Common use of Commitment and Facility Fees Clause in Contracts

Commitment and Facility Fees. (a) During the period (the "Commitment Period") commencing on the Document Closing Date and ending on the earlier of the Final Completion Date and the Outside Completion Date, a fully-earned, nonrefundable commitment fee (the "Commitment Fee") payable by Lessee to Lessor shall accrue equal to forty-two and one half (42.5) basis points per annum on an amount equal to the daily unused portion of the aggregate Commitments during the Commitment Period. On each date which is three (3) Business Days prior to any Payment Date during the Commitment Period, Construction Agent shall be deemed to have requested an Advance in an amount equal to the Commitment Fee accrued for the month ending on such Payment Date. The Advance Date with respect to such accrued Commitment Fee shall be the relevant Payment Date (subject to the terms and conditions for an Advance set forth in this Participation Agreement) and the proceeds of such Advance shall be applied to pay accrued Commitment Fees. On such Advance Date, the Certificate Amounts shall be increased by an amount equal to the Certificate Purchasers' pro rata portion (in accordance with their respective Commitments) of the accrued Commitment Fee Funded on such date, the outstanding principal on the Notes shall be increased by an amount equal to the Lenders' pro rata portion (in accordance with their respective Commitments) of the accrued Commitment Fee Funded on such date, and the Commitment Fees so funded shall be allocated pro rata to the Site Balances for each Site based on the Available Commitment for such Site divided by the aggregate Available Commitments for all Sites as determined immediately prior to such funding; provided, however, that if an Advance hereunder would exceed the aggregate Available Commitments of the Participants, no Participant shall have any obligation to make any such Advance and the Required Participants shall have the right to declare a default under, inter alia, the Construction Agency Agreement and the Lease. (b) Lessee shall pay a fully-earned, nonrefundable facility fee (the "Facility Fee") to Lessor equal to fifty (50) basis points on the aggregate Commitments. Such Facility Fee shall be due when aggregate Commitments sufficient to acquire the Sites and to construct the Financed Improvements have been received. On such date, Construction Agent shall be deemed to have requested an Advance in an amount equal to the Facility Fee. The Advance Date with respect to such Facility Fee shall be the next Payment Date (subject to the terms and conditions for an Advance set forth in this Participation Agreement) and the proceeds of such Advance shall be applied to pay the Facility Fee. On such Advance Date, the Certificate Amounts shall be increased by an amount equal to the Certificate Purchasers' pro rata portion (in accordance with their respective Commitments) of the Facility Fee Funded on such date, the outstanding principal on the Notes shall be increased by an amount equal to the Lenders' pro rata portion (in accordance with their respective Commitments) of the Facility Fee Funded on such date, and the Facility Fee so funded shall be allocated pro rata to the Site Balances for each Site based on the Commitments for each such Site; provided, however, that if an Advance hereunder would exceed the aggregate Available Commitments of the Participants, no Participant shall have any obligation to make any such Advance and the Required Participants shall have the right to declare a default under, inter alia, the Construction Agency Agreement and the Lease.

Commitment and Facility Fees. (a) During As compensation for the period Lender's commitment included herein to make loans and advances to the Borrower and as compensation for the Lender's maintenance of sufficient funds available for such purpose, the Lender shall have earned a Commitment Fee (the "Commitment Period"so referred to herein) commencing on the Document Closing Date and ending on the earlier of One Percent (1%) of the Final Completion Date and Loan Ceiling, payable in annual installments of Fifty Thousand Dollars ($50,000.00) each. The first such installment shall be due at the Outside Completion Date, a fully-earned, nonrefundable commitment fee (the "Commitment Fee") payable by Lessee to Lessor shall accrue equal to forty-two and one half (42.5) basis points per annum on an amount equal to the daily unused portion execution of the aggregate Commitments during the Commitment Period. On each date which is three (3) Business Days prior to any Payment Date during the Commitment Period, Construction Agent within Agreement and shall be deemed to have requested paid with an Advance in an amount equal to advance under the Commitment Fee accrued Revolving Credit. Subsequent installments shall be due on each December 30th hereafter. In the event of the early termination of the Revolving Credit for any reason, any remaining installments of the month ending on such Payment Date. The Advance Date with respect to such accrued Commitment Fee shall be immediately due and payable. Lender acknowledges receipt of Fifteen Thousand Dollars ($15,000.00) from the relevant Payment Date (subject to the terms and conditions for an Advance set forth in this Participation Agreement) and the proceeds of such Advance Borrower which shall be applied to pay accrued the first installment of the Commitment Fees. On such Advance Date, Fee due at closing; the Certificate Amounts balance of the first installment Commitment Fee ($35,000.00) shall be increased by an amount equal to the Certificate Purchasers' pro rata portion (in accordance with their respective Commitments) of the accrued Commitment Fee Funded on such date, the outstanding principal on the Notes shall be increased by an amount equal