Agmt01 Western Innisfree Ventures LLC

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1. Developer's Letters of Credit. The Letters of Credit shall be issued by financial institutions acceptable to Agency, shall bear an expiration date of not less than one (1) year from issuance, and shall be in a form reasonably approved by Agency. The Letters of Credit shall, if necessary, be renewed or new Letters of Credit delivered to Agency at least thirty (30) days prior to their expiration. Ifa required renewal or substitution has not occurred, Agency shall have the fight to draw the entire balance of the Letters of Credit and hold and use the funds for the purposes specified herein. 2. Developer's Cash Deposit, In lieu of Letters of Credit and provided that the total amount of the Acquisition Budget is delivered to Agency, Developer, in its sole discretion, may make the Cash Deposit. Such Cash Deposit shall be deposited in the account of Agency in an interest-bearing bank account or trust company mutually acceptable to Developer and Agency and upon terms and conditions consistent with the provisions of this section and mutually acceptable to Developer and Agency. 3. Combination of Letters of Credit and Cash Deno~it, In the event Developer elects to fund the Acquisition Budget with a combination bfthe Letters of Credit and Cash Deposit, Developer shall follow the procedures set forth more particularly in Section 305(A)(1) and (2) hereof. B. Developer's Advance of Excess Aca_uisition Costs. In the event the Acquisition Budget is insufficient for purposes of acquiring the Acquisition Parcels (for example, due to a cost, which cannot be fully offset as part of the acquisition price, ofremediating any Hazardous Materials located on, in or under an Acquisition Parcel), Agency shall notify Developer that the Acquisition Budget needs to be supplemented by the amount of such insufficiency (the "Excess Acquisition Costs"). Developer may at its option, and subject to Section 305(D) below, advance to Agency the funds for the Excess Acquisition Costs. In the event that Developer elects to fund an Excess Acquisition Cost, the Acquisition Budget shall be increased automatically with respect to the corresponding Acquisition Parcel which is subject to such Excess Acquisition Cost. If applicable, the Acquisition Budget for the entire Project Site shall also be increased automatically to reflect the approved increase in the Excess Acquisition Cost. In the event Developer does not terminate this Agreement pursuant to Section 305 (D) below, and elects to fund the Excess Acquisition Costs, Developer shall, within fifteen (15) days from the date of such election to fund the Excess Acquisition Costs, supplement the Letters of Credit or Cash Deposits with such additional funds, or security therefor, as the Agency reasonably demonstrates are necessary to complete its obligations hereunder and required to be advanced by Developer. In the event that Developer fails to advance Excess Acquisition Costs to Agency or supplement the Letters of Credit or Cash Deposits as set forth herein, this Agreement may be temdnated by either party and in such event, the further fights, remedies and obligations of the parties shall be as set forth in Section 809 of this Agreement. Notwithstanding the foregoing provisions of this Section 305(B), Developer hereby agrees that if the total sum of the Acquisition Budget approved by the parties pursuant to Section 304 is less than Fourteen Million Dollars ($14,000,000), then Developer shall advance funds for any Excess Acquisition costs up to a maximum amount equal to the difference between (i) the total sum of the Acquisition Budget plus any Excess Acquisition Costs thereto fore advanced by Developer, and (ii) the sum of Fourteen Million Dollars ($14,000,000). In no event shall Developer have any obligation under this Agreement to advance or otherwise contribute funds for Total Acquisition Costs (as defined in Section 305(C)) in excess of the sum of Fourteen Million Dollars ($14,000,000). In the event that Excess Acquisition Costs required pursuant to this Section 305(B) would at any time cause Total Acquisition Costs to exceed the sum of Fourteen Million Dollars ($14,000,000), Developer shall have the fight to terminate this Agreement in accordance with Section 809 of this Agreement. 10 DOCSSFl:495065.9 9975-5 NWN