Common use of Funding by Participants Clause in Contracts

Funding by Participants. NAI acknowledges that, as provided in the Participation Agreement, each Participant has agreed to pay to BNPLC a Percentage (under and as defined in the Participation Agreement) of the Construction Advances required by this Agreement. NAI also acknowledges that BNPLC will not be responsible to NAI for any failure of any Participant to provide advances required by the Participation Agreement. So long as any Participant fails to provide its Percentage of any requested Construction Advance, then the amount of the Construction Advance for which BNPLC shall be obligated hereunder shall be reduced by the amount that the Participant should have provided, but failed to provide, in accordance with the Participation Agreement. No such reduction, however, of BNPLC's obligation hereunder shall release or impair the obligation of the Participant directly to NAI, created by NAI's status as a third party beneficiary of the Participant's commitment under the Participation Agreement to provide the Participant's Percentage of Construction Advances. Further, any such failure shall excuse BNPLC's obligation to provide the requested Construction Advance only to the extent of the funds that the applicable Participant or Participants should have advanced (but did not advance) to BNPLC, and in the event of any such failure: (1) BNPLC will immediately notify NAI, but BNPLC will not in any event be liable to NAI for BNPLC's failure to do so. (2) BNPLC will to the extent possible postpone reductions of Construction Advances because of the failure by any one or more Participants ("DEFAULTING PARTICIPANTS") to make required advances under the Participation Agreement (a "PARTICIPANT DEFAULT") by adjusting (and readjusting from time to time, as required) the funding "Percentages" of other Participants, and by requesting the other Participants to make advances to BNPLC on the basis of such adjusted Percentages, in each case as provided in the Participation Agreement; however, so long as a Participant Default continues, no Construction Advance shall be required that would cause the Outstanding Construction Allowance to exceed (1) the Maximum Construction Allowance available under this Agreement, less (2) all amounts that should have been, but because of a continuing Participant Default have not been, advanced by any one or more of the Participants to BNPLC under the Participation Agreement with respect to Construction Advances. (3) Further, after a Participant Default, and so long as no CMA Termination Event (as defined below) has occurred and no Event of Default has occurred and is continuing, BNPLC shall do the following as reasonably requested by NAI, provided that nothing in this provision shall require BNPLC to take any action that would violate Applicable Laws, that would constitute a breach of BNPLC's obligations under the Participation Agreement, or that would require BNPLC to waive any rights or remedies it has under this Agreement or other Operative Documents: (a) BNPLC shall promptly make a written demand upon the Defaulting Participants for the cure of the Participant Default, and (b) BNPLC shall not unreasonably withhold its approval for the substitution of any new participant proposed by NAI for Defaulting Participants, if (A) the proposed substitution does not require BNPLC to waive rights against the Defaulting Participants, (B) the new participant will agree (by executing supplement to the Participation Agreement as provided in the Participation Agreement) to provide funds to replace the payments that would otherwise be required of the Defaulting Participants with respect to future Construction Advances, (C) the new participant (or NAI) provides the funds (if any) needed to terminate the Defaulting Participants' rights to receive payments of "Net Cash Flow" (as defined in the Participation Agreement) that BNPLC will be required to pay the new participant under the terms of the substitution reasonably proposed by NAI, (D) the new participant (or NAI) provides and agrees in writing to provide funds needed to reimburse BNPLC for any and all Losses incurred by BNPLC in connection with or because of the substitution of the new participant for the Defaulting Participants, including any cost of defending and paying any claim asserted by Defaulting Participants because of the

Funding by Participants. NAI Ross acknowledges that, as provided in the Participation Agreement, each Participant has agreed to pay to BNPLC BNPPLC a Percentage (under and as defined in the Participation Agreement) of the Construction Advances required by this Agreement. NAI Ross also acknowledges that BNPLC BNPPLC will not be responsible to NAI Ross for any failure of any Participant (other than an Affiliate of BNPPLC) to provide advances required by the Participation Agreement. So long as any Participant (other than an Affiliate of BNPPLC) fails to provide its Percentage of any requested Construction Advance, then the amount of the Construction Advance for which BNPLC BNPPLC shall be obligated hereunder shall be reduced reduced, subject to Section 2(G)(2) below, by the amount that the Participant should have provided, but failed to provide, in accordance with the Participation Agreement. No such reduction, however, of BNPLCBNPPLC's obligation hereunder shall release or impair the obligation of the Participant directly to NAIRoss, created by NAIRoss's status as a third party