Irrevocable Standby Letter of Credit - AvantGo Inc. and the Multi-Employer Property Trust
IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVB00IS
DATE: JUNE 2, 2000
BENEFICIARY:
THE MULTI-EMPLOYER PROPERTY TRUST
A TRUST ORGANIZED UNDER 12 C.F.R. SECTION 9.18
C/O RIGGS & CO.
808 17TH STREET
WASHINGTON, D.C. 20006
ATTN: PATRICK MAYBERRY
AS "LANDLORD"
APPLICANT:
AVANTGO, INC.
A DELAWARE CORPORATION
1700 S. AMPHLETT BLVD, SUITE 310
SAN MATEO, CA 94402
AS "TENANT"
AMOUNT: US$3,250,000.00 (THREE MILLION TWO HUNDRED FIFTY THOUSAND AND NO/100
U.S. DOLLARS)
EXPIRATION DATE: OCTOBER 31, 2001
LOCATION: AT OUR COUNTERS IN SANTA CLARA, CALIFORNIA
DEAR SIR/MADAM:
WE HEREBY ESTABLISH OUR IRREVOCABLE TRANSFERABLE STANDBY LETTER OF CREDIT NO.
SVB00IS2602 IN YOUR FAVOR AVAILABLE BY YOUR DRAFTS DRAWN ON US AT SIGHT AND
ACCOMPANIED BY THE FOLLOWING DOCUMENTS:
1. THE ORIGINAL OF THIS LETTER OF CREDIT AND ALL AMENDMENT(S), IF ANY.
2. A DATED CERTIFICATION SIGNED BY AN AUTHORIZED OFFICER OF THE BENEFICIARY,
FOLLOWED BY ITS DESIGNATED TITLE, STATING ANY ONE OF THE FOLLOWING:
(A) "AN EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING UNDER THAT CERTAIN
LEASE DATED MARCH 31, 2000, AS AMENDED, ORIGINALLY ENTERED INTO BY AND
BETWEEN AVANTGO, INC., A DELAWARE CORPORATION, AS TENANT AND THE MULTI-
EMPLOYER PROPERTY TRUST, A TRUST ORGANIZED UNDER 12 C.F.R. SECTION 9.18, AS
LANDLORD."; OR
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IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVB00IS2602
DATE: JUNE 2, 2000
(B) "AN UNCURED FAILURE BY AVANTGO, INC., A DELAWARE CORPORATION, ("TENANT") TO
PERFORM ONE OR MORE OF ITS OBLIGATIONS HAS OCCURRED UNDER THAT CERTAIN
LEASE DATED MARCH 31, 2000, AS AMENDED, (THE "LEASE"), ORIGINALLY ENTERED
INTO BY AND BETWEEN TENANT, AS TENANT AND THE MULTI-EMPLOYER PROPERTY
TRUST, A TRUST ORGANIZED UNDER 12 C.F.R. SECTION 9.18, ("BENEFICIARY"), AS
LANDLORD, AND THERE EXIST CIRCUMSTANCES UNDER WHICH BENEFICIARY IS ENJOINED
OR OTHERWISE PREVENTED BY OPERATION OF LAW FROM GIVING TO TENANT A WRITTEN
NOTICE WHICH WOULD BE NECESSARY FOR SUCH FAILURE OF PERFORMANCE TO
CONSTITUTE AN EVENT OF DEFAULT UNDER THE LEASE."; OR
(C) "THE MULTI-EMPLOYER PROPERTY TRUST, A TRUST ORGANIZED UNDER 12 C.F.R.
