Common use of Postponement of Advance Date Clause in Contracts

Postponement of Advance Date. In the event that any Participant shall make the funding requested pursuant to any Advance Request and the relevant Advance Date shall not have occurred on the date specified in such Advance Request, Lessee (in its capacity as Construction Agent to the extent such Advance Request was made by Lessee in such capacity) shall pay Lessor damages equal to interest on the amount funded by each Participant at the Assumed Interest Rate for the period from the date of each such Participant's Advance to the date such Advance is returned to such Participant or such Advance Date shall have occurred, less any interest earned by Lessor (or Administrative Agent) on behalf of the Participants by investing such funded amounts (which damages Lessor (or Administrative Agent) will remit to the appropriate Participant(s)); provided, that this provision shall not be construed to require Lessor (or Administrative Agent) to invest such funds in interest-bearing accounts unless the Required Entities shall have instructed Administrative Agent in writing (including telecopy) to do so prior to 3:00 p.m., Hartford, Connecticut time, on the applicable proposed Advance Date; and provided, further, that Administrative Agent shall not be required to invest such funds in any investment in which it does not typically invest overnight funds, and then only to the extent that appropriate overnight investments are reasonably available to it in accordance with its standard cut-off requirements. Such damages shall be due and payable by Lessee upon the occurrence of such postponed Advance Date, and such payment shall be an additional condition precedent to such Advance Date; provided, however, that if such Advance Date shall not have occurred by the third (3rd) Business Day following the funding by the Participants in respect Participation Agreement thereof, then all such damages shall be due and payable on such date, and Lessor (or Administrative Agent on its behalf, as the case may be) shall refund to each Participant all amounts funded by such Participant and all accrued interest allocable to such Participant. No additional Advance Request shall be required to be given if an Advance Date is postponed and thereafter timely consummated on the date to which it has been postponed.

Postponement of Advance Date. In the event that any Participant shall the Participants are instructed to make the funding Funding requested pursuant to any the Advance Request and the relevant Advance Date shall not have occurred occur for any reason whatsoever on the date specified in such the Advance Request, Lessee (in its capacity as Construction Agent to the extent such Advance Request was made by Lessee in such capacity) shall pay Lessor damages equal to Administrative Agent, for the benefit of each Participant, interest on the amount actually funded by each Lender at the Interest Rate and Yield on the amount funded by each Participant Certificate Holder at the Assumed Interest Rate for the period from the date of each such Participant's Advance to the date such Advance is returned to such Participant or such Advance Date shall have occurredYield Rate, less any interest earned by Lessor (or Administrative Agent) on behalf of the Participants by investing such funded amounts (which damages Lessor (or Administrative Agent) will remit to the appropriate Participant(s))amounts; providedPROVIDED, that this provision shall not be construed to require Lessor (place any liability or obligation on Administrative Agent) Agent to invest such funds or the amounts of the Fundings in interest-bearing accounts unless the Required Entities shall have instructed Administrative Agent in writing (including telecopy) to do so prior to 3:00 p.m., Hartford, Connecticut time, on the applicable proposed Advance Date; and provided, further, that Administrative Agent shall not be required to invest such funds in any investment in which it does not typically invest overnight funds, and then only to the extent that appropriate overnight investments are reasonably available to it in accordance with its standard cut-off requirementsaccounts. Such damages interest and Yield shall be due and payable by Lessee upon the occurrence of such the postponed Advance Date, Date and such payment shall be an additional condition precedent to such the Advance Date; providedPROVIDED, howeverHOWEVER, that no additional Advance Request shall be required to be given if such Advance Date is postponed and thereafter timely consummated; and PROVIDED, FURTHER, that if such Advance Date shall not have occurred by the third second (3rd2nd) Business Day following the funding by the Participants Funding in respect Participation Agreement thereof, then all such damages interest and Yield shall be due and payable on such datedate together with any amounts due pursuant to SECTION 14.4, and Lessor (or Administrative Agent on its behalf, as the case may be) shall refund to each Participant all amounts funded by such Participant and Participant, all accrued interest and Yield allocable to such Participant. No additional Advance Request shall be required , and any amounts due pursuant to be given if an Advance Date is postponed and thereafter timely consummated on the date to which it has been postponedSECTION 14.4.

