Common use of Use of Proceeds by Landlord Clause in Contracts

Use of Proceeds by Landlord. The proceeds of the Letter of Credit shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s bankruptcy estate) and Landlord may immediately upon any draw (and without notice to Tenant) apply or offset the proceeds of the Letter of Credit: (i) against any rent payable by Tenant under this Lease that is not paid when due; (ii) against all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may suffer as a result of any Default by Tenant under this Lease, including any damages arising under Section 1951.2 of the California Civil Code following termination of this Lease (as determined in accordance with Paragraph 21 below); (iii) against any costs incurred by Landlord in connection with this Lease (including attorneys’ fees); and (iv) against any other amount that Landlord may spend or become obligated to spend by reason of Tenant’s Default (subject to the terms of Paragraph 21 below). Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under this Lease, Landlord agrees to pay to Tenant within thirty (30) days after the Final LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied as allowed above; provided that if Tenant fails to perform all of its surrender obligations or is otherwise in Default under this Lease on the Final LC Expiration Date as described above, Landlord shall not be required to pay to Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Default; provided further, that if prior to the date such unapplied proceeds are paid to Tenant a voluntary petition is filed by Tenant or any Guarantor (defined below), or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appeal.

Use of Proceeds by Landlord. The proceeds of the Letter of Credit shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s bankruptcy estate) and may be applied by Landlord may immediately upon any draw (and without notice to Tenant) apply or offset the proceeds of the Letter of Credit: (i) against any rent Rent payable by Tenant under this Lease that is not paid when due; (ii) against due and/or to pay for all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may will suffer as a result of any Default default by Tenant under this Lease, including . Landlord shall deposit any damages arising under Section 1951.2 unused proceeds in a separate account in the name of the California Civil Code following termination of this Lease (as determined in accordance with Paragraph 21 below); (iii) against any costs incurred Landlord or its designee at a financial institution selected by Landlord in connection with its sole discretion (the “LC Proceeds Account”). Landlord may apply funds from the LC Proceeds Account against any Rent payable by Tenant under this Lease that is not paid when due and/or to pay for all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it will suffer as a result of any default by Tenant under this Lease. Tenant hereby grants Landlord a security interest in the LC Proceeds Account and agrees that, in addition to all other rights and remedies available to Landlord under applicable Law, Landlord shall have all rights of a secured party under the Commonwealth of Massachusetts Uniform Commercial Code with respect to the LC Proceeds Account. The LC Proceeds Account shall be under the sole control of Landlord. Tenant shall not have any right to direct the disposition of funds from the LC Proceeds Account or any other right or interest in the LC Proceeds Account. Tenant shall, at any time and from time to time, execute, acknowledge and deliver such commercially reasonable documents and take such actions as Landlord or the bank with which the LC Proceeds Account is maintained may reasonably request concerning the creation or perfection of the security interest granted to Landlord in (including attorneys’ fees); Landlord’s control of) LC Proceeds Account or to effect the provisions of this Section 26.3. Photographic or other facsimile reproductions of this fully executed Lease may be made and (iv) against delivered by Landlord, and may be relied upon by any other amount that Landlord may spend or become obligated to spend by reason of Tenant’s Default (subject person to the terms of Paragraph 21 below)same extent as though the copy were an original. Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under this Lease, Landlord agrees to pay to Tenant within thirty (30) days after the Final LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied as allowed above; provided that if against any Rent payable by Tenant fails to perform all of its surrender obligations or is otherwise in Default under this Lease on the Final LC Expiration Date as described above, Landlord shall that was not be required paid when due or used to pay to for any losses and/or damages suffered by Landlord (or reasonably estimated by Landlord that it will suffer) as a result of any default by Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Defaultunder this Lease; provided furtherprovided, that if prior to the date such unapplied proceeds are paid to Tenant Final LC Expiration Date a voluntary petition is filed by Tenant or any Guarantor (defined below)Guarantor, or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appeal.

Use of Proceeds by Landlord. The proceeds of the Letter of Credit shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s bankruptcy estate) and Landlord may immediately upon any draw permitted under the Lease (and without notice to TenantTenant except as may be expressly provided in the Lease) apply or offset the proceeds of the Letter of Credit: (i) against any rent Rent payable by Tenant under this the Lease that is not paid when duedue following any applicable notice and cure periods; (ii) against all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may suffer as a result of any Default by Tenant under this Tenant’s failure to comply with one or more provisions of the Lease, including any damages arising under Section section 1951.2 of the California Civil Code following termination of this Lease (as determined in accordance with Paragraph 21 below)the Lease, to the extent permitted by the Lease; (iii) against any costs incurred by Landlord in connection with this permitted to be reimbursed pursuant to the Lease (including attorneys’ fees); and (iv) against any other amount that Landlord may spend or become obligated to spend by reason of Tenant’s Default (subject for which Landlord shall be entitled to seek reimbursement in accordance with the terms of Paragraph 21 below)Lease. Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under this the Lease, Landlord agrees to pay to Tenant within thirty (30) days after by the Final LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied as allowed above; provided that if Tenant fails to perform all of its surrender obligations or is otherwise in Default under this Lease on the Final LC Expiration Date as described above, Landlord shall not be required to pay to Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Default; provided furtherprovided, that if prior to the date such unapplied proceeds are paid to Tenant Final LC Expiration Date a voluntary petition is filed by Tenant or any Guarantor (defined below)Tenant, or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under this the Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appeal.

