Common use of Remedies Cumulative; Waivers Clause in Contracts

Remedies Cumulative; Waivers. During the continuance of a Construction Agency Agreement Event of Default, at Lessor’s option and without limiting Lessor in the exercise of any other right or remedy Lessor may have on account of such default (including, without limitation, any remedies under any other Operative Document), and without any further demand or notice, but subject to Section 5.4 below to the extent applicable, Lessor may cause the following to occur: (a) Without limiting any other remedies set forth in this Agreement or in any of the other Operative Documents, Lessor and Construction Agent agree that during the continuance of a Construction Agency Agreement Event of Default, Lessor shall have all the rights and may pursue any of the remedies provided to it in the Lease, but subject in all instances to Section 5.4 hereof (to the extent applicable), the terms and provisions of which Lease are incorporated herein by this reference. Lessor may foreclose the lien of the Lease or any Security Instrument on the Leased Property and the other Collateral or any portion thereof, in which event Construction Agent shall, subject to Section 5.4 hereof, pay to the Administrative Agent, upon demand, the Lease Balance and all other costs and expenses incurred by Lessor, the Administrative Agent and the Participants (including Breakage Costs and Default Completion Costs), in either case to the extent not previously paid by Construction Agent to the Administrative Agent pursuant to the final paragraph of Section 5.1. (b) Lessor may continue this Agreement in effect for so long as Lessor shall determine, and Lessor may enforce all of Lessor’s rights and remedies under this Agreement and require the continued performance and completion of Construction Agent’s obligations with respect to any or all of the Project Agreements and the Site Obligations as herein described, so long as Lessor satisfies its obligations under Section 4.1; and, subject to Section 5.4 hereof, Construction Agent shall be liable to Lessor for all Default Completion Costs, subject to the limitation on Construction Agent’s recourse liability at Section 5.4 below, with respect to the Facility, which amounts shall be payable by Construction Agent from time to time during the term hereof to such Persons (including Lessor) and in such amounts as Lessor may designate. In addition, if Lessor has not elected to terminate this Agreement as provided herein, if requested by Lessor, Construction Agent shall continue diligently to perform its obligations hereunder, including the Site Obligations, in accordance with this Agreement, so long as Lessor provides the funding provided for in Section 4.1 (without regard to the continuance of the Construction Agency Agreement Event of Default). If Advances, at any time, are no longer available under the Participation Agreement (as determined without regard to the continuance of the Construction Agency Agreement Event of Default), Construction Agent shall pay to Lessor prepaid rent (“Prepaid Rent”) in amounts necessary to fund all costs to complete the Site Obligations, including all amounts of Capitalized Yield, Capitalized Fees and Capitalized Contingent Rent that accrue or are payable during the period from the continuance of the Construction Agency Agreement Event of Default through the Facility Completion Date, which amounts shall be payable by Construction Agent from time to time prior to the Facility Completion Date to such Persons (including Lessor), for costs of construction consistent in type as those contemplated by the Project Budget and in such amounts as Lessor may designate and, in the case of Capitalized Yield, Capitalized Fees and Capitalized Contingent Rent, in accordance with the terms of the Operative Documents (absent manifest error); provided, however, that the aggregate amounts to be paid by Construction Agent pursuant to this Section 5.3 shall, to the extent applicable, be subject to the limitations set forth in Section 5.4. (c) Lessor may terminate this Agreement at any time, notwithstanding a prior election under Section 5.3(b), and cause Substantial Completion to occur (including the performance of all of Lessor’s rights and obligations under the Project Agreements which would otherwise be performed by Construction Agent hereunder) directly through Lessor or one or more successor agents and designees and, subject to Section 5.4 hereof, Construction Agent shall be liable to Lessor for all Default Completion Costs, subject to the limitation on Construction Agent’s recourse liability at Section 5.4 below. (d) Lessor (i) may, upon termination of this Agreement terminate, at Construction Agent’s sole cost and expense, the Authority Lease or (ii) may exercise any other right or remedy that may be available to it under Applicable Laws or in equity, or proceed by appropriate court action (legal or equitable) to enforce the terms or to recover damages for the breach hereof. (e) As a matter of right and without notice to Construction Agent or anyone claiming under Construction Agent, and without regard to the then value of the Collateral or the interest of Construction Agent therein, Lessor shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers of the Collateral at Construction Agent’s sole cost and expense (but subject to the limitation of Construction Agent’s recourse liability for payments as set forth at Section 5.4 below), and Construction Agent hereby irrevocably consents to such appointment and waives notice of any application therefor. Any such receiver or receivers shall have all the usual powers and duties of receivers in like or similar cases and all the powers and duties of Lessor in case of entry as provided in this Agreement and shall continue as such and exercise all such powers until the latest to occur of (i) the date of confirmation of sale of the Collateral; (ii) the disbursement of all proceeds of the Collateral collected by such receiver and the payment of all expenses incurred in connection therewith; or (iii) the termination of such receivership with the consent of Lessor or pursuant to an order by a court of competent jurisdiction. (f) To the extent permitted by, and subject to the mandatory requirements of, any Governmental Authority, each and every right, power and remedy herein specifically given to Lessor or otherwise in this Agreement shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by Lessor, and the exercise or the beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy. Lessor’s consent to any request made by Construction Agent shall not be deemed to