be ~~available to such drawers, endorsers, and bona fide holders, as~~ terminated at the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms end of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:fifth Lease Year.

Appears in 1 contract

Samples: Lease Agreement (Naviant Inc)

Tenant Improvements. ~~Tenant~~ Landlord will furnish ~~or perform those items~~ all of the material, labor and equipment for the construction ~~and those improvements (~~on the "Demised Premises of the “Tenant Improvements"” {as defined in Section 2.2(a)}. The Tenant Improvements shall be constructed in a good a workmanlike manner in substantial accordance with the “Final Tenant Improvement Plans” {as defined in Section 2.2(c)}. (a) ~~specified or referenced in Exhibit 2 attached hereto.~~ Landlord shall provide Tenant with a “Tenant Improvement Allowance” in the amount of $4,573,125.00 for payment of the “Tenant Improvement Costs” {as defined in Section 2.2(d)} incurred in constructing the “Tenant Improvements” {as defined in this Section 2.2(a)}. The Tenant Improvement Allowance may not be used to pay for Tenant’s furniture, fixtures or equipment (other than weight room equipment which is attached to the Improvements) and/or any Tenant Improvements not approved by Landlord. The Tenant Improvement Allowance may also be used to pay for the Proposed Kitchen Equipment identified on Exhibit “I” or equipment performing the same function as the items on Exhibit I. The “Tenant Improvements” are those Improvements identified in the “Final Tenant Improvement Plans” (as hereinafter defined). The Tenant Improvement Allowance shall be used by Landlord to pay for the Tenant ~~Improvements up~~ Improvement Costs. In the event the Tenant Improvement Costs exceed the Tenant Improvement Allowance (the “Excess”), Landlord may require that Tenant provide Landlord with reasonable cash security (as determined by Landlord in its sole discretion) to cover the amount of such Excess. Tenant shall, in any event, pay the Excess to Landlord on or before the Commencement Date. In the event the Tenant Improvement Cost is less than the Tenant Improvement Allowance, then Tenant shall be entitled to a ~~maximum amount~~ Basic Rent adjustment as provided in Section 3.2 herein. Landlord shall be the general contractor for all Tenant Improvement work. Except with respect to mechanical and electrical work (which shall be provided by the same contractors performing the Landlord’s Improvements) and the carpentry and drywall work (which will be performed by Landlord), all other major subcontractors will be competitively bid by Landlord. (b) Attached hereto as Exhibit “D” is a schedule of ~~$1,760,000.00~~ the drawings constituting the preliminary fit plan for the Tenant Improvements to be constructed by Landlord (the ~~"TI Allowance"~~“Preliminary Fit Plan”)which Preliminary Fit Plan has been prepared by WCL Interiors, Inc., (the “T.I. Architect”). The Preliminary Fit Plan has been approved by Tenant. The Tenant shall cause the T.I. Architect to prepare a “Final Fit Plan” for the Tenant Improvements and shall deliver the same to the Landlord for approval on or before October 5, 1998. The Final Fit Plan will be approved by the Landlord within fifteen (15) business days after receipt of same so long as it is substantially similar to the Preliminary Fit Plan. (c) After Landlord’s approval of the Final Fit Plan, the Tenant shall cause the T.I. Architect to prepare final plans for the Tenant Improvements in accordance with the Final Fit Plan and shall submit the same to Landlord for approval on or before January 4, 1999. Landlord shall approve or disapprove the final plans for the Tenant Improvements within fifteen (15) business days after receipt of same, and in if Landlord fails to approve or disapprove same within such fifteen (15) business day period, Landlord shall be deemed to have approved such final plans. The final plans for the Tenant Improvements which have’ been prepared by the T.I. Architect and approved (or deemed approved) by Landlord are hereinafter referred to as the “Final Tenant Improvement Plans”. Landlord will approve the Final Tenant Improvement Plans if they are substantially similar to the Final Fit Plan, but Landlord will have no ~~event shall Landlord have any~~ obligation to ~~pay~~ approve such final Tenant Improvement Plans to the extent they are materially inconsistent with the Final Fit Plan. Landlord’s approval of the Final Tenant Improvement Plans will not constitute a representation, warranty or agreement that such plans conform to applicable building codes or professional design standards, Tenant having agreed to look exclusively to the T.I. Architect for such assurances. In the event, however, that Landlord has actual knowledge of a material inconsistency between the Final Tenant Improvement Plans and the requirements of applicable building codes, Landlord will advise Tenant of that inconsistency. (d) The price to be charged by Landlord to Tenant for the Tenant Improvements (the “Tenant Improvement Costs”) shall be the sum of the following items: (i) the “Cost of the Work” (as hereinafter defined); plus (ii) Landlord’s actual “General Conditions” (as hereinafter defined) (not to exceed seven percent (7%) of the Cost of the Work); plus (iii) three percent (3%) of the amount referred to in subsection (i) for Landlord’s overhead and profit in connection therewith; plus (iv) any and all sales, transaction privilege and other taxes on any of the foregoing which are not otherwise included on Schedule B-1. The “Cost of the Work” shall mean all costs incurred by the Landlord in the acquisition, construction or installation of the Tenant Improvements in ~~excess of such amount~~the categories identified on Exhibit “B-1”. If “General Conditions” shall include, without limitation, the ~~cost of~~ following costs associated with the Tenant ~~Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00~~ Improvements: project management costs (~~$19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right~~ to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revisionotherwise included on Exhibit B-1), ~~I.C.C. Publication No~~superintendent, permits, plan and specification reproduction, job phone and pager, storage, trash hauling and dumping, general cleanup, first aid safety, small tools and expendable, final clean-up, insurance, field coordinator, site services and miscellaneous equipment. ~~500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall~~ The Tenant Improvements will be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:constructed on an open

Appears in 1 contract

Samples: Net Lease (Wells Mid-Horizon Value-Added Fund I LLC)

Tenant Improvements. ~~Tenant will furnish or perform those items of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto.~~ Landlord shall ~~pay for the Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"), and in no event shall Landlord~~ not have any obligation to ~~pay~~ perform any leasehold improvements, alterations or any other work to make the Option B Expansion Premises ready for ~~any costs~~ Tenant's use or occupancy, and Tenant shall accept the Option B Expansion Premises in its "as-is" condition as of the Option B Expansion Premises Commencement Date. All Alterations in the Option B Expansion Premises necessary for Tenant's occupancy ("Expansion Improvements") shall be constructed by Tenant, shall be consistent with first class office use and performed in accordance with the terms and provisions of the Lease including, without limitation, Section 8.3 of the Existing Lease. All Expansion Improvements shall be performed at Tenant's sole cost and expense, subject to the Expansion Improvement Allowance (as defined below). Landlord shall provide Tenant with an allowance (the "Expansion Improvement Allowance") for the Expansion Improvements in an amount not to exceed the $1,142,988.00 (being the product of (x) $8.40 times (y) the rentable square footage of the Option B Expansion Premises as set forth above times (z) five). Any amounts to design and construct the Expansion Improvements in excess of ~~such amount. If~~ the ~~cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount~~ Expansion Improvement Allowance shall be paid by Tenant. ~~Further~~Landlord shall receive a one percent (1%) percent construction oversight fee, ~~Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ payable out of the TI Expansion Improvement Allowance, ~~together~~ in connection with ~~interest at 10.75% per annum, in equal monthly installments over~~ the ~~Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors~~Expansion Improvements, which fee shall ~~not~~ be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INCcalculated based only on the so-called "hard costs" of construction for the Expansion Improvements. The ~~Additional Security Deposit~~ Expansion Improvement Allowance shall be advanced by Landlord on the terms and conditions set forth in ~~the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end~~ Section 4 of the ~~Lease term or~~Work Letter attached to the Existing Lease, ~~if it is for less than~~ and any amounts not requisitioned by the ~~full term~~ first anniversary of the ~~Lease,~~ date upon which Rent payments commence with respect to the applicable Option B Expansion Premises Commencement Date shall be ~~renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon~~ retained by Landlord ~~at any time Landlord delivers its site draft~~ with no further obligation to advance the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit Nosame._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Lease (Everbridge, Inc.)