Use of Proceeds by Landlord. The proceeds of the Letter of Credit shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s bankruptcy estate) and may be applied by Landlord may immediately upon any draw (and without notice to Tenant) apply or offset the proceeds of the Letter of Credit: (i) against any rent Rent payable by Tenant under this Lease that is not paid when due; (ii) against due and/or to pay for all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may will suffer as a result of any Default default by Tenant under this Lease, including . Landlord shall deposit any damages arising under Section 1951.2 unused proceeds in a separate account in the name of the California Civil Code following termination of this Lease (as determined in accordance with Paragraph 21 below); (iii) against any costs incurred Landlord or its designee at a financial institution selected by Landlord in connection with its sole discretion (the "LC PROCEEDS ACCOUNT"). Landlord may apply funds from the LC Proceeds Account against any Rent payable by Tenant under this Lease that is not paid when due and/or to pay for all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it will suffer as a result of any default by Tenant under this Lease. Tenant hereby grants Landlord a security interest in the LC Proceeds Account and agrees that, in addition to all other rights and remedies available to Landlord under applicable Law, Landlord shall have all rights of a secured party under the Massachusetts Uniform Commercial Code with respect to the LC Proceeds Account. The LC Proceeds Account shall be under the sole control of Landlord. Tenant shall not have any right to direct the disposition of funds from the LC Proceeds Account or any other right or interest in the LC Proceeds Account. Tenant shall, at any time and from time to time, execute, acknowledge and deliver such documents and take such actions as Landlord or the bank with which the LC Proceeds Account is maintained may reasonably request concerning the creation or perfection of the security interest granted to Landlord in (including attorneys’ feesLandlord's control of) LC Proceeds Account or to effect the provisions of this Section 27(c); . Tenant does hereby make, constitute and (iv) against appoint Landlord its true and lawful attorney-in-fact, for it and in its name, place and stead, to execute and deliver all such instruments and documents, and to do all such other acts and things, as Landlord may deem to be necessary or desirable to protect and preserve the rights granted to Landlord under this Section 27(c). Tenant hereby grants to Landlord the full power and authority to appoint one or more substitutes to perform any other amount of the acts that Landlord is authorized to perform under this Section 27(c), with a right to revoke such appointment of substitution at Landlord's pleasure. The power of attorney granted pursuant to this Section 27(c) is coupled with an interest and therefore is irrevocable. Any person dealing with Landlord may spend rely upon the representation of Landlord relating to any authority granted by this power of attorney, including the intended scope of the authority, and may accept the written certificate of Landlord that this power of attorney is in full force and effect. Photographic or become obligated to spend other facsimile reproductions of this executed Lease may be made and delivered by reason of Tenant’s Default (subject Landlord, and may be relied upon by any person to the terms same extent as though the copy were an original. Anyone who acts in reliance upon any representation or certificate of Paragraph 21 below)Landlord, or upon a reproduction of this Lease, shall not be liable for permitting Landlord to perform any act pursuant to this power of attorney. Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under this Lease, Landlord agrees to pay to Tenant within thirty (30) days after the Final LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied as allowed above; provided that if against any Rent payable by Tenant fails to perform all of its surrender obligations or is otherwise in Default under this Lease on the Final LC Expiration Date as described above, Landlord shall that was not be required paid when due or used to pay for any losses and/or damages suffered by Landlord (or reasonably estimated by Landlord that it will suffer) as a result of any default by Tenant under this Lease and return the Letter of Credit to Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable DefaultTenant; provided furtherprovided, that if prior to the date such unapplied proceeds are paid to Tenant Final LC Expiration Date a voluntary petition is filed by Tenant or any Guarantor (defined below)Guarantor, or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s 's or Guarantor’s 's creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appeal.

Use of Proceeds by Landlord. The proceeds of the Letter of Credit shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s bankruptcy estate) and may be applied by Landlord may immediately upon any draw (and without notice to Tenant) apply or offset the proceeds of the Letter of Credit: (i) against any rent Rent payable by Tenant under this Lease that is not paid when due; (ii) against due and/or to pay for all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may will suffer as a result of any Default default by Tenant under this Lease, including . Landlord shall deposit any damages arising under Section 1951.2 unused proceeds in a separate account in the name of the California Civil Code following termination of this Lease (as determined in accordance with Paragraph 21 below); (iii) against any costs incurred Landlord or its designee at a financial institution selected by Landlord in connection with its sole discretion (the “LC Proceeds Account”). Landlord may apply funds from the LC Proceeds Account against any Rent payable by Tenant under this Lease that is not paid when due and/or to pay for all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it will suffer as a result of any default by Tenant under this Lease. Tenant hereby grants Landlord a security interest in the LC Proceeds Account and agrees that, in addition to all other rights and remedies available to Landlord under applicable Law, Landlord shall have all rights of a secured party under the Texas Uniform Commercial Code with respect to the LC Proceeds Account. The LC Proceeds Account shall be under the sole control of Landlord. Tenant shall not have any right to direct the disposition of funds from the LC Proceeds Account or any other right or interest in the LC Proceeds Account. Tenant shall, at any time and from time to time, execute, acknowledge and deliver such documents and take such actions as Landlord or the bank with which the LC Proceeds Account is maintained may reasonably request concerning the creation or perfection of the security interest granted to Landlord in (including attorneys’ feesLandlord’s control of) LC Proceeds Account or to effect the provisions of this Section 29(c); . Tenant does hereby make, constitute and (iv) against appoint Landlord its true and lawful attorney-in-fact, for it and in its name, place and stead, to execute and deliver all such instruments and documents, and to do all such other acts and things, as Landlord may deem to be necessary or desirable to protect and preserve the rights granted to Landlord under this Section 29(c). Tenant hereby grants to Landlord the full power and authority to appoint one or more substitutes to perform any other amount of the acts that Landlord is authorized to perform under this Section 29(c), with a right to revoke such appointment of substitution at Landlord’s pleasure. The power of attorney granted pursuant to this Section 29(c) is coupled with an interest and therefore is irrevocable. Any person dealing with Landlord may spend rely upon the representation of Landlord relating to any authority granted by this power of attorney, including the intended scope of the authority, and may accept the written certificate of Landlord that this power of attorney is in full force and effect. Photographic or become obligated to spend other facsimile reproductions of this executed Lease may be made and delivered by reason of Tenant’s Default (subject Landlord, and may be relied upon by any person to the terms same extent as though the copy were an original. Anyone who acts in reliance upon any representation or certificate of Paragraph 21 below)Landlord, or upon a reproduction of this Lease, shall not be liable for permitting Landlord to perform any act pursuant to this power of attorney. Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under this Lease, Landlord agrees to pay to Tenant within thirty (30) 30 days after the Final LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied as allowed above; provided that if against any Rent payable by Tenant fails to perform all of its surrender obligations or is otherwise in Default under this Lease on the Final LC Expiration Date as described above, Landlord shall that was not be required paid when due or used to pay to for any losses and/or damages suffered by Landlord (or reasonably estimated by Landlord that it will suffer) as a result of any default by Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Defaultunder this Lease; provided furtherprovided, that if prior to the date such unapplied proceeds are paid to Tenant Final LC Expiration Date a voluntary petition is filed by Tenant or any Guarantor (defined below)Guarantor, or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appeal.

