Common use of Draws Clause in Contracts

Draws. Draw requests shall be made by Borrower to Lender as provided in this subsection. Lender, at its option, may elect to inspect the Property before allowing a Draw. Prior to receiving any Draw, Borrower shall deliver to Lender (or Lender’s designated agent) (i) a properly completed “Request for Advance,” in the form set forth in Exhibit B, attached hereto, signed by Borrower (and Contractor, to the extent applicable); (ii) invoices for the activities covered by the Use of Proceeds (as defined below) outlined in the Budget (the “Budgeted Activities”) that is the subject of the Request for Advance; (iii) construction lien waivers from Contractor and from the suppliers (if any) for all Budgeted Activities covered by the Request for Advance if and as requested by Lender; and (iv) any and all other required information described in the Request for Advance. The items detailed in Subsections (i) through (iv) of this Section III(B) are collectively referred to herein as the “Request for Advance Packet.” In order to obtain a Draw, Borrower shall first submit a Request for Advance Packet to Lender. Lender may rely on Borrower’s statements (and Contractor’s statements, if any) in the Request for Advance Packet (including the invoices and the lien waivers submitted by Contractor and suppliers (if any)). Lender shall not be required to verify any of the information submitted in connection with the Request for Advance. The Draw funds delivered in connection with the Request for Advance shall be used to pay for the Budgeted Activities described in the Request for Advance Packet only and as provided in the Budget (as defined below). In Lender’s sole discretion, Draws may be (v) electronically transferred from Lender’s account to Borrower’s account via electronic funds transfer; (w) electronically transferred from Lender’s account to Contractor’s account via electronic funds transfer; (x) delivered via check from Lender payable to Borrower or payable jointly to Borrower and Contractor, or (y) via some other mutually agreed upon mechanism.

Draws. Draw requests If Tenant fails to timely deliver the Letter of Credit or any Continuation Letter of Credit to Landlord and such failure continues for five (5) business days after written notice to Tenant (with any other notice and cure periods afforded to Tenant hereunder being inapplicable in such circumstances), such failure by Tenant shall entitle Landlord to immediately draw upon the full outstanding amount of the Letter of Credit or the then-applicable Continuation Letter of Credit (as the case may be) and hold such funds as a cash security deposit (which such deposit shall be made by Borrower held and applied in accordance with Applicable Laws and this Lease, including without limitation Section 4.05). Additionally, Landlord shall be entitled to Lender draw upon the Letter of Credit and/or any Continuation Letter of Credit (as provided the case may be) to fund the performance of any obligation(s) of Tenant under the Lease if Tenant is in this subsection. Lender, at its option, may elect to inspect the Property before allowing a Draw. Prior to receiving any Draw, Borrower shall deliver to Lender (or Lender’s designated agent) (i) a properly completed “Request for Advance,” default in the form set forth in Exhibit B, attached hereto, signed by Borrower (performance of such obligation(s) beyond the expiration of any applicable notice and Contractor, to the extent applicable); (ii) invoices for the activities covered by the Use of Proceeds (as defined below) outlined in the Budget (the “Budgeted Activities”) that is the subject of the Request for Advance; (iii) construction lien waivers from Contractor and from the suppliers cure period (if any) for all Budgeted Activities covered by the Request for Advance if and as requested by Lender; and (iv) any and all other required information described set forth in the Request for AdvanceLease. The items detailed in Subsections issuing bank shall be required (up to the face amount(s) of the Letter of Credit and/or any applicable Continuation Letter of Credit) to disburse amounts to Landlord under the Letter of Credit and/or the applicable Continuation Letter of Credit (as the case may be) based solely on the written statement of Landlord (i) through certifying that Tenant is in default in the performance of its obligation(s) under the Lease beyond the expiration of any applicable notice and cure period (iv) of this Section III(B) are collectively referred to herein as the “Request for Advance Packet.” In order to obtain a Draw, Borrower shall first submit a Request for Advance Packet to Lender. Lender may rely on Borrower’s statements (and Contractor’s statements, if any) set forth in the Request for Advance Packet Lease and (including ii) certifying the invoices and amount due to Landlord as a result of such uncured default(s) (which shall be the lien waivers submitted by Contractor and suppliers amount payable, up to an aggregate ceiling amount equal to the face amount(s) of the Letter of Credit and/or any applicable Continuation Letter of Credit (if anyas the case may be), to Landlord under such instrument). Lender shall not be required Landlord agrees to verify concurrently provide Tenant with a copy of any of such written statement Landlord provides to the information submitted in connection with issuing bank pursuant to the Request for Advance. The Draw funds delivered in connection with the Request for Advance shall be used to pay for the Budgeted Activities described in the Request for Advance Packet only and as provided in the Budget (as defined below). In Lender’s sole discretion, Draws may be (v) electronically transferred from Lender’s account to Borrower’s account via electronic funds transfer; (w) electronically transferred from Lender’s account to Contractor’s account via electronic funds transfer; (x) delivered via check from Lender payable to Borrower or payable jointly to Borrower and Contractor, or (y) via some other mutually agreed upon mechanismimmediately preceding sentence.