Tenant Improvements. a. Tenant ~~will furnish or perform those items of construction and those~~ shall cause to be constructed certain tenant improvements (including those listed in Sections 7(e), 7(f) and 7(g) below) in the ~~"Tenant Improvements"~~Additional Premises (“Tenant’s Work”) ~~specified or referenced in~~ pursuant to the Work Letter attached as Exhibit ~~2 attached hereto~~E hereto (the “Work Letter”). Landlord shall provide Tenant with an improvement allowance in an amount not to exceed Nine Hundred Five Thousand Five Hundred Thirty-Five Dollars ($905,535) (based upon Forty-Five Dollars ($45) per rentable square foot) (the “TI Allowance”). The TI Allowance may be used to pay for the ~~Tenant Improvements up~~ following costs related to ~~a maximum amount of $1,760,000.00~~ Tenant’s Work: (~~the "TI Allowance")~~i) construction, ~~and in no event~~ (ii) project oversight by Landlord (which fee shall Landlord have any obligation to pay for any costs of the Tenant Improvements in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 equal three percent (~~$19 psf~~3%) of the TI Allowance), ~~together~~ (iii) space planning, architect, engineering and other related services performed by third parties unaffiliated with ~~interest at 10.75% per annum~~Tenant and (iv) building permits and other taxes, fees, charges and levies by Governmental Authorities for permits or for inspections of Tenant’s Work. In no event shall the TI Allowance be used for: (v) payments to Tenant or any affiliates of Tenant, (w) the purchase of any furniture, personal property or other non-building system equipment, (x) the cost of work that is not authorized by the Approved Plans or otherwise approved in ~~equal monthly installments over~~ writing by Landlord, (y) costs resulting from any default by Tenant of its obligations under the Amended Lease ~~Term of $28,923.00~~ or (~~the "TI Amortization"~~z) costs that are recoverable or reasonably recoverable by Tenant from a third party (e.g., insurers, warrantors, or tortfeasors). If the total cost of Tenant’s Work exceeds Forty-Five Dollars ($45) per rentable square foot of the Additional Premises, then Tenant shall pay the overage as and when due. Tenant shall have until December 31, 2008, to expend any unused portion of the TI Allowance, after which date Landlord’s obligation to fund such costs shall expire. Tenant shall deliver to Landlord (Y) a certificate of occupancy for the Additional Premises suitable for the permitted use and (Z) a Certificate of Substantial Completion in the form of the American Institute of Architects document G704, executed by the project architect with respect to Tenant’s Work in the Additional Premises. b. Prior to entering upon the Additional Premises, Tenant shall furnish to Landlord evidence satisfactory to Landlord that insurance coverages required of Tenant under the provisions of the Amended Lease are in effect, and such entry shall be subject to all the terms and conditions of the Amended Lease other than the payment of Minimum Rental. c. Possession of areas of the Additional Premises necessary for utilities, services, safety and operation of Building 1 is reserved to Landlord, subject to Tenant’s right to access same from time to time as necessary for the construction of Tenant’s Work or the operation of Tenant’s business in the Additional Premises. d. In accordance with the terms of the Work Letter, Tenant shall obtain Landlord’s approval of Tenant’s architect, engineer, general contractor and major subcontractors, such approval not to be unreasonably withheld, conditioned or delayed. e. Subject to Section 7(a) and the Work Letter, Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be convert the laboratory space in the ~~form of an unconditional~~Partially Improved Premises into office space in accordance with the plans referenced in Exhibit D attached hereto; provided, ~~irrevocable letter of credit from a bank reasonably acceptable~~ however, that Landlord shall have the right, upon written notice to ~~Landlord. The letter of credit shall either provide that it does not expire until~~ Tenant delivered no later than one hundred eighty (180) days prior to the ~~end of the Lease term or, if it is for less than the full term~~ expiration of the Lease, ~~shall be renewed by~~ to require Tenant ~~at least 30 days prior~~ to ~~its expiration during the term~~ restore such areas to their condition as laboratory facilities as of the ~~Lease. The letter~~ date of ~~credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft~~ this Amendment, ordinary wear and tear excepted. f. Subject to Section 7(a) and the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this AddendumWork Letter, Tenant shall ~~within ten (10) days thereafter cause~~ have the ~~letter of credit~~ right to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior perform certain upgrades to the ~~expiry date against presentation by you~~ ground floor lobby, subject to the consent of ~~your~~ Nuvelo and Landlord’s reasonable consent. g. Subject to Section 7(a) and the Work Letter, Tenant shall have the right to (i) ~~sight drafts drawn~~ change the order of the existing monument signage on ~~us in~~ the ~~form~~ North side of ~~Annex 1 hereto~~the Real Property so that Tenant’s name appears first, ~~indicating this Letter of Credit number and~~ (ii) ~~request in~~ change or upgrade the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us white letter signage on the glass facade at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relatesBuilding 1’s lobby entrance, and ~~no such reference shall be deemed~~ (iii) subject to ~~incorporate herein~~ applicable laws and approval by ~~reference any document or instrument. All bank charges and commissions incurred in this transaction are for~~ the ~~Applicant's account. This Letter~~ City of ~~Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part~~San Xxxxxx, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, add additional signage on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter North facade of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:Building 1.

Appears in 1 contract

Samples: Built to Suit Lease (Nektar Therapeutics)