Use of Proceeds by Landlord. The Subject to the provisions of Section 10(f) below, the proceeds of the Letter of Credit shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s bankruptcy estate) and Landlord may immediately upon any draw permitted hereunder (and without notice to TenantTenant except as may be expressly provided in this Lease) apply or offset the proceeds of the Letter of Credit: (i) against any rent Rent payable by Tenant under this Lease that is not paid when duedue following any applicable notice and cure periods; (ii) against all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may suffer as a result of any Default by Tenant under Tenant’s failure to comply with one or more provisions of this Lease, including any damages arising under Section 1951.2 of the California Civil Code following termination of the Lease, to the extent permitted by this Lease (as determined in accordance with Paragraph 21 below)Lease; (iii) against any costs incurred by Landlord in connection with permitted to be reimbursed pursuant to this Lease (including reasonable attorneys’ fees); and (iv) against any other amount that Landlord may spend or become obligated to spend by reason of Tenant’s Default (subject for which Landlord shall be entitled to the terms of Paragraph 21 below)seek reimbursement in accordance with this Lease. Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under this Lease, Landlord agrees to pay to Tenant within thirty (30) days after by the Final LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord as a result of previous draw(s) and not applied as allowed above; provided that if Tenant fails to perform all of its surrender obligations or is otherwise in Default under this Lease on the Final LC Expiration Date as described above, Landlord shall not be required to pay to Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Default; provided furtherprovided, that if prior to the date such unapplied proceeds are paid to Tenant Final LC Expiration Date a voluntary petition is filed by Tenant or any Guarantor (defined below)Tenant, or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appeal.

Use of Proceeds by Landlord. The proceeds of any draw upon the Letter of Credit which are not used to pay for damages suffered by Landlord (or which Landlord reasonably estimates it will suffer) as described above (the “Unused Proceeds”) shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s bankruptcy estate) and ), but are subject to refund as provided below. Landlord may immediately upon any draw permitted hereunder (and without notice to TenantTenant except as may be expressly provided in the Lease) apply or offset the proceeds of the Letter of Credit: (i) against any rent Rent payable by Tenant under this the Lease that is not paid when due, after the expiration of any applicable notice and cure period; (ii) against all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may suffer as a result of any Default by Tenant under this Tenant’s failure to comply with one or more provisions of the Lease, including any damages arising under Section section 1951.2 of the California Civil Code following termination of this Lease (as determined in accordance with Paragraph 21 below)the Lease; (iii) against any costs incurred by Landlord in connection with this permitted to be reimbursed pursuant to the Lease (including attorneys’ fees), after Tenant’s failure to pay same following notice and expiration of any applicable cure period; and (iv) against any other amount that Landlord may spend or become obligated to spend by reason of Tenant’s Default breach for which Landlord shall be entitled to seek reimbursement in accordance with the Lease, after Tenant’s failure to pay same following notice and expiration of any applicable cure period. Tenant (subject i) agrees that (A) Tenant has no property interest whatsoever in the Unused Proceeds, and (B) the Unused Proceeds shall not be deemed to be or treated as a “security deposit” under the terms of Paragraph 21 Security Deposit Laws (defined below), and (ii) waives all rights, duties and obligations either party may now or, in the future, will have relating to or arising from the Security Deposit Laws. Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under this LeaseNotwithstanding the foregoing, any Unused Proceeds shall be paid by Landlord agrees to pay to Tenant (x) upon receipt by Landlord of a replacement Letter of Credit in the full Letter of Credit Amount, which replacement Letter of Credit shall comply in all respects with the requirements of this Section 1, or (y) within thirty (30) days after the Final LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied as allowed aboveDate; provided that if Tenant fails to perform all of its surrender obligations or is otherwise in Default under this Lease on the Final LC Expiration Date as described aboveprovided, Landlord shall not be required to pay to Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Default; provided furtherhowever, that if prior to the date such unapplied proceeds are paid to Tenant a voluntary petition is filed by Tenant or Final LC Expiration Date any Guarantor (defined below), or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy CodeInsolvency Event occurs, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds Unused Proceeds until either all preference issues relating to payments under this the Lease have been resolved in such bankruptcy or reorganization case or such and any bankruptcy or reorganization case has been dismissed, in each any case pursuant to a final court order not subject to appeal or any stay pending appeal.

Use of Proceeds by Landlord. The proceeds of the Tenant’s Letter of Credit shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s bankruptcy estate) and may be applied by Landlord may immediately upon any draw (and without notice to Tenant) apply or offset the proceeds of the Letter of Credit: (i) against any rent Rent payable by Tenant under this Lease that is not paid when due; (ii) against due and/or to pay for all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may will suffer as a result of any Default default by Tenant under this Lease, including . Landlord shall deposit any damages arising under Section 1951.2 unused proceeds in a separate account in the name of the California Civil Code following termination of this Lease (as determined in accordance with Paragraph 21 below); (iii) against any costs incurred Landlord or its designee at a financial institution selected by Landlord in connection with its sole discretion (“Tenant’s LC Proceeds Account”). Landlord may apply funds from Tenant’s LC Proceeds Account against any Rent payable by Tenant under this Lease not paid when due and/or to pay for all losses and damages Landlord has suffered or Landlord reasonably estimates it will suffer as a result of any default by Tenant under this Lease. Tenant hereby grants Landlord a security interest in Tenant’s LC Proceeds Account and all funds held in such account and agrees that, in addition to all other rights and remedies available to Landlord under applicable Law, Landlord shall have all rights of a secured party under the Uniform Commercial Code in the state in which the Premises are located with respect to Tenant’s LC Proceeds Account. Tenant’s LC Proceeds Account shall be under the sole control of Landlord. Tenant shall not have any right to direct the disposition DMWEST #36871000 v9 ▇▇ ▇▇▇▇▇ ▇▇▇▇ of funds from Tenant’s LC Proceeds Account or any other right or interest in the Tenant’s LC Proceeds Account, and any interest accruing upon the funds in Tenant’s LC Proceeds Account shall belong to Landlord. Tenant shall, at any time and from time to time, execute, acknowledge and deliver such documents and take such actions as Landlord or the bank with which the Tenant’s LC Proceeds Account is maintained may reasonably request concerning the creation or perfection of the security interest granted to Landlord in (including attorneys’ fees); Landlord’s control of) Tenant’s LC Proceeds Account or to effect the provisions of this Section 26.5.3. Tenant does hereby make, constitute and (iv) against appoint Landlord its true and lawful attorney-in-fact, for it and in its name, place and stead, to execute and deliver all such instruments and documents, and to do all such other acts and things, as Landlord may deem to be necessary or desirable to protect and preserve the rights granted to Landlord under this Section 26.5.3 if Tenant is neglectful in its performance of the same, as reasonably determined by Landlord. Tenant hereby grants to Landlord the full power and authority to appoint one or more substitutes to perform any other amount of the acts that Landlord is authorized to perform under this Section 26.5.3, with a right to revoke such appointment of substitution at Landlord’s pleasure. The power of attorney granted pursuant to this Section 26.5.3 is coupled with an interest and therefore is irrevocable. Any person dealing with Landlord may spend rely upon the representation of Landlord relating to any authority granted by this power of attorney, including the intended scope of the authority, and may accept the written certificate of Landlord that this power of attorney is in full force and effect. Photographic or become obligated to spend other facsimile reproductions of this executed Lease may be made and delivered by reason of Tenant’s Default (subject Landlord, and may be relied upon by any person to the terms same extent as though the copy were an original. Anyone who acts in reliance upon any representation or certificate of Paragraph 21 below)Landlord, or upon a reproduction of this Lease, shall not be liable for permitting Landlord to perform any act pursuant to this power of attorney. Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under this Lease, Landlord agrees to pay to Tenant within thirty (30) 30 days after the Tenant’s Final LC Expiration Date the amount of any proceeds of the Tenant’s Letter of Credit received by Landlord and not applied as allowed above; provided that if against any Rent payable by Tenant fails to perform all of its surrender obligations or is otherwise in Default under this Lease on the Final LC Expiration Date as described above, Landlord shall that was not be required paid when due or used to pay to for any losses and/or damages suffered by Landlord (or reasonably estimated by Landlord that it will suffer) as a result of any default by Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Defaultunder this Lease; provided furtherprovided, that if prior to the date such unapplied proceeds are paid to Tenant Tenant’s Final LC Expiration Date a voluntary petition is filed by Tenant or any Guarantor (defined below)Guarantor, or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Tenant’s Letter of Credit proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appeal.