beneficiary of the Participant's commitment under the Participation Agreement to provide the Participant's Percentage of Construction Advances. Further, any such failure shall excuse BNPLCBNPPLC's obligation to provide the requested Construction Advance only to the extent of the funds that the applicable Participant or Participants should have advanced (but did not advance) to BNPLCBNPPLC, and in the event of any such failure: (1) BNPLC BNPPLC will immediately notify NAIRoss, but BNPLC BNPPLC will not in any event be liable to NAI Ross for BNPLCBNPPLC's failure to do so. (21) BNPLC BNPPLC will to the extent possible postpone reductions of Construction Advances because of the failure by any one or more Participants not Affiliates of BNPPLC ("DEFAULTING PARTICIPANTSDefaulting Participants") to make required advances under the Participation Agreement (a "PARTICIPANT DEFAULTParticipant Default") by adjusting (and readjusting from time to time, as required) ratably the funding "Percentages" of other BNPPLC and the Participants, and by BNPPLC making and requesting the other Participants to make advances to BNPLC BNPPLC on the basis of such adjusted Percentages, in each case regarding the Participants as provided in the Participation Agreement; however, so long as a Participant Default continues, no Construction Advance shall be required that would cause the Outstanding Construction Allowance to exceed (1) the Maximum Construction Allowance available under this Agreement, less (2) all amounts that should have been, but because of a continuing Participant Default have not been, advanced by any one or more of the Participants to BNPLC BNPPLC under the Participation Agreement with respect to Construction Advances. (31) Further, after a Participant Default, and so long as no CMA Termination Event (as defined below) has occurred and no Event of Default has occurred and is continuing, BNPLC BNPPLC shall do the following as reasonably requested by NAIRoss, provided that nothing in this provision shall require BNPLC BNPPLC to take any action that would violate Applicable Laws, that would constitute a breach of BNPLCBNPPLC's obligations under the Participation Agreement, or that would require BNPLC BNPPLC to waive any rights or remedies it has under this Agreement or other Operative Documents: (a) BNPLC BNPPLC shall promptly make a written demand upon the Defaulting Participants for the cure of the Participant Default, and (b) BNPLC shall not unreasonably withhold its approval for the substitution of any new participant proposed by NAI for Defaulting Participants, if (A) the proposed substitution does not require BNPLC to waive rights against the Defaulting Participants, (B) the new participant will agree (by executing supplement to the Participation Agreement as provided in the Participation Agreement) to provide funds to replace the payments that would otherwise be required of the Defaulting Participants with respect to future Construction Advances, (C) the new participant (or NAI) provides the funds (if any) needed to terminate the Defaulting Participants' rights to receive payments of "Net Cash Flow" (as defined in the Participation Agreement) that BNPLC will be required to pay the new participant under the terms of the substitution reasonably proposed by NAI, (D) the new participant (or NAI) provides and agrees in writing to provide funds needed to reimburse BNPLC for any and all Losses incurred by BNPLC in connection with or because of the substitution of the new participant for the Defaulting Participants, including any cost of defending and paying any claim asserted by Defaulting Participants because of the

Funding by Participants. NAI acknowledges that, as provided in the Participation Agreement, each Participant has agreed to pay to BNPLC a Percentage (under and as defined in the Participation Agreement) of the Construction Advances required by this Agreement. NAI also acknowledges that BNPLC will not be responsible to NAI for any failure of any Participant to provide advances required by the Participation Agreement. So long as any Participant fails to provide its Percentage of any requested Construction Advance, then the amount of the Construction Advance for which BNPLC shall be obligated hereunder shall be reduced by the amount that the Participant should have provided, but failed to provide, in accordance with the Participation Agreement. No such reduction, however, of BNPLC's obligation hereunder shall release or impair the obligation of the Participant directly to NAI, created by NAI's status as a third party beneficiary of the Participant's commitment under the Participation Agreement to provide the Participant's Percentage of Construction Advances. Further, any such failure shall excuse BNPLC's obligation to provide the requested Construction Advance only to the extent of the funds that the applicable Participant or Participants should have advanced (but did not advance) to BNPLC, and in the event of any such failure: (1) BNPLC will immediately notify NAI, but BNPLC will not in any event be liable to NAI for BNPLC's failure to do so. (2) BNPLC will to the extent possible postpone reductions of Construction Advances because of the failure by any one or more Participants ("DEFAULTING PARTICIPANTS") to make required advances under the Participation Agreement (a "PARTICIPANT DEFAULT") by adjusting (and readjusting from time to time, as required) the funding "Percentages" of other Participants, and by requesting the