Draws. Draw requests shall (a) On the terms and conditions set forth herein, including this Section and Article Four, the Trust Administrator, on behalf of the Borrower, may from time to time prior to the Commitment Termination Date, notify the Administrative Agent by 3:00 p.m. (New York, New York Time) on the third Business Day preceding the Funding Date (the “Funding Request”) on which an advance (each, a “Draw”) under this Agreement is to be made to the Borrower. The Trust Administrator on behalf of the Borrower may only request one Draw be funded on the Funding Date in any calendar week. The Administrative Agent shall notify each Lender of a proposed Draw by Borrower delivering to each Lender as the following information provided in this subsection. Lender, at its option, may elect to inspect by the Property before allowing a Draw. Prior to receiving any Draw, Borrower shall deliver to Lender (or Lender’s designated agent) Trust Administrator on behalf of the Borrower: (i) a properly completed “Funding Request and a Funding Report, which will include, among other things, the proposed Funding Date, the Borrowing Base (including the portions of the Borrowing Base allocable to Eligible Receivables (Part AF) and Eligible Receivables (Part S), and the Available Amount (including the Available Amount (Part AF) and the Available Amount (Part S)) (each calculated using (x) the Principal Balance as of the last day of the preceding calendar week of the Receivables added to the Collateral prior the last day of the preceding calendar week and (y) the Principal Balance as of the related Cut-off Date for Advance,” Receivables added to the Collateral in the form set forth in Exhibit B, attached hereto, signed by Borrower (and Contractor, calendar week of the Funding Report on or prior to the extent applicable)Funding Date) and the Principal Amount of the Draw requested, which shall be in an amount at least equal to lesser of $250,000; and (ii) invoices for the activities covered by the Use an updated Schedule of Proceeds (as defined below) outlined in the Budget (the “Budgeted Activities”) Receivables that includes each Receivable that is the subject of the proposed Draw, including whether such Receivable is an Eligible Receivables (Part AF) or an Eligible Receivables (Part S), and such other information as the Administrative Agent may reasonably request with respect to the related Draw. Each Funding Request shall include a representation by the Trust Administrator, on behalf of the Trust, that the requested Draw will not, on each related Funding Date, exceed the Available Amount and, with regard to each portion of such Draw related to Eligible Receivables (Part AF) and Eligible Receivables (Part S), the related portion of such requested Draw will not exceed the Available Amount (Part AF) and the Available Amount (Part S), and a representation that all conditions precedent to the making of such Draw shall have been satisfied. Any Funding Request shall be irrevocable. (b) Following receipt by the Administrative Agent of a Funding Request delivered prior to the Commitment Termination Date, each Lender agrees, subject to the conditions contained herein, that it shall advance an amount equal to such Lender’s Commitment Percentage of the related Available Amount, which shall be comprised of such Lender’s Commitment Percentage (Part AF) of the related Available Amount (Part AF) and such Lender’s Commitment Percentage (Part S) of the related Available Amount (Part S). (c) Each Lender’s advance of a Draw shall be made available to the Borrower, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 3:00 p.m. (New York, New York Time) on the applicable Funding Date, by deposit of immediately available funds to the account of the Transferor or, at the Borrower’s written direction, to such other account as payment of amounts owed by the Borrower to the Transferor under the Transfer Agreement are to be made. Any Lender that either (i) fails to make any requested Draw as of such time on the applicable Funding Date or (ii) intends not to make any funds available for Advanceany requested Draw shall promptly notify the Trust Administrator and the Administrative Agent of such failure or intention. No portion of any advance shall be funded with “plan assets” of any Benefit Plan Investor. (d) In no event shall any Lender be required on any date to fund any Principal Amount: (i) that would cause (A)(1) the Outstanding Loan Amount, determined after giving effect to such funding, to exceed the Maximum Loan Amount, (2) the Outstanding Loan Amount (Part AF), determined after giving effect to such funding, to exceed the Maximum Loan Amount (Part AF) or (3) the Outstanding Loan Amount (Part S), determined after giving effect to such funding, to exceed the Maximum Loan Amount (Part S); (B) in the case of any Lender, (1) such Lender’s portion of the Outstanding Loan Amount, determined in accordance with such Lender’s Commitment Percentage, determined after giving effect to such funding, to exceed such Lender’s Commitment (2) such Lender’s portion of the Outstanding Loan Amount (Part AF), determined in accordance with such (1) the total of all Draws funded to exceed the Aggregate Commitment, (2) the total of all Draws funded with respect to Eligible Receivables (Part AF) to exceed the Aggregate Commitment (Part AF), or (3) the total of all Draws funded with respect to Eligible Receivables (Part S) to exceed the Aggregate Commitment (Part S); or (D)(1) the Principal Amount advanced with respect to any Funding Request to exceed the Available Amount on the date of such advance, (2) the Principal Amount advanced with respect to any Funding Request with respect to Eligible Receivables (Part AF) to exceed the Available Amount (Part AF) on the date of such advance or (3) the Principal Amount advanced with respect to any Funding Request with respect to Eligible Receivables (Part S) to exceed the Available Amount (Part S) on the date of such advance; (ii) on any date after the Commitment Termination Date; or (iii) construction lien waivers from Contractor and from that is the suppliers (if any) for all Budgeted Activities covered responsibility of another Lender, but which was not advanced by the Request for Advance if and such Lender as requested by Lender; and (iv) any and all other required information described in the Request for Advance. The items detailed in Subsections (i) through (iv) of this Section III(B) are collectively referred to herein as the “Request for Advance Packet.” In order to obtain a Draw, Borrower shall first submit a Request for Advance Packet to Lender. Lender may rely on Borrower’s statements (and Contractor’s statements, if any) in the Request for Advance Packet (including the invoices and the lien waivers submitted by Contractor and suppliers (if any)). Lender shall not be required to verify any of the information submitted in connection with the Request for Advance. The Draw funds delivered in connection with the Request for Advance shall be used to pay for the Budgeted Activities described in the Request for Advance Packet only and as provided in the Budget (as defined below). In Lender’s sole discretion, Draws may be (v) electronically transferred from Lender’s account to Borrower’s account via electronic funds transfer; (w) electronically transferred from Lender’s account to Contractor’s account via electronic funds transfer; (x) delivered via check from Lender payable to Borrower or payable jointly to Borrower and Contractor, or (y) via some other mutually agreed upon mechanismrequested Funding Date.