constitute or preclude the necessity for obtaining Lessor’s consent, in the future, to all similar requests. No express or implied waiver by Lessor of any Construction Agency Agreement Event of Default shall in any way be, or be construed to be, a waiver of any future or subsequent Construction Agency Agreement Event of Default. To the extent permitted by any Applicable Laws, Construction Agent hereby waives any rights now or hereafter conferred by statute or otherwise that may require Lessor to sell, lease or otherwise use the Leased Property, the other Collateral or any part or portion of the Leased Property or Collateral in mitigation of damages upon the continuance of a Construction Agency Agreement Event of Default or that may otherwise limit or modify any of Lessor’s rights or remedies under this Article V. (g) No failure to exercise and no delay in exercising, on the part Lessor, any right, remedy, power or privilege under this Agreement or under the other Operative Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges provided in this Agreement are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

Remedies Cumulative; Waivers. During the continuance of a Construction Agency Agreement Event of Default, at Lessor’s option and without limiting Lessor in the exercise of any other right or remedy Lessor may have on account of such default (including, without limitation, any remedies under any other Operative Document), and without any further demand or notice, but subject to Section 5.4 below to the extent applicable, Lessor may cause the following to occur: (a) Without limiting any other remedies set forth in this Agreement or in any of the other Operative Documents, Lessor and Construction Agent agree that during the continuance of a Construction Agency Agreement Event of Default, Lessor shall have all the rights and may pursue any of the remedies provided to it in the Lease, but subject in all instances to Section 5.4 hereof (to the extent applicable), the terms and provisions of which Lease are incorporated herein by this reference. Lessor may foreclose the lien of the Lease or any Security Instrument on the Leased Property and the other Collateral or any portion thereof, in which event Construction Agent shall, subject to Section 5.4 hereof, shall pay to the Administrative Agent, upon demand, the Lease Balance and all other costs and expenses incurred by Lessor, the Administrative Agent and the Participants (including Breakage Costs and Default Completion Costs), in either case to the extent not previously paid by Construction Agent to the Administrative Agent pursuant to the final paragraph of Section 5.1. (b) Lessor may continue this Agreement in effect for so long as Lessor shall determine, and Lessor may enforce all of Lessor’s rights and remedies under this Agreement and require the continued performance and completion of Construction Agent’s obligations with respect to any or all of the Project Agreements and the Site Obligations as herein described, so long as Lessor satisfies its obligations under Section 4.1; and, subject to Section 5.4 hereof, and Construction Agent shall be liable to Lessor for all Default Completion Costs, subject to the limitation on Construction Agent’s recourse liability at Section 5.4 below, Costs with respect to the Facility, which amounts shall be payable by Construction Agent from time to time during the term hereof to such Persons (including Lessor) and in such amounts as Lessor may designate. In addition, if Lessor Xxxxxx has not elected to terminate this Agreement as provided herein, if requested by Lessor, Construction Agent shall continue diligently to perform its obligations hereunder, including the Site Obligations, in accordance with this Agreement, so long as Lessor provides the funding provided for in Section 4.1 (without regard to the continuance of the Construction Agency Agreement Event of Default). If Advances, at any time, are no longer available under the Participation Agreement (as determined without regard to the continuance of the Construction Agency Agreement Event of Default), Construction Agent shall pay to Lessor prepaid rent (“Prepaid Rent”) in amounts necessary to fund all costs to complete the Site Obligations, including all amounts of Capitalized Yield, Capitalized Fees and Capitalized Contingent Rent that accrue or are payable during the period from the continuance of the Construction Agency Agreement Event of Default through the Facility Completion Date, which amounts shall be payable by Construction Agent from time to time prior to the Facility Completion Date to such Persons (including Lessor), for costs of construction consistent in type as those contemplated by the Project Budget and in such amounts as Lessor may designate and, in the case of Capitalized Yield, Capitalized Fees and Capitalized Contingent Rent, in accordance with the terms of the Operative Documents (absent manifest error); provided, however, that the aggregate amounts to be paid by Construction Agent pursuant to this Section 5.3 shall, to the extent applicable, be subject to the limitations set forth in Section 5.4. (c) Lessor may terminate this Agreement at any time, notwithstanding a prior election under Section 5.3(b), and cause Substantial Completion to occur (including the performance of all of Lessor’s rights and obligations under the Project Agreements which would otherwise be performed by Construction Agent hereunder) directly through Lessor or one or more successor agents and designees and, subject to Section 5.4 hereof, and Construction Agent shall be liable to Lessor for all Default Completion Costs, subject to the limitation on Construction Agent’s recourse liability at Section 5.4 below. (d) Lessor (i) may, upon termination of this Agreement terminate, at Construction Agent’s sole cost and expense, the Authority Lease or (ii) may exercise any other right or remedy that may be available to it under Applicable Laws or in equity, or proceed by appropriate court action (legal or equitable) to enforce the terms or to recover damages for the breach hereof. (e) As a matter of right and without notice to Construction Agent or anyone claiming under Construction Agent, and without regard to the then value of the Collateral or the interest of Construction Agent therein, Lessor shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers of the Collateral at Construction Agent’s sole cost and expense (but subject to the limitation of Construction Agent’s recourse liability for payments as set forth at Section 5.4 below)expense, and Construction Agent hereby irrevocably consents to such appointment and waives notice of