other Participants to make advances to BNPLC on the basis of such adjusted Percentages, in each case as provided in the Participation Agreement; however, so long as a Participant Default continues, no Construction Advance shall be required that would cause the Outstanding Construction Allowance to exceed (1) the Maximum Construction Allowance available under this Agreement, less (2) all amounts that should have been, but because of a continuing Participant Default have not been, advanced by any one or more of the Participants to BNPLC under the Participation Agreement with respect to Construction Advances. (3) Further, after a Participant Default, and so long as no CMA Termination Event (as defined below) has occurred and no Event of Default has occurred and is continuing, BNPLC shall do the following as reasonably requested by NAI, provided that nothing in this provision shall require BNPLC to take any action that would violate Applicable Laws, that would constitute a breach of BNPLC's obligations under the Participation Agreement, or that would require BNPLC to waive any rights or remedies it has under this Agreement or other Operative Documents: (a) BNPLC shall promptly make a written demand upon the Defaulting Participants for the cure of the Participant Default, Default and (b) BNPLC shall not unreasonably withhold its approval for the substitution of any new participant proposed by NAI for Defaulting Participants, if (A) the proposed substitution does not require BNPLC to waive rights against the Defaulting Participants, (B) the new participant will agree (by executing supplement to the Participation Agreement as provided in the Participation Agreement) to provide funds to replace the payments that would otherwise be required of the Defaulting Participants with respect to future Construction Advances, (C) the new participant (or NAI) provides the funds (if any) needed to terminate the Defaulting Participants' rights to receive payments of "Net Cash Flow" (as defined in the Participation Agreement) that BNPLC will be required to pay the new participant under the terms of the substitution reasonably proposed by NAI, (D) the new participant (or NAI) provides and agrees in writing to provide funds needed to reimburse BNPLC for any and all Losses incurred by BNPLC in connection with or because of the substitution of the new participant for the Defaulting Participants, including any cost of defending and paying any claim asserted by Defaulting Participants because of thethe substitution (but not including any liability of BNPLC to the Defaulting Participants for damages caused by BNPLC's bad faith or gross negligence in the performance of BNPLC's obligations to the Defaulting Participants), (E) the obligations of BNPLC to the new participant per dollar of the new participant's "investment" (it being understood that such investment will be computed in a manner consistent with the examples set forth in Exhibit A to the Participation Agreement, but net of reimbursements to BNPLC under clause (D) preceding) shall not exceed the obligations per dollar of investment by the Defaulting Participants that BNPLC would have had to the Defaulting Participants if there had been no Participant Default, and (F) the new participant shall be a reputable financial institution having a net worth of no less than seven and one half percent (7.5%) of total assets and total assets of no less than $10,000,000,000.00 (all according to then recent audited financial statements).

Funding by Participants. NAI Specialty Laboratories acknowledges that, as provided in the Participation Agreement, each Participant has agreed to pay to BNPLC BNPPLC a Percentage (under and as defined in the Participation Agreement) of the Construction Advances required by this Agreement. NAI also acknowledges that BNPLC BNPPLC will not be responsible to NAI Specialty Laboratories for any failure of any Participant (other than an Affiliate of BNPPLC) to provide advances required by the Participation Agreement, although BNPPLC will endeavor in good faith to mitigate the impact of any such failure by taking the actions described below in this subparagraph. So long as any Participant (other than an Affiliate of BNPPLC) fails to provide its Percentage of any requested Construction Advance, then the amount of the Construction Advance for which BNPLC BNPPLC itself shall be obligated hereunder shall be reduced by the amount that the Participant should have provided, but failed to provide, in accordance with the Participation Agreement. No such reduction, however, of BNPLCBNPPLC's obligation hereunder shall release or impair the obligation of the Participant directly to NAISpecialty Laboratories, created by NAI's Specialty Laboratories' status as a third party beneficiary of the Participant's commitment under the Participation Agreement to provide the Participant's Percentage of Construction Advances. Further, any such failure shall excuse BNPLCBNPPLC's obligation to provide the requested Construction Advance only to the extent of the funds that the applicable Participant or Participants should have advanced (but did not advance) to BNPLCBNPPLC, and in the event of any such failure: (1) BNPLC BNPPLC will endeavor to immediately notify NAISpecialty Laboratories, but BNPLC BNPPLC will not in any event be liable to NAI Specialty Laboratories for BNPLCBNPPLC's failure to do so. (2) BNPLC BNPPLC will to the extent possible postpone reductions of Construction Advances because