ON SUCH REASONABLE
TERMS (WHICH SHALL INCLUDE AN AGREEMENT TO REIMBURSE MANAGER FOR ITS REASONABLE
OUT-OF-POCKET COSTS AND EXPENSES, AND REASONABLE ADMINISTRATIVE COSTS AND A
MANAGEMENT FEE OF SEVEN AND ONE-HALF PERCENT (7.5%) OF GROSS REVENUES) AS OWNER
AND MANAGER SHALL REASONABLY AGREE.
The provisions of this Section 17.4 shall survive the expiration or earlier
termination of this Agreement.
17.5
DEPOSIT.
(A)
AS SECURITY FOR (I) THE FAITHFUL OBSERVANCE AND PERFORMANCE BY THE
MANAGER OF ALL THE TERMS, COVENANTS AND CONDITIONS OF THIS AGREEMENTS TO BE
OBSERVED AND PERFORMED BY THE MANAGER, INCLUDING, WITHOUT LIMITATION, THE
PAYMENT OF THE OWNER'S PERCENTAGE PRIORITY AND THE RESIDUAL DISTRIBUTION
PURSUANT TO THIS AGREEMENT, AND (II) THE PAYMENT TO OWNER ON THE FIRST DAY EACH
MONTH OF THE INSTALLMENT OF OWNER'S PRIORITY FOR SUCH MONTH REGARDLESS OF THE
INADEQUACY OF THE GROSS REVENUES OR OPERATING PROFIT FOR ANY MONTH FOR SUCH
PURPOSE (ALL OF THE FOREGOING, COLLECTIVELY, THE "SECURED OBLIGATIONS"), MANAGER
HAS DEPOSITED WITH OWNER THE SUM OF TWENTY SIX MILLION EIGHT HUNDRED SEVENTY TWO
THOUSAND DOLLARS ($26,872,000) (AS THE SAME MAY BE DRAWN DOWN AND REPLENISHED OR
INCREASED FROM TIME TO TIME OR PURSUANT TO THE DEPOSIT AGREEMENT OR THIS
AGREEMENT, THE "DEPOSIT").
THE OWNER SHALL HAVE THE OPTION TO ELECT, IN ITS
SOLE DISCRETION, WHETHER AND WHEN TO APPLY FUNDS FROM THE DEPOSIT WITH RESPECT
TO ANY OF THE SECURED OBLIGATIONS; PROVIDED HOWEVER, OWNER SHALL NOT APPLY THE
DEPOSIT TO ANY SECURED OBLIGATION FOR WHICH THE GUARANTOR IS RESPONSIBLE UNDER
THE GUARANTY UNLESS (A) THE GUARANTOR SHALL HAVE FAILED TO PAY ANY AMOUNT DUE
UNDER THE GUARANTY FOR A PERIOD OF FIVE (5) DAYS AFTER NOTICE OR (B) AN EVENT
DESCRIBED IN SECTIONS 17.1(A), 17.1(B) OR 17.1(C) SHALL HAVE OCCURRED WITH
RESPECT TO THE GUARANTOR.
(B)
ON OR BEFORE DECEMBER 31, 2006, MANAGER SHALL DELIVER TO OWNER AN
ADDITIONAL TEN MILLION DOLLARS ($10,000,000) WHICH SHALL BE ADDED TO AND BE A
PART OF THE DEPOSIT.
78
(C)
OWNER SHALL RETURN ANY OUTSTANDING BALANCE OF THE DEPOSIT TO
MANAGER WITHIN THIRTY (30) DAYS FOLLOWING THE DATE ON WHICH ALL OF THE SECURED
OBLIGATIONS, AND ANY OTHER OBLIGATIONS SECURED BY THE DEPOSIT IN ANY WRITTEN
AGREEMENT SIGNED BY MANAGER OR ITS AFFILIATES, HAVE BEEN IRREVOCABLY SATISFIED
IN FULL.
(D)
OWNER MAY COMMINGLE THE DEPOSIT WITH ITS OTHER FUNDS AND ANY
INTEREST EARNED ON ACCOUNT OF THE DEPOSIT SHALL BE FOR THE BENEFIT OF THE
OWNER.
OWNER ACKNOWLEDGES THAT THE DEPOSIT IS SUBJECT TO THE DEPOSIT AGREEMENT.
ARTICLE 18
NOTICES
18.1
PROCEDURE.
(A)
ANY AND ALL NOTICES, DEMANDS, CONSENTS, APPROVALS, OFFERS,
ELECTIONS AND OTHER COMMUNICATIONS REQUIRED OR PERMITTED UNDER THIS AGREEMENT
SHALL BE DEEMED ADEQUATELY GIVEN IF IN WRITING AND THE SAME SHALL BE DELIVERED
EITHER BY HAND, BY TELECOPIER WITH WRITTEN ACKNOWLEDGMENT OF RECEIPT (PROVIDED
IF NOTICE IS GIVEN BY TELECOPIER, A COPY SHALL ALSO BE SENT ON THE FOLLOWING
BUSINESS DAY BY FEDERAL EXPRESS OR SIMILAR EXPEDITED COMMERCIAL CARRIER), OR BY
FEDERAL EXPRESS OR SIMILAR EXPEDITED COMMERCIAL CARRIER, ADDRESSED TO THE
RECIPIENT