TeleNav 2011 Annual Report Download - page 239

obligated to pay or reimburse; and (d) any other reasonable and legally recoverable amount that Landlord may spend or become obligated to
spend by reason of Tenant’
s failure to comply with this Lease and that Tenant is obligated to pay or reimburse under this Lease or under
applicable Laws. Notwithstanding the foregoing, if the proceeds of the Letter of Credit exceed the amount applied or offset by Landlord pursuant
to clauses (a) through (d) above, then such excess amount shall be held by Landlord as a cash Security Deposit in accordance with Article 22
of
the Lease. Provided that Tenant has performed all of its obligations under this Lease, Landlord shall pay to Tenant, within 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 provided above; provided,
however, that if, before the expiration of such 45-
day period, a voluntary petition is filed by Tenant or any 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 such payment
shall not be required 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.
D. Additional Covenants of Tenant
. If, for any reason, (i) the amount of the Letter of Credit becomes less than the Letter of
Credit Amount, or (ii) Landlord requests in writing that the Letter of Credit Amount increase due to an increase in the square footage of the
Premises as set forth in an amendment to the Lease, Tenant shall, within five (5) days thereafter with respect to clause (i) immediately above, or
thirty (30) days thereafter with respect to clause (ii) immediately above, either provide Landlord with a cash Security Deposit equal to such
difference, or provide Landlord with additional letter(s) of credit in an amount equal to the deficiency (or a replacement letter of credit in the
total Letter of Credit Amount), and any such additional (or replacement) letter of credit shall comply with all of the provisions of this Section 2
,
and if Tenant fails to comply with the foregoing, notwithstanding any contrary provision of this Lease, such failure shall constitute a Default by
Tenant with no further opportunity to cure. Tenant further covenants and warrants that it will neither assign nor encumber the Letter of Credit or
any part thereof and that neither Landlord nor its successors or assigns will be bound by any such assignment, encumbrance, attempted
assignment or attempted encumbrance. 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 in accordance
with the terms of this Section, either prior to or following a “draw”
by Landlord of any portion of the Letter of Credit, regardless of whether any
dispute exists between Tenant and Landlord as to Landlord’
s right to draw upon the Letter of Credit, provided that nothing herein shall affect
Tenant’s rights and remedies after the Letter of Credit is drawn if Tenant disputes Landlord’
s right to draw on the Letter of Credit or to apply
any portion of the proceeds thereof. No condition or term of this Lease shall be deemed to render the Letter of Credit conditional to justify the
issuer of the Letter of Credit in failing to honor a drawing upon such Letter of Credit in a timely manner. Tenant agrees and acknowledges that
(i) the Letter of Credit constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant is not a third party beneficiary
of such contract, (iii) Tenant has no property interest whatsoever in the Letter of Credit or the proceeds thereof, and (iv) in the event Tenant
becomes a debtor under any chapter of the Bankruptcy Code, neither Tenant, any trustee, nor Tenant’
s bankruptcy estate shall have any right to
restrict or limit Landlord’
s claim and/or rights to the Letter of Credit and/or the proceeds thereof under the provisions of this Lease by
application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwise; provided, however, that the foregoing shall not limit any claims that
Tenant may have with respect to any promises between the Tenant and the issuer of the Letter of Credit, or any collateral therefor.
E. Nature of Letter of Credit
. Except as expressly provided in Section 2.C above, Landlord and Tenant (a) acknowledge and
agree that in no event shall the Letter of Credit or any renewal thereof, any substitute therefor or any proceeds thereof (including the LC
Proceeds Account) be deemed to be or treated as a “security deposit”
under California Civil Code § 1950.7, as it may be amended or succeeded,
or any other Law applicable to security deposits in the commercial context (“ Security Deposit Laws ”); (
b) acknowledge and agree that the
Letter of Credit (including any renewal thereof, any substitute therefor or any proceeds thereof) is not intended to serve as a security deposit and
shall not be subject to the Security Deposit Laws; and (c) waive any and all rights, duties and obligations either party may now or, in the future,
will have relating to or arising from the Security Deposit Laws; provided, however, that the foregoing waiver shall not waive any terms and
conditions of this Section 2
. Tenant hereby waives the provisions of California Civil Code § 1950.7 and all other provisions of Law, now or
hereafter in effect, which (i) establish the time frame by which Landlord must refund a security deposit under a lease, and/or (ii) provide that
Landlord may claim from the security deposit only those sums reasonably necessary to remedy defaults in the payment of rent, to repair damage
caused by Tenant or to clean the Premises, it being agreed that Landlord may, in addition, claim those sums specified above in this
Section 2
and/or those sums reasonably necessary to compensate Landlord for any legally recoverable loss or damage
Exhibit F
3