of the failure by any one or more Participants not Affiliates of BNPPLC ("DEFAULTING PARTICIPANTSDefaulting Participants") to make required advances under the Participation Agreement (a "PARTICIPANT DEFAULTParticipant Default") by adjusting (and readjusting from time to time, as required) the funding "Percentages" of other Participants, and by requesting directing the other Participants to make advances to BNPLC BNPPLC on the basis of such adjusted Percentages, in each case as provided in the Participation Agreement; however, so long as a Participant Default continues, no Construction Advance shall be required that would cause the Outstanding Construction Allowance to exceed (1) the Maximum Construction Allowance available under this Agreement, less (2) all amounts that should have been, but because of a continuing Participant Default have not been, advanced by any one or more of the Participants to BNPLC BNPPLC under the Participation Agreement with respect to Construction Advances. (3) Further, after a Participant Default, and so long as no CMA Termination 97-10/Event (as defined below) has occurred and no Event of Default has occurred and is continuing, BNPLC BNPPLC shall do any or all of the following as reasonably requested by NAI, provided Specialty Laboratories to the extent that nothing in this provision shall require BNPLC to take any action that would violate BNPPLC can do so without violating Applicable Laws, that would constitute a breach of BNPLC's without breaching its obligations under the Participation Agreement, or that would require BNPLC to waive any Agreement and without waiving rights or remedies it has under this Agreement or other Operative Documents: (a) BNPLC BNPPLC shall promptly make a written demand upon the Defaulting Participants for the cure of the Participant Default, and. (b) BNPLC BNPPLC shall exercise its rights under the Participation Agreement to xxxxx payments to the Defaulting Participants in regard to Commitment Fees and to disregard votes of Defaulting Participants on matters that require or permit a vote of Participants under the Participation Agreement. (c) Working with Specialty Laboratories, BNPPLC shall endeavor in good faith to identify one or more banks that are willing to replace the Defaulting Participant under the Participation Agreement and that are acceptable to both BNPPLC and to Specialty Laboratories. (In this subparagraph, "New Participants" means such banks, whether one or more, it being understood that the term New Participants may include new parties to the Participation Agreement and it may include existing Participants that increase their Percentages [under and as defined in the Participation Agreement] in order to replace a Defaulting Participant.) In any event, BNPPLC shall not unreasonably withhold its approval for the substitution of any new participant New Participant proposed by NAI Specialty Laboratories. However, nothing herein will be construed to require BNPPLC to provide funding that a Defaulting Participant agreed to provide, but did not provide, and BNPPLC shall be entitled to impose any or all of the following conditions to any substitution of New Participants for Defaulting Participants, if : (A) the proposed substitution does shall not require BNPLC to waive include a waiver of rights by BNPPLC against the Defaulting Participants, ; (B) the new participant will New Participants must agree (by executing supplement to the Participation Agreement as provided in the Participation Agreement) to provide funds to replace the payments that would otherwise be required of the Defaulting Participants with respect to future Construction Advances, ; (C) the new participant (or NAI) provides New Participants must provide the funds (if any) needed to terminate the Defaulting Participants' rights to receive payments of "Net Cash Flow" (as defined in the Participation Agreement) that BNPLC BNPPLC will be required to pay to the new participant under New Participants after the terms of the substitution reasonably proposed by NAI, substitution; (D) the new participant (or NAI) provides New Participants must provide and agrees agree in writing to provide funds needed to reimburse BNPLC BNPPLC for any and all Losses incurred by BNPLC BNPPLC in connection with or because of the substitution of the new participant for the Defaulting Participantssubstitution, including any cost of defending and paying any claim asserted by Defaulting Participants because of thethe substitution (but not including any liability of BNPPLC to the Defaulting Participants for damages caused by BNPPLC's bad faith or gross negligence in the performance of BNPPLC's obligations to the Defaulting Participants); (E) the obligations of BNPPLC to the New Participants per dollar of investments by the New Participants (it being understood that such investments will be computed in a manner consistent with the examples set forth in Exhibit A to the Participation Agreement, but net of reimbursements to BNPPLC under clause (D) preceding) shall not exceed the obligations per dollar of investment by the Defaulting Participants that BNPPLC would have had to the Defaulting Participants if there had been no Participant Default; and (F) the New Participants shall be reputable financial institutions, each having a net worth of no less than seven and one half percent (7.5%) of its total assets and total assets of no less than $10,000,000,000 (all according to then recent audited financial statements).