Common use of CONDITIONS TO BORROWINGS Clause in Contracts

CONDITIONS TO BORROWINGS. The obligation of a Lender to make a Loan to the Borrowers as part of a Borrowing is subject to the satisfaction of the following conditions: - this Agreement is effective; - the Administrative Agent receives a Borrowing Notice conforming to the requirements of this Agreement; - immediately after the Borrowing, the aggregate unpaid principal amount of the Loans will not exceed the lesser of the Aggregate Commitment or the Borrowing Base; - each Borrower represents that no material adverse change in its financial condition or results of operations has occurred; - immediately before and after the Borrowing, no Default will have occurred and be continuing; - the representations and warranties of the Borrowers contained in this Agreement are true on and as of the date of the Borrowing with the same effect as if made on and as of such date (except to the extent such representations and warranties expressly relate to an earlier date); - the Administrative Agent receives, with the Borrowing Notice, an update to the title policy for each Borrowing on a Development Project; - no mechanic's lien claim shall have been filed or asserted against any Mortgaged Property, which has not been "bonded off" such Mortgaged Property in accordance with applicable law; - all licenses, permits and approvals of governmental authorities required for the operation of the respective Mortgaged Properties shall have been obtained and are in full force and effect; - each request for a Borrowing for a Development Project shall be subject to the approval of the Administrative Agent and the Administrative Agent's construction consultant, which approval shall not be unreasonably withheld or delayed; - there shall have occurred no material violation of any applicable laws, ordinances, rules or regulations; it being understood that a single violation shall be deemed material if it involves by way of fees, fines, costs, expenses, curative work or other potential loss or expense to the Borrowers exceeding the sum of $100,000.00 or $500,000 in the aggregate for multiple violations; - there shall be no action, suits or proceedings pending, or to the Borrowers' knowledge, threatened against or affecting either Borrower, any Subsidiary or any Mortgaged Property, at law or in equity, or before any governmental agencies, which, if adversely determined, would substantially impair the ability of the Borrowers to pay their obligations as set forth herein or adversely affect the priority or security of a Mortgage; and - there shall have occurred no material adverse change in the financial condition of either Borrower or any Mortgaged Property.

CONDITIONS TO BORROWINGS. The obligation of a Lender to make a Loan to the Borrowers as part of a Borrowing is subject to the satisfaction of the following conditions: - • this Agreement is effective; - • the Administrative Agent receives a Borrowing Notice conforming to the requirements of this Agreement; - • immediately after the Borrowing, the aggregate unpaid principal amount of the Loans will not exceed the lesser of the Aggregate Commitment or the Borrowing Base; - • each Borrower represents that no material adverse change in its financial condition or results of operations has occurred; - • immediately before and after the Borrowing, no Default will have occurred and be continuing; - • the representations and warranties of the Borrowers contained in this Agreement are true on and as of the date of the Borrowing with the same effect as if made on and as of such date (except to the extent such representations and warranties expressly relate to an earlier date); - • the Administrative Agent receives, with the Borrowing Notice, an update to the title policy for each Borrowing on a Development Project; - • no mechanic's ’s lien claim shall have been filed or asserted against any Mortgaged Property, which has not been "“bonded off" ” such Mortgaged Property in accordance with applicable law; - • all licenses, permits and approvals of governmental authorities required for the operation of the respective Mortgaged Properties shall have been obtained and are in full force and effect; - • each request for a Borrowing for a Development Project shall be subject to the approval of the Administrative Agent and the Administrative Agent's ’s construction consultant, which approval shall not be unreasonably withheld or delayed; - • there shall have occurred no material violation of any applicable laws, ordinances, rules or regulations; it being understood that a single violation shall be deemed material if it involves by way of fees, fines, costs, expenses, curative work or other potential loss or expense to the Borrowers exceeding the sum of $100,000.00 or $500,000 in the aggregate for multiple violations; - • there shall be no action, suits or proceedings pending, or to the Borrowers' ’ knowledge, threatened against or affecting either Borrower, any Subsidiary or any Mortgaged Property, at law or in equity, or before any governmental agencies, which, if adversely determined, would substantially impair the ability of the Borrowers to pay their obligations as set forth herein or adversely affect the priority or security of a Mortgage; and - • there shall have occurred no material adverse change in the financial condition of either Borrower or any Mortgaged Property. Each Borrowing shall constitute a representation and warranty by the Borrowers that, on the date of the Borrowing, the conditions set forth in this Section 3.2 are satisfied.