any application therefor. Any such receiver or receivers shall have all the usual powers and duties of receivers in like or similar cases and all the powers and duties of Lessor in case of entry as provided in this Agreement and shall continue as such and exercise all such powers until the latest to occur of (i) the date of confirmation of sale of the Collateral; (ii) the disbursement of all proceeds of the Collateral collected by such receiver and the payment of all expenses incurred in connection therewith; or (iii) the termination of such receivership with the consent of Lessor or pursuant to an order by a court of competent jurisdiction. (f) To the extent permitted by, and subject to the mandatory requirements of, any Governmental Authority, each and every right, power and remedy herein specifically given to Lessor or otherwise in this Agreement shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by LessorXxxxxx, and the exercise or the beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy. Lessor’s consent to any request made by Construction Agent shall not be deemed to constitute or preclude the necessity for obtaining LessorXxxxxx’s consent, in the future, to all similar requests. No express or implied waiver by Lessor of any Construction Agency Agreement Event of Default shall in any way be, or be construed to be, a waiver of any future or subsequent Construction Agency Agreement Event of Default. To the extent permitted by any Applicable Laws, Construction Agent hereby waives any rights now or hereafter conferred by statute or otherwise that may require Lessor to sell, lease or otherwise use the Leased Property, the other Collateral or any part or portion of the Leased Property or Collateral in mitigation of damages upon the continuance of a Construction Agency Agreement Event of Default or that may otherwise limit or modify any of Lessor’s rights or remedies under this Article V. (g) No failure to exercise and no delay in exercising, on the part Lessor, any right, remedy, power or privilege under this Agreement or under the other Operative Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges provided in this Agreement are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

Remedies Cumulative; Waivers. During Upon the occurrence and during the continuance of a Construction Agency Agreement Event of Default, at Lessor’s option and without limiting Lessor in the exercise of any other right or remedy Lessor may have on account of such default Construction Agency Agreement Event of Default (including, without limitation, including any remedies under any other Operative Document), and without any further demand or notice, but subject to Section 5.4 below to the extent applicable, Lessor may cause the following to occur: (a) Without limiting any other remedies set forth in this Agreement or in any of the other Operative Documents, Lessor and Construction Agent agree that upon the occurrence and during the continuance of a Construction Agency Agreement Event of Default, Lessor shall have all the rights and may pursue any of the remedies provided to it in the Lease, but subject in all instances to Section 5.4 hereof (to the extent applicable), the terms and provisions of which Lease are incorporated herein by this reference. Lessor may foreclose the lien of the Lease or any Security Instrument on the Leased Property and the other Collateral or any portion thereof, in which event Construction Agent shall, subject to Section 5.4 hereof, pay to the Administrative Agent, upon demand, the Lease Balance and all other costs and expenses incurred by Lessor, the Administrative Agent and the Participants (including Breakage Costs and Default Completion Costs), in either case to the extent not previously paid by Construction Agent to the Administrative Agent pursuant to the final paragraph of Section 5.1. (b) Lessor may continue this Agreement in effect for so long as Lessor shall determine, and Lessor may enforce all of Lessor’s rights and remedies under this Agreement and require the continued performance and completion of Construction Agent’s obligations with respect to any or all of the Project Agreements and the Site Obligations as herein described, so long as Lessor satisfies its obligations under Section 4.1; and, subject to Section 5.4 hereof, and Construction Agent shall be liable to Lessor for all Default Completion Costs, subject to the limitation on Construction Agent’s recourse liability at Section 5.4 below, Costs with respect to the Facility, which amounts shall be payable by Construction Agent from time to time during the term hereof to such Persons (including Lessor) and in such amounts as Lessor may designate. In addition, if Lessor Xxxxxx has not elected to terminate this Agreement as provided herein, if requested by Lessor, Construction Agent shall continue diligently to perform its obligations hereunder, including the Site Obligations, in accordance with this Agreement, so long as Lessor provides the funding provided for in Section 4.1 (without regard to the continuance occurrence of the Construction Agency Agreement Event of Default). If Advances, at any time, are no longer available under the Participation Transaction Agreement (as determined without regard to the continuance occurrence of the Construction Agency Agreement Event of Default), Construction Agent shall pay to Lessor prepaid rent (“Prepaid Rent”) in amounts necessary to fund all costs to complete the Site Obligations, including all amounts of Capitalized Yield, Capitalized Fees and Capitalized Contingent Rent that accrue or are payable during the period from the continuance occurrence of the Construction Agency Agreement Event of Default through the Facility Completion Date, which amounts shall be payable by Construction Agent from time to time prior to the Facility Completion Date to such Persons (including Lessor), for costs of construction consistent in type as those contemplated by the Project Budget and in such amounts as Lessor may designate and, in the case of Capitalized Yield, Capitalized Fees and Capitalized Contingent Rent, in accordance with the terms of the Operative Documents (absent manifest error); provided, however, that the aggregate amounts to be paid by Construction Agent pursuant to this Section 5.3 shall, to the extent applicable, be subject to the limitations set forth in Section 5.4. (c) Lessor may terminate this Agreement at any time, notwithstanding a prior election under Section 5.3(b), and cause Substantial Completion to occur (including the performance of all of Lessor’s rights and obligations under the Project Agreements which would otherwise be