Use of Proceeds by Landlord. The proceeds Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit upon the occurrence of any breach or Default on the part of Tenant under this Lease. If Tenant shall constitute Landlord’s sole and separate property (and not Tenant’s property breach any provision of this Lease or the property of Tenant’s bankruptcy estate) and otherwise be in Default hereunder, Landlord may immediately upon any draw (may, but without obligation to do so, and without notice to Tenant) apply , draw upon the Letter of Credit, in part or offset in whole, to cure any breach or Default of Tenant and/or to compensate Landlord for any and all damages of any kind or nature sustained resulting from Tenant's breach or Default. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit: (i) against any rent payable , either prior to or following a "draw" by Tenant under this Lease that is not paid when due; (ii) against all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may suffer as a result of any Default by Tenant under this Lease, including any damages arising under Section 1951.2 portion of the California Civil Code following termination Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord's right to draw upon the Letter of Credit. No condition or term of this Lease (as determined in accordance with Paragraph 21 below); (iii) against any costs incurred by Landlord in connection with this Lease (including attorneys’ fees); and (iv) against any other amount that Landlord may spend or become obligated shall be deemed to spend by reason render the Letter of Tenant’s Default (subject Credit conditional to justify the terms of Paragraph 21 below). Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under this Lease, Landlord agrees to pay to Tenant within thirty (30) days after the Final LC Expiration Date the amount of any proceeds issuer of the Letter of Credit received by in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Issuing Bank, (ii) Tenant is not applied as allowed above; provided that if a third party beneficiary of such contract, (iii) Tenant fails to perform all has no property interest whatsoever in the Letter of its surrender obligations Credit or is otherwise the proceeds thereof, and (iv) in Default the event Tenant becomes a debtor under this Lease on any chapter of the Final LC Expiration Date as described above, Landlord shall not be required to pay to Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Default; provided further, that if prior to the date such unapplied proceeds are paid to Tenant a voluntary petition is filed by Tenant or any Guarantor (defined below), or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord neither Tenant, any trustee, nor Tenant's bankruptcy estate shall not be obligated have any right to make such payment in restrict or limit Landlord's claim and/or rights to the amount of the unused Letter of Credit and/or the proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appealotherwise.

Use of Proceeds by Landlord. The proceeds Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the Letter of Credit shall constitute Landlord’s sole and separate property (and not Tenant’s property or upon the property occurrence of Tenant’s bankruptcy estate) and any L C Draw Event. Upon the occurrence of any L C Draw Event, Landlord may immediately upon any draw (may, but without obligation to do so, and without notice to Tenant) apply , draw upon the Letter of Credit, in part or offset in whole, to cure any such L C Draw Event and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant’s breach or default of the Lease or other L C Draw Event and/or to compensate Landlord for any and all damages arising out of, or incurred in connection with, the termination of this Lease, including, without limitation, those specifically identified in Section 1951.2 of the California Civil Code. The use, application or retention of the Letter of Credit, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the Letter of Credit, and such Letter of Credit shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the Letter of Credit: (i) against any rent payable , either prior to or following a “draw” by Tenant under this Lease that is not paid when due; (ii) against all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may suffer as a result of any Default by Tenant under this Lease, including any damages arising under Section 1951.2 portion of the California Civil Code following termination Letter of Credit, regardless of whether any dispute exists between Tenant and Landlord as to Landlord’s right to draw upon the Letter of Credit. No condition or term of this Lease (as determined in accordance with Paragraph 21 below); (iii) against any costs incurred by Landlord in connection with this Lease (including attorneys’ fees); and (iv) against any other amount that Landlord may spend or become obligated shall be deemed to spend by reason render the Letter of Tenant’s Default (subject Credit conditional to justify the terms of Paragraph 21 below). Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under this Lease, Landlord agrees to pay to Tenant within thirty (30) days after the Final LC Expiration Date the amount of any proceeds issuer of the Letter of Credit received by in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that (i) the Letter of Credit constitutes a separate and independent contract between Landlord and the issuing bank, (ii) Tenant is not applied as allowed above; provided that if a third party beneficiary of such contract, (iii) Tenant fails to perform all has no property interest whatsoever in the Letter of its surrender obligations Credit or is otherwise the proceeds thereof, and (iv) in Default the event Tenant becomes a debtor under this Lease on any chapter of the Final LC Expiration Date as described above, Landlord shall not be required to pay to Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Default; provided further, that if prior to the date such unapplied proceeds are paid to Tenant a voluntary petition is filed by Tenant or any Guarantor (defined below), or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord Tenant is placed into receivership or conservatorship, and/or there is an event of a receivership, conservatorship or a bankruptcy filing by, or on behalf of, Tenant, neither Tenant, any trustee, nor Tenant’s bankruptcy estate shall not be obligated have any right to make such payment in restrict or limit Landlord’s claim and/or rights to the amount of the unused Letter of Credit and/or the proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appealotherwise.