Draws. (a) Each Draw requests shall be funded by the Holders ratably in accordance with their respective Pro Rata Shares. The failure of any Holder to fund any Draw required to be made by Borrower it shall not relieve any other Holder of its obligations hereunder; provided, that the Commitments constitute several and separate, not joint, obligations and no Holder shall be responsible for any other Holder’s failure to Lender fund Draws as provided in this subsectionso required. Lender, There shall be no notice or request requirement for the Draws. (b) Each Holder at its optionoption may fund any Draw by causing any domestic or foreign branch or Affiliate of such Holder to fund such Draw; provided, may elect that any exercise of such option shall not affect the obligation of such Holder to inspect fund such Draw or the Property before allowing a Drawobligation of the Issuer to repay such Draw in accordance with the terms of this Agreement; and provided, further, that if such option is exercised, the branch or Affiliate that funds such Draw shall not obligate the Issuer to pay or withhold any amounts in respect of taxes in any jurisdiction. (c) Each Draw shall be funded by the Holders (or, if applicable, funded for such Holder’s relevant Holder Subaccount) on the applicable Draw Date, unless otherwise agreed to by the Issuer and all of the Holders of the Class A-2A Notes. (d) There shall be three Draws, the Draw Dates for which will be the Closing Date, December 15, 2005 and January 17, 2006. Prior The Class A-2A Notes sold to receiving the Initial Holder on the Closing Date will be funded in the aggregate in installments of $6,607,593 on the first Draw Date, $18,000,000 on the second Draw Date and $20,392,407 on the third Draw Date. The following conditions must be met prior to any Draw, Borrower shall deliver to Lender (or Lender’s designated agent) : (i) at the time of and immediately after giving effect to such Draw, no Event of Default or Servicer Default or event the occurrence of which with notice or the lapse of time or both would become an Event of Default or a properly completed “Request for Advance,” in the form set forth in Exhibit B, attached hereto, signed by Borrower (Servicer Default has occurred and Contractor, to the extent applicable)is continuing or would result from such Draw; and (ii) invoices for at the activities covered time of and immediately after giving effect to such Draw, the aggregate Outstanding Principal Balance of the Class A-2A Notes will not exceed the Maximum Class A-2A Commitment. (e) All Draws funded by a Holder shall be evidenced by the Use of Proceeds (as defined belowClass A-2A Note(s) outlined in and shall be governed by and subject to the Budget (the “Budgeted Activities”) that is the subject of the Request for Advance; (iii) construction lien waivers from Contractor and from the suppliers (if any) for all Budgeted Activities covered by the Request for Advance if and as requested by Lender; and (iv) any and all other required information described in the Request for AdvanceIndenture. The items detailed in Subsections (i) through (iv) of this Section III(B) are collectively referred to herein as the “Request for Advance Packet.” In order to obtain a Draw, Borrower shall first submit a Request for Advance Packet to Lender. Lender Draws may rely on Borrower’s statements (and Contractor’s statements, if any) in the Request for Advance Packet (including the invoices and the lien waivers submitted by Contractor and suppliers (if any)). Lender shall not be required to verify any of the information submitted repaid except in connection with the Request for Advancerepayment of principal on the Class A-2A Note(s) pursuant to the Indenture and the Transfer and Servicing Agreement and subject to the Priority of Payments. The Issuer hereby appoints the Indenture Trustee as its agent for purposes of keeping a register (the “Delayed Draw funds Note Register”) at the office of the Indenture Trustee in which the Indenture Trustee shall maintain records of each Holder’s Commitment applicable to each Class A-2A Note, the aggregate principal amount of Draws from time to time outstanding in respect of each Class A-2A Note and a copy of each Assignment and Acceptance delivered to the Indenture Trustee pursuant to Section 7.03(b). At any time promptly following a request therefor by the Issuer, the Indenture Trustee shall provide the Issuer with a report specifying the aggregate principal amount of Draws outstanding in connection with respect of each Class A-2A Note, the Request for Advance shall be used to pay for the Budgeted Activities described in the Request for Advance Packet only and as provided in the Budget Commitment of each Holder applicable thereto (as defined below). In Lender’s sole discretionof such Record Date or such time, Draws as the case may be (vbe) electronically transferred from Lender’s account to Borrower’s account via electronic funds transfer; (w) electronically transferred from Lender’s account to Contractor’s account via electronic funds transfer; (x) delivered via check from Lender payable to Borrower or payable jointly to Borrower and Contractor, or (y) via some other mutually agreed upon mechanismapplicable payment instructions.

Draws. Draw requests shall be made by Borrower to Lender as provided in this subsection. Lender, at its option, may elect to inspect the Property before allowing a Draw. Prior to receiving any Draw, Borrower shall deliver to Lender (or Lender’s designated agent) (i) a properly completed “Request for Advance,” in the form set forth in Exhibit B, attached hereto, signed by Borrower B▇▇▇▇▇▇▇ (and Contractor, to the extent applicable); (ii) invoices for the activities covered by the Use of Proceeds (as defined below) outlined in the Budget (the “Budgeted Activities”) that is the subject of the Request for Advance; (iii) construction lien waivers from Contractor and from the suppliers (if any) for all Budgeted Activities covered by the Request for Advance if and as requested by LenderL▇▇▇▇▇; and (iv) any and all other required information described in the Request for Advance. The items detailed in Subsections (i) through (iv) of this Section III(B) are collectively referred to herein as the “Request for Advance Packet.” In order to obtain a Draw, Borrower shall first submit a Request for Advance Packet to Lender. Lender may rely on BorrowerB▇▇▇▇▇▇▇’s statements (and Contractor’s statements, if any) in the Request for Advance Packet (including the invoices and the lien waivers submitted by Contractor and suppliers (if any)). Lender shall not be required to verify any of the information submitted in connection with the Request for Advance. The Draw funds delivered in connection with the Request for Advance shall be used to pay for the Budgeted Activities described in the Request for Advance Packet only and as provided in the Budget (as defined below). In LenderL▇▇▇▇▇’s sole discretion, Draws may be (v) electronically transferred from LenderL▇▇▇▇▇’s account to BorrowerB▇▇▇▇▇▇▇’s account via electronic funds transfer; (w) electronically transferred from LenderL▇▇▇▇▇’s account to Contractor’s account via electronic funds transfer; (x) delivered via check from Lender payable to Borrower or payable jointly to Borrower and Contractor, or (y) via some other mutually agreed upon mechanism.