SECTION 9.18, HEREBY CERTIFIES THAT IT HAS RECEIVED NOTICE FROM SILICON
VALLEY BANK THAT THE LETTER OF CREDIT NO. SVB00IS2602 WILL NOT BE RENEWED
FOR AT LEAST ONE (1) YEAR BEYOND THE THEN APPLICABLE EXPIRATION DATE OF
SUCH LETTER OF CREDIT, AND THAT IT HAS NOT RECEIVED A REPLACEMENT OF THIS
LETTER OF CREDIT FROM THE TENANT SATISFACTORY TO THE MULTI-EMPLOYER
PROPERTY TRUST, A TRUST ORGANIZED UNDER 12 C.F.R. SECTION 9.18."; OR
(D) "SILICON VALLEY BANK NO LONGER MEETS THE REQUIREMENTS SET FORTH IN THAT
CERTAIN LEASE DATED MARCH 31, 2000, AS AMENDED (THE "LEASE') ORIGINALLY
ENTERED INTO BY AND BETWEEN AVANTGO, INC., A DELAWARE CORPORATION,
("TENANT"), AS TENANT AND THE MULTI-EMPLOYER PROPERTY TRUST, A TRUST
ORGANIZED UNDER 12 C.F.R. SECTION 9.18, ("BENEFICIARY"), AS LANDLORD, AND
WITHIN THE TIME PERIOD SET FORTH IN THE LEASE TENANT HAS NOT FURNISHED
BENEFICIARY WITH A REPLACEMENT LETTER OF CREDIT AS REQUIRED UNDER THE LEASE
FROM A BANK MEETING SUCH REQUIREMENTS."; OR
(E) "THE MULTI-EMPLOYER PROPERTY TRUST, A TRUST ORGANIZED UNDER 12 C.F.R.
SECTION 9.18, ("BENEFICIARY"), HAS ELECTED TO TRANSFER THE IRREVOCABLE
STANDBY LETTER OF CREDIT NO. SVB00IS2602 (THE "LETTER OF CREDIT") DELIVERED
BY SILICON VALLEY BANK (THE "BANK") TO BENEFICIARY FOR THE ACCOUNT OF
AVANTGO, INC., A DELAWARE CORPORATION, ("TENANT"), AND WITHIN FIFTEEN (15)
DAYS AFTER BENEFICIARY'S NOTICE OF SUCH ELECTION TO BANK, WHICH NOTICE WAS
ACCOMPANIED BY THE LETTER OF CREDIT AND IN WHICH THE NAME AND ADDRESS OF
THE PROPOSED TRANSFEREE WERE IDENTIFIED, BENEFICIARY DID NOT RECEIVE FROM
BANK EITHER THE LETTER OF CREDIT ENDORSED TO SUCH PROPOSED TRANSFEREE OR A
REPLACEMENT LETTER OF CREDIT NAMING SUCH TRANSFEREE AS THE BENEFICIARY
THEREUNDER, BUT OTHERWISE IDENTICAL TO THE LETTER OF CREDIT."
MULTIPLE AND PARTIAL DRAWS ARE ALLOWED. THIS LETTER OF CREDIT MUST ACCOMPANY ANY
DRAWINGS HEREUNDER FOR ENDORSEMENT OF THE DRAWING AMOUNT AND WILL BE RETURNED TO
THE BENEFICIARY UNLESS IT IS FULLY UTILIZED.
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IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVB00IS2602
DATE: JUNE 2, 2000
THE BANK SHALL NOT BE REQUIRED OR ENTITLED TO INQUIRE AS TO THE ACCURACY OF THE
MATTERS RECITED IN THE WRITTEN STATEMENT OR AS TO THE AUTHORITY OF THE PERSON
SIGNING THE WRITTEN STATEMENT AND MAY TAKE THE ACT OF SIGNING AS CONCLUSIVE
EVIDENCE OF SUCH ACCURACY AND AUTHORITY. THE OBLIGATION OF THE BANK UNDER THIS
LETTER OF CREDIT IS THE INDIVIDUAL OBLIGATION OF THE BANK, AND IS NO WAY
CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO.
THIS LETTER OF CREDIT SHALL BE AUTOMATICALLY EXTENDED FOR AN ADDITIONAL PERIOD
OF ONE YEAR, WITHOUT AMENDMENT, FROM THE PRESENT OR EACH FUTURE EXPIRATION DATE
UNLESS AT LEAST SIXTY (60) DAYS PRIOR TO THE THEN CURRENT EXPIRATION DATE WE
NOTIFY YOU BY REGISTERED MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID AT THE
ABOVE ADDRESS OR SUCH OTHER ADDRESS AS YOU SHALL HAVE FURNISHED TO US FOR SUCH
PURPOSE THAT THIS LETTER OF CREDIT WILL NOT BE EXTENDED FOR AT LEAST ONE (1)
YEAR BEYOND THE THEN APPLICABLE EXPIRATION DATE. IN NO EVENT SHALL THIS LETTER
OF CREDIT BE EXTENDED BEYOND OCTOBER 31, 2007, WHICH SHALL BE THE FINAL
EXPIRATION DATE.