CONDITIONS TO BORROWINGS. The obligation availability of a Lender the Term Loans under the Exit Credit Agreement will be subject solely to make a Loan to the Borrowers as part of a Borrowing is subject to the satisfaction (or waiver) of the following conditions: - this Agreement is effectiveconditions (the date on which such conditions are satisfied (or waived) being the “Effective Date”): · execution and delivery of the Definitive Documentation to be delivered at closing; - the Administrative Agent receives a Borrowing Notice conforming · delivery of promissory notes to the requirements Lenders, if requested at least two (2) Business Days before the Effective Date; · delivery of board resolutions and organizational documents of the Loan Parties; · delivery of incumbency/specimen signature certificate of the Loan Parties; · delivery of customary legal opinions by counsel to the Borrowers; · there shall not have occurred since the Petition Date any event or condition that has had or would be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect (for purposes of this Agreement; - immediately after condition, defined in a manner based on the BorrowingPrepetition Term Loan Credit Agreement but including a proviso stating that in determining whether a “Material Adverse Effect” has occurred or exists under clause (a) thereof, the aggregate unpaid principal amount impacts of the Loans will not exceed chapter 11 cases and of COVID-19 on the lesser of the Aggregate Commitment or the Borrowing Base; - each Borrower represents that no material adverse change in its assets, business, financial condition or results of operations has occurredon the Loan Parties or any of their respective Subsidiaries will be disregarded (provided that this exception shall not apply to the extent that it is materially disproportionately adverse to the Parent Borrower and its Restricted Subsidiaries, taken as a whole, as compared to other companies in the same industry in which the Parent Borrower and its Restricted Subsidiaries operate)); - immediately before and after · the Borrowing, no Default will Administrative Agent shall have occurred and be continuing; - received a certificate (in substantially the representations and warranties same form as the corresponding certificate delivered in connection with the Prepetition Term Loan Credit Agreement) of the Borrowers contained chief financial officer (or financial officer in this Agreement are true on a similar role) of the Parent Borrower, stating that it and its subsidiaries, taken as a whole, as of the date Effective Date, are solvent, in each case, after giving effect to the consummation of the Borrowing with Plan; · all fees due to the same effect as if made on Administrative Agent, Collateral Agent and as of Lenders including advisors to the Consenting Stakeholders, Gxxxxxxxx & Co. and Milbank LLP, shall have been paid (or shall have been caused to be paid), and all expenses to be paid or reimbursed to the Administrative Agent, Collateral Agent and Lenders that have been invoiced at least three (3) Business Days prior to the Effective Date shall have been paid (or shall have been caused to be paid); · the Loan Parties shall have provided the documentation and other information to the Administrative Agent that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act, at least three (3) Business Days prior to the Effective Date (or such later date (except agreed to by the Administrative Agent) to the extent such representations and warranties expressly relate to an earlier date); - the Administrative Agent receives, with the Borrowing Notice, an update requested ten (10) days prior to the title policy for Effective Date; · the Bankruptcy Court shall have entered (A) the Confirmation Order and (B) one or more orders authorizing and approving the extensions of credit in respect of the Exit Credit Agreement, each Borrowing in the amounts and on a Development Projectthe terms set forth herein, and all transactions contemplated by the Exit Credit Agreement, and, in each case, such orders shall be in full force and effect and shall not have been stayed, reversed, vacated or otherwise modified; - no mechanic's lien claim · the Collateral and Guarantee Requirement (excluding certain customary post-closing items to be mutually agreed) shall have been filed satisfied or asserted against any Mortgaged Property, which has not been "bonded off" such Mortgaged Property in accordance with applicable law; - all licenses, permits waived and approvals of governmental authorities required for the operation of Intercreditor Agreement and the respective Mortgaged Properties Agreement Among Lenders shall have been obtained executed and are delivered and be in full force and effect; - each request for a Borrowing for a Development Project · the