to the Lenders' pro rata portion (in accordance with their respective Commitments) of the accrued Commitment Fee Funded on such date, due and the Commitment Fees so funded shall be allocated pro rata to the Site Balances for each Site based on the Available Commitment for such Site divided by the aggregate Available Commitments for all Sites as determined immediately prior to such funding; provided, however, that if an Advance hereunder would exceed the aggregate Available Commitments of the Participants, no Participant shall have any obligation to make any such Advance and the Required Participants shall have the right to declare a default under, inter alia, the Construction Agency Agreement and the Leasepayable at Closing. (b) Lessee shall pay In addition to any other fee or expense paid by the Borrower on account of the Revolving Credit, a fully-earned, nonrefundable facility fee FACILITY FEE (the "Facility Fee"so referred to herein). (i) to Lessor equal to fifty (50) basis points on the aggregate Commitments. Such The Facility Fee shall be due when aggregate Commitments sufficient to acquire based upon $2,500.00 per month for the Sites period beginning with the execution of the within Agreement and to construct ending on the Financed Improvements have been received. On such date, Construction Agent shall be deemed to have requested an Advance in an amount equal to later of the Facility Fee. Maturity Date or the End Date. (ii) The Advance Date with respect to such Facility Fee shall be paid as follows: (A) A proration (of the next Payment Date (subject to period beginning with the terms date on which the within Agreement is executed and conditions for an Advance set forth in this Participation Agreement) and ending on the proceeds last day of the month of such Advance execution) of the monthly amount on which the Facility Fee is based shall be applied paid out of the first advance under the Revolving Credit. (B) The per month amount on which the Facility Fee is based shall be paid on the first day of each then succeeding month until the first day of the month in which the Maturity Date occurs. (C) Subject to Section 1-9(b)(ii)(D), below, a proration (for the period beginning with the first day of the month in which the Maturity Date occurs) shall be paid on the first day of the month in which the Maturity Date occurs. (D) In the event of the early termination of the revolving Credit for any reason, the Borrower shall pay the Facility Fee. On such Advance Date, Lender the Certificate Amounts shall be increased by an amount equal to the Certificate Purchasers' pro rata portion (in accordance with their respective Commitments) above referenced monthly installment of the Facility Fee Funded (subject to adjustment as provided in Section 1-9(c), below) on such datethe first day of each month up to and including the first day of the month during which the End Date occurs. (c) Upon and following the occurrence of any Suspension Event, the outstanding principal on Lender may alter the Notes shall be increased by an amount equal to the Lenders' pro rata portion (in accordance with their respective Commitments) of the Facility Fee Funded on to a reasonable extent to reflect any increased administration required by reason of changes to the Borrower's financial and business circumstances evidenced by such date, and the occurrence. Such increased Facility Fee so funded shall be allocated pro rata may include reasonable charges on a per diem, hourly, or other basis to reflect such increased administration. (d) In addition to any other right to which the Lender is then entitled on account thereof, the Lender may assess a reasonable additional fee to the Site Balances Borrower on account of the Lender's accommodation, from time to time, of the Borrower's request that the Lender depart or dispense with one or more of the administrative provisions of the within Agreement and/or the Borrower's failure to comply with any of such provisions; provided that any additional fee is disclosed to Borrower prior to the accommodation being granted. (i) By way of non-exclusive example, the Lender may assess a fee on account of any of the following: (A) The Borrower's failure to pay that amount which is necessary so that the principal balance of the Loan Account does not exceed Maximum Permitted Exposure (as required under Section 1-7(b), above). (B) The Lender's providing of a loan or advance under the Revolving Credit in excess of Availability. (C) The Lender's providing of a same Business Day loan requested after the time set forth in Section 1-4(b)(i), above. (D) The Borrower's failure to provide a financial statement or report within the applicable time frame provided for each Site based such report under Article 9, below. (ii) The inclusion of the foregoing right on the Commitments for each such Site; provided, however, that if an Advance hereunder would exceed the aggregate Available Commitments part of the ParticipantsLender to assess a fee does not constitute an obligation, no Participant on the part of the Lender, to waive any provision of the within Agreement under any circumstances. The assessment of any such fee in any particular circumstance shall have not constitute the Lender's waiver of any breach of the within Agreement on account of which such fee was assessed nor a course of action on which the Borrower may rely. (e) The Borrower shall not be entitled to any credit, rebate or repayment of any Commitment Fee, Facility Fee, or other fee previously earned by the Lender pursuant to this Section notwithstanding any termination of the within Agreement or suspension or termination of the Lender's obligation to make any such Advance loans and the Required Participants shall have the right to declare a default under, inter alia, the Construction Agency Agreement and the Leaseadvances hereunder.