Use of Proceeds by Landlord. The proceeds of the each Letter of Credit shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s bankruptcy estate) and may be applied by Landlord may immediately upon any draw (and without notice to Tenant) apply or offset the proceeds of the Letter of Credit: (i) against any rent Rent payable by Tenant under this Lease that is not paid when due; (ii) against due and/or to pay for all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may will suffer as a result of any Event of Default by Tenant under this Lease. As soon as reasonably practicable after receipt of any Letter of Credit proceeds, including Landlord shall deposit any damages arising under Section 1951.2 unused proceeds in a separate account in the name of the California Civil Code following termination of this Lease (as determined in accordance with Paragraph 21 below); (iii) against any costs incurred Landlord or its designee at a financial institution selected by Landlord in connection with its sole discretion (the “LC Proceeds Account”). Landlord may apply funds from the LC Proceeds Account against any Rent payable by Tenant under this Lease (including attorneys’ fees); that is not paid when due and/or to pay for all losses and (iv) against any other amount damages that Landlord may spend has suffered or become obligated to spend that Landlord reasonably estimates that it will suffer as a result of any Event of Default by reason of Tenant’s Default (subject to the terms of Paragraph 21 below). Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under this Lease. Tenant hereby grants Landlord a security interest in the LC Proceeds Account and agrees that, in addition to all other rights and remedies available to landlord under applicable Law, Landlord shall have all rights of a secured party under the Texas Uniform Commercial Code with respect to the LC Proceeds Account. The LC Proceeds Account shall be under the sole control of Landlord. Tenant shall not have any right to direct the disposition of funds from the LC Proceeds Account or any other right or interest in the LC Proceeds Account; provided, however, Landlord agrees to exhaust the funds, if any, from the LC Proceeds Account with respect to an Event of Default prior to drawing upon either Letter of Credit. Tenant shall, at any time and from time to time, execute, acknowledge and deliver such documents and take such actions as Landlord or the bank with which the LC Proceeds Account is maintained may reasonably request concerning the creation or perfection of the security interest granted to Landlord in (including Landlord’s control of) LC Proceeds Account or to effect the provisions of this Section 21(e). Tenant does hereby make, constitute and appoint Landlord its true and lawful attorney-in-fact, for it and in its name, place and stead, to execute and deliver all such instruments and documents, and to do all such other acts and things, as Landlord may deem to be necessary or desirable to protect and preserve the rights granted to Landlord under this Section 21(e). Tenant hereby grants to Landlord the full power and authority to appoint one or more substitutes to perform any of the acts that Landlord is authorized to perform under this Section 21(e), with a right to revoke such appointment of substitution at Landlord’s pleasure. The power of attorney granted pursuant to this Section 21(e) is coupled with an interest and therefore is irrevocable. Any person dealing with Landlord may rely upon the representation of Landlord relating to any authority granted by this power of attorney, including the intended scope of the authority, and may accept the written certificate of Landlord that this power of attorney is in full force and effect. Photographic or other facsimile reproductions of this executed Lease may be made and delivered by Landlord, and may be relied upon by any person to the same extent as though the copy were an original. Anyone who acts in reliance upon any representation or certificate of Landlord, or upon a reproduction of this Lease, shall not be liable for permitting Landlord to perform any act pursuant to this power of attorney. Provided there is no Event of Default then outstanding, Landlord agrees to pay to Tenant within thirty (30) 30 days after the Final applicable LC Expiration Date the amount of any proceeds of the such Letter of Credit received by Landlord and not applied as allowed above; provided that if against any Rent payable by Tenant fails to perform all of its surrender obligations or is otherwise in Default under this Lease on the Final LC Expiration Date as described above, Landlord shall that was not be required paid when due or used to pay to for any losses and/or damages suffered by Landlord (or reasonably estimated by Landlord that it will suffer) as a result of any Event of Default by Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Defaultunder this Lease; provided furtherprovided, that if prior to the date such unapplied proceeds are paid to Tenant applicable LC Expiration Date a voluntary petition is filed by Tenant or any Guarantor (defined below)Guarantor, or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appeal.. 43 TEXAS WITH BASE YEAR

Use of Proceeds by Landlord. The proceeds of the Letter of Credit shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s bankruptcy estate) and, in the event of any default by Tenant beyond applicable notice and cure periods, Landlord may immediately upon any draw permitted by Section 40 below by delivering demand to the issuing bank (and without which demand to the bank shall not require notice to TenantTenant so long as the notice and cure period above has been provided) apply or offset the proceeds of the Letter of Credit: (i) against any rent payable by Tenant under this Lease that is not paid when due; (ii) against all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may suffer as a result of any Default default by Tenant under this Lease, including any damages arising under Section section 1951.2 of the California Civil Code following termination of this Lease (as determined in accordance with Paragraph 21 below)the Lease; (iii) against any costs incurred by Landlord in connection with this Lease resulting solely from Tenant’s default (including reasonable attorneys’ fees); and (iv) against any other amount that Landlord may spend or become obligated to spend by reason of Tenant’s Default (subject to the terms of Paragraph 21 below)default. Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under this Lease, Landlord agrees to pay to Tenant within thirty (30) days after the Final LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied as allowed above; provided that , or, if Tenant fails to perform all of its surrender obligations or is otherwise in Default under this Lease on the Final LC Expiration Date as described aboveno draw has been made, Landlord shall not be required will return the Letter of Credit to pay to Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Defaultissuing bank for cancellation in accordance with the reasonable requirements imposed by the issuing bank therefor; provided furtherprovided, that if prior to the date such unapplied proceeds are paid to Tenant Final LC Expiration Date a voluntary petition is filed by Tenant or any Guarantor (defined below)Tenant, or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appeal.

