Common use of Construction Advances Clause in Contracts

Construction Advances. Each Construction Advance (including the initial Construction Advance) shall be subject to satisfaction of the following conditions: (a) At least ten (10) Business Days prior to the date of any Construction Advance, the Borrower shall have delivered to Administrative Agent the following documentation (collectively referred to herein as the “Application”): (i) a completed and executed Disbursement Request, (ii) completed and executed American Institute of Architects (AIA) Forms G702 and G703 (or other forms acceptable to Administrative Agent) and lien waivers and such other waivers and affidavits as may be required by the Title Insurer in order to issue the endorsement described in clause (d) below from Contractor and each subcontractor seeking payment for work performed, and (iii) copies of invoices, cancelled checks, contracts, bills, change orders, and other statements and information as may be requested by Administrative Agent; (b) All Improvements to and including the stage represented in the current Application shall have been completed in substantial accordance with the Plans, and the Borrower is in all material respects meeting the dates set forth in the Construction Completion Schedule and completion of the Project anticipated on or before the Acceptance Date; (c) Administrative Agent or Consultant shall have reviewed each Disbursement Request and shall have determined (which determination shall not be unreasonably withheld or delayed) that (i) such Disbursement Request is approved for payment and that all work described in or covered by such Disbursement Request has been performed in accordance with the Plans, and (ii) all materials covered by the Disbursement Request have been incorporated into the Improvements or adequately stored and insured on or off the Land in the manner required by this Rider; (d) Administrative Agent shall have received, at the Borrower’s expense, an endorsement to the Title Policy insuring the priority of the lien of the Mortgage on the Real Property with respect to such disbursement and indicating that no intervening liens exist against the Project; (e) Upon request, the Borrower shall deliver a foundation survey to Administrative Agent after the footings and foundation of the Improvements are in place, which survey shall show the location of the foundations of the Improvements on the Land with relation to the boundary lines of the Land and all easements and set-back lines and shall be prepared by a registered engineer who shall certify that such foundation is in compliance with all required set-back or building restriction liens; and at any time a survey is required from the Borrower, as aforesaid, the Contractor shall certify on each such survey that the construction completed to date as shown on such survey disclosed no violations, encroachments, or variations of set-back or other restrictions other than those which Administrative Agent may waive in writing; and (f) The Borrower shall have paid to Administrative Agent or any Lender any and all fees then due and payable in cash to Administrative Agent or such Lender and any and all costs then due and payable in cash incurred by Administrative Agent and Lenders up to the date of such Construction Advance (and the Borrower hereby authorizes Administrative Agent to increase the Disbursement Request by such amounts to effectuate payment to Administrative Agent and Lenders).

Construction Advances. Each Construction For each Advance (including requesting Funds for Facility Costs due and payable under the initial Construction Advance) shall be subject to satisfaction of the following conditionsProject Agreements: (a) At least ten (10) Business Days prior to the date of any Construction Advance, the Borrower shall have delivered to Administrative Agent the following documentation (collectively referred to herein as the “Application”): (i) a completed and executed Disbursement Request, (ii) completed and executed American Institute The Facility Costs in respect of Architects (AIA) Forms G702 and G703 (or other forms acceptable which such Construction Advance is requested shall be allocated to Administrative Agent) and lien waivers and such other waivers and affidavits as may be required by the Title Insurer in order to issue the endorsement described in clause (d) below from Contractor and each subcontractor seeking payment Uncompleted Facility for work performed, and (iii) copies of invoices, cancelled checks, contracts, bills, change orders, and other statements and information as may be requested by Administrative Agent; (b) All Improvements to and including the stage represented in the current Application shall which they have been completed in substantial accordance with incurred or are being incurred and shall not exceed the Plans, and applicable budget items plus the Borrower is in all material respects meeting the dates applicable Contingency Reserves set forth in the Construction Completion Schedule and completion of the Project anticipated on or before the Acceptance DateFacility Budget for each such Uncompleted Facility; (c) Administrative Agent or Consultant shall have reviewed each Disbursement Request and shall have determined (which determination shall not be unreasonably withheld or delayed) that (i) such Disbursement Request is approved for payment and that all work described in or covered by such Disbursement Request has been performed in accordance with the Plans, and (ii) all materials covered by the Disbursement Request have been incorporated into the Improvements or adequately stored Lessor and insured on or off the Land in the manner required by this Rider; (d) Administrative Agent shall have receivedreceived on the date of each such Advance for each Uncompleted Facility, at following the Borrower’s expenseInitial Construction Advance for such Uncompleted Facility, an endorsement to the Title Policy insuring Policies for such