Tenant Improvements. ~~Tenant will furnish or perform those items~~ A. Lessor is providing the existing base building (pursuant to the schedule of ~~construction~~ base building plan attached hereto as Exhibit "F") and ~~those improvements~~ a tenant improvement allowance of $30.00 per usable square foot (the "Tenant ~~Improvements~~Improvement Allowance") ~~specified or referenced~~ for the tenant improvements to be constructed by Lessor at the Premises. All improvements to the existing base building will be so-called "Tenant Improvements" to be installed by Lessor but to be selected by Lessee as hereinafter provided and paid for by Lessee subject to Lessor providing an allowance in ~~Exhibit 2 attached hereto~~the aforesaid amount. ~~Landlord~~ Included within the Tenant Improvement Allowance shall be all costs for space planning, construction document preparation, design work and construction drawing work and all costs of obtaining permits. In the event Lessee desires any Tenant Improvements having a price in excess of the Tenant Improvement Allowance, Lessee shall pay Lessor in cash for such excess amount or, at Lessee's option, such excess amount (up to $7.00 per rentable square foot of the Premises) may be paid by Tenant in equal monthly installments over the Initial Term, with an annual interest rate thereon of nine percent (9%), in which case, such excess amount shall be deemed to be included in the Tenant ~~Improvements up to~~ Improvement Allowance. If Lessee requests a ~~maximum amount~~ higher grade or quality of ~~$1,760,000.00 (the "TI Allowance"), and in no event shall Landlord have~~ any ~~obligation to pay for any costs~~ component of the Tenant Improvements ~~in excess~~ (if any) otherwise provided by Lessor pursuant to the plans and specifications of ~~such amount~~Exhibit "F", Lessor will allow a credit for the cost of the component replaced. If The balance of the amount by which the cost of the Tenant Improvements exceeds ~~such amount, any estimated overage in excess of such amount~~ the Tenant Improvement Allowance shall be paid for in cash by ~~Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ Lessee to Lessor upon substantial completion of the ~~TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over~~ Tenant Improvements. In the ~~Lease Term of $28,923.00 (~~event the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end actual cost of the ~~Lease term or, if it~~ Tenant Improvements is ~~for~~ less than the ~~full term~~ Tenant Improvement Allowance (without regard to the $7.00 per rentable square foot additional amount), the difference between the actual cost of such Tenant Improvements and the Tenant Improvement Allowance shall be available to Lessee as a credit against Base Rent due from Lessee to Lessor. Opus West Construction Corporation shall be the general contractor for all Tenant Improvement work. All major subcontracts shall be competitively bid. B. On or before June 17, 1998, Lessee shall provide to Lessor a space plan for the Tenant Improvements to be constructed by Lessor, which space plan shall have received final approval of Lessee and which shall be adequate for preparation by Lessor of working drawings for construction of such Tenant Improvements. Such space plan shall show in reasonable detail the design and appearance of the ~~Lease~~tenant finishing materials to be used in the construction thereof, and such other detail or description as may be necessary to adequately outline the scope of the Tenant Improvements. If Lessee shall provide Lessor with Lessee's space plan after June 17, 1998, then the Target Commencement Date (April Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit C 1, 1999) shall be ~~renewed~~ automatically extended day-for-day for each day of delay after June 17, 1998. X. Xxxxxx'x architect (which shall be selected by ~~Tenant at least 30 days prior to its expiration during~~ Lessee from the ~~term~~ list of architects already approved by Lessor) shall prepare the final working drawings and specifications for the construction and installation of the ~~Lease~~Tenant Improvements. ~~The letter~~ Lessee shall approve or disapprove the final working drawings and specifications within ten working days after receipt of ~~credit~~ same, and if Lessee fails to approve or disapprove same within such ten working day period, Lessee shall ~~provide~~ be deemed to have approved the final working drawings and specifications. Lessee agrees that it ~~may be drawn down upon by Landlord at any time Landlord delivers~~ will not withhold its ~~site draft~~ approval except for just and reasonable cause and will not act in an arbitrary or capricious manner with respect to the ~~bank~~approval of the final working drawings and specifications. Lessor's architect shall review and seal said plans and submit the plans for permits and construction bids. D. Subject to the provisions of Article XXXVII.G., below, if Lessee desires to make revisions to the final working drawings and specifications once they have been approved, Lessee shall request that Lessor's architect prepare, and submit to Lessor for approval, proposed working drawings and specifications containing all such desired revisions. Upon approval by Lessor of any revisions, Lessor shall obtain promptly from its contractor the amount of any adjustment in the Tenant Improvement costs resulting from such revisions and the amount of any delay that would result from constructing such proposed revisions, and Lessor shall submit the amount thereof and the contemplated delay caused thereby to Lessee for Lessee's approval. Lessee shall approve or disapprove the amount of such adjustment and the delay caused thereby within two working days after submission thereof to Lessee by Lessor, and if Lessee fails to notify Lessor of its disapproval within such two working day period, Lessee shall be deemed to have given Lessee's approval thereto. If ~~Landlord sells~~ Lessee disapproves either the amount of such adjustment or ~~conveys~~ the ~~Premises~~delay resulting therefrom, ~~Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred~~ then such proposed revision shall be deemed withdrawn by Lessee and Lessor shall have no obligation to ~~the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter~~ cause the ~~letter~~ construction of ~~credit to be restored to its original amount~~such revision. ~~The form of~~ Once any adjustment and the ~~Letter of Credit~~resulting delay have been approved, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit Lessee shall be ~~reduced annually on a pro rata basis in accordance~~ deemed to have given full authorization to Lessor to proceed with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter the work of ~~Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (~~constructing and installing the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time Tenant Improvements in accordance with the ~~terms hereof~~final working drawings and specifications, as revised. X. Xxxxxx shall use its best faith efforts to cause the construction of the Office Complex, the ~~"Letter~~ Premises or the Tenant Improvements to be substantially completed, subject only to completion of ~~Credit Amount")~~punchlist items, effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or ~~prior to the expiry date against presentation by you of your~~ before fifteen (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (6015) days prior to ~~such expiration date~~the Target Commencement Date; provided, however, that if any delay is caused or contributed to by Lessee (which shall include delays described above relating to the failure of Lessee to submit the required plans by June 17, 1998 or to respond timely to approve the final working drawings and specifications and shall also include any delays caused by any Lessee-proposed revisions to the final working drawings and specifications), or ~~prior~~ in the event performance by Lessor is delayed due to ~~any anniversary~~ force majeure, which shall include, without limitation, act or neglect of ~~such date~~Lessee or those acting for or under Lessee ("Lessee Delay"), ~~we notify both you and~~ labor disputes, casualties, acts of God or the ~~Applicant in writing by certified mail that we elect not to so renew~~ public enemy, governmental embargo restrictions, shortages of fuel, labor or building materials, action or nonaction of public utilities, or of local, state or federal governments affecting the ~~Letter of Credit. This Letter of Credit sets forth in full~~ Tenant Improvements or other causes beyond Lessor's reasonable control), then the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference Target Commencement Date shall be ~~deemed~~ automatically extended day-for-day for each day of any such delay. F. The price charged by Lessor to ~~incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are~~ Lessee for the ~~Applicant~~Tenant Improvements shall be all direct and indirect costs thereof plus three percent (3%) as a development fee, five percent (5%) for Lessor's ~~account. This Letter of Credit is transferrable by you~~ overhead and ~~your successors~~ profit and ~~assigns any number of times~~ five percent (5%) as a fixed-fee Scottsdale Northsight/JDA Software 04/26/98: 531637.1827-0801 Exhibit C general conditions cost, in ~~its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree~~ connection with the ~~drawers, endorsers, and bona fide holders~~ construction of ~~drafts drawn under and~~ the Tenant Improvements. Lessee shall be responsible for Lessor's costs (including lost rent) arising out of delays in ~~compliance with~~ completing the ~~terms~~ Tenant Improvements caused by Lessee. Lessee also agrees to refrain from ordering long lead time items which would delay substantial completion of the Tenant Improvements. For purposes of this ~~Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers~~Article, ~~endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us.~~ "~~Business Day~~long lead time items" shall mean ~~any day~~ items required to complete the Tenant Improvements that may delay substantial completion beyond the date which is fifteen (15) days prior to the Target Commencement Date due to causes such as an extended length of time necessary for the supplier of the item to manufacture same or due to a lengthy shipping time. Lessor shall give notice to Lessee as soon as practicable, to identify any items constituting "long lead time items." G. From time to time, Lessee may request reasonable modifications of the plans and specifications of the final working drawings for the Tenant Improvements, or to the plans and specifications set forth on Exhibit "F" attached hereto. Lessor reserves the right to reject such request if the request requires a substantial modification of the structural aspects or primary systems of the Building, a substantial delay in the completion of the construction, or a substantial increase in the costs of construction. As soon as reasonably possible after receipt of such request (if not rejected for the foregoing reasons), Lessor shall prepare a ~~Saturday~~change order which shall describe the modification requested and the additional costs and delays, ~~Sunday or day on~~ if any, which ~~we are required or authorized by law~~ shall result and the time period for Lessee to review and accept the change order. Further, Lessor shall be entitled to propose, as a condition to Lessor's agreement to the change order, a modification of the provisions of Article IV, so that as a result of the delays anticipated to be ~~closed in New York~~caused by the change order, ~~New York~~Lessor's liability for the Reimbursement Obligation shall not be increased. To If Lessee accepts the ~~extent not inconsistent with~~ change order (and by implication, all modifications to the ~~express terms hereof~~Lease required, ~~this Letter of Credit shall be governed by,~~ as proposed by Lessor and ~~construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision~~necessitated thereby), ~~I.C.C. Publication No~~then Lessor shall diligently proceed to construct the proposed change order improvements. ~~500 (~~Lessee shall pay any such costs upon demand by Lessor and completion of such change order improvements, including the ~~"UCP 500")~~ fees and ~~as to matters not governed by the UCP 500~~charges allowed in Article XXXVII.F., this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:above.

Appears in 1 contract

Samples: Office Lease (Jda Software Group Inc)

Tenant Improvements. Tenant ~~will furnish~~ takes and accepts the Expansion Space from Landlord in its present as-is condition and as suited for the use intended by Tenant, except for such improvements as may be expressly provided for in the Tenant Improvement Agreement attached hereto and made a part hereof as Exhibit "B ." If, for any reason whatsoever, the " Tenant Improvements ," as defined in the Tenant Improvement Agreement, to be completed in the Expansion Space are not substantially completed by January 1, 2 004, the Lease (including this Amendment) shall not be void or ~~perform those items of construction~~ voidable, and ~~those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto.~~ Landlord shall ~~pay for the~~ not be liable to Tenant ~~Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"), and in no event shall Landlord have any obligation to pay~~ for any ~~costs~~ resulting loss or damages resulting therefrom. No delay in delivery of the Tenant Improvements ~~in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall~~ to be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be completed in the ~~form~~ Expansion Space shall operate to relieve Tenant of ~~an unconditional~~Tenant’s obligations (including the obligation to pay Base Rental and additional rent under the Lease) to Landlord as provided in the Lease, ~~irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until~~ and the ~~end of~~ Expansion Date, as defined in this Amendment, and the ~~Lease term or~~Expiration Date, ~~if it is for less than the full term of~~ as defined in the Lease, shall not be ~~renewed~~ postponed; provided, however, that in the event the Tenant Improvements to be completed in the Expansion Space are not substantially completed by January 1, 2004 and Tenant ~~at least 30 days prior to its expiration during~~ has not taken delivery or otherwise occupied the ~~term of~~ Expansion Space, the ~~Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft~~ Base Rental payable with respect to the ~~bank~~Expansion Space shall xxxxx until said Tenant Improvements are substantially complete or Tenant takes delivery or otherwise occupies the Expansion Space. ~~If Landlord sells or conveys~~ Notwithstanding the ~~Premises~~foregoing, Tenant ~~shall, at Landlord's request, cooperate in having the letter of credit transferred~~ shall not be entitled to any such rent abatement if and to the ~~purchaser~~extent the delay in completing the Tenant Improvements is attributable to Tenant, its employees or agents (including Tenant’s architect, if any) or any such party’s failure to comply with the provisions hereof. If Landlord agrees to construct or install in the ~~letter of credit is ever drawn upon by Landlord~~ Expansion Space the " Tenant Improvements ," as defined in and to be constructed or installed pursuant to the ~~terms~~ provisions of the ~~Lease and this Addendum~~Tenant Improvement Agreement, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are which is attached hereto as ~~Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided~~ Exhibit "B ." Tenant ~~meets the following criteria: 1. Timely compliance~~ agrees to comply with all ~~lease~~ the terms ~~during~~ and provisions of the ~~three years; 2. An increase in gross sales and net worth by 50% over~~ Tenant Improvement Agreement, including, without limitation, the ~~three years (using as a base year the financial statements attached as Annex II-6)~~obligation to pay, as ~~established by audited financial statements;~~ additional rent, all amounts due Landlord under Paragraph 3 thereof according to the payment provisions contained in said Paragraph 3. ~~No decrease in operating margin during~~ Upon request of Landlord. within thirty (30) days alter the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time Expansion Space has been substantially completed in accordance with the ~~terms hereof~~Tenant Improvement Agreement, ~~the "Letter of Credit Amount"), effective immediately,~~ Tenant will execute and ~~expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available~~ deliver to ~~you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us~~ Landlord a Tenant Acceptance Agreement in the form ~~of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2~~ attached hereto ~~(such sight draft and request, together referred to~~ as a Exhibit "~~Drawing Request~~C ."), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Lease Agreement (Matria Healthcare Inc)