UPON RECEIPT OF SUCH NOTICE, BUT NO EARLIER THAN FORTY FIVE (45) DAYS BEFORE THE
THEN CURRENT EXPIRATION DATE, YOU MAY DRAW FOR THE THEN AVAILABLE BALANCE OF
THIS LETTER OF CREDIT BY MEANS OF YOUR SIGHT DRAFT DRAWN ON US, ACCOMPANIED BY
YOUR WRITTEN STATEMENT SIGNED BY ONE OF YOUR AUTHORIZED OFFICERS, FOLLOWED BY
ITS DESIGNATED TITLE, READING AS FOLLOWS: "WE ARE IN RECEIPT OF WRITTEN NOTICE
FROM YOU OF YOUR ELECTION NOT TO RENEW YOUR LETTER OF CREDIT NO. SVB00IS2602 FOR
AT LEAST ONE (1) YEAR BEYOND THE THEN APPLICABLE EXPIRATION DATE."
DRAFT(S) AND DOCUMENTS MUST INDICATE THE NUMBER AND DATE OF THIS LETTER OF
CREDIT.
THE AMOUNT OF THIS LETTER OF CREDIT MAY BE REDUCED FROM TIME TO TIME BY
AMENDMENT HERETO UPON RECEIPT BY SILICON VALLEY BANK AT THE ADDRESS SPECIFIED
BELOW OF A WRITTEN REQUEST FROM THE APPLICANT INSTRUCTING SILICON VALLEY BANK TO
ISSUE SUCH AN AMENDMENT. THE AMENDMENT REDUCING THE AMOUNT OF THIS LETTER OF
CREDIT ONLY BECOMES EFFECTIVE UPON RECEIPT BY SILICON VALLEY BANK OF WRITTEN
APPROVAL OF SUCH AMENDMENT FROM BENEFICIARY.
DOCUMENTS MUST BE FORWARDED TO US BY PERSONAL DELIVERY OR BY REGISTERED MAIL,
RETURN RECEIPT REQUESTED, POSTAGE PREPAID TO: SILICON VALLEY BANK. 3003 TASMAN
DRIVE, SANTA CLARA CA 95054, ATTN: INTERNATIONAL DIVISION.
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IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVB00IS2602
DATE: JUNE 2, 2000
THIS LETTER OF CREDIT IS TRANSFERABLE SUCCESSIVELY IN ITS ENTIRETY ONLY UP TO
THE THEN AVAILABLE AMOUNT IN FAVOR OF ANY NOMINATED TRANSFEREE DESIGNATED BY
BENEFICIARY ("TRANSFEREE"), ASSUMING SUCH TRANSFER TO SUCH TRANSFEREE WOULD BE
IN COMPLIANCE WITH THEN APPLICABLE LAW AND REGULATIONS, INCLUDING BUT NOT
LIMITED TO THE REGULATIONS OF THE U.S. DEPARTMENT OF TREASURY AND U.S.
DEPARTMENT OF COMMERCE. AT THE TIME OF TRANSFER, THE ORIGINAL LETTER OF CREDIT
AND ORIGINAL AMENDMENT(S), IF ANY, MUST BE SURRENDERED TO US TOGETHER WITH OUR
LETTER OF TRANSFER DOCUMENTATION (IN THE FORM OF EXHIBIT "A" ATTACHED HERETO).
ANY SUCH TRANSFER SHALL BE WITHOUT FEE OR CHARGE TO BENEFICIARY OR SUCH
TRANSFEREE. OUR TRANSFER FEE OF 1/4 OF 1% OF THE TRANSFER AMOUNT (MINIMUM
$250.00) IS FOR THE ACCOUNT OF THE APPLICANT.