Postponement of Advance Date. In the event that If any Participant Certificate Purchaser ---------------------------- shall make the funding Funding requested pursuant to any Advance Request Date Notice and the relevant Advance Date shall not have occurred occur on the date specified in such Advance RequestDate Notice, Lessee (in its capacity as Construction Agent to the extent such Advance Request was made by Lessee in such capacity) shall pay Lessor damages equal to Certificate Trustee, as Supplemental Rent, for the benefit of such Certificate Purchaser, interest on the amount funded by each Participant Certificate Purchaser at the Assumed Interest Rate for the period from the date of each such Participant's Advance to the date such Advance is returned to such Participant or such Advance Date shall have occurredYield Rate, less any interest earned by Lessor (or Administrative Agent) on behalf of the Participants Certificate Purchasers by investing such funded amounts (which damages Lessor (or Administrative Agent) will remit to the appropriate Participant(s))in Permitted Investments; provided, that this provision shall not be construed to require Lessor (or Administrative Agent) -------- Certificate Trustee to invest such funds in interest-bearing accounts unless the Required Entities shall have instructed Administrative Agent in writing (including telecopy) to do so prior to 3:00 p.m., Hartford, Connecticut time, on the applicable proposed Advance Date; and provided, further, that Administrative Agent shall not be required to invest such funds in any investment in which it does not typically invest overnight funds, and then only to the extent that appropriate overnight investments are reasonably available to it in accordance with its standard cut-off requirements. Such damages interest shall be due and payable by Lessee upon the occurrence of such postponed Advance Date, and such payment shall be an additional condition precedent to such Advance Date; provided, however, that no additional Advance Date Notice shall be required to -------- ------- be given if an Advance Date is postponed and thereafter timely consummated; and provided, further, that if such Advance Date shall not have occurred by the -------- ------- third (3rd) Business Day following the funding by the Participants Funding in respect Participation Agreement thereof, then all such damages interest shall be due and payable on such date, and Lessor (or Administrative Agent on its behalf, as the case may be) shall refund to each Participant Certificate Purchaser all amounts funded by such Participant Certificate Purchaser and all accrued interest allocable to such Participant. No additional Advance Request shall be required to be given if an Advance Date is postponed and thereafter timely consummated on the date to which it has been postponedCertificate Purchaser.

Postponement of Advance Date. (a) The scheduled Advance Date specified in any Notice of Delivery (or subsequently specified in a notice of postponement pursuant to this Section 2.6) may be postponed for any reason (but to no later than December 31, 2003, unless the parties to this Agreement hereafter agree in writing to a later Advance Date) if the Agent Lessee gives Trustee, Collateral Agent and the Lenders facsimile or telephonic (confirmed in writing) notice of the postponement and notice of the date to which the Advance Date has been postponed, the notice of postponement to be received by each party no later than 10:00 a.m., Nevada time, on the scheduled Advance Date specified in the Notice of Delivery (or subsequently specified in a notice of postponement pursuant to this Section 2.6), and the term “Advance Date” as used in this Agreement shall mean the postponed “Advance Date”. (b) In the event that of any Participant shall make the funding requested postponement of a scheduled Advance Date pursuant to this Section 2.6 (any Advance Request and the relevant such scheduled Advance Date shall not have occurred on being referred to as a “Scheduled Advance Date” for the date specified in purposes of this Section 2.6), (i) Lessees, jointly and severally, will reimburse the Lenders for Break Costs and for the loss of the use of their funds deposited with Trustee pursuant to Section 2.4(a) occasioned by such Advance Request, Lessee (in its capacity as Construction Agent postponement or failure to accept by paying to the extent such Advance Request was made by Lessee in such capacity) shall pay Lessor damages equal to Lenders, on demand, interest on the amount funded by each Participant at the Assumed Interest Base Rate for the period from and including such