Tenant Improvements. Landlord, at Tenant's sole cost and expense but subject to the "Landlord's Contribution" (as such term is defined below), shall improve the Expansion Premises, the "Second Must Take Space" (as defined in Section 10 below) and the interior non-structural portions of the Building not previously occupied by Tenant ~~will furnish or perform those items~~ consistent with space plans and working drawings to be prepared by Tenant and approved by Landlord in accordance with Section 8 of ~~construction and those~~ the Lease (said improvements (are hereinafter referred to as the "Tenant Improvements"~~) specified or referenced in Exhibit 2 attached hereto~~). Landlord shall have the right to reasonably approve or disapprove Tenant's space planner and/or architect. Tenant shall also pay The Johnxxxx Xxxup, an affiliate of Landlord, a construction administration fee in an amount equal to ten percent (10%) of the total costs of design and construction of the Tenant Improvements. Landlord and Tenaxx acknowledge and agree that the Tenant Improvements may be completed in one (1) or more phases, and that Tenant may present Landlord with additional sets of space plans and working drawings with respect to each such phase; provided, however, that all Tenant Improvements shall be completed on or before May 31, 2002. Landlord shall contribute up to four hundred thirty-three thousand dollars ($433,000.00) (the "Landlord's Contribution") solely towards (i) Tenant's reasonable, actual and verifiable costs for the space plans and working drawings for the Tenant Improvements ~~up to a maximum amount of $1,760,000.00~~ as described above and (ii) the ~~"TI Allowance")~~construction costs, including permit costs and the aforementioned construction administrative fee, for the Tenant Improvements, but excluding Tenant's telephone, computer, and in data systems, furniture, or other personal improvements desired by Tenant. Landlord shall have no ~~event shall Landlord have any~~ obligation to pay for ~~any~~ design or construction costs of the Tenant Improvements ~~in excess of such amount~~or for construction administration fees to the extent the same exceed the Landlord's Contribution as set forth above. If Landlord estimates that the ~~cost~~ costs of Tenant Improvements (including the aforementioned construction administration fees) will, in the aggregate, exceed the Landlord's Contribution, Tenant shall pay such estimated overage to Landlord prior to commencement of construction of the pending or proposed phase of Tenant Improvements. Tenant shall not be entitled to any credit, offset or refund if Landlord is able to construct the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be described in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is approved space plans and/or working drawings for less than the ~~full term~~ Landlord's Contribution, or if the Tenant Improvements are not completed by May 31, 2002. Subject to Force Majeure Events, Landlord shall use its best efforts to complete construction of the ~~Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term~~ initial phase of the ~~Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises,~~ Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall improvements within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which Tenant provides Landlord with a permit permitting Landlord to commence construction of all aspects of such ~~drafts are received by us~~Tenant Improvements. Tenant's initial set of space plans and/or working drawings for the Tenant Improvements shall provide for material improvements to all of the Building's lobbies, the Building's second (2nd) and third (3rd) floor corridors, the bathrooms contained in what was previously "~~Business Day~~Common Area" ~~shall mean any day which is not a Saturday~~of the Building (ie without giving effect to the addition to the Premises of the Expansion Space), ~~Sunday or day on which we are required or authorized by law to be closed in New York, New York~~and the elevator cabs of the Building. ~~To the extent not inconsistent with the express terms hereof, this Letter of Credit~~ All permits shall be ~~governed by,~~ processed and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed obtained by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:Tenant.

Appears in 1 contract

Samples: Office Lease (Ixia)

Tenant Improvements. Tenant ~~will furnish or perform those items of construction~~ agrees that it currently occupies, and ~~those~~ shall continue to occupy, the Combined Premises in its "as is" condition without any further improvements ~~(the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto~~thereto except as otherwise provided herein. Landlord shall ~~pay~~ supervise (i) the repainting and re-carpeting of the First Floor Expansion Space and the Second Floor Expansion Space as herein provided, (ii) the construction and installation of the initial tenant improvements in the 2004 Expansion Space as herein provided/ and (iii) any future additional tenant improvements in the Complete Premises {collectively, the "Additional Improvements"), all in accordance with Tenant's plans and specifications for the ~~Tenant~~ design, construction and installation of the Additional Improvements, as such plans and specifications are reviewed and approved by Landlord and Tenant, such approval not to be unreasonably withheld. Landlord shall substantially complete the Additional Improvements in accordance with said plans and in a good and workmanlike manner, such substantial completion to be certified by Landlord's engineer and Tenant's architect inspecting the work. Landlord shall contribute up to a maximum ~~amount~~ of One Hundred Eighty Thousand Three Hundred Thirty-Six and No/100 Dollars ($180,336.00) (which consists of $~~1,760,000.00 (~~12.00 per rentable square foot of the Expansion Space and $6.00 per rentable square foot of the Combined Premises and is collectively hereinafter referred to as the "TI Improvement Allowance")) toward only the following costs: (i) any cost of installing any Additional Improvements on an "as completed" basis which is performed in accordance with the Plans and related to the work to be done for the purpose of.improving the Premises for Tenant's occupancy and use, (ii) the cost of preparing the Plans, (iii) design costs for architectural, mechanical, plumbing and electrical design, (iv) construction documents and permits, and (v) any other costs directly related to any Additional Improvements which is reasonably acceptable to Landlord; provided, however, in no event shall Tenant be obligated to pay Landlord any construction management fee in connection with the installation of any Additional Improvements and in no event shall ~~Landlord have any obligation to pay~~ the Improvement Allowance be used for any costs associated with Tenant's personal property, equipment, trade fixtures or other items of a non-permanent nature installed in the Premises, including without limitation, telephone and data cable lines. In the event that either prior to the commencement of the installation of any Additional Improvements or at any time during or following the installation of the Additional Improvements, the cost of any Additional Improvements exceeds the Improvement Allowance or Tenant ~~Improvements~~ requests any change to the aforementioned Plans which has resulted or might result in ~~excess of such amount. If~~ an increase in the cost of the installation of such Additional Improvements so that the cost exceeds the Improvement Allowance, then Tenant ~~Improvements exceeds~~ shall promptly deliver the necessary funds to defray such ~~amount~~excess cost to Landlord no later than fifteen (15) days after Landlord demands same. Notwithstanding the foregoing, any ~~estimated overage~~ change order(s) requested by Tenant which will result in ~~excess~~ an increase in the cost of ~~such amount~~ the construction and installation of any Additional Improvements shall be ~~paid~~ agreed to in advance by Landlord and Tenant. ~~Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ Any savings or unused portion of the ~~TI Allowance, together with interest at 10.75% per annum~~Improvement Allowance after any Additional Improvements are completed shall be retained by Landlord. Notwithstanding anything contained herein to the contrary, in ~~equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant~~ no event shall ~~have the right~~ Landlord be obligated to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end disburse any portion of the ~~Lease term or, if it~~ Improvement Allowance after that date which is ~~for less than~~ five (5) years after the ~~full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord~~ Extension Commencement Date or at any time following an Event of Default hereunder. Tenant acknowledges that Landlord ~~delivers its site draft to~~ may be supervising the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms construction of the ~~Lease~~ Additional Improvements while Tenant occupies the complete Premises and ~~this Addendum, Tenant~~ Landlord agrees that it shall use reasonable efforts to minimize any interference with Tenant's business operations within ~~ten (10) days thereafter cause~~ the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit NoComplete Premises while constructing such improvements._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Commencement Letter (Cross Country Healthcare Inc)