effective date under the Plan shall be have occurred, or contemporaneous with the conversion of the DIP Term Facility to the Term Loan Facility shall occur, and all conditions precedent thereto as set forth therein shall have been satisfied or waived (including (x) the issuance to (i) the holders of DIP Term Facility Claims of 44.9% of the New Common Stock, subject to dilution from the approval Management Incentive Plan and (ii) the holders of Term Loan Claims of 55.1% of New Common Stock (subject to reduction for New Common Stock distrusted in accordance with the Administrative Agent following clause (y)) and the Administrative Agent's construction consultant(y) each holder of a Term Loan Claim that is a Required Consenting Stakeholder (including through any of its Related Parties) having received its pro rata share of an amount of New Common Stock equal to $7.5 million, which approval shall not be unreasonably withheld or delayed; - there in each case shall have occurred no material violation of any applicable laws, ordinances, rules or regulations; it being understood that a single violation shall be deemed material if it involves by way of fees, fines, costs, expenses, curative work or other potential loss or expense to substantially contemporaneously with the Borrowers exceeding the sum of $100,000.00 or $500,000 in the aggregate for multiple violations; - there shall be no action, suits or proceedings pending, or to the Borrowers' knowledge, threatened against or affecting either Borrower, any Subsidiary or any Mortgaged Property, at law or in equity, or before any governmental agencies, which, if adversely determined, would substantially impair the ability closing of the Borrowers to pay their obligations as set forth herein or adversely affect the priority or security of a Mortgage; and - there shall have occurred no material adverse change in the financial condition of either Borrower or any Mortgaged Property.Term Loan Facility);

CONDITIONS TO BORROWINGS. The obligation of a Lender to make a Loan to the Borrowers as part of a Borrowing is subject to the satisfaction of the following conditions: - o this Agreement is effective; - o the Administrative Agent receives a Borrowing Notice conforming to the requirements of this Agreement; - o immediately after the Borrowing, the aggregate unpaid principal amount of the Loans will not exceed the lesser of the Aggregate Commitment or the Borrowing Base; - o each Borrower represents that no material adverse change in its financial condition or results of operations has occurred; - o immediately before and after the Borrowing, no Default will have occurred and be continuing; - o the representations and warranties of the Borrowers contained in this Agreement are true on and as of the date of the Borrowing with the same effect as if made on and as of such date (except to the extent such representations and warranties expressly relate to an earlier date); - the Administrative Agent receives, with the Borrowing Notice, an update to the title policy for each Borrowing on a Development Project; - o no mechanic's lien claim shall have been filed or asserted against any Mortgaged Property, which has not been "bonded off" such Mortgaged Property in accordance with applicable law; - o all licenses, permits and approvals of governmental authorities required for the operation of the respective Mortgaged Properties shall have been obtained and are in full force and effect; - o each request for a Borrowing for a Development Project shall be subject to the approval of the Administrative Agent and the Administrative Agent's construction consultant, which approval shall not be unreasonably withheld or delayed; - o there shall have occurred no material violation of any applicable laws, ordinances, rules or regulations; it being understood that a single violation shall be deemed material if it involves by way of fees, fines, costs, expenses, curative work or other potential loss or expense to the Borrowers exceeding the sum of $100,000.00 or $500,000 in the aggregate for multiple violations; - o there shall be no action, suits or proceedings pending, or to the Borrowers' knowledge, threatened against or affecting either Borrower, any Subsidiary or any Mortgaged Property, at law or in equity, or before any governmental agencies, which, if adversely determined, would substantially impair the ability of the Borrowers to pay their obligations as set forth herein or adversely affect the priority or security of a Mortgage; and - o there shall have occurred no material adverse change in the financial condition of either Borrower or any Mortgaged Property. Each Borrowing shall constitute a representation and warranty by the Borrowers that, on the date of the Borrowing, the conditions set forth in this Section 3.2 are satisfied.