Scheduled Advance Date to but excluding the earlier of the date upon which such funds are returned (unless such funds are returned after 9:00 a.m., Chicago time, in which case such date of each return shall be included) or the actual date of delivery, and (ii) Trustee will return not later than 9:00 a.m., Chicago time, on the first Business Day following such Participant's Scheduled Advance Date, any funds which it shall have received from the Lenders as their respective Commitments, absent instruction from the Agent Lessee, the Lenders to retain such funds until the specified date of postponement established under Section 2.6(a). (c) Trustee agrees that, in the event it has received telephonic notice (to be confirmed promptly in writing) from the Agent Lessee on a Scheduled Advance Date that such Scheduled Advance Date is to be postponed, it will if instructed in the aforementioned notice from the Agent Lessee (which notice shall specify the securities to be purchased) use reasonable commercial efforts to invest, at the risk of the Agent Lessee (except as provided below with respect to Trustee’s gross negligence or willful misconduct or a failure to account for money in its possession), the funds received by it from the Lenders with respect to their respective Commitments in Permitted Investments in accordance with the Agent Lessee’s instructions. Any such Permitted Investments purchased by Trustee upon instructions from the Agent Lessee shall be held in trust by Trustee for the benefit of the Lenders, respectively, whose funds are invested in Permitted Investments upon instructions from the Agent Lessee and any net profits on the investment of such funds (including interest), if any, shall be for the account of and shall on the Advance Date, or on the date such Advance is funds are returned to such Participant or such the Lenders, be paid over to, the Agent Lessee. Lessees shall pay to Trustee on the Advance Date shall have occurred, less (if such Equipment is delivered and accepted pursuant hereto) the amount of any interest earned by Lessor (or Administrative Agent) net loss on behalf the investment of such funds invested at the instruction of the Participants Agent Lessee. If the funds furnished by investing the Lenders with respect to such funded amounts (which damages Lessor (or Administrative Agent) will remit Equipment are required to be returned to the appropriate Participant(s)); providedLenders, that this provision Lessees shall, on the date on which such funds are so required to be returned, reimburse Trustee, for the benefit of the Lenders, for any net losses incurred on such investments regardless of the cause of, or responsibility for, such loss other than a loss resulting from Trustee’s own willful misconduct or gross negligence. Trustee shall not be construed to require Lessor (or Administrative Agent) liable for failure to invest such funds in interest-bearing accounts unless or for any losses incurred on such investments except for its own willful misconduct or gross negligence. In order to obtain funds for the Required Entities shall have instructed Administrative Agent in writing (including telecopy) payment of the Purchase Price for the Equipment or to do so prior return funds furnished by the Lenders to 3:00 p.m., Hartford, Connecticut time, on Trustee for the applicable proposed Advance Date; and provided, further, that Administrative Agent shall not be required to invest such funds in any investment in which it does not typically invest overnight funds, and then only benefit of the Lenders with respect to the extent that appropriate overnight investments are reasonably available Equipment, Trustee is authorized to sell any Permitted Investments purchased as aforesaid with the funds received by it in accordance with its standard cut-off requirements. Such damages shall be due and payable by Lessee upon the occurrence of such postponed Advance Date, and such payment shall be an additional condition precedent to such Advance Date; provided, however, that if such Advance Date shall not have occurred by the third (3rd) Business Day following the funding by from the Participants in respect Participation Agreement thereof, then all such damages shall be due and payable on such date, and Lessor (or Administrative Agent on its behalf, as connection with the case may be) shall refund to each Participant all amounts funded by such Participant and all accrued interest allocable to such Participant. No additional Advance Request shall be required to be given if an Advance Date is postponed and thereafter timely consummated on the date to which it has been postponedEquipment.