Tenant Improvements. ~~Tenant will furnish or perform those items of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the~~ All Tenant Improvements up shall be performed by Tenant’s contractor, at Tenant’s sole cost and expense (subject to ~~a maximum amount~~ Landlord’s obligations with respect to any portion of ~~$1,760,000.00 (~~the "TI Allowance") and in accordance with the Approved Plans (as defined below), the Lease and ~~in no event shall Landlord have any obligation to pay for any costs~~ this Work Letter. To the extent that the total projected cost of the Tenant Improvements (as projected by Landlord) exceeds the T1 Allowance (such excess, the “Excess TI Costs”), Tenant shall advance to Landlord any Excess TI Costs within ten (10) days after receipt of an invoice therefor, but in ~~excess of such amount~~any case before Tenant commences the Tenant Improvements. If the actual Excess TI Costs are less than the Excess TI Costs paid by Tenant to Landlord, Landlord shall credit Tenant with the overage paid by Tenant against Tenant’s Rent obligations, beginning after Landlord has completed the final accounting for the Tenant Improvements. If the cost of the Tenant Improvements ~~exceeds such amount~~(as projected by Landlord) increases over Landlord’s initial projection, then Landlord may notify Tenant and Tenant shall deposit any additional Excess TI Costs with Landlord in the same way that Tenant deposited the initial Excess TI Costs. If Tenant fails to pay, or is late in paying, any ~~estimated overage~~ sum due to Landlord under this Work Letter, then Landlord shall have all of the rights and remedies set forth in ~~excess~~ the Lease for nonpayment of Rent (including the right to interest and the right to assess a late charge), and for purposes of any litigation instituted with regard to such ~~amount~~ amounts the same shall be ~~paid~~ considered Rent. All material and equipment furnished by ~~Tenant. Further~~Tenant or its contractors as the Tenant Improvements shall be new or “like new;” the Tenant Improvements shall be performed in a first-class, ~~Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ workmanlike manner; and the quality of the ~~TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over~~ Tenant Improvements shall be of a nature and character not less than the ~~Lease Term of $28,923.00 (the "TI Amortization")~~Building Standard. Tenant shall ~~have~~ take, and shall require its contractors to take, commercially reasonable steps to protect the ~~right~~ Premises during the performance of any Tenant Improvements, including covering or temporarily removing any window coverings so as to ~~select its own contractors subject to Landlord's consent of such contractors~~guard against dust, ~~which shall not be unreasonably withheld~~debris or damage. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit All Tenant Improvements shall be performed in accordance with Article 17 of the Lease; provided that, notwithstanding anything in the ~~form~~ Lease or this Work Letter to the contrary, in the event of ~~an unconditional, irrevocable letter of credit from~~ a ~~bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term~~ conflict between this Work Letter and Article 17 of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Work Letter ~~of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and~~ shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:govern.

Appears in 1 contract

Samples: Lease (Codex DNA, Inc.)

Tenant Improvements. Prior to the Commencement Date, Landlord shall, at its sole cost and expense (except as limited below), construct the improvements desired by Tenant ~~will furnish or perform those items of construction and those improvements~~ to complete the Building for Tenant's occupancy (the "Tenant Improvements") ~~specified or referenced~~ in ~~Exhibit 2 attached hereto~~accordance with the Drawings (as defined below). Landlord shall pay for the Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"), and in no event shall Landlord have any obligation to pay for any costs of the Tenant Improvements in excess of such amount. If the The cost of the Tenant Improvements ~~exceeds such amount~~shall be advanced by Landlord for the benefit of Tenant, to be repaid by Tenant in the form of Base Rent, but only to the extent that the aggregate cost of furnishing the Tenant Improvements does not exceed $18.00 per rentable square foot contained in the Premises (the "Tenant Improvement Allowance"). The Tenant Improvement Allowance shall be in addition to the Base Building (as defined below). The following items will be charged against the Tenant Improvement Allowance: (i) architectural, engineering, design and space planning work in preparation of the Drawings necessary to construct the Tenant Improvements, including all mechanical, structural, electrical, plumbing and fire sprinkler engineering required to develop Tenant Improvements or any ~~estimated overage~~ modifications to the Base Building or Building Standard requested by Tenant and approved by Landlord to accommodate the Tenant Improvements; (ii) the total cost of the Tenant Improvements, (iii) a charge of five percent (5%) of the total costs and expenses otherwise chargeable for the Tenant Improvements for Landlord's construction management of the Tenant Improvements (which construction management fee is payable to Landlord in lieu of overhead or other administrative fees of Landlord itself and is exclusive of and in addition to the general contractor's overhead and profit); (iv) Tenant's moving costs; and (v) all other costs and expenses related to the design or construction of the Tenant Improvements (collectively, the "Tenant Improvements Cost"). Landlord shall keep accurate books and records related to the Tenant Improvements Cost. Except as provided in Paragraph 6 of this Exhibit "C" below, the Tenant Improvements Cost in excess of ~~such amount~~ the Tenant Improvement Allowance shall be paid by Tenant prior to Tenant~~. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ 's occupancy of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Lease Agreement (Eloyalty Corp)

Tenant Improvements. Landlord has granted to Tenant ~~will furnish or perform those items~~ an allowance of ~~construction~~ up to Thirty-Five and ~~those improvements~~ No/100 Dollars ($35.00) per rentable square foot of the Premises, for a total allowance of up to One Million One Hundred Forty-Five Thousand Four Hundred Forty-Five and No/100 Dollars ($1,145,445.00) (the "“Tenant ~~Improvements") specified or referenced~~ Improvement Allowance”), for completion of slab-to-slab Tenant Improvements in ~~Exhibit 2 attached hereto~~accordance with the Space Plan (hereinafter defined). Except as provided herein, the Tenant Improvement Allowance is for Tenant Improvements in the Premises. Landlord shall ~~pay for~~ not charge to Tenant the costs of removal of any previous tenants’ wiring or cabling, nor shall the same be taken from the Tenant ~~Improvements up to a maximum amount~~ Improvement Allowance. Notwithstanding the foregoing, in the event that sufficient funds are available in the Tenant Improvement Allowance after completion of ~~$1,760,000.00~~ and payment for, the Tenant Work (~~the "TI Allowance"~~hereinafter defined), ~~and in no event shall Landlord have any obligation~~ Tenant may elect to ~~pay for any costs~~ utilize a portion of the Tenant ~~Improvements~~ Improvement Allowance, not to exceed $5.00 per rentable square foot of the Premises in ~~excess~~ the aggregate (for a total of up to $163,635.00) toward the costs associated with Tenant’s furniture, fixtures and equipment for the Premises, cabling and/or wiring in the Premises, and/or relocation costs (collectively, the “Additional Tenant Costs”). Landlord shall reimburse Tenant for its Additional Tenant Costs, not to exceed the foregoing limits, within thirty (30) days after receipt of Tenant’s documented third-party invoices therefor. Tenant expressly acknowledges and agrees that Landlord shall have no obligation to fund any Additional Tenant Costs from the Tenant Improvement Allowance unless and until all of the Tenant Work has been fully paid for from the Tenant Improvement Allowance and any Tenant Improvement Allowance still remains. In the event the Tenant Improvement Allowance is not used on or before June 1, 2007, Landlord shall retain such ~~amount~~unused portion of the Tenant Improvement Allowance, and Tenant shall have no further rights thereto or hereunder. If In the event that the cost of the Tenant Improvements ~~exceeds such amount~~exceed the Tenant Improvement Allowance, Landlord shall provide Tenant with an additional allowance above the Tenant Improvement Allowance, to apply towards payment of the excess costs of the Tenant Improvements (the “Excess Allowance”), and Tenant shall deposit with Landlord funds sufficient to cover any ~~estimated overage~~ additional projected excess costs and promptly pay to Landlord any costs in excess thereof. Any portion of ~~such amount~~ the Excess Allowance paid by Landlord shall be paid for directly by the Tenant. ~~Further, Tenant shall repay~~ Landlord ~~for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant~~ shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be work depicted in the ~~form of an unconditional~~Tenant Space Plan (the “Tenant Work”) constructed with, ~~irrevocable letter of credit from~~ unless otherwise specified, Building standard materials and in a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord good and workmanlike manner pursuant to the ~~terms~~ schedule provided for herein, subject, however, to extensions equal to the delays suffered by Landlord and caused by Tenant or by strike, lockouts, fire or other casualty loss, acts of ~~the Lease and this Addendum~~God, ~~Tenant shall within ten (10) days thereafter cause the letter~~ unavailability of ~~credit to be restored to its original amount~~materials, hostile or war like action, riot or other causes beyond Landlord’s reasonable control. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6)Work, as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced modified from time to time ~~in accordance with~~ pursuant to the ~~terms hereof~~provisions of this Workletter, shall be known as the “Tenant Improvements”. Subject to the foregoing limitations, the ~~"Letter~~ cost of ~~Credit Amount")~~preparing the Space Plan, ~~effective immediately~~any other architectural or engineering fees and the construction management fee to Xxxxx Xxxx LaSalle Americas, ~~and expiring on the close of business at our office at the address~~ Inc. set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference below shall be ~~deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are~~ paid for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds out of the ~~Applicant and shall be available to such drawers, endorsers, and bona fide holders,~~ Tenant Improvement Allowance as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms part of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws costs of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:Tenant Improvements.