Draws. (a) Subject to the terms and conditions set forth in this Agreement, on each Draw requests Date after the date hereof, the Purchaser agrees to loan to the Loan Parties the amount of the Draw so requested by the Loan Parties; provided, however, that (i) the aggregate principal amount of all Draws made during the Term shall never exceed $24,000,000 and (ii) the principal amount of any Draw shall be in integral multiples of One Million Dollars ($1,000,000). The loan evidenced by the Notes is not a revolving credit facility and may not be drawn, repaid and redrawn. Any repayments of principal on the Loan shall be applied to permanently reduce the principal amount of the Notes. The Notes shall evidence the aggregate Indebtedness of the Loan Parties to the Purchaser resulting from Draws from time to time. The Purchaser hereby is authorized, but is not obligated, to enter the amount of the Purchaser’s funding of each Draw and the outstanding principal of the Notes and the amount of each payment or prepayment of principal and interest thereon on the reverse of or on an attachment to the applicable Note. Draws may be made by Borrower Agent in its sole discretion for the payment of interest on the Notes and other Obligations on the date when due. The Loan Parties shall use the Draws for costs incurred in Permitted Acquisitions and to Lender fund their obligations incurred in the purchase of inventory or generation of receivables. (b) So long as provided in this subsection. Lenderno Default or Event of Default shall have occurred and be continuing, at its optionthe Loan Parties may give Agent irrevocable written notice requesting a Draw by delivering to Agent not later than 4 p.m. (New York City time) a completed Draw Notice, may elect to inspect which Draw Notice shall specify the Property before allowing a proposed Draw Date of such Draw. Prior Upon receipt of a Draw Notice, Agent shall designate a Draw Date that is within fifteen (15) calendar days of its receipt thereof. On each Draw Date, the Loan Parties irrevocably authorize Agent to receiving any Drawdisburse the proceeds of the requested Draw to the applicable account(s) of the Loan Parties specified in the applicable Draw Notice, Borrower shall deliver in all cases for credit to Lender the Loan Parties (or Lender’s designated agent) (i) a properly completed “Request for Advance,” to such other account as to which such Loan Parties shall instruct Agent in the form set forth in Exhibit B, attached hereto, signed by Borrower (and Contractor, to the extent applicable); (ii) invoices for the activities covered by the Use of Proceeds (as defined below) outlined in the Budget (the “Budgeted Activities”) that is the subject of the Request for Advance; (iii) construction lien waivers from Contractor and from the suppliers (if any) for all Budgeted Activities covered by the Request for Advance if and as requested by Lender; and (iv) any and all other required information described in the Request for Advance. The items detailed in Subsections (i) through (iv) of this Section III(B) are collectively referred to herein as the “Request for Advance Packet.” In order to obtain a Draw, Borrower shall first submit a Request for Advance Packet to Lender. Lender may rely on Borrower’s statements (and Contractor’s statements, if any) in the Request for Advance Packet (including the invoices and the lien waivers submitted by Contractor and suppliers (if any)). Lender shall not be required to verify any of the information submitted in connection with the Request for Advance. The Draw funds delivered in connection with the Request for Advance shall be used to pay for the Budgeted Activities described in the Request for Advance Packet only and as provided in the Budget (as defined below). In Lender’s sole discretion, Draws may be (v) electronically transferred from Lender’s account to Borrower’s account via electronic funds transfer; (w) electronically transferred from Lender’s account to Contractor’s account via electronic funds transfer; (x) delivered via check from Lender payable to Borrower or payable jointly to Borrower and Contractor, or (ywriting) via some other mutually agreed upon mechanismFederal funds wire transfer no later than 1:00 p.m. New York City time.

Draws. Draw requests NYPA shall be made by Borrower entitled to Lender as provided in this subsection. Lendermake a draw or draws upon the Seller Letter of Credit upon the occurrence of any of the following events and, where applicable, at the following times, for a portion of or for the full face amount of the Seller Letter of Credit as NYPA shall determine in its option, may elect to inspect the Property before allowing a Draw. Prior to receiving any Draw, Borrower shall deliver to Lender (or Lender’s designated agent) sole discretion: (i) immediately upon Seller and/or the issuer of the Seller Letter of Credit becoming Bankrupt as defined herein; (ii) upon the occurrence of an Event of Default with respect to Seller (whether or not NYPA elects to exercise remedies under the Agreement in connection therewith); provided, that if such Event of Default is continuing and additional amounts become due and owing by Seller to NYPA hereunder, NYPA may make additional draws in regard to such amounts as they become due; (iii) at any time within thirty (30) days prior to the date of expiration of the Seller Letter of Credit, Seller is required to provide a properly completed “Request Seller Letter of Credit for Advance,” the date immediately following the expiration of the Seller Letter of Credit and NYPA has not received unqualified written confirmation from a Qualified Issuer that the required renewal or replacement Seller Letter of Credit issued by such Qualified Issuer will be delivered to NYPA no later than three (3) Business Days prior to such date of expiration, in an amount equal to the amount required pursuant to this Agreement and in the form set forth in Exhibit B, attached hereto, signed by Borrower (and Contractor, to the extent applicable); (ii) invoices for the activities covered by the Use of Proceeds (as defined below) outlined in the Budget (the “Budgeted Activities”) that is the subject of the Request for Advance; (iii) construction lien waivers from Contractor and from the suppliers (if any) for all Budgeted Activities covered by the Request for Advance if and as requested by Lender; and required hereunder; (iv) any and all other required information described if, notwithstanding the written confirmation referenced in Section 8.1(b)(iii) above, the Seller Letter of Credit is not renewed or a replacement Seller Letter of Credit in the Request for Advance. The items detailed in Subsections (i) through (iv) of this Section III(B) are collectively referred to herein as the “Request for Advance Packet.” In order to obtain a Draw, Borrower shall first submit a Request for Advance Packet to Lender. Lender may rely on Borrower’s statements (form required hereunder and Contractor’s statements, if any) in the Request for Advance Packet amount required by this Agreement is not delivered to NYPA prior to the third (including 3rd) Business Day prior to the invoices and the lien waivers submitted by Contractor and suppliers (if any)). Lender shall not be required to verify any date of expiration of the information submitted in connection with the Request for Advance. The Draw funds delivered in connection with the Request for Advance shall be used to pay for the Budgeted Activities described in the Request for Advance Packet only and as provided in the Budget (as defined below). In Lender’s sole discretion, Draws may be relevant then-current Seller Letter of Credit; or (v) electronically transferred from Lender’s account if a Credit Event has occurred with respect to Borrower’s account via electronic funds transfer; the issuer of the Seller Letter of Credit and Seller has failed to deliver to NYPA a replacement Seller Letter of Credit issued by a Qualified Issuer in the form required hereunder within five (w5) electronically transferred from Lender’s account to Contractor’s account via electronic funds transfer; (x) delivered via check from Lender payable to Borrower or payable jointly to Borrower and Contractor, or (y) via some other mutually agreed upon mechanismBusiness Days of such event.