IF AT ANY TIME BENEFICIARY OR ITS AUTHORIZED TRANSFEREE IS NOT IN POSSESSION OF
THE ORIGINAL OF THIS LETTER OF CREDIT (TOGETHER WILL ALL AMENDMENTS, IF ANY)
BECAUSE ORIGINAL HAS BEEN DELIVERED TO THE BANK AS REQUIRED HEREUNDER FOR A DRAW
THEREON OR TRANSFER THEREOF, THE BANK'S OBLIGATIONS AS SET FORTH IN THIS LETTER
OF CREDIT SHALL CONTINUE IN FULL FORCE AND EFFECT AS IF BENEFICIARY OR SUCH
AUTHORIZED TRANSFEREE STILL HELD SUCH ORIGINAL, AND ANY PREVIOUS DELIVERY TO THE
BANK, WITHOUT RETURN BY THE BANK, OF SUCH ORIGINAL SHALL BE DEEMED TO HAVE
SATISFIED ANY REQUIREMENT THAT SUCH ORIGINAL BE DELIVERED TO THE BANK FOR A
SUBSEQUENT DRAW HEREUNDER OR TRANSFER HEREOF.
WE HEREBY AGREE WITH THE DRAWERS, ENDORSERS AND BONAFIDE HOLDERS THAT THE DRAFTS
DRAWN UNDER AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF
CREDIT SHALL BE DULY HONORED UPON PRESENTATION TO US, ON OR BEFORE THE
EXPIRATION DATE OF THIS CREDIT, OR ANY FUTURE AUTOMATICALLY EXTENDED EXPIRATION
DATE.
EXCEPT SO FAR AS OTHERWISE EXPRESSLY STATED HEREIN, THIS LETTER OF CREDIT IS
SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993
REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500. IF THIS
LETTER OF CREDIT EXPIRES DURING AN INTERRUPTION OF BUSINESS AS DESCRIBED IN
ARTICLE 17 OF PUBLICATION 500, THE BANK HEREBY SPECIFICALLY AGREES TO EFFECT
PAYMENT IF THIS LETTER OF CREDIT IS DRAWN AGAINST WITHIN THIRTY (30) DAYS AFTER
THE RESUMPTION OF BUSINESS.
/s/ Danny Rowan /s/ John Dossantos
___________________________ __________________________
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
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EXHIBIT "A"
DATE:
TO: SILICON VALLEY BANK
3003 TASMAN DRIVE RE: STANDBY LETTER OF CREDIT
SANTA CLARA, CA 95054 NO. SVB00IS2602 ISSUED BY
ATTN:INTERNATIONAL DIVISION. SILICON VALLEY BANK,SANTA CLARA
STANDBY LETTERS OF CREDIT L/C AMOUNT:
GENTLEMEN:
FOR VALUE RECEIVED, THE UNDERSIGNED BENEFICIARY HEREBY IRREVOCABLY TRANSFERS TO:
(NAME OF TRANSFEREE)
(ADDRESS)
ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY TO DRAW UNDER THE ABOVE LETTER OF
CREDIT UP TO ITS AVAILABLE AMOUNT AS SHOWN ABOVE AS OF THE DATE OF THIS
TRANSFER.
BY THIS TRANSFER, ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY IN SUCH LETTER OF
CREDIT ARE TRANSFERRED TO THE TRANSFEREE. TRANSFEREE SHALL HAVE THE SOLE RIGHTS
AS BENEFICIARY THEREOF, INCLUDING SOLE RIGHTS RELATING TO ANY AMENDMENTS,
WHETHER INCREASES OR EXTENSIONS OR OTHER AMENDMENTS, AND WHETHER NOW EXISTING OR
HEREAFTER MADE. ALL AMENDMENTS ARE TO BE ADVISED DIRECT TO THE TRANSFEREE
WITHOUT NECESSITY OF ANY CONSENT OF OR NOTICE TO THE UNDERSIGNED BENEFICIARY.
THE ORIGINAL OF SUCH LETTER OF CREDIT IS RETURNED HEREWITH, AND WE ASK YOU TO
ENDORSE THE TRANSFER ON THE REVERSE THEREOF, AND FORWARD IT DIRECTLY TO THE
TRANSFEREE WITH YOUR CUSTOMARY NOTICE OF TRANSFER.
SINCERELY,
_____________________________
(BENEFICIARY'S NAME)
_____________________________
SIGNATURE OF BENEFICIARY
SIGNATURE AUTHENTICATED
____________________________
(NAME OF BANK)
____________________________
AUTHORIZED SIGNATURE
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