Appears in 1 contract

Samples: Net Lease Agreement (Evergreen Energy Inc)

Tenant Improvements. Tenant ~~will furnish or perform those items of construction~~ takes and ~~those~~ accepts the Expansion Space and the Must-Take Expansion Space from Landlord in the present as-is condition and as suited for the use intended by Tenant, except for such improvements (as may be expressly provided for in the "Tenant Improvement Agreement attached hereto and made a part hereof as Exhibit “B.” If, for any reason whatsoever, the “Tenant Improvements",” as defined in the Tenant Improvement Agreement, to be completed in the Expansion Space are not substantially completed by December 15, 2004, the Lease (including this Amendment) ~~specified~~ shall not be void or ~~referenced in Exhibit 2 attached hereto.~~ voidable, and Landlord shall ~~pay for the~~ not be liable to Tenant ~~Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"), and in no event shall Landlord have any obligation to pay~~ for any ~~costs~~ resulting loss or damages resulting therefrom. No delay in delivery of the Tenant Improvements ~~in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall~~ to be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be completed in the ~~form~~ Expansion Space and the Must-Take Expansion Space shall operate to relieve Tenant of ~~an unconditional~~Tenant’s obligations (including the obligation to pay Base Rental and additional rent under the Lease) to Landlord as provided in the Lease, ~~irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until~~ the ~~end of~~ Expansion Date and the ~~Lease term or~~Must-Take Expansion Date as defined in this Amendment, ~~if it is for less than~~ and the ~~full term of~~ Expiration Date, as defined in the Lease, shall not be ~~renewed~~ postponed; provided, however, that in the event the Tenant Improvements to be completed in the Expansion Space are not substantially completed by December 15, 2004, and Tenant ~~at least 30 days prior to its expiration during~~ has not taken delivery or otherwise occupied the ~~term of~~ Expansion Space, the ~~Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft~~ Base Rental payable with respect to the ~~bank~~Expansion Space shall xxxxx until said Tenant Improvements are substantially complete or Tenant takes delivery or otherwise occupies the Expansion Space, whichever occurs first. ~~If Landlord sells or conveys~~ Notwithstanding the ~~Premises~~foregoing, Tenant ~~shall, at Landlord's request, cooperate in having the letter of credit transferred~~ shall not be entitled to any such rent abatement if and to the ~~purchaser~~extent the delay in completing the Tenant Improvements is attributable to Tenant, its employees or agents (including Tenant’s architect, if any) or any such party’s failure to comply with the provisions hereof. If Landlord agrees to construct or install in the ~~letter of credit is ever drawn upon by Landlord~~ Expansion Space and the Must-Take Expansion Space the “Tenant Improvements”, as defined in and to be constructed or installed pursuant to the ~~terms~~ provisions of the ~~Lease and this Addendum,~~ Tenant ~~shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are~~ Improvement Agreement which is attached hereto as ~~Annex II-1~~Exhibit “B”, ~~II-2, II-3~~ which Tenant Improvements shall not include a demising wall between the Expansion Space and ~~II-4 respectively~~the Must-Take Expansion Space. ~~Landlord will release the letter of credit after three years provided~~ Tenant ~~meets the following criteria: 1. Timely compliance~~ agrees to comply with all ~~lease~~ the terms ~~during~~ and provisions of the ~~three years; 2. An increase in gross sales and net worth by 50% over~~ Tenant Improvement Agreement, including, without limitation, the ~~three years (using as a base year the financial statements attached as Annex II-6)~~obligation to pay, as ~~established by audited financial statements;~~ additional rent, all amounts due Landlord under Paragraph 3 thereof according to the payment provisions contained in said Paragraph 3. ~~No decrease in operating margin during~~ Upon request of Landlord, within thirty (30) days after the ~~period; 4. No increase in~~ Expansion Space and the ~~debt~~Must-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time Take Expansion Space has been substantially completed in accordance with the ~~terms hereof~~Tenant Improvement Agreement, ~~the "Letter of Credit Amount"), effective immediately,~~ Tenant will execute and ~~expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available~~ deliver to ~~you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us~~ Landlord a Tenant Acceptance Agreement in the form ~~of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2~~ attached hereto ~~(such sight draft and request, together referred to~~ as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:Exhibit “C”.

Appears in 1 contract

Samples: Lease Agreement (Matria Healthcare Inc)

Tenant Improvements. Landlord shall provide Tenant with a tenant improvement allowance (“Allowance”) not to exceed $6.00/sq. ft. on 58,958 rentable square feet ($353,748.00), the funds of which will be used exclusively for improvements within the Premises. Tenant improvements shall include normal and customary costs and expenses (including permit licenses and inspection fees) incurred in connection with tenant improvement renovation as is consistent with current market standards. The proposed tenant improvement renovation shall include, but not be limited to carpet or wallcovering replacement, painting, demolition of walls, installation of new walls, electrical and HVAC changes, etc. The Allowance shall be made available by Landlord for Tenant’s use as follows: i) an amount not to exceed $200,000.00 which will be made available for Tenant’s use as requested by Tenant through the year 2001, to include reimbursement to Tenant by Landlord from Allowance for expenses incurred by Tenant for Expansion Area I, and ii) beginning in the year 2002, the remaining Allowance, including the balance of the Allowance, if any, not use through the calendar year 2001, shall be made available as requested by Tenant through expiration of the Term. Tenant will ~~furnish or perform those items~~ provide Landlord a minimum of ~~construction and those improvements~~ twenty (~~the "Tenant Improvements"~~20) ~~specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the Tenant Improvements up~~ days advance written notice to ~~a maximum amount of $1,760,000.00 (the "TI Allowance"), and in no event shall Landlord have~~ obtain Landlord’s approval prior to incurring any obligation to pay for any costs of the Tenant Improvements in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractorsexpense, which ~~shall~~ approval will not be unreasonably withheld, the cost of which would exceed Five Thousand Dollars ($5,000). ~~-4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND~~ Landlord shall reimburse Tenant for approved expenses not later than thirty (30) days following Landlord’s receipt of the reimbursement request and verification of the work completed thereon. A ~~PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC~~separate tenant improvement ledger will be maintained by Landlord through the Term of the Lease to account for the expenditure of tenant improvement costs pursuant to this section. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until Any unused Allowance at the end of the ~~Lease term or, if it is for less than the full term of the Lease,~~ Extended Term shall be ~~renewed~~ forfeited by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit NoTenant._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Lease Agreement (CHG Healthcare Services, Inc.)

Tenant Improvements. ~~Tenant will furnish or perform those items of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the~~ All Tenant Improvements up shall be performed by Tenant’s contractor, at Tenant’s sole cost and expense (subject to ~~a maximum amount~~ Landlord’s obligations with respect to any portion of ~~$1,760,000.00 (~~the "TI Allowance") and in accordance with the Approved Plans (as defined below), the Amendment and ~~in no event shall Landlord have any obligation to pay for any costs~~ this Work Letter. To the extent that the total projected cost of the Tenant Improvements (as projected by Landlord) exceeds the TI Allowance (such excess, the “Excess TI Costs”), Tenant shall advance to Landlord any Excess TI Costs within ten (10) days after receipt of an invoice therefor, but in any case before Tenant commences the Tenant Improvements. If the actual Excess TI Costs are less than the Excess TI Costs paid by Tenant to Landlord, Landlord shall promptly return such excess to Tenant following completion of ~~such amount~~the Tenant Improvements. If the cost of the Tenant Improvements ~~exceeds such amount~~(as projected by Landlord) increases over Landlord’s initial projection, then Landlord may notify Tenant and Tenant shall deposit any additional Excess TI Costs with Landlord in the same way that Tenant deposited the initial Excess TI Costs. If Tenant fails to pay, or is late in paying, any ~~estimated overage~~ sum due to Landlord under this Work Letter, then Landlord shall have all of the rights and remedies set forth in ~~excess~~ the Lease for nonpayment of Rent (including the right to interest and the right to assess a late charge), and for purposes of any litigation instituted with regard to such ~~amount~~ amounts the same shall be ~~paid~~ considered Rent. All material and equipment furnished by ~~Tenant. Further~~Tenant or its contractors as the Tenant Improvements shall be new or “like new;” the Tenant Improvements shall be performed in a first-class, ~~Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ workmanlike manner; and the quality of the ~~TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over~~ Tenant Improvements shall be of a nature and character not less than the ~~Lease Term of $28,923.00 (the "TI Amortization")~~Building Standard. Tenant shall ~~have~~ take, and shall require its contractors to take, commercially reasonable steps to protect the ~~right~~ Premises during the performance of any Tenant Improvements, including covering or temporarily removing any window coverings so as to ~~select its own contractors subject to Landlord's consent of such contractors~~guard against dust, ~~which shall not be unreasonably withheld~~debris or damage. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit All Tenant Improvements shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis performed in accordance with ~~Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx~~Article 17 of the Original Lease; provided that, ~~Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable~~ notwithstanding anything in the Lease or this Work Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the ~~expiry date against presentation by you of your (i) sight drafts drawn on us~~ contrary, in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us event of a ~~Notice~~ conflict between this Work Letter and Article 17 of ~~Assignment in~~ the ~~form of Annex 3 hereto. <PAGE> We hereby agree with the drawers~~Original Lease, ~~endorsers, and bona fide holders of drafts drawn under and in compliance with~~ the terms of this Work Letter ~~of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and~~ shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:govern.