CONDITIONS TO BORROWINGS. The obligation availability of a Lender the Term Loans under the Exit Credit Agreement will be subject solely to make a Loan to the Borrowers as part of a Borrowing is subject to the satisfaction (or waiver) of the following conditions: - this Agreement is effectiveconditions (the date on which such conditions are satisfied (or waived) being the “Effective Date”): · execution and delivery of the Definitive Documentation to be delivered at closing; - the Administrative Agent receives a Borrowing Notice conforming · delivery of promissory notes to the requirements Lenders, if requested at least two (2) Business Days before the Effective Date; · delivery of board resolutions and organizational documents of the Loan Parties; · delivery of incumbency/specimen signature certificate of the Loan Parties; · delivery of customary legal opinions by counsel to the Borrowers; · there shall not have occurred since the Petition Date any event or condition that has had or would be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect (for purposes of this Agreement; - immediately after condition, defined in a manner based on the BorrowingPrepetition Term Loan Credit Agreement but including a proviso stating that in determining whether a “Material Adverse Effect” has occurred or exists under clause (a) thereof, the aggregate unpaid principal amount impacts of the Loans will not exceed chapter 11 cases and of COVID-19 on the lesser of the Aggregate Commitment or the Borrowing Base; - each Borrower represents that no material adverse change in its assets, business, financial condition or results of operations has occurredon the Loan Parties or any of their respective Subsidiaries will be disregarded (provided that this exception shall not apply to the extent that it is materially disproportionately adverse to the Parent Borrower and its Restricted Subsidiaries, taken as a whole, as compared to other companies in the same industry in which the Parent Borrower and its Restricted Subsidiaries operate)); - immediately before and after · the Borrowing, no Default will Administrative Agent shall have occurred and be continuing; - received a certificate (in substantially the representations and warranties same form as the corresponding certificate delivered in connection with the Prepetition Term Loan Credit Agreement) of the Borrowers contained chief financial officer (or financial officer in this Agreement are true on a similar role) of the Parent Borrower, stating that it and its subsidiaries, taken as a whole, as of the date Effective Date, are solvent, in each case, after giving effect to the consummation of the Borrowing with Plan; · all fees due to the same effect as if made on Administrative Agent, Collateral Agent and as of Lenders including advisors to the Consenting Stakeholders, Gxxxxxxxx & Co. and Milbank LLP, shall have been paid (or shall have been caused to be paid), and all expenses to be paid or reimbursed to the Administrative Agent, Collateral Agent and Lenders that have been invoiced at least three (3) Business Days prior to the Effective Date shall have been paid (or shall have been caused to be paid); · the Loan Parties shall have provided the documentation and other information to the Administrative Agent that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act, at least three (3) Business Days prior to the Effective Date (or such later date (except agreed to by the Administrative Agent) to the extent such representations and warranties expressly relate to an earlier date); - the Administrative Agent receives, with the Borrowing Notice, an update requested ten (10) days prior to the title policy for Effective Date; · the Bankruptcy Court shall have entered (A) the Confirmation Order and (B) one or more orders authorizing and approving the extensions of credit in respect of the Exit Credit Agreement, each Borrowing in the amounts and on a Development Projectthe terms set forth herein, and all transactions contemplated by the Exit Credit Agreement, and, in each case, such orders shall be in full force and effect and shall not have been stayed, reversed, vacated or otherwise modified; - no mechanic's lien claim · the Collateral and Guarantee Requirement (excluding certain customary post-closing items to be mutually agreed) shall have been filed satisfied or asserted against any Mortgaged Property, which has not been "bonded off" such Mortgaged Property in accordance with applicable law; - all licenses, permits waived and approvals of governmental authorities required for the operation of Intercreditor Agreement and the respective Mortgaged Properties Agreement Among Lenders shall have been