Postponement of Advance Date. In the event that any Participant shall make the funding requested pursuant to any Advance Request and the relevant Advance Date shall not have occurred on the date specified in such Advance Request, Lessee (in its capacity as Construction Agent to the extent such Advance Request was made by Lessee in such capacity) shall pay Lessor damages equal to interest on the amount funded by each Participant at the Assumed Interest Rate for the period from the date of each such Participant's Advance to the date such Advance is returned to such Participant or such Advance Date shall have occurred, less any interest earned by Lessor (or Administrative Agent) on behalf of the Participants by investing such funded amounts (which damages Lessor (or Administrative Agent) will remit to the appropriate Participant(s)); provided, provided that this provision shall not be construed to require Lessor (or Administrative Agent) to invest such funds in interest-bearing accounts unless the Required Entities shall have instructed Administrative Agent in writing (including telecopy) to do so prior to 3:00 p.m., Hartford, Connecticut time, on the applicable proposed Advance Date; and provided, further, that Administrative Agent shall not be required to invest such funds in any investment in which it does not typically invest overnight funds, and then only to the extent that appropriate overnight investments are reasonably available to it in accordance with its standard cut-off requirementsaccounts. Such damages shall be due and payable by Lessee upon the occurrence of such postponed Advance Date, Date and such payment shall be an additional condition precedent to such Advance Date; provided, however, that no additional Advance Request shall be required to be given if an Advance Date is postponed and thereafter timely consummated; and provided, that if such Advance Date shall not have occurred by the third (3rd) Business Day following the funding by the Participants in respect Participation Agreement thereof, then all such damages shall be due and payable on such date, and Lessor (or Administrative Agent on its behalf, as the case may be) shall refund to each Participant all amounts funded by such Participant and all accrued interest allocable to such Participant. No additional Advance Request shall be required to be given if an Advance Date is postponed and thereafter timely consummated on the date to which it has been postponed.

Postponement of Advance Date. In If the event that any Participant shall Participants are instructed to make the funding Funding requested pursuant to any the Advance Request and the relevant Advance Date shall not have occurred occur for any reason whatsoever on the date specified in such the Advance Request, Lessee (in its capacity as Construction Agent to the extent such Advance Request was made by Lessee in such capacity) shall pay Lessor damages equal to Agent, for the benefit of each Participant which has funded, interest on the amount funded by each Participant Lender at the Assumed Interest Rate for and Yield on the period from amount funded by each Certificate Purchaser at the date of each such Participant's Advance to the date such Advance is returned to such Participant or such Advance Date shall have occurredYield Rate, less any interest earned by Lessor (or Administrative Agent) on behalf of the Participants by investing such funded amounts (which damages Lessor (or Administrative Agent) will remit to the appropriate Participant(s))amounts; providedPROVIDED, that this provision shall not be construed to require Lessor (or Administrative Agent) place any liability on Agent to invest such funds in interest-bearing accounts unless the Required Entities shall have instructed Administrative Agent in writing (including telecopy) to do so prior to 3:00 p.m., Hartford, Connecticut time, on the applicable proposed Advance Date; and provided, further, that Administrative Agent shall not be required to invest such funds in any investment in which it does not typically invest overnight funds, and then only to the extent that appropriate overnight investments are reasonably available to it in accordance with its standard cut-off requirementsaccounts. Such damages interest and Yield payable by Lessee shall be due and payable by Lessee upon the occurrence consummation of such the postponed Advance Date, Date and such payment shall be an additional condition precedent to such Advance; PROVIDED, HOWEVER, that no additional Advance DateRequest shall be required to be given if such Advance is consummated on the Business Day immediately following the Advance Date proposed in the Advance Request; providedPROVIDED, howeverFURTHER, that if such Advance Date shall not have occurred by on the third (3rd) Business Day immediately following the funding by Advance Date proposed in the Participants in respect Participation Agreement thereofAdvance Request, then all such damages interest and Yield shall be due and payable as of the close of business on such date, and Lessor (or Administrative Agent on its behalf, as the case may be) shall refund to each Participant all amounts funded by such Participant and together with all accrued interest and Yield, as the case may be, allocable to such Participant. No additional If the Agent wire transfers funds to the Title Insurance Company, then the Advance Request Date shall be required deemed to have occurred, whether or not the conditions set forth in SECTIONS 3.1(i) and 3.1(l) shall have been satisfied; PROVIDED, HOWEVER, that if such conditions are not satisfied within one (1) Business Day after the funds are so wire transferred, then a Lease Event of Default shall be given deemed automatically to have occurred, without any further action, notice or opportunity to cure, and the Agent shall be entitled to exercise all rights and remedies as if an Advance Date is postponed and thereafter timely consummated on a Lease Event of Default of the date to which it has been postponedtype described in CLAUSE (g) or (h) of Article XVI of the Lease shall have occurred.