Appears in 1 contract

Samples: Lease (Zosano Pharma Corp)

Tenant Improvements. Landlord agrees to contribute an amount of money (the "Tenant ~~will furnish or perform those items~~ Allowance") calculated at $0.40 per rentable square foot of ~~construction and those~~ the Expansion Space, multiplied by the number of months remaining in the Lease Term as of the Commencement Date for each individual suite therein. The Tenant Allowance shall be for the cost of constructing certain tenant improvements (the "Tenant Improvements") ~~specified or referenced~~ for the Expansion Space in ~~Exhibit 2 attached hereto~~accordance with the space plan (the "Plan") to be approved by both Landlord and Tenant within fifteen (15) days of the date of execution of this Agreement. ~~Landlord~~ It is understood and agreed that Landlord's contractors shall ~~pay for~~ perform the work in connection with the Tenant Improvements. If the cost to construct the Tenant Improvements up pursuant to ~~a maximum~~ the Plan exceeds the Tenant Allowance, then within ten (10) days of Tenant's receipt of an invoice from Landlord, Tenant shall pay Landlord, as additional rent, by certified or cashier's check, an amount equal to the difference between the cost to construct the Tenant Improvements and the Tenant Allowance. Tenant agrees it shall not make any changes to the Plan without obtaining the prior written consent of ~~$1,760,000.00 (~~Landlord. In the ~~"TI Allowance"),~~ event Tenant shall make changes to the Plan that are approved by Landlord and which result in ~~no event shall~~ an additional cost to Landlord ~~have any obligation to pay for any costs~~ of completing the Tenant Improvements in excess of the Tenant Allowance, Tenant shall pay to Landlord prior to construction of such ~~amount. If~~ changes, as additional rent, any increase in the cost of completing the Tenant Improvements ~~exceeds such amount, any estimated overage~~ in excess of the Tenant Allowance resulting from such ~~amount shall be paid~~ changes in the Plan. In the event Tenant, its employees or agents, causes any delays or is otherwise responsible, in whole or in part, for any additional costs in excess of the Tenant Allowance incurred by ~~Tenant. Further~~Landlord in constructing the Tenant Improvements (other than additional costs arising due to changes to the Plan as described above), Tenant shall ~~repay~~ pay to Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) business days ~~thereafter cause~~ of receipt of written notice from Landlord, as additional rent, any such additional costs in excess of the ~~letter of credit~~ Tenant Allowance incurred by Landlord. Tenant's failure to timely pay any such amounts to be ~~restored to its original amount. The form of~~ paid by Tenant as set forth in this Article, at the ~~Letter of Credit, Sight Draft, Drawing Request~~ time and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the ~~debt-to-total-capital ratio over the period. Further~~manner set forth in this Article, ~~the Letter of Credit~~ shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter an event of ~~Credit No~~default._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Lease Agreement (Deltek Systems Corp)

Tenant Improvements. Tenant will furnish or perform those items of construction and those improvements (the "Tenant Improvements") specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for the Tenant Improvements up to a maximum amount of $1,760,000.00 (the "TI Allowance"), and in no event shall Landlord have any obligation to pay for any costs of the Tenant Improvements in excess of such amount. If the cost of the Tenant Improvements exceeds such amount, any estimated overage in excess of such amount shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf) of the TI Allowance, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which shall not be unreasonably withheld. ~~-4- <PAGE>~~ ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall be in the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, shall be renewed by Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: : 1. Timely compliance with all lease terms during the three years; ; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; ; 3. No decrease in operating margin during the period; ; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. ~~<PAGE>~~ ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust ~~00000 X. 00xx Xxxxx Xxxxxx~~14100 E. 35th Place Aurora, ~~Xxxxxxxx 00000~~ Colorado 80011 Attention: ~~Xxx Xxx Re~~Tom Ray Xx: ~~Irrevocable Transferrable Letter~~ Xxxxxxxxxxx Xxxxxxxxxxxxx Xxxxxr of Credit No~~._______________________________________~~ . --------------------------------------- Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit ~~No.______________________________in~~ No. in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile ~~number________________~~number _____________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:.

Appears in 1 contract

Samples: Lease Agreement (Celerity Group Inc)

Tenant Improvements. All Tenant ~~will furnish or perform those items~~ Improvements shall be performed by Landlord’s contractor, at Tenant’s sole cost and expense (subject to Landlord’s obligations with respect to any portion of ~~construction and those improvements (~~the "TI Allowance used by Landlord in completing the Tenant Improvements") ~~specified or referenced~~ and in ~~Exhibit 2 attached hereto. Landlord shall pay for~~ substantial accordance with the ~~Tenant Improvements up to a maximum amount of $1,760,000.00~~ Approved Plans (~~the "TI Allowance"~~as defined below), the Lease and ~~in no event shall Landlord have any obligation to pay for any costs~~ this Work Letter. To the extent that the total projected cost of the Tenant Improvements (as projected by Landlord) exceeds the TI Allowance (such excess, the “Excess TI Costs”), Tenant shall advance to Landlord any Excess TI Costs within ten (10) days after receipt of an invoice therefor, but in ~~excess~~ any case before Landlord commences the Tenant Improvements. If Landlord is delayed in commencing the Tenant Improvements due to Tenant’s failure to timely pay the Excess TI Costs to Landlord, Landlord shall be entitled to a day-for-day extension to achieve Substantial Completion of the Tenant Improvements for the period of such ~~amount~~delay. If the actual Excess TI Costs are less than the Excess TI Costs paid by Tenant to Landlord, Landlord shall credit Tenant with the overage paid by Tenant against Tenant’s Rent obligations, beginning after Landlord has completed the final accounting for the Tenant Improvements. If the cost of the Tenant Improvements ~~exceeds such amount~~(as projected by Landlord) increases over Landlord’s initial projection, then Landlord may notify Tenant and Tenant shall deposit any additional Excess TI Costs with Landlord in the same way that Tenant deposited the initial Excess TI Costs. If Tenant fails to pay, or is late in paying, any ~~estimated overage in excess of such amount~~ sum due to Landlord under this Work Letter, then Landlord shall ~~be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00 ($19 psf)~~ have all of the ~~TI Allowance, together with interest at 10.75% per annum,~~ rights and remedies set forth in ~~equal monthly installments over~~ the Lease ~~Term~~ for nonpayment of ~~$28,923.00~~ Rent (~~the "TI Amortization"). Tenant shall have~~ including the right to ~~select its own contractors subject~~ interest and the right to ~~Landlord's consent~~ assess a late charge), and for purposes of any litigation instituted with regard to such contractors, which shall not be unreasonably withheld. -4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16, 1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit amounts the same shall be in considered Rent. All material and equipment furnished by Landlord or its contractors as the form of an unconditional, irrevocable letter of credit from a bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end of the Lease term or, if it is for less than the full term of the Lease, Tenant Improvements shall be ~~renewed by~~ new or “like new,” and the Tenant at least 30 days prior to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at Landlord's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit Improvements shall be ~~reduced annually on~~ performed in a ~~pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx~~first-class, ~~Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No~~workmanlike manner._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant and shall be available to such drawers, endorsers, and bona fide holders, as the case may be, on or before noon, New York time, on the Business Day (defined below) next following the date on which such drafts are received by us. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the Uniform Customs and Practice for Commercial Documentary Credits (1993 Revision), I.C.C. Publication No. 500 (the "UCP 500") and as to matters not governed by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:

Appears in 1 contract

Samples: Lease Agreement (Synlogic, Inc.)