performed by Construction Agent hereunder) directly through Lessor or one or more successor agents and designees and, subject to Section 5.4 hereof, and Construction Agent shall be liable to Lessor for all Default Completion Costs, subject to the limitation on Construction Agent’s recourse liability at Section 5.4 below. (d) Lessor (i) may, upon termination of this Agreement terminate, at Construction Agent’s sole cost and expense, the Authority Lease or (ii) may exercise any other right or remedy that may be available to it under Applicable Laws or in equity, or proceed by appropriate court action (legal or equitable) to enforce the terms or to recover damages for the breach hereof. (e) As a matter of right and without notice to Construction Agent or anyone claiming under Construction Agent, and without regard to the then value of the Collateral or the interest of Construction Agent therein, Lessor shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers of the Collateral at Construction Agent’s sole cost and expense (but subject to the limitation of Construction Agent’s recourse liability for payments as set forth at Section 5.4 below)expense, and Construction Agent hereby irrevocably consents to such appointment and waives notice of any application therefor. Any such receiver or receivers shall have all the usual powers and duties of receivers in like or similar cases and all the powers and duties of Lessor in case of entry as provided in this Agreement and shall continue as such and exercise all such powers until the latest to occur of (i) the date of confirmation of sale of the Collateral; (ii) the disbursement of all proceeds of the Collateral collected by such receiver and the payment of all expenses incurred in connection therewith; or (iii) the termination of such receivership with the consent of Lessor or pursuant to an order by a court of competent jurisdiction. (f) To the extent permitted by, and subject to the mandatory requirements of, any Governmental Authority, each and every right, power and remedy herein specifically given to Lessor or otherwise in this Agreement shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by LessorXxxxxx, and the exercise or the beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy. LessorXxxxxx’s consent to any request made by Construction Agent shall not be deemed to constitute or preclude the necessity for obtaining Lessor’s consent, in the future, to all similar requests. No express or implied waiver by Lessor of any Construction Agency Agreement Event of Default shall in any way be, or be construed to be, a waiver of any future or subsequent Construction Agency Agreement Event of Default. To the extent permitted by any Applicable Laws, Construction Agent hereby waives any rights now or hereafter conferred by statute or otherwise that may require Lessor to sell, lease or otherwise use the Leased Property, the other Collateral or any part or portion of the Leased Property or Collateral in mitigation of damages upon the occurrence and during the continuance of a Construction Agency Agreement Event of Default or that may otherwise limit or modify any of Lessor’s rights or remedies under this Article V. (g) No failure to exercise and no delay in exercising, on the part Lessor, exercising any right, remedy, power or privilege under this Agreement or under the other Operative Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges provided in this Agreement are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. (h) In the event that the Participants and the Administrative Agent receive full and indefeasible payment of the Lease Balance and all other amounts due and owing to the Lessor, the Participants and the Administrative Agent under the Operative Documents (other than through the sale of the Leased Property to a third party, after foreclosure or as a result of an Insolvency Event) and provided Lessor has not entered into a binding agreement to sell the Leased Property, Lessor agrees, so long as no Insolvency Event has occurred, to convey its interest in the Leased Property to Construction Agent in accordance with Article XXI of the Lease at Construction Agent’s sole cost and expense.

Remedies Cumulative; Waivers. During Upon the occurrence and continuance of a Construction Agency Agreement Event of Default, at Lessor’s 's option and without limiting Lessor in the exercise of any other right or remedy Lessor may have on account of such default (including, without limitation, any remedies under any other Operative DocumentDocument or as set forth in Section 5.1.2), and without any further demand or notice, but subject to Section 5.4 below to and the extent applicableproviso of the first sentence of Section 5.1.2 and the second sentence of Section 5.1.2 above, Lessor may cause the following to occur: (a) Without limiting any other remedies set forth in this Agreement or in any of the other Operative Documents, Lessor and Construction Agent agree that during the continuance of a Construction Agency Agreement Event of Default, Lessor shall have all the rights and may pursue any of the remedies hereunder with respect to Construction Period Maximum Guaranty Amount as are provided to it in the Lease, but subject in all instances to Section 5.4 hereof (Lease with respect to the extent applicable), the terms and payment of Residual Value Guaranty Amount as if those provisions of which Lease are were incorporated herein by this referenceincluding, Lessor acting as exclusive sales agent for the Properties. Lessor and Administrative Agent may foreclose the lien of the Lease or any Security Instrument Lessee Deed of Trust on the Leased Property and the other Collateral all or any portion thereofof the Properties and other Collateral, in which event Construction Agent shall, subject to Section 5.4 hereof, pay to the Administrative Agent, upon demand, the Lease Balance and including all other costs and expenses incurred by Lessor, the Administrative Agent or any of such Sites and the Participants (including Breakage Costs and Default Completion Costs)related Deed of Trust. In addition, in either case to Lessor may exercise its remedies under the extent not previously paid by Construction Agent to the Administrative Agent pursuant to the final paragraph of Section 5.1Security Agreement. (b) Lessor may continue this Agreement in effect for so long as Lessor shall determine, and Lessor may enforce all of Lessor’s 's rights and remedies under this Agreement Agreement, and require the continued performance and completion of the Improvements by Construction Agent’s obligations with respect to any or all of the Project Agreements