Postponement of Advance Date. In the event that any Committed Participant fails to make available to the Administrative Agent on the applicable Advance Date (such originally scheduled Advance Date being referred to as the "Scheduled Advance Date" for purposes of this Section 3.6) an amount equal to such Committed Participant's Commitment Percentage of the amount of the Advance required by the terms hereof to be funded on such Advance Date (a "Defaulting Committed Participant"), or the Administrative Agent determines that a Committed Participant will become a Defaulting Committed Participant on the Scheduled Advance Date, the Administrative Agent shall make promptly notify Lessee thereof and Lessee may postpone such Advance Date by delivering notice to the funding requested pursuant Administrative Agent of such postponement and of the date to any which such Advance Request Date has been postponed (such notice to be received by no later than 9:00 a.m. New York, New York time, on the Scheduled Advance Date, and the relevant term "Advance Date" as used herein shall mean such postponed Advance Date). If a Scheduled Advance Date is so postponed or if an Advance Date fails to occur: (i) Lessee shall not have occurred reimburse each Participant (other than the Defaulting Committed Participant) for loss of the use of its funds occasioned by such postponement or failure to occur by paying to such Participant on demand interest at a rate per annum equal to the sum of the Federal Funds Effective Rate plus 0.50%, for the period from and including such Scheduled Advance Date, if such Participant has made its funds available, to but excluding the earlier of the date specified upon which such funds are returned (unless such funds are returned after 12:00 noon New York, New York time in which case such date of return shall be included) or the Advance RequestDate, together with any Break Costs; except that Lessee (shall in its capacity as Construction Agent any event pay to the extent such Advance Request was made by Lessee in such capacity) shall pay Lessor damages equal to each Participant at least one day's interest on the amount funded by each Participant at the Assumed Interest Rate for the period from the date of each such Participant's Advance to the date such Advance is returned to funds, unless such Participant or such receives before 12:00 noon New York, New York time on the Business Day preceding the Scheduled Advance Date, a notice of postponement of the Scheduled Advance Date shall have occurred, less any interest earned by Lessor pursuant to this Section 3.6 and (or Administrative Agentii) on behalf of the Participants by investing such funded amounts (which damages Lessor (or Administrative Agent) will remit to the appropriate Participant(s)); provided, that this provision shall not be construed to require Lessor (or Administrative Agent) to invest such funds in interest-bearing accounts unless the Required Entities shall have instructed Administrative Agent in writing (including telecopy) to do so prior to 3:00 p.m., Hartford, Connecticut time, on the applicable proposed Advance Date; and provided, further, that Administrative Agent shall return not be required to invest such funds in any investment in which it does not typically invest overnight funds, and then only to later than 2:00 p.m. on the extent that appropriate overnight investments are reasonably available to it in accordance with its standard cut-off requirements. Such damages shall be due and payable by Lessee upon the occurrence of such postponed Advance Date, and such payment shall be an additional condition precedent to such Advance Date; provided, however, that if such Advance Date shall not have occurred by the third (3rd) first Business Day following the funding by Scheduled Advance Date (unless such return date is the Participants in respect Participation Agreement thereofpostponed Advance Date), then all any funds received from such damages shall be due and Participant as its portion of the Advance payable on such date, and Lessor (or Administrative Agent on its behalf, as Scheduled Advance Date. Lessee shall have the case may be) shall refund right to each Participant all amounts funded by such Participant and all accrued interest allocable pursue a claim with respect to such costs against any Defaulted Committed Participant. No additional Advance Request shall be required to be given if an Advance Date is postponed and thereafter timely consummated on the date to which it has been postponed.