Draws. Draw requests The sole condition to a draw on the Letter of Credit shall be made the delivery to the Issuer by Borrower Landlord of (1) a certificate signed by an authorized officer of Landlord stating that either (a) an event of default on the part of Tenant shall have occurred and is continuing under the Lease or (b) that Landlord has not received a required renewal of the Letter of Credit or a replacement Letter of Credit as required by the Lease, and that the Landlord is entitled to Lender draw on the Letter of Credit, and (2) a draft in the amount of the draw, Landlord is expressly authorized to draw on the Letter of Credit under either of the circumstances described in the preceding sentence. If Landlord draws on the Letter of Credit because of an event of default under item (a) above, then: (i) If Landlord elects to terminate Tenant’s right of possession and/or this Lease under Section 13A above, then Landlord shall retain the proceeds of the Letter of Credit as provided liquidated damages for Tenant’s default, and not as a penalty, and Landlord shall have no right to seek or obtain other damages for such default except that Tenant shall be fully responsible to Landlord for all damage done to the Leased Premises, Building and/or Project or any personal property by Tenant or those for whom Tenant is responsible, and to indemnify Landlord for liabilities under Section 8A above, in addition to Landlord’s retention of the proceeds of the Letter of Credit hereunder. (ii) If Landlord has not elected to terminate Tenant’s right to possession and/or this subsectionLease under Section 13A above, then Landlord may hold/use the proceeds of the Letter of Credit under Section 20 of this Lease. LenderTo the extent Landlord uses such funds to pay or reimburse any amount due Landlord, at its optionTenant will restore the same under Section 20. At any tune thereafter while an event of default is pending, Landlord may elect to inspect terminate Tenant’s right of possession and/or this Lease with the Property before allowing a Draw. Prior to receiving any Draw, Borrower shall deliver to Lender (or Lender’s designated agent) consequences described in Item (i) a properly completed “Request above. In the event Landlord draws on the Letter of Credit under Item (b) above, (x) Landlord shall hold the proceeds thereof, with no obligation for Advance,” in interest to Tenant; (y) Landlord shall be entitled to apply/use the form set forth in Exhibit B, attached hereto, signed by Borrower proceeds thereof under Items (and Contractor, to the extent applicable); i) and/or (ii) invoices for the activities covered by the Use of Proceeds (as defined below) outlined above in the Budget (the “Budgeted Activities”) that is the subject event an event of the Request for Advance; (iii) construction lien waivers from Contractor and from the suppliers (if any) for all Budgeted Activities covered by the Request for Advance if and as requested by Lenderdefault occurs; and (ivz) any and all other required information described in if Landlord does not apply/use the Request for Advance. The items detailed in Subsections (i) through (iv) proceeds of the Letter of Credit as provided above, then upon expiration or termination of the Term of this Section III(B) are collectively referred Lease and Tenant’s satisfaction of all of its obligations hereunder, Landlord shall deliver such proceeds to herein as the “Request for Advance PacketTenant.” In order to obtain a Draw, Borrower shall first submit a Request for Advance Packet to Lender. Lender may rely on Borrower’s statements (and Contractor’s statements, if any) in the Request for Advance Packet (including the invoices and the lien waivers submitted by Contractor and suppliers (if any)). Lender shall not be required to verify any of the information submitted in connection with the Request for Advance. The Draw funds delivered in connection with the Request for Advance shall be used to pay for the Budgeted Activities described in the Request for Advance Packet only and as provided in the Budget (as defined below). In Lender’s sole discretion, Draws may be (v) electronically transferred from Lender’s account to Borrower’s account via electronic funds transfer; (w) electronically transferred from Lender’s account to Contractor’s account via electronic funds transfer; (x) delivered via check from Lender payable to Borrower or payable jointly to Borrower and Contractor, or (y) via some other mutually agreed upon mechanism.