and the Site Obligations Agent as herein described, so long as Lessor satisfies its obligations under Section 4.1; and, subject 4.1 and provides or otherwise obtains the funds therefor and advances such funds to Section 5.4 hereof, Construction Agent shall be liable to Lessor for all Default Completion Costs, subject to the limitation on Construction Agent’s recourse liability at Section 5.4 below, with respect to the Facility, which amounts shall be payable by Construction Agent from time to time during the term hereof to such Persons (including Lessor) and in such amounts as Lessor may designate. In addition, if Lessor has not elected to terminate this Agreement as provided herein, if requested by Lessor, Construction Agent shall continue diligently to perform its obligations hereunder, including the Site Obligations, in accordance with this Agreement, so long as Lessor provides the funding provided for in Section 4.1 (without regard to the continuance of the Construction Agency Agreement Event of Default). If Advances, at any time, are no longer available under the Participation Agreement (as determined without regard to the continuance of the Construction Agency Agreement Event of Default), Construction Agent shall pay to Lessor prepaid rent (“Prepaid Rent”) in amounts necessary to fund all costs to complete the Site Obligations, including all amounts of Capitalized Yield, Capitalized Fees and Capitalized Contingent Rent that accrue or are payable during the period from the continuance of the Construction Agency Agreement Event of Default through the Facility Completion Date, which amounts shall be payable by Construction Agent from time to time prior to the Facility Completion Date to such Persons (including Lessor), for costs of construction consistent in type as those contemplated by the Project Budget and in such amounts as Lessor may designate and, in the case of Capitalized Yield, Capitalized Fees and Capitalized Contingent Rent, in accordance with the terms of the Operative Documents (absent manifest error); provided, however, that the aggregate amounts to be paid by Construction Agent pursuant to this Section 5.3 shall, to the extent applicable, be subject to the limitations set forth in Section 5.4. (c) Lessor may terminate this Agreement at any time, notwithstanding a prior election under Section 5.3(b), and ) to cause Substantial Completion to occur (including the performance completion of all of Lessor’s rights and obligations under the Project Agreements which would otherwise be performed by Construction Agent hereunder) Improvements with respect thereto directly through Lessor or one or more successor agents and designees and, subject to Section 5.4 hereof, Construction Agent shall be liable to Lessor for all Default Completion Costs, subject to the limitation on Construction Agent’s recourse liability at Section 5.4 belowconstruction agents. (d) Lessor (i) may, upon termination of this Agreement terminate, at Construction Agent’s sole cost and expense, the Authority Lease or (ii) may exercise any other right or remedy that may be available to it under Applicable Laws or in equity, or proceed by appropriate court action (legal or equitable) to enforce the terms or to recover damages for the breach hereof. (e) As Subject to the provisions hereof, as a matter of right and without with notice to Construction Agent or anyone claiming under Construction Agent, and without regard to the then value of the Collateral or the interest of Construction Agent any Lessee therein, Lessor shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers of the Collateral or any portion thereof at Lessee and Construction Agent’s 's sole cost and expense (but subject to the limitation of Construction Agent’s recourse liability for payments as set forth at Section 5.4 belowhereof), and Construction Agent hereby irrevocably consents to such appointment and waives waive notice of any application therefor. Any such receiver or receivers shall have all the usual powers and duties of receivers in like or similar cases and all the powers and duties of Lessor in case of entry as provided in this Agreement and shall continue as such and exercise all such powers until the latest to CONSTRUCTION AGENCY AGREEMENT (HGSI) occur of (i) the date of confirmation of sale of the applicable Collateral; (ii) the disbursement of all proceeds of the such Collateral collected by such receiver and the payment of all expenses incurred in connection therewith; or (iii) the termination of such receivership with the consent of Lessor or pursuant to an order by a court of competent jurisdiction. (f) To the extent permitted by, and subject to the mandatory requirements of, any Governmental AuthorityApplicable Law, each and every right, power and remedy herein specifically given to Lessor or otherwise in this Agreement shall be cumulative and and, subject to Section 5.4, shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by Lessor, and the exercise or the beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy. Lessor’s 's consent to any request made by Construction Agent shall not be deemed to constitute or preclude the necessity for obtaining Lessor’s 's consent, in the future, to all similar requests. No express or implied waiver by Lessor of any Construction Agency Agreement Event of Default shall in any way be, or be construed to be, a waiver of any future or subsequent Construction Agency Agreement Event of Default. To the extent permitted by any Applicable LawsLaw, Construction Agent hereby waives any rights now or hereafter conferred by statute or otherwise that may require Lessor to sell, lease or otherwise use the Leased PropertyProperties, any Site, the other Collateral collateral or any part or portion of the Leased Property or Collateral thereof in mitigation of Lessor's damages upon the continuance occurrence of a Construction Agency Agreement Event of Default or that may otherwise limit or modify any of Lessor’s 's rights or remedies under this Article V. (g) No failure to exercise and no delay in exercising, on the part of Lessor, any right, remedy, power or privilege under this Agreement or under the other Operative Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges provided in this Agreement are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. (h) Upon termination of this Agreement as a result of a Construction Agency Event of Default, Construction Agent shall pay on behalf of Lessor to the Administrative Agent, for application in accordance with Article X of the Participation Agreement, in immediately available funds, the Construction Period Maximum Guaranty Amount.