Use of Proceeds by Landlord. The proceeds of the Tenant’s Letter of Credit shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s bankruptcy estate) and may be applied by Landlord may immediately upon any draw (and without notice to Tenant) apply or offset the proceeds of the Letter of Credit: (i) against any rent Rent payable by Tenant under the Lease, as amended by this Lease Amendment that is not paid when due; (ii) against due and/or to pay for all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may will suffer as a result of any Default default by Tenant under this the Lease, including . Landlord shall deposit any damages arising under Section 1951.2 unused proceeds in a separate account in the name of the California Civil Code following termination of this Lease (as determined in accordance with Paragraph 21 below); (iii) against any costs incurred Landlord or its designee at a financial institution selected by Landlord in connection its sole discretion (“Tenant’s LC Proceeds Account”), and need not be segregated from Landlord’s other assets. Landlord may apply funds from Tenant’s LC Proceeds Account against any Rent payable by Tenant under the Lease, as amended by this Amendment not paid when due and/or to pay for all losses and damages Landlord has suffered or Landlord reasonably estimates it will suffer as a result of any default by Tenant under the Lease. Tenant hereby grants Landlord a security interest in Tenant’s LC Proceeds Account and all funds held in such account and agrees that, in addition to all other rights and remedies available to Landlord under applicable Law, Landlord shall have all rights of a secured party under the Uniform Commercial Code in the state in which the Premises are located with this Lease respect to Tenant’s LC Proceeds Account. Tenant’s LC Proceeds Account shall be under the sole control of Landlord. Tenant shall not have any right to direct the disposition of funds from Tenant’s LC Proceeds Account or any other right or interest in the Tenant’s LC Proceeds Account, and any interest accruing upon the funds in Tenant’s LC Proceeds Account shall belong to Landlord. Tenant shall, at any time and from time to time, execute, acknowledge and deliver such documents and take such actions as Landlord or the bank with which the Tenant’s LC Proceeds Account is maintained may reasonably request concerning the creation or perfection of the security interest granted to Landlord in (including attorneys’ fees); Landlord’s control of) Tenant’s LC Proceeds Account or to effect the provisions of this Section 11. Photographic or other facsimile reproductions of this executed Lease may be made and (iv) against delivered by Landlord, and may be relied upon by any other amount that person to the same extent as though the copy were an original. Anyone who acts in reliance upon any representation or certificate of Landlord, or upon a reproduction of this Amendment, shall not be liable for permitting Landlord may spend or become obligated to spend by reason perform any act pursuant to this power of attorney. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of Tenant’s Default (subject Letter of Credit, either prior to or following a draw by Landlord of any portion of Tenant’s Letter of Credit, provided that such draw is consistent with the terms of Paragraph 21 the Lease, as amended by this Amendment, and Tenant’s Letter of Credit. Any unused proceeds shall constitute the property of Landlord, except as provided below). Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under the Lease, as amended by this LeaseAmendment, Landlord agrees to pay to Tenant within thirty (30) 30 days after the Tenant’s Final LC Expiration Date the amount of any proceeds of the Tenant’s Letter of Credit received by Landlord and not applied against any Rent payable by Tenant under the Lease, as allowed above; provided amended by this Amendment that if Tenant fails to perform all of its surrender obligations was not paid when due or is otherwise in Default under this Lease on the Final LC Expiration Date as described above, Landlord shall not be required used to pay to for any losses and/or damages suffered by Landlord (or reasonably estimated by Landlord that it will suffer) as a result of any default by Tenant such unapplied proceeds until that date which is thirty (30) days after under the date Tenant performs such surrender obligations and/or cures such applicable DefaultLease; provided furtherprovided, that if prior to the date such unapplied proceeds are paid to Tenant Tenant’s Final LC Expiration Date a voluntary petition is filed by Tenant or any Guarantor (defined below)Guarantor, or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Tenant’s Letter of Credit proceeds until either all preference issues relating to payments under the Lease, as amended by this Lease Amendment have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appeal.

Use of Proceeds by Landlord. The proceeds of the Letter of Credit shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s bankruptcy estate) and Landlord may immediately upon any draw in accordance with Section III.B. above (and without notice to Tenant) apply or offset the proceeds of the Letter of Credit: (i) against any rent Rent payable by Tenant under this Lease that is not paid when due; (ii) against all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may suffer as a result of any Default default by Tenant under this Lease, including any damages arising under Section section 1951.2 of the California Civil Code following termination of this Lease (as determined in accordance with Paragraph 21 below)the Lease; (iii) against any costs incurred by Landlord in connection with this the Lease (including attorneys’ fees)) arising or resulting from a default by Tenant under the Lease, as amended hereby; and (iv) against any other amount that Landlord may spend or become obligated to spend by reason of Tenant’s Default default. In the event Landlord draws on the Letter of Credit and holds proceeds thereof which exceed the amount Landlord will apply to cure a default by Tenant, such unapplied proceeds (subject which need not be segregated) shall be held as a Security Deposit pursuant to Article VI of the terms Lease, as amended hereby. Tenant reserves the right to provide a replacement Letter of Paragraph 21 below)Credit covering such unapplied proceeds. Tenant also reserves the right to substitute cash for the Letter of Credit at any time during the Term of the Lease, provided Tenant obtains Landlord’s prior written consent, which consent shall not be unreasonably withheld. Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under this Lease, Landlord agrees to pay to Tenant within thirty (30) 30 days after the Final LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied as allowed above; provided that if Tenant fails to perform all of its surrender obligations or is otherwise in Default under this Lease on the Final LC Expiration Date as described above, Landlord shall not be required to pay to Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Default; provided furtherprovided, that if prior to the date such unapplied proceeds are paid to Tenant Final LC Expiration Date a voluntary petition is filed by Tenant or any Guarantor (defined below)Guarantor, or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appeal.

Use of Proceeds by Landlord. The If Landlord is entitled draw on the Letter of Credit pursuant to the provisions of this Section 6, then the proceeds of the Letter of Credit shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s bankruptcy estate) and Landlord may immediately upon any draw (and without notice to Tenant) apply or offset the proceeds of the Letter of Credit: (ia) against any rent Rent payable by Tenant under this Lease that is not paid when due; (iib) against all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may suffer as a result of any Tenant’s Default by Tenant under this Leaseor Deemed Default, including any damages arising under Section section 1951.2 of the California Civil Code following termination of this Lease (as determined in accordance with Paragraph 21 below)the Lease; (iiic) against any costs incurred by Landlord in connection with this the Lease (including attorneys’ fees); and (ivd) against any other amount that Landlord may spend or become obligated to spend by reason of Tenant’s Default (subject to the terms of Paragraph 21 below)or Deemed Default. Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under this Lease, Landlord agrees to pay to Tenant within thirty (30) 45 days after the Final LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied as allowed above; provided that if Tenant fails to perform all of its surrender obligations or is otherwise in Default under this Lease on the Final LC Expiration Date as described above, Landlord shall not be required to pay to Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Default; provided furtherprovided, that if prior to the date such unapplied proceeds are paid to Tenant Final LC Expiration Date a voluntary petition is filed by Tenant or any Guarantor (defined below)Guarantor, or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appeal.