Tenant Improvements. A. Lessor shall provide, at no cost to Lessee, the base building improvements for the Premises, which shall consist of a ceiling approximately nine (9) feet high, the installation of 2' x 4' ceiling grid, 2' x 2' acoustical tiles stockpiled on the floor, 2' x 4' parabolic fluorescent light fixtures stockpiled on the floor, the installation of the primary distribution of the HVAC system and the shell building fire protection sprinkler system, and mini blinds stockpiled on the floor. All of the foregoing items shall be either stockpiled or installed, as applicable, using Lessor's building standard improvements. All additional improvements to the base building will be so-called "Tenant ~~will furnish or perform those items of construction~~ Improvements" to be installed by Lessor but to be selected by Lessee as hereinafter set forth and ~~those improvements~~ paid for by Lessee subject to Lessor providing the Tenant Improvement Allowance (as hereinafter defined). Lessor shall provide a tenant improvement allowance (the "Tenant ~~Improvements~~Improvement Allowance") ~~specified or referenced in Exhibit 2 attached hereto. Landlord shall pay for~~ equal to the ~~Tenant Improvements up to a maximum amount~~ product of Twenty and 00/100ths Dollars ($~~1,760,000.00 (~~20.00) multiplied by the ~~"TI Allowance"), and in no event shall Landlord have any obligation to pay for any costs~~ useable area of the ~~Tenant Improvements in excess of such amount.~~ Premises. B. If the ~~cost~~ price of the Tenant Improvements exceeds ~~such amount~~the Tenant Improvement Allowance, ~~any estimated overage~~ Lessee shall pay Lessor, in ~~excess~~ cash, upon substantial completion of the Tenant Improvements, the amount by which the price of the Tenant Improvements exceeds the Tenant Improvement Allowance. If the actual price of the Tenant Improvements is less than the Tenant Improvement Allowance, the difference between the actual price of such Tenant Improvements and the Tenant Improvement Allowance (but in no event to exceed an amount ~~shall be paid by Tenant. Further, Tenant shall repay Landlord for $1,337,600.00~~ equal to the product of Two and 001/100ths Dollars ($~~19 psf)~~ 2.00)multiplied by the rentable square feet of the ~~TI Allowance~~Premises) may be used by Lessee to offset moving expenses which may include, together with interest at 10.75% per annum, in equal monthly installments over the Lease Term of $28,923.00 (the "TI Amortization"). Tenant shall have the right to select its own contractors subject to Landlord's consent of such contractors, which but shall not be ~~unreasonably withheld~~limited to, transportation and installation of modular office furniture. ~~-4- <PAGE> ADDENDUM II LETTER OF CREDIT FOR ADDITIONAL SECURITY DEPOSIT ATTACHED TO AND A PART OF THE LEASE AGREEMENT DATED APRIL 16~~Lessee shall submit receipts to Lessor which substantiate in reasonable detail any amount requested by Lessee for moving expenses pursuant to the previous sentence. In the alternative, ~~1996, BETWEEN SECURITY CAPITAL INDUSTRIAL TRUST and INSYNC SYSTEMS, INC. The Additional Security Deposit shall~~ this difference may be returned to Lessee in the form of ~~an unconditional~~a credit against rent due hereunder. C. On or before September 10, ~~irrevocable letter of credit from~~ 1998, Lessee shall provide to Lessor a ~~bank reasonably acceptable to Landlord. The letter of credit shall either provide that it does not expire until the end~~ space plan of the ~~Lease term or~~Tenant Improvements which Lessee desires for Lessor to construct, ~~if it is for less than the full term of the Lease,~~ which space plan shall be ~~renewed by Tenant at least 30 days prior~~ subject to its expiration during the term of the Lease. The letter of credit shall provide that it may be drawn down upon by Landlord at any time Landlord delivers its site draft to the bank. If Landlord sells or conveys the Premises, Tenant shall, at LandlordLessor's request, cooperate in having the letter of credit transferred to the purchaser. If the letter of credit is ever drawn upon by Landlord pursuant to the terms of the Lease and this Addendum, Tenant shall within ten (10) days thereafter cause the letter of credit to be restored to its original amount. The form of the Letter of Credit, Sight Draft, Drawing Request and Notice of Assignment are attached hereto as Annex II-1, II-2, II-3 and II-4 respectively. Landlord will release the letter of credit after three years provided Tenant meets the following criteria: 1. Timely compliance with all lease terms during the three years; 2. An increase in gross sales and net worth by 50% over the three years (using as a base year the financial statements attached as Annex II-6), as established by audited financial statements; 3. No decrease in operating margin during the period; 4. No increase in the debt-to-total-capital ratio over the period. Further, the Letter of Credit shall be reduced annually on a pro rata basis in accordance with Annex II-5. <PAGE> ANNEX II-1 FORM OF LETTER OF CREDIT [LETTERHEAD OF LETTER OF CREDIT BANK] [DATE] Security Capital Industrial Trust 00000 X. 00xx Xxxxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxx Xxx Re: Irrevocable Transferrable Letter of Credit No._______________________________________ Beneficiary: By order of our client, Insync Systems, Inc. (the "Applicant"), we hereby establish this Irrevocable Transferrable Letter of Credit No.______________________________in your favor for an amount up to but not exceeding the aggregate sum of Six Hundred Thirty-Five Thousand and No/100 Dollars ($635,000) (as reduced from time to time in accordance with the terms hereof, the "Letter of Credit Amount"), effective immediately, and expiring on the close of business at our office at the address set forth above one year from the date hereof unless renewed as hereinafter provided. Funds under this Letter of Credit are available to you on or prior to the expiry date against presentation by you of your (i) sight drafts drawn on us in the form of Annex 1 hereto, indicating this Letter of Credit number and (ii) request in the form of Annex 2 hereto (such sight draft and request, together referred to as a "Drawing Request"), sight draft(s), completed and signed by one of your officers. Presentation of your Drawing Requests may be made by you to us at the address set forth above or may be made by facsimile transmission, to the following facsimile number_____________________________. You may present to us one or more Drawing Requests from time to time prior to the expiry date in an aggregate amount not to exceed the Letter of Credit Amount then in effect (it being understood that the honoring by us of each Drawing Request shall reduce the Letter of Credit Amount then in effect). This Letter of Credit will be automatically renewed for a one-year period upon the expiration date set forth above and upon each anniversary of such date, unless at least sixty (60) days prior to such expiration date, or prior to any anniversary of such date, we notify both you and the Applicant in writing by certified mail that we elect not to so renew the Letter of Credit. This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any document or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates, and no such reference shall be deemed to incorporate herein by reference any document or instrument. All bank charges and commissions incurred in this transaction are for the Applicant's account. This Letter of Credit is transferrable by you and your successors and assigns any number of times in its entirety and not in part, but only by delivery to us of a Notice of Assignment in the form of Annex 3 hereto. <PAGE> We hereby agree with the drawers, endorsers, and bona fide holders of drafts drawn under and in compliance with the terms of this Letter of Credit that such drafts will be duly honored upon presentation to the drawee from our own funds and not the funds of the Applicant approval and shall be ~~available~~ adequate for the preparation by Lessor of working drawings for construction of such Tenant Improvements. Such space plan shall show in reasonable detail the design and appearance of the tenant finishing materials to ~~such drawers, endorsers~~be used in the construction thereof, and ~~bona fide holders,~~ such other detail or description as may be necessary to adequately outline the ~~case may be, on or before noon, New York time, on~~ scope of the ~~Business Day (defined below) next following the date on which such drafts are received by us~~Tenant Improvements. "Business Day" shall mean any day which is not a Saturday, Sunday or day on which we are required or authorized by law to be closed in New York, New York. To the extent not inconsistent with the express terms hereof, this Letter of Credit Lessee shall be ~~governed by, and construed~~ responsible for Lessor's costs (including lost rent) arising out of delays in ~~accordance with,~~ completing the ~~terms~~ Tenant Improvements caused by Lessee. Lessee also agrees to refrain from ordering long lead time items which would delay substantial completion of the ~~Uniform Customs~~ Tenant Improvements. Provided that interior finish materials are of suitable quality as determined by Lessor in its sole discretion and ~~Practice for Commercial Documentary Credits (1993 Revision)~~are available, ~~I.C.C. Publication No. 500 (the "UCP 500")~~ in sufficient quantities and as needed to ~~matters not governed~~ meet Lessor's construction schedule from reputable materialmen which meet all applicable 40 statutory and/or industry standards for licensing and bonding, Lessor agrees to purchase interior finish materials from vendors identified by the UCP 500, this Letter of Credit shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, [NAME OF LETTER OF CREDIT BANK] By: ___________________________ Name: Title: -2- <PAGE> ANNEX II-2 SIGHT DRAFT ________,199_ For value received, at sight pay to the order of SECURITY CAPITAL INDUSTRIAL TRUST, the sum of [Amount in words] [Amount in Figures] United States Dollars drawn under [Name of Letter of Credit Bank] Irrevocable Transferrable Letter of Credit No. _________________dated ____________, 199___________. SECURITY CAPITAL INDUSTRIAL TRUST By: _____________________________ Name: Title: -3- <PAGE> ANNEX II-3 DRAWING REQUEST _______, 199_ [NAME AND ADDRESS OF LETTER OF CREDIT BANK] Re: Irrevocable Transferable Letter of Credit No._____(the "Letter of Credit") The undersigned (the "Beneficiary"), hereby certifies to [Name of Letter of Credit Bank] (the "Issuer") that:Lessee.

Appears in 1 contract

Samples: Office Lease (Business Resource Group)

Common use of Tenant Improvements Clause in Contracts