Remedies Cumulative; Waivers. During Upon the continuance occurrence of a Construction Agency Agreement Event of Default, at the Agent Lessor’s 's option and without limiting the Agent Lessor in the exercise of any other right or remedy the Agent Lessor may have on account of such default (including, without limitation, any rights of Agent Lessor or remedies at Section 3.4 or under any other Operative Document), and without any further demand or notice, but subject to Section 5.4 below to below, the extent applicable, Agent Lessor may cause the following to occur:occur (subject to Lessee's option to purchase the Premises in accordance with the terms and subject to the limitations and time periods applicable during the continuation of an Event of Default as set forth in Section 18.1 of the Lease): (a) Without limiting any other remedies set forth in this Agreement or in any of the other Operative Documents, the Agent Lessor and the Construction Agent agree that during upon the continuance occurrence of a Construction Agency Agreement Event of Default, the Agent Lessor shall have all the rights and may pursue any of the remedies provided to it in the Lease, but subject in all instances to Section 5.4 hereof (to the extent applicable), the terms and provisions of which Lease are incorporated herein by this reference. The Agent Lessor and Administrative Agent may foreclose the lien of the Lease or any Security Instrument on the Leased Property Premises and the other Collateral or any portion thereofMortgage, in which event the Construction Agent shall, subject to Section 5.4 hereof, shall pay to the Administrative AgentAgent Lessor: (i) an amount equal to the excess, upon demandif any, of (x) the Purchase Amount over (y) the net proceeds received by the Agent Lessor from the foreclosure sale or the net price the Agent Lessor successfully bids for the Premises at any sale of the Premises under the Mortgage and the Lease Balance (provided, that in calculating such net proceeds or net price, all expenses and all other costs and expenses Taxes incurred by Lessor, the Administrative Agent and Lessor or any of the Participants in connection with such sale or purchase, including, without limitation, legal fees, shall be deducted from such sale proceeds or purchase price), (including Breakage Costs and Default Completion Costs), ii) any other amount necessary to compensate the Agent Lessor for all the damages proximately caused by the Construction Agent's failure to perform the Construction Agent's obligations under this Agreement or which in either case the ordinary course of things would be likely to result therefrom; and (iii) such other amounts in addition to or in lieu of the extent not previously paid foregoing as may be permitted from time to time by Construction Agent to the Administrative Agent pursuant to the final paragraph of Section 5.1.any Applicable Laws; (b) The Agent Lessor may continue this Agreement in effect for so long as the Agent Lessor shall determine, and the Agent Lessor may enforce all of the Agent Lessor’s 's rights and remedies under this Agreement Agreement, and require the continued performance and completion of Construction Agent’s obligations with respect to any or all of the Project Agreements and the Site Obligations Financed Improvements as herein described, so long as the Agent Lessor satisfies its obligations under Section 4.1; and, subject to Section 5.4 hereof, the Construction Agent shall be liable to the Agent Lessor for all Default Completion Costs, subject to the limitation on Construction Agent’s recourse liability at Section 5.4 below, with respect to the Facility, which amounts shall be payable by Construction Agent from time to time during the term hereof Construction Period to such Persons (including the Agent Lessor) and in such amounts as the Agent Lessor may designate. In addition, if Lessor has not elected to terminate this Agreement as provided herein, if requested by Lessor, Construction Agent shall continue diligently to perform its obligations hereunder, including the Site Obligations, in accordance with this Agreement, so long as Lessor provides the funding provided for in Section 4.1 (without regard to the continuance of the Construction Agency Agreement Event of Default). If Advances, at any time, are no longer available under the Participation Agreement (as determined without regard to the continuance of the Construction Agency Agreement Event of Default), Construction Agent shall pay to Lessor prepaid rent (“Prepaid Rent”) in amounts necessary to fund all costs to complete the Site Obligations, including all amounts of Capitalized Yield, Capitalized Fees and Capitalized Contingent Rent that accrue or are payable during the period from the continuance of the Construction Agency Agreement Event of Default through the Facility Completion Date, which amounts shall be payable by Construction Agent from time to time prior to the Facility Completion Date to such Persons (including Lessor), for costs of construction consistent in type as those contemplated by the Project Budget and in such amounts as Lessor may designate and, in the case of Capitalized Yield, Capitalized Fees and Capitalized Contingent Rent, in accordance with the terms of the Operative Documents (absent manifest error); provided, however, that the aggregate amounts to be paid by Construction Agent pursuant to this Section 5.3 shall, to the extent applicable, be subject to the limitations set forth in Section 5.4. (c) The Agent Lessor may terminate this Agreement at any time, notwithstanding a prior election under Section 5.3(b), and cause Substantial Completion to occur (including the performance completion of all of Lessor’s rights and obligations under the Project Agreements which would otherwise be performed by Construction Agent hereunder) Financed Improvements as herein described directly through the Agent Lessor or one or more successor agents and designees construction agents; and, subject to Section 5.4 hereof, the Construction Agent shall be liable to the Agent Lessor for all Default Completion Costs, subject to the limitation on Construction Agent’s recourse liability at Section 5.4 below. (d) The Agent Lessor (i) may, upon termination of this Agreement