Draws. Draw requests Landlord may draw under the Letter of Credit upon the occurrence of an Event of Default hereunder. Any such draw shall be made by Borrower to Lender as provided in this subsectionnot cure an Event of Default. LenderLandlord shall have the right, at its option, may elect to inspect but not the Property before allowing a Draw. Prior to receiving any Draw, Borrower shall deliver to Lender (or Lender’s designated agent) (i) a properly completed “Request for Advance,” in the form set forth in Exhibit B, attached hereto, signed by Borrower (and Contractorobligation, to apply all or any portion of the extent applicableproceeds from the Letter of Credit to pay all or any portion of [i] all Rent and other charges and expenses payable by Tenant under this Lease; plus [ii] all expenses and costs incurred by Landlord in enforcing or preserving Landlord's rights under this Lease or any security for the Lease, With respect to any portion of the Letter of Credit proceeds that is not applied to payment of Tenant's Obligations, Landlord shall have the option to either [i] deposit the proceeds into an interest-bearing account with a financial institution chosen by Landlord ("LC Account"); (or [ii) invoices for the activities covered by the Use of Proceeds (as defined below) outlined in the Budget (the “Budgeted Activities”) that is the subject of the Request for Advance; (iii) construction lien waivers from Contractor and from the suppliers (if any) for all Budgeted Activities covered by the Request for Advance if and as requested by Lender; and (iv) any and all other required information described in the Request for Advance. The items detailed in Subsections (i) through (iv) of this Section III(B) are collectively referred to herein as the “Request for Advance Packet.” In order ] require Tenant to obtain a Drawreplacement Letter of Credit satisfactory to Landlord, Borrower with the Letter of Credit proceeds made available to Tenant to secure Tenant's reimbursement obligation for the Letter of Credit. All interest accruing on the LC Account shall first submit a Request for Advance Packet be paid to LenderLandlord and may, from time to time, be withdrawn from the LC Account by Landlord. Lender At any time and from time to time until Tenant's Obligations are performed in full, Landlord may rely on Borrower’s statements (and Contractor’s statements, if any) apply all or any portion of the funds held in the Request for Advance Packet (including LC Account to payment of all or any portion of Tenant's Obligations. Within 10 days after any such payment from the invoices LC Account, Landlord shall give written notice to Tenant describing the amount of such payment and how it was applied to Tenant's Obligations. Upon the lien waivers submitted occurrence of either [i] Landlord's receipt of a replacement Letter of Credit that satisfies the requirements of Section 20.1 and is issued by Contractor and suppliers (if any)). Lender an Issuer acceptable to Landlord; or [ii] the date on which all of Tenant's Obligations are performed in full, Landlord shall not be required to verify any pay the principal balance of the information submitted in connection with the Request for Advance. The Draw funds delivered in connection with the Request for Advance shall be used LC Account (but not any accrued interest) to pay for the Budgeted Activities described in the Request for Advance Packet only and as provided in the Budget (as defined below). In Lender’s sole discretion, Draws may be (v) electronically transferred from Lender’s account to Borrower’s account via electronic funds transfer; (w) electronically transferred from Lender’s account to Contractor’s account via electronic funds transfer; (x) delivered via check from Lender payable to Borrower or payable jointly to Borrower and Contractor, or (y) via some other mutually agreed upon mechanismTenant.

Draws. Draw requests Landlord may draw under the Letter of Credit upon the occurrence of an Event of Default hereunder. Any such draw shall not cure an Event of Default. The proceeds from the Letter of Credit (“LC Proceeds”) shall be made the sole property of Landlord and may be used, retained and invested by Borrower to Lender as provided Landlord without restriction or limitation. Tenant shall have no interest in this subsectionor claim against the LC Proceeds. Lender, at its Landlord shall have the right and option, may elect to inspect but not the Property before allowing a Draw. Prior to receiving any Draw, Borrower shall deliver to Lender (or Lender’s designated agent) (i) a properly completed “Request for Advance,” in the form set forth in Exhibit B, attached hereto, signed by Borrower (and Contractorobligation, to apply all or any portion of the extent applicableLC Proceeds to pay all or any portion of [i] all Rent and other charges and expenses payable by Tenant under this Lease; plus [ii] all reasonable expenses and costs incurred by Landlord in enforcing or preserving Landlord’s rights under this Lease or any security for the Lease, including, without limitation, [a] the fees, expenses, and costs of any litigation, appellate, receivership, administrative, bankruptcy, insolvency, or other similar proceeding; [b] attorney, paralegal, consulting and witness fees and disbursements; and [c] the expenses, including, without limitation, lodging, meals and transportation of Landlord and its employees, agents, attorneys, and witnesses in preparing for litigation, administrative, bankruptcy, insolvency, or similar proceedings and attendance at hearings, depositions, and trials in connection therewith. With respect to any portion of the Letter of Credit proceeds that is not applied to payment of Tenant’s Obligations, Landlord shall have the option to either [i] deposit the proceeds into an interest bearing account with a financial institution chosen by Landlord (“LC Account”); (or [ii) invoices for the activities covered by the Use of Proceeds (as defined below) outlined in the Budget (the “Budgeted Activities”) that is the subject of the Request for Advance; (iii) construction lien waivers from Contractor and from the suppliers (if any) for all Budgeted Activities covered by the Request for Advance if and as requested by Lender; and (iv) any and all other required information described in the Request for Advance. The items detailed in Subsections (i) through (iv) of this Section III(B) are collectively referred to herein as the “Request for Advance Packet.” In order ] require Tenant to obtain a Drawreplacement Letter of Credit satisfactory to Landlord, Borrower with the Letter of Credit proceeds made available to Tenant to secure Tenant’s reimbursement obligation for the Letter of Credit. All interest accruing on the LC Account shall first submit a Request for Advance Packet be paid to LenderLandlord and may, from time to time, be withdrawn from the LC Account by Landlord. Lender At any time and from time to time until Tenant’s Obligations are performed in full, Landlord may rely on Borrower’s statements (and Contractor’s statements, if any) apply all or any portion of the funds held in the Request for Advance Packet (including LC Account to payment of all or any portion of Tenant’s Obligations. Within 10 days after any such payment from the invoices LC Account, Landlord shall give written notice to Tenant describing the amount of such payment and how it was applied to Tenant’s Obligations. Upon the lien waivers submitted occurrence of either [i] Landlord’s receipt of a replacement Letter of Credit that satisfies the requirements of §20.1 and is issued by Contractor and suppliers (if any)). Lender an Issuer acceptable to Landlord; or [ii] the date on which all of Tenant’s Obligations are performed in full, Landlord shall not be required to verify any pay the balance of the information submitted in connection with the Request for Advance. The Draw funds delivered in connection with the Request for Advance shall be used LC Account to pay for the Budgeted Activities described in the Request for Advance Packet only and as provided in the Budget (as defined below). In Lender’s sole discretion, Draws may be (v) electronically transferred from Lender’s account to Borrower’s account via electronic funds transfer; (w) electronically transferred from Lender’s account to Contractor’s account via electronic funds transfer; (x) delivered via check from Lender payable to Borrower or payable jointly to Borrower and Contractor, or (y) via some other mutually agreed upon mechanismTenant.