obtained executed and are delivered and be in full force and effect; - each request for a Borrowing for a Development Project · the effective date under the Plan shall be have occurred, or contemporaneous with the conversion of the DIP Term Facility to the Term Loan Facility shall occur, and all conditions precedent thereto as set forth therein shall have been satisfied or waived (including (x) the issuance to (i) the holders of DIP Term Facility Claims of 44.9% of the New Common Stock, subject to dilution from the approval Management Incentive Plan and (ii) the holders of Term Loan Claims of 55.1% of New Common Stock (subject to reduction for New Common Stock distrusted in accordance with the Administrative Agent following clause (y)) and the Administrative Agent's construction consultant(y) each holder of a Term Loan Claim that is a Required Consenting Stakeholder (including through any of its Related Parties) having received its pro rata share of an amount of New Common Stock equal to $7.5 million, which approval shall not be unreasonably withheld or delayed; - there in each case shall have occurred no material violation substantially contemporaneously with the closing of any applicable laws, ordinances, rules or regulationsthe Term Loan Facility); it being understood that · the Pre-Petition ABL Credit Agreement shall have been replaced with a single violation shall be deemed material if it involves by way of fees, fines, costs, expenses, curative work or new credit agreement providing asset-based lending facilities for working capital and other potential loss or expense to the Borrowers exceeding the sum of $100,000.00 or $500,000 in the aggregate for multiple violations; - there shall be no action, suits or proceedings pending, or to the Borrowers' knowledge, threatened against or affecting either Borrower, any Subsidiary or any Mortgaged Property, at law or in equity, or before any governmental agencies, which, if adversely determined, would substantially impair the ability general corporate purposes of the Borrowers and its subsidiaries on terms and conditions reasonably acceptable to pay their obligations the Required Consenting Stakeholders (any such credit agreement, the “Exit ABL Credit Agreement”, and the facility in place as set forth herein of the Effective Date under either the Pre-Petition ABL Credit Agreement or adversely affect the priority or security of a Mortgage; and - there shall have occurred no material adverse change in ABL Credit Agreement, the financial condition of either Borrower or any Mortgaged Property.“Exit ABL Facility”);

CONDITIONS TO BORROWINGS. The obligation availability of a Lender the Term Loans under the Exit Credit Agreement will be subject solely to make a Loan to the Borrowers as part of a Borrowing is subject to the satisfaction (or waiver) of the following conditions: - this Agreement is effectiveconditions (the date on which such conditions are satisfied (or waived) being the “Effective Date”): · execution and delivery of the Definitive Documentation to be delivered at closing; - the Administrative Agent receives a Borrowing Notice conforming · delivery of promissory notes to the requirements Lenders, if requested at least two (2) Business Days before the Effective Date; · delivery of board resolutions and organizational documents of the Loan Parties; · delivery of incumbency/specimen signature certificate of the Loan Parties; · delivery of customary legal opinions by counsel to the Borrowers; · there shall not have occurred since the Petition Date any event or condition that has had or would be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect (for purposes of this Agreement; - immediately after condition, defined in a manner based on the BorrowingPrepetition Term Loan Credit Agreement but including a proviso stating that in determining whether a “Material Adverse Effect” has occurred or exists under clause (a) thereof, the aggregate unpaid principal amount impacts of the Loans will not exceed chapter 11 cases and of COVID-19 on the lesser of the Aggregate Commitment or the Borrowing Base; - each Borrower represents that no material adverse change in its assets, business, financial condition or results of operations has occurredon the Loan Parties or any of their respective Subsidiaries will be disregarded (provided that this exception shall not apply to the extent that it is materially disproportionately adverse to the Parent Borrower and its Restricted Subsidiaries, taken as a whole, as compared to other companies in the same industry in which the Parent Borrower and its Restricted Subsidiaries operate)); - immediately before and after · the Borrowing, no Default will