Uncompleted Facility to which such Advance applies (i) indicating that since the priority date of the lien preceding Advance for Construction Costs there has been no change in the state of title (except changes approved by Administrative Agent), (ii) updating the Mortgage on the Real Property Title Policies with respect to such disbursement and indicating that no intervening liens exist against the Project; (e) Upon request, the Borrower shall deliver a foundation survey to Administrative Agent after the footings and foundation of the Improvements are in place, which survey shall show the location of the foundations of the Improvements on the Land with relation to the boundary lines of the Land and all easements and set-back lines and shall be prepared by a registered engineer who shall certify that such foundation is in compliance with all required set-back or building restriction liens; and at any time a survey is required from the Borrower, as aforesaid, the Contractor shall certify on each such survey that the construction completed to date as shown on such survey disclosed no violations, encroachments, or variations of set-back or other restrictions other than those which Administrative Agent may waive in writing; and (f) The Borrower shall have paid to Administrative Agent or any Lender any and all fees then due and payable in cash to Administrative Agent or such Lender and any and all costs then due and payable in cash incurred by Administrative Agent and Lenders up Uncompleted Facility to the date of such Advance, and (iii) increasing the coverage of the Title Policies for such Uncompleted Facility by an amount equal to the portion of the Advance applicable to such Uncompleted Facility if the Title Policies do not by their own terms provide for such an increase; and (iii) For each Uncompleted Facility to which such Construction Advance (and applies, the Borrower hereby authorizes Administrative Agent shall have received a statement of the total amount of each invoice or draw request from the General Contractor or Manufacturer under any Major Project Agreement which is to increase be paid with the Disbursement Request proceeds of such Construction Advance setting forth the amount due under such Major Project Agreement, in each case accompanied by a certification by Lessee as to the correctness of such amounts to effectuate payment to Administrative Agent and Lenders)invoiced amount.

Construction Advances. Each (a) Subject to the provisions of this Agreement, the Lender will advance and the Borrower will accept the Construction Advance (including Advances as follows: After Borrower’s expenditure of the Borrower’s Equity, the initial Construction Advance) shall Advance will be subject to made upon the satisfaction of the following conditionsapplicable conditions set forth in Article IV hereof relevant thereto, and all subsequent Construction Advances shall be made not more frequently than monthly thereafter, upon the satisfaction of the applicable conditions set forth in Article V hereof, in amounts which shall be equal to the aggregate of the Direct Costs and the Indirect Costs incurred by the Borrower, in excess of the Borrower’s Equity, through the end of the period covered by the Requisition less: (a) At least ten (10) Business Days prior to the date of any Construction Advance, the Borrower shall have delivered to Administrative Agent the following documentation (collectively referred to herein as the “Application”): (i) a completed and executed Disbursement Request, The Retainage; and (ii) completed and executed American Institute The total of Architects (AIA) Forms G702 and G703 (or other forms acceptable to Administrative Agent) and lien waivers and such other waivers and affidavits as may be required the Construction Advances theretofore made by the Title Insurer in order to issue Lender; and, at the endorsement described in clause (d) below from Contractor and each subcontractor seeking payment for work performedelection of the Lender, and less any combination of the following further amounts: (iii) copies of invoicesThe entire amount by which any Direct Costs or Indirect Costs are (or are estimated by the Lender to be) greater than the amounts set forth on the Initial Project Cost Statement for such costs; provided, cancelled checkshowever, contracts, bills, change orders, and other statements and information as that the Initial Project Cost Statement may be requested modified by Administrative Agent;reallocating funds between and among line items to reflect cost savings and/or cost over runs in one or more line items, subject to verification by Lender’s Construction Consultant that such statement as modified is sufficient to complete construction of the Improvements; and/or (iv) Any costs covered by the Requisition not approved, certified or verified as provided in Section 2.06 below, any Indirect Costs covered by a previous Requisition for which proof of payment has not been received by the Lender, and/or any Direct Costs covered by a previous Requisition for which payment receipts have not been received by the Construction Consultant and/or the Lender; and/or (v) Any real estate taxes, mechanics’ liens, security interests, claims or other charges against the Premises or the Improvements and any interest, fees or other costs which the Borrower has failed to pay in accordance with this Agreement, the Note or the Security Documents following written notice thereof given by the Lender to the Borrower. (b) All Improvements to and including the stage represented in the current Application The Borrower’s Share shall have been completed in substantial accordance with the Plans, and be payable by the Borrower is in all material respects meeting the dates set forth in the Construction Completion Schedule out of its own funds (and completion not out of the Project anticipated on or before the Acceptance Date; (c) Administrative Agent or Consultant shall have reviewed each Disbursement Request and shall have