Draws. Draw requests shall be made If (a) an Event of Default by Borrower Tenant occurs in the payment or performance of any of the terms, covenants or conditions of this Lease, including the payment of Rent, (b) Landlord receives a Non-Renewal Notice or (c) the credit rating of the Issuing Bank has been downgraded below the rating specified above or fails to Lender as provided meet the Issuing Bank Standard in any other way, declares bankruptcy or is put into receivership by the FDIC and in any of those cases under clause (b) and/or this clause (c), Tenant has failed to deliver a new Letter of Credit from a bank with a credit rating meeting the standard specified above and otherwise meeting the requirements set forth in this subsection. LenderArticle 10 within ten (10) Business Days following notice from Landlord of any of such events, at its optionLandlord shall have the right by sight draft to draw all or a portion of the proceeds of the Letter of Credit and thereafter hold, may elect use, apply, or retain the whole or any part of such proceeds, (x) to inspect the Property before allowing a Draw. Prior extent required for the payment of any Rent or any other sum as to receiving any Draw, Borrower shall deliver to Lender (or Lender’s designated agent) which Tenant is in an Event of Default including (i) any sum which Landlord may expend or may be required to expend by reason of Tenant’s default to the extent such expenditure is otherwise permitted hereunder, and/or (ii) any damages to which Landlord is entitled pursuant to this Lease, whether such damages accrue before or after summary proceedings or other reentry by Landlord and/or (y) as cash proceeds to guaranty Tenant’s obligations hereunder, unless and until Tenant delivers to Landlord a properly completed “Request for Advance,” substitute Letter of Credit which meets the requirements of this Article 10; provided in the form case where Landlord is making a draw pursuant to the foregoing clause (a), Landlord shall only be entitled to draw down so much of the Letter of Credit as shall be reasonably necessary for the purposes set forth in Exhibit Bthe foregoing clause (x). If Landlord applies any part of the cash proceeds of the Letter of Credit, attached hereto, signed by Borrower (and Contractor, Tenant shall promptly thereafter amend the Letter of Credit to increase the extent applicable); (ii) invoices for the activities covered amount thereof by the Use amount so applied or provide Landlord with an additional Letter of Proceeds (as defined below) outlined Credit in the Budget (amount so applied so that Landlord shall have the “Budgeted Activities”) that is full amount thereof on hand at all times during the subject of the Request for Advance; (iii) construction lien waivers from Contractor and from the suppliers (if any) for all Budgeted Activities covered by the Request for Advance if and as requested by Lender; and (iv) any and all other required information described in the Request for Advance. The items detailed in Subsections (i) through (iv) of this Section III(B) are collectively referred to herein as the “Request for Advance PacketTerm.” In order to obtain a Draw, Borrower shall first submit a Request for Advance Packet to Lender. Lender may rely on Borrower’s statements (and Contractor’s statements, if any) in the Request for Advance Packet (including the invoices and the lien waivers submitted by Contractor and suppliers (if any)). Lender shall not be required to verify any of the information submitted in connection with the Request for Advance. The Draw funds delivered in connection with the Request for Advance shall be used to pay for the Budgeted Activities described in the Request for Advance Packet only and as provided in the Budget (as defined below). In Lender’s sole discretion, Draws may be (v) electronically transferred from Lender’s account to Borrower’s account via electronic funds transfer; (w) electronically transferred from Lender’s account to Contractor’s account via electronic funds transfer; (x) delivered via check from Lender payable to Borrower or payable jointly to Borrower and Contractor, or (y) via some other mutually agreed upon mechanism.

Draws. Draw requests If Tenant fails to timely deliver the Letter of Credit or any Continuation Letter of Credit to Landlord and such failure continues for five (5) business days after written notice to Tenant (with any other notice and cure periods afforded to Tenant hereunder being inapplicable in such circumstances), such failure by Tenant shall entitle Landlord to immediately draw upon the full outstanding amount of the Letter of Credit or the then-applicable Continuation Letter of Credit (as the case may be) and hold such funds as a cash security deposit (which such deposit shall be made by Borrower held and applied in accordance with Applicable Laws and this Lease, including without limitation Section 4.05). Additionally, Landlord shall be entitled to Lender draw upon the Letter of Credit and/or any Continuation Letter of Credit (as provided the case may be) to fund the performance of any obligation(s) of Tenant under the Lease if Tenant is in this subsection. Lender, at its option, may elect to inspect the Property before allowing a Draw. Prior to receiving any Draw, Borrower shall deliver to Lender (or Lender’s designated agent) (i) a properly completed “Request for Advance,” default in the form set forth in Exhibit B, attached hereto, signed by Borrower (performance of such obligation(s) beyond the expiration of any applicable notice and Contractor, to the extent applicable); (ii) invoices for the activities covered by the Use of Proceeds (as defined below) outlined in the Budget (the “Budgeted Activities”) that is the subject of the Request for Advance; (iii) construction lien waivers from Contractor and from the suppliers cure period (if any) for all Budgeted Activities covered by the Request for Advance if and as requested by Lender; and (iv) any and all other required information described set forth in the Request for AdvanceLease. The items detailed in Subsections issuing bank shall be required (up to the face amount(s) of the Letter of Credit and/or any applicable Continuation Letter of Credit) to disburse amounts to Landlord under the Letter of Credit and/or the applicable Continuation Letter of Credit (as the case may be) based solely on the written statement of Landlord (i) through certifying that Tenant is in default in the performance of its obligation(s) under the Lease beyond the expiration of any applicable notice and cure period (iv) of this Section III(B) are collectively referred to herein as the “Request for Advance Packet.” In order to obtain a Draw, Borrower shall first submit a Request for Advance Packet to Lender. Lender may rely on Borrower’s statements (and Contractor’s statements, if any) set forth in the Request for Advance Packet Lease and (including ii) certifying the invoices and amount due to Landlord as a result of such uncured default(s) (which shall be the lien waivers submitted by Contractor and suppliers amount payable, up to an aggregate ceiling amount equal to the face amount(s) of the Letter of Credit and/or any applicable Continuation Letter of Credit (if anyas the case may be), to Landlord under such instrument). Lender shall not be required ▇▇▇▇▇▇▇▇ agrees to verify concurrently provide Tenant with a copy of any of such written statement Landlord provides to the information submitted in connection with issuing bank pursuant to the Request for Advance. The Draw funds delivered in connection with the Request for Advance shall be used to pay for the Budgeted Activities described in the Request for Advance Packet only and as provided in the Budget (as defined below). In Lender’s sole discretion, Draws may be (v) electronically transferred from Lender’s account to Borrower’s account via electronic funds transfer; (w) electronically transferred from Lender’s account to Contractor’s account via electronic funds transfer; (x) delivered via check from Lender payable to Borrower or payable jointly to Borrower and Contractor, or (y) via some other mutually agreed upon mechanismimmediately preceding sentence.