Administrative Agent shall have occurred and be continuing; - received a certificate (in substantially the representations and warranties same form as the corresponding certificate delivered in connection with the Prepetition Term Loan Credit Agreement) of the Borrowers contained chief financial officer (or financial officer in this Agreement are true on a similar role) of the Parent Borrower, stating that it and its subsidiaries, taken as a whole, as of the date Effective Date, are solvent, in each case, after giving effect to the consummation of the Borrowing with Plan; · all fees due to the same effect as if made on Administrative Agent, Collateral Agent and as of Lenders including advisors to the Consenting Stakeholders, Xxxxxxxxx & Co. and Milbank LLP, shall have been paid (or shall have been caused to be paid), and all expenses to be paid or reimbursed to the Administrative Agent, Collateral Agent and Lenders that have been invoiced at least three (3) Business Days prior to the Effective Date shall have been paid (or shall have been caused to be paid); · the Loan Parties shall have provided the documentation and other information to the Administrative Agent that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Patriot Act, at least three (3) Business Days prior to the Effective Date (or such later date (except agreed to by the Administrative Agent) to the extent such representations and warranties expressly relate to an earlier date); - the Administrative Agent receives, with the Borrowing Notice, an update requested ten (10) days prior to the title policy for Effective Date; · the Bankruptcy Court shall have entered (A) the Confirmation Order and (B) one or more orders authorizing and approving the extensions of credit in respect of the Exit Credit Agreement, each Borrowing in the amounts and on a Development Projectthe terms set forth herein, and all transactions contemplated by the Exit Credit Agreement, and, in each case, such orders shall be in full force and effect and shall not have been stayed, reversed, vacated or otherwise modified; - no mechanic's lien claim · the Collateral and Guarantee Requirement (excluding certain customary post-closing items to be mutually agreed) shall have been filed satisfied or asserted against any Mortgaged Property, which has not been "bonded off" such Mortgaged Property in accordance with applicable law; - all licenses, permits waived and approvals of governmental authorities required for the operation of Intercreditor Agreement and the respective Mortgaged Properties Agreement Among Lenders shall have been obtained executed and are delivered and be in full force and effect; - each request for a Borrowing for a Development Project · the effective date under the Plan shall be have occurred, or contemporaneous with the conversion of the DIP Term Facility to the Term Loan Facility shall occur, and all conditions precedent thereto as set forth therein shall have been satisfied or waived (including (x) the issuance to (i) the holders of DIP Term Facility Claims of 44.9% of the New Common Stock, subject to dilution from the approval Management Incentive Plan and (ii) the holders of Term Loan Claims of 55.1% of New Common Stock (subject to reduction for New Common Stock distrusted in accordance with the Administrative Agent following clause (y)) and the Administrative Agent's construction consultant(y) each holder of a Term Loan Claim that is a Required Consenting Stakeholder (including through any of its Related Parties) having received its pro rata share of an amount of New Common Stock equal to $7.5 million, which approval shall not be unreasonably withheld or delayed; - there in each case shall have occurred no material violation of any applicable laws, ordinances, rules or regulations; it being understood that a single violation shall be deemed material if it involves by way of fees, fines, costs, expenses, curative work or other potential loss or expense to substantially contemporaneously with the Borrowers exceeding the sum of $100,000.00 or $500,000 in the aggregate for multiple violations; - there shall be no action, suits or proceedings pending, or to the Borrowers' knowledge, threatened against or affecting either Borrower, any Subsidiary or any Mortgaged Property, at law or in equity, or before any governmental agencies, which, if adversely determined, would substantially impair the ability closing of the Borrowers to pay their obligations as set forth herein or adversely affect the priority or security of a Mortgage; and - there shall have occurred no material adverse change in the financial condition of either Borrower or any Mortgaged Property.Term Loan Facility);