determined (which determination shall not be unreasonably withheld or delayed) that (i) such Disbursement Request is approved for payment and that all work described in or covered by such Disbursement Request has been performed in accordance with the Plans, and (ii) all materials covered by the Disbursement Request have been incorporated into the Improvements or adequately stored and insured on or off the Land in the manner required by this Rider; (d) Administrative Agent shall have received, at the Borrower’s expense, an endorsement to the Title Policy insuring the priority proceeds of the lien of the Mortgage on the Real Property with respect to such disbursement and indicating that no intervening liens exist against the Project; (e) Upon request, the Borrower shall deliver a foundation survey to Administrative Agent after the footings and foundation of the Improvements are in place, which survey shall show the location of the foundations of the Improvements on the Land with relation to the boundary lines of the Land and all easements and set-back lines and shall be prepared by a registered engineer who shall certify that such foundation is in compliance with all required set-back or building restriction liens; and at any time a survey is required from the Borrower, as aforesaid, the Contractor shall certify on each such survey that the construction completed to date as shown on such survey disclosed no violations, encroachments, or variations of set-back or other restrictions other than those which Administrative Agent may waive in writing; and (f) The Borrower shall have paid to Administrative Agent or any Lender any and all fees then due and payable in cash to Administrative Agent or such Lender and any and all costs then due and payable in cash incurred by Administrative Agent and Lenders up to the date of such Construction Advance (and the Borrower hereby authorizes Administrative Agent to increase the Disbursement Request by such amounts to effectuate payment to Administrative Agent and LendersLoan).

Construction Advances. 2.8.1 Each Construction Advance (including the initial Construction Advance) shall be subject payable to satisfaction Borrower at such time after completion of those portions of the following conditionsProject included in such requested Construction Advance and Lender receives all of the following, to the extent required hereby and by Lender: (ai) At least ten Evidence of all costs incurred by Borrower for the Project consistent with the Budget, including, but not limited to invoices and such back up documentation as reasonably required by Lender for the portion of the Project included in such Construction Advance; (10ii) Business Days prior Evidence reasonably satisfactory to Lender that the improvements and the Premises are free of all mechanic’s, materialmen’s and other liens, or Lxxxxx has received other assurance against such liens satisfactory to it in its reasonable discretion; provided, however, with respect to any Construction Advance which is not the last Construction Advance, partial lien waivers made through the date of any interim Construction Advances will be acceptable to Lxxxxx. (iii) Evidence satisfactory to Lender that Borrower have obtained all Project Approvals from, given all notices to, and taken all such other actions with respect to, such governmental authorities as may be required under applicable requirements for the construction of the Project and upon completion, the permanent use and occupancy of the Premises for their intended uses, together with copies of all such Project Approvals. (iv) Notification from Lxxxxx’s Consultant, if required by Lxxxxx, in its sole discretion to the effect that: (i) with respect to any Construction Advance which is not the last Construction Advance, the Borrower shall have delivered to Administrative Agent the following documentation (collectively referred to herein as the “Application”): (i) a completed and executed Disbursement Request, (ii) completed and executed American Institute of Architects (AIA) Forms G702 and G703 (or other forms acceptable to Administrative Agent) and lien waivers and such other waivers and affidavits as may be required by the Title Insurer in order to issue the endorsement described in clause (d) below from Contractor and each subcontractor seeking payment for work performed, and (iii) copies of invoices, cancelled checks, contracts, bills, change orders, and other statements and information as may be requested by Administrative Agent; (b) All Improvements to and including the stage represented in the current Application shall have been completed in substantial accordance with the Plans, and the Borrower is in all material respects meeting the dates set forth in the Construction Completion Schedule and completion portion of the Project anticipated on or before the Acceptance Date; (c) Administrative Agent or Consultant shall have reviewed each Disbursement Request and shall have determined (which determination shall not requested to be unreasonably withheld or delayed) that (i) funded in such Disbursement Request is approved for payment and that all work described in or covered by such Disbursement Request Construction Advance has been performed substantially completed in a good and workmanlike manner in accordance with the Plans, Property Improvement Plan and (ii) all materials covered by the Disbursement Request have been incorporated into the Improvements or adequately stored and insured on or off the Land in the manner required by this Rider; (d) Administrative Agent shall have received, at the Borrower’s expense, an endorsement to the Title Policy insuring the priority of the lien of the Mortgage on the Real Property with respect to the last Construction Advance the Project has been substantially completed in a good and workmanlike manner in accordance with the Property Improvement Plan. (v) With respect to the final Construction Advance, copies of the original certificates of occupancy for the