terminate, at Construction Agent’s sole cost and expense, the Authority Lease or (ii) may exercise any other right or remedy that may be available to it under Applicable Laws or in equity, or proceed by appropriate court action (legal or equitable) to enforce the terms or to recover damages for the breach hereof. (e) As a matter of right and without notice to the Construction Agent or anyone claiming under the Construction Agent, and without regard to the then value of the Collateral or the interest of Construction Agent the Lessee therein, the Agent Lessor shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers of the Collateral at Construction Agent’s the Lessee's sole cost and expense (but subject to the limitation of Construction Agent’s recourse liability for payments as set forth at Section 5.4 below)expense, and the Construction Agent hereby irrevocably consents to such appointment and waives notice of any application therefor. Any such receiver or receivers shall have all the usual powers and duties of receivers in like or similar cases and all the powers and duties of the Agent Lessor in case of entry as provided in this Agreement and shall continue as such and exercise all such powers until the latest to occur of (i) the date of confirmation of sale of the Collateral; (ii) the disbursement of all proceeds of the Collateral collected by such receiver and the payment of all expenses incurred in connection therewith; or (iii) the termination of such receivership with the consent of Agent Lessor or pursuant to an order by a court of competent jurisdiction. (f) To the extent permitted by, and subject to the mandatory requirements of, any Governmental Authorityapplicable Requirement of Law, each and every right, power and remedy herein specifically given to the Agent Lessor or otherwise in this Agreement shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by the Agent Lessor, and the exercise or the beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy. The Agent Lessor’s 's consent to any request made by the Construction Agent shall not be deemed to constitute or preclude the necessity for obtaining the Agent Lessor’s 's consent, in the future, to all similar requests. No express or implied waiver by the Agent Lessor of any Construction Agency Agreement Event of Default shall in any way be, or be construed to be, a waiver of any future or subsequent Construction Agency Agreement Event of Default. To the extent permitted by any Applicable LawsRequirement of Law, the Construction Agent hereby waives any rights now or hereafter conferred by statute or otherwise that may require the Agent Lessor to sell, lease or otherwise use the Leased PropertyPremises, the other Collateral or any part or portion of the Leased Property or Collateral thereof in mitigation of the Agent Lessor's damages upon the continuance occurrence of a Construction Agency Agreement Event of Default or that may otherwise limit or modify any of the Agent Lessor’s 's rights or remedies under this Article V. (g) No failure to exercise and no delay in exercising, on the part of the Agent Lessor, any right, remedy, power or privilege under this Agreement or under the other Operative Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges provided in this Agreement are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

Remedies Cumulative; Waivers. During Upon the occurrence and continuance of a Construction Agency Agreement Event of Default, at Lessor’s 's option and without limiting Lessor in the exercise of any other right or remedy Lessor may have on account of such default (including, without limitation, any remedies under any other Operative DocumentDocument or as set forth in Section 5.1.2), and without any further demand or notice, but subject to Section 5.4 below to and the extent applicableproviso of the first sentence of Section 5.1.2 and the second sentence of Section 5.1.2 above, Lessor may cause the following to occur: (a) Without limiting any other remedies set forth in this Agreement or in any of the other Operative Documents, Lessor and Construction Agent agree that during the continuance of a Construction Agency Agreement Event of Default, Lessor shall have all the rights and may pursue any of the remedies hereunder with respect to Construction Period Maximum Guaranty Amount as are provided to it in the Lease, but subject in all instances to Section 5.4 hereof (Lease with respect to the extent applicable), the terms and payment of Residual Value Guaranty Amount as if those provisions of which Lease are were incorporated herein by this referenceincluding, Lessor acting as exclusive sales agent for the Properties. Lessor and Collateral Agent may foreclose the lien of the Lease or any Security Instrument Lessee Mortgage on the Leased Property and the other Collateral all or any portion thereofof the Properties and other Collateral, in which event including all or any of such Sites and the related Mortgage. If Lessor has neither sold nor foreclosed upon the Properties within 2 years after receipt of the Permitted Lease Balance or Construction Agent shallPeriod Maximum Guaranty Amount, subject as applicable, Lessor will appoint a qualified independent sales agent to Section 5.4 hereof, pay sell the Properties and Lessor shall sell the Properties pursuant to the Administrative Agent, upon demand, first bona fide offer received of an all cash purchase price at the Lease Balance and all other costs and expenses incurred by Lessor, then Fair Market Value of the Administrative Agent and the Participants (including Breakage Costs and Default Completion Costs), in either case Properties to the extent not previously paid by Construction Agent to the Administrative Agent pursuant to conditions therefor are satisfied. Any proceeds resulting from the final paragraph operation of this Section 5.15.3(a) will be applied in accordance with Article X of the Participation Agreement. (b) Lessor may continue this Agreement in effect for so long as Lessor shall determine, and Lessor may enforce all of Lessor’s 's rights and remedies under this Agreement Agreement, and require the continued performance and completion of Construction Agent’s obligations with respect to any or all of the Project Agreements and