Use of Proceeds by Landlord. The proceeds of the Letter of Credit shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s bankruptcy estate) and need not be segregated from any other funds of Landlord. Landlord may immediately upon any draw permitted hereunder (and without notice to TenantTenant except as may be expressly provided in this Lease) apply or offset the proceeds of the Letter of Credit: (i) against any rent Rent payable by Tenant under this Lease that is not paid when duedue following any applicable notice and cure periods; (ii) against all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may suffer as a result of any Default by Tenant under Tenant’s failure to comply with one or more provisions of this Lease, including any damages arising under Section 1951.2 of the California Civil Code following termination of this Lease (as determined in accordance with Paragraph 21 below)Lease; (iii) against any costs incurred by Landlord in connection with permitted to be reimbursed pursuant to this Lease (including reasonable attorneys’ fees); and (iv) against any other amount that Landlord may spend or become obligated to spend by reason of Tenant’s Default (subject default for which Landlord shall be entitled to the terms of Paragraph 21 below)seek reimbursement in accordance with this Lease. Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under this Lease, Landlord agrees to pay to Tenant within thirty (30) days after by the Final LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied as allowed above; provided that if Tenant fails to perform all of its surrender obligations or is otherwise in Default under this Lease on the Final LC Expiration Date as described above, Landlord shall not be required to pay to Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Default; provided furtherprovided, that if prior to the date such unapplied proceeds are paid to Tenant Final LC Expiration Date a voluntary petition is filed by Tenant or any Guarantor (defined below)Tenant, or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appeal.

Use of Proceeds by Landlord. The proceeds of any draw upon the Letter of Credit which are not used to pay for damages actually suffered by Landlord (the “Unused Proceeds”) as described above shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant▇▇▇▇▇▇’s bankruptcy estate) and Landlord may immediately upon need not be segregated from any draw (and without notice to Tenant) apply or offset the proceeds other funds of the Letter of Credit: Landlord. Tenant (i) against agrees that (A) Tenant has no property interest whatsoever in the proceeds from any rent payable by Tenant such draw, and (B) such proceeds shall not be deemed to be or treated as a “security deposit” under this Lease that is not paid when due; the Security Deposit Laws (defined below), and (ii) against waives all losses rights, duties and damages that obligations either party may now or, in the future, will have relating to or arising from the Security Deposit Laws. Any Unused Proceeds shall be paid by Landlord has suffered or that to Tenant (x) upon receipt by Landlord reasonably estimates that it may suffer as of a result replacement Letter of any Default by Tenant under this LeaseCredit in the full Letter of Credit Amount, including any damages arising under Section 1951.2 which replacement Letter of Credit shall comply in all respects with the California Civil Code following termination requirements of this Lease Section 6, or (as determined in accordance with Paragraph 21 below); (iiiy) against any costs incurred by Landlord in connection with this Lease (including attorneys’ fees); and (iv) against any other amount that Landlord may spend or become obligated to spend by reason of Tenant’s Default (subject to the terms of Paragraph 21 below). Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under this Lease, Landlord agrees to pay to Tenant within thirty (30) days after the Final LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied as allowed aboveDate; provided that if Tenant fails to perform all of its surrender obligations or is otherwise in Default under this Lease on the Final LC Expiration Date as described aboveprovided, Landlord shall not be required to pay to Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Default; provided furtherhowever, that if prior to the date such unapplied proceeds are paid to Tenant Final LC Expiration Date a voluntary petition is filed by Tenant or any Guarantor (defined below)Tenant, or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds Unused Proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each any case pursuant to a final court order not subject to appeal or any stay pending appeal.

Use of Proceeds by Landlord. The Subject to the provisions of this Paragraph 3, the proceeds of the Letter of Credit shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s bankruptcy estate) and, following Tenant’s default under the Lease, as amended hereby or as hereafter further amended, beyond any applicable notice and cure period, or as otherwise specifically agreed by Landlord and Tenant, Landlord may immediately upon any draw (and without notice to Tenant, other than any notice otherwise required under the Lease prior to an event of default) apply or offset the proceeds of the Letter of Credit: (ia) against any rent Rent payable by Tenant under this Lease that is not paid when due; (iib) against all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may suffer as a result of any Default by Tenant under Tenant’s failure to comply with one or more provisions of this Lease, including any damages arising under Section section 1951.2 of the California Civil Code following termination of this Lease (as determined in accordance with Paragraph 21 below)the Lease; (iiic) against any costs incurred by Landlord in connection with this the Lease (including attorneys’ fees); and (ivd) against any other amount that Landlord may spend or become obligated to spend by reason of Tenant’s Default (subject to the terms of Paragraph 21 below)default. Provided Tenant has performed all is not then in default of its surrender obligations and is otherwise not in Default under this the Lease, Landlord agrees to pay to Tenant within thirty (30) 60 days after the Final LC LOC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied as allowed above; provided that if Tenant fails to perform all of its surrender obligations or is otherwise in Default under this Lease on the Final LC Expiration Date as described above, Landlord shall not be required to pay to Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Default; provided furtherprovided, that if prior to the date such unapplied proceeds are paid to Tenant Final LOC Expiration Date a voluntary petition is filed by Tenant or any Guarantor guarantor of the Lease (defined belowif any), or an involuntary petition is filed against Tenant or any Guarantor guarantor of the Lease (if any) by any of Tenant’s or Guarantorsuch guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appeal.

Use of Proceeds by Landlord. The proceeds of the Letter of Credit shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s bankruptcy estate) and Landlord may immediately upon any draw (and without notice to Tenant) apply or offset the proceeds of the Letter of Credit: (i) against any rent payable by Tenant under this Lease that is not paid when due; (ii) against all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may suffer as a result of any Default default by Tenant under this Lease, including any damages arising under Section section 1951.2 of the California Civil Code following termination of this Lease (as determined in accordance with Paragraph 21 below)the Lease; (iii) against any costs incurred by Landlord in connection with this Lease (including attorneys’ feesfees to the extent actually paid by Landlord); and (iv) against any other amount that Landlord may spend or become obligated to spend by reason of Tenant’s Default (subject to the terms of Paragraph 21 below)Default. Provided Tenant has performed all of its surrender obligations and is otherwise not been in Default under this Lease, Landlord agrees to pay to Tenant within thirty (30) days after the Final LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied as allowed above; provided that if Tenant fails to perform all of its surrender obligations or is otherwise in Default under this Lease on the Final LC Expiration Date as described above, Landlord shall not be required to pay to Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Default; provided furtherprovided, that if prior to the date such unapplied proceeds are paid to Tenant Final LC Expiration Date a voluntary petition is filed by Tenant or any Guarantor (defined below)Tenant, or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appeal. Notwithstanding the foregoing, in the event that Landlord has incurred costs in accordance with Section 6.3(iii) above and Tenant is not found to be in Default with respect to such costs, then Landlord shall not be permitted to consider such costs when determining Landlord’s payment obligation to Tenant in accordance with the prior sentence.