Draws. (a) Each Draw requests shall be funded by the Holders ratably in accordance with their respective Pro Rata Shares. The failure of any Holder to fund any Draw required to be made by Borrower it shall not relieve any other Holder of its obligations hereunder; provided, that the Commitments constitute several and separate, not joint, obligations and no Holder shall be responsible for any other Holder’s failure to Lender fund Draws as provided in this subsectionso required. Lender, There shall be no notice or request requirement for the Draws. (b) Each Holder at its optionoption may fund any Draw by causing any domestic or foreign branch or Affiliate of such Holder to fund such Draw; provided, may elect that any exercise of such option shall not affect the obligation of such Holder to inspect fund such Draw or the Property before allowing a Drawobligation of the Issuer to repay such Draw in accordance with the terms of this Agreement; and provided, further, that if such option is exercised, the branch or Affiliate that funds such Draw shall not obligate the Issuer to pay or withhold any amounts in respect of taxes in any jurisdiction. (c) Each Draw shall be funded by the Holders (or, if applicable, funded for such Holder’s relevant Holder Subaccount) on the applicable Draw Date, unless otherwise agreed to by the Issuer and all of the Holders of the Class A-2A Notes. (d) There shall be three Draws, the Draw Dates for which will be the Closing Date, December 15, 2005 and January 17, 2006. Prior The Class A-2A Notes sold to receiving the Initial Holder on the Closing Date will be funded in the aggregate in installments of $10,278,478 on the first Draw Date, $28,000,000 on the second Draw Date and $31,721,522 on the third Draw Date. The following conditions must be met prior to any Draw, Borrower shall deliver to Lender (or Lender’s designated agent) : (i) at the time of and immediately after giving effect to such Draw, no Event of Default or Servicer Default or event the occurrence of which with notice or the lapse of time or both would become an Event of Default or a properly completed “Request for Advance,” in the form set forth in Exhibit B, attached hereto, signed by Borrower (Servicer Default has occurred and Contractor, to the extent applicable)is continuing or would result from such Draw; and (ii) invoices for at the activities covered time of and immediately after giving effect to such Draw, the aggregate Outstanding Principal Balance of the Class A-2A Notes will not exceed the Maximum Class A-2A Commitment. (e) All Draws funded by a Holder shall be evidenced by the Use of Proceeds (as defined belowClass A-2A Note(s) outlined in and shall be governed by and subject to the Budget (the “Budgeted Activities”) that is the subject of the Request for Advance; (iii) construction lien waivers from Contractor and from the suppliers (if any) for all Budgeted Activities covered by the Request for Advance if and as requested by Lender; and (iv) any and all other required information described in the Request for AdvanceIndenture. The items detailed in Subsections (i) through (iv) of this Section III(B) are collectively referred to herein as the “Request for Advance Packet.” In order to obtain a Draw, Borrower shall first submit a Request for Advance Packet to Lender. Lender Draws may rely on Borrower’s statements (and Contractor’s statements, if any) in the Request for Advance Packet (including the invoices and the lien waivers submitted by Contractor and suppliers (if any)). Lender shall not be required to verify any of the information submitted repaid except in connection with the Request for Advancerepayment of principal on the Class A-2A Note(s) pursuant to the Indenture and the Transfer and Servicing Agreement and subject to the Priority of Payments. The Issuer hereby appoints the Indenture Trustee as its agent for purposes of keeping a register (the “Delayed Draw funds Note Register”) at the office of the Indenture Trustee in which the Indenture Trustee shall maintain records of each Holder’s Commitment applicable to each Class A-2A Note, the aggregate principal amount of Draws from time to time outstanding in respect of each Class A-2A Note and a copy of each Assignment and Acceptance delivered to the Indenture Trustee pursuant to Section 7.03(b). At any time promptly following a request therefor by the Issuer, the Indenture Trustee shall provide the Issuer with a report specifying the aggregate principal amount of Draws outstanding in connection with respect of each Class A-2A Note, the Request for Advance shall be used to pay for the Budgeted Activities described in the Request for Advance Packet only and as provided in the Budget Commitment of each Holder applicable thereto (as defined below). In Lender’s sole discretionof such Record Date or such time, Draws as the case may be (vbe) electronically transferred from Lender’s account to Borrower’s account via electronic funds transfer; (w) electronically transferred from Lender’s account to Contractor’s account via electronic funds transfer; (x) delivered via check from Lender payable to Borrower or payable jointly to Borrower and Contractor, or (y) via some other mutually agreed upon mechanismapplicable payment instructions.