the Site Obligations as herein described, so long as Lessor satisfies its obligations under Section 4.1; and, subject to Section 5.4 hereof, Construction Agent shall be liable to Lessor for all Default Completion Costs, subject to the limitation on Construction Agent’s recourse liability at Section 5.4 below, with respect to the Facility, which amounts shall be payable Improvements by Construction Agent from time to time during the term hereof to such Persons (including Lessor) and in such amounts as Lessor may designate. In addition, if Lessor has not elected to terminate this Agreement as provided herein, if requested by Lessor, Construction Agent shall continue diligently to perform its obligations hereunder, including the Site Obligations, in accordance with this Agreement, so long as Lessor provides the funding provided for in Section 4.1 (without regard to the continuance of the Construction Agency Agreement Event of Default). If Advances, at any time, are no longer available under the Participation Agreement (as determined without regard to the continuance of the Construction Agency Agreement Event of Default), Construction Agent shall pay to Lessor prepaid rent (“Prepaid Rent”) in amounts necessary to fund all costs to complete the Site Obligations, including all amounts of Capitalized Yield, Capitalized Fees and Capitalized Contingent Rent that accrue or are payable during the period from the continuance of the Construction Agency Agreement Event of Default through the Facility Completion Date, which amounts shall be payable by Construction Agent from time to time prior to the Facility Completion Date to such Persons (including Lessor), for costs of construction consistent in type as those contemplated by the Project Budget and in such amounts as Lessor may designate and, in the case of Capitalized Yield, Capitalized Fees and Capitalized Contingent Rent, in accordance with the terms of the Operative Documents (absent manifest error); provided, however, that the aggregate amounts to be paid by Construction Agent pursuant to this Section 5.3 shall, to the extent applicable, be subject to the limitations set forth in Section 5.4. (c) Lessor may terminate this Agreement at any time, notwithstanding a prior election under Section 5.3(b), and cause Substantial Completion to occur (including the performance of all of Lessor’s rights and obligations under the Project Agreements which would otherwise be performed by Construction Agent hereunder) directly through Lessor or one or more successor agents and designees and, subject to Section 5.4 hereof, Construction Agent shall be liable to Lessor for all Default Completion Costs, subject to the limitation on Construction Agent’s recourse liability at Section 5.4 below. (d) Lessor (i) may, upon termination of this Agreement terminate, at Construction Agent’s sole cost and expense, the Authority Lease or (ii) may exercise any other right or remedy that may be available to it under Applicable Laws or in equity, or proceed by appropriate court action (legal or equitable) to enforce the terms or to recover damages for the breach hereof. (e) As a matter of right and without notice to Construction Agent or anyone claiming under Construction Agent, and without regard to the then value of the Collateral or the interest of Construction Agent therein, Lessor shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers of the Collateral at Construction Agent’s sole cost and expense (but subject to the limitation of Construction Agent’s recourse liability for payments as set forth at Section 5.4 below), and Construction Agent hereby irrevocably consents to such appointment and waives notice of any application therefor. Any such receiver or receivers shall have all the usual powers and duties of receivers in like or similar cases and all the powers and duties of Lessor in case of entry as provided in this Agreement and shall continue as such and exercise all such powers until the latest to occur of (i) the date of confirmation of sale of the Collateral; (ii) the disbursement of all proceeds of the Collateral collected by such receiver and the payment of all expenses incurred in connection therewith; or (iii) the termination of such receivership with the consent of Lessor or pursuant to an order by a court of competent jurisdiction. (f) To the extent permitted by, and subject to the mandatory requirements of, any Governmental Authority, each and every right, power and remedy herein specifically given to Lessor or otherwise in this Agreement shall be cumulative and shall be in addition to every other right, power and remedy herein specifically given or now or hereafter existing at law, in equity or by statute, and each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised from time to time and as often and in such order as may be deemed expedient by Lessor, and the exercise or the beginning of the exercise of any power or remedy shall not be construed to be a waiver of the right to exercise at the same time or thereafter any other right, power or remedy. Lessor’s consent to any request made by Construction Agent shall not be deemed to constitute or preclude the necessity for obtaining Lessor’s consent, in the future, to all similar requests. No express or implied waiver by Lessor of any Construction Agency Agreement Event of Default shall in any way be, or be construed to be, a waiver of any future or subsequent Construction Agency Agreement Event of Default. To the extent permitted by any Applicable Laws, Construction Agent hereby waives any rights now or hereafter conferred by statute or otherwise that may require Lessor to sell, lease or otherwise use the Leased Property, the other Collateral or any part or portion of the Leased Property or Collateral in mitigation of damages upon the continuance of a Construction Agency Agreement Event of Default or that may otherwise limit or modify any of Lessor’s rights or remedies under this Article V. (g) No failure to exercise and no delay in exercising, on the part Lessor, any right, remedy, power or privilege under this Agreement or under the other Operative Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges provided in this Agreement are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.the