Use of Proceeds by Landlord. The proceeds of any draw upon the Letter of Credit which are not used to pay for damages suffered by Landlord (or which Landlord reasonably estimates it will suffer) (the “Unused Proceeds”) as described above shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s bankruptcy estate) and Landlord may immediately upon need not be segregated from any draw (and without notice to Tenant) apply or offset the proceeds other funds of the Letter of Credit: Landlord. Tenant (i) against agrees that (A) Tenant has no property interest whatsoever in the proceeds from any rent payable by Tenant such draw, and (B) such proceeds shall not be deemed to be or treated as a “security deposit” under this Lease that is not paid when due; the Security Deposit Laws (defined below), and (ii) against waives all losses rights, duties and damages that obligations either party may now or, in the future, will have relating to or arising from the Security Deposit Laws. Any Unused Proceeds shall be paid by Landlord has suffered or that to Tenant (x) upon receipt by Landlord reasonably estimates that it may suffer as of a result replacement Letter of any Default by Tenant under this LeaseCredit in the full Letter of Credit Amount, including any damages arising under Section 1951.2 which replacement Letter of Credit shall comply in all respects with the California Civil Code following termination requirements of this Lease Article 9, or (as determined in accordance with Paragraph 21 below); (iiiy) against any costs incurred by Landlord in connection with this Lease (including attorneys’ fees); and (iv) against any other amount that Landlord may spend or become obligated to spend by reason of Tenant’s Default (subject to the terms of Paragraph 21 below). Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under this Lease, Landlord agrees to pay to Tenant within thirty (30) days after the Final LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied as allowed aboveDate; provided that if Tenant fails to perform all of its surrender obligations or is otherwise in Default under this Lease on the Final LC Expiration Date as described aboveprovided, Landlord shall not be required to pay to Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Default; provided furtherhowever, that if prior to the date such unapplied proceeds are paid to Tenant Final LC Expiration Date a voluntary petition is filed by Tenant or any Guarantor (defined below)Tenant, or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds Unused Proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each any case pursuant to a final court order not subject to appeal or any stay pending appeal.

Use of Proceeds by Landlord. The proceeds of the Letter of Credit shall constitute Landlord’s 's sole and separate property (and not Tenant’s 's property or the property of Tenant’s 's bankruptcy estate) and Landlord may immediately upon any draw (and without notice to Tenant) apply or offset the proceeds of the Letter of Credit: (i) against any rent Rent payable by Tenant under this Lease that is not paid when due; (ii) against all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may suffer as a result of any Default default by Tenant under this LeaseLease that continues beyond the expiration of all applicable sure periods, including any damages arising under Section section 1951.2 of the California Civil Code following termination of this Lease (as determined in accordance with Paragraph 21 below)the Lease; (iii) against any costs incurred by Landlord in connection with this the Lease (including attorneys’ ' fees); and (iv) against any other amount that Landlord may spend or become obligated to spend by reason of Tenant’s Default (subject to 's default that continues beyond the terms expiration of Paragraph 21 below)all applicable sure periods. Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under this Lease, Landlord agrees to pay to Tenant within thirty (30) 30 days after the Final LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied as allowed above; provided that if Tenant fails to perform all of its surrender obligations or is otherwise in Default under this Lease on the Final LC Expiration Date as described above, Landlord shall not be required to pay to Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Default; provided furtherprovided, that if prior to the date such unapplied proceeds are paid to Tenant Final LC Expiration Date a voluntary petition is filed by Tenant or any Guarantor (defined below)Guarantor, or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s 's or Guarantor’s 's creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appeal. Notwithstanding the foregoing, if Landlord draws upon the Letter of Credit under Section V(b)(ii) and Tenant delivers a replacement Letter of Credit that satisfies all of the requirements of this Lease, then Landlord shall pay to Tenant any proceeds of any Letter of Credit that Landlord has not then applied in accordance with this Section V(c).

Use of Proceeds by Landlord. The proceeds of the Letter of Credit shall constitute Landlord’s sole and separate property (and not Tenant’s property or the property of Tenant’s bankruptcy estate) and Landlord may immediately upon any draw permitted under the Lease (and without notice to TenantTenant except as may be expressly provided in the Lease) apply or offset the proceeds of the Letter of Credit: (i) against any rent Rent payable by Tenant under this Lease that is not paid when duedue following any applicable notice and cure periods; (ii) against all losses and damages that Landlord has suffered or that Landlord reasonably estimates that it may suffer as a result of any Default by Tenant under Tenant’s failure to comply with one or more provisions of this Lease, including any damages arising under Section section 1951.2 of the California Civil Code following termination of the Lease, to the extent permitted by this Lease (as determined in accordance with Paragraph 21 below)Lease; (iii) against any costs incurred by Landlord in connection with this permitted to be reimbursed pursuant to the Lease (including attorneys’ fees); and (iv) against any other amount that Landlord may spend or become obligated to spend by reason of Tenant’s Default (subject for which Landlord shall be entitled to seek reimbursement in accordance with the terms of Paragraph 21 below)Lease. Provided Tenant has performed all of its surrender obligations and is otherwise not in Default under this Lease, Landlord agrees to pay to Tenant within thirty (30) days after by the Final LC Expiration Date the amount of any proceeds of the Letter of Credit received by Landlord and not applied as allowed above; provided that if Tenant fails to perform all of its surrender obligations or is otherwise in Default under this Lease on the Final LC Expiration Date as described above, Landlord shall not be required to pay to Tenant such unapplied proceeds until that date which is thirty (30) days after the date Tenant performs such surrender obligations and/or cures such applicable Default; provided furtherprovided, that if prior to the date such unapplied proceeds are paid to Tenant Final LC Expiration Date a voluntary petition is filed by Tenant or any Guarantor (defined below)Tenant, or an involuntary petition is filed against Tenant or any Guarantor by any of Tenant’s or Guarantor’s creditors, under the Federal Bankruptcy Code, then Landlord shall not be obligated to make such payment in the amount of the unused Letter of Credit proceeds until either all preference issues relating to payments under this Lease have been resolved in such bankruptcy or reorganization case or such bankruptcy or reorganization case has been dismissed, in each case pursuant to a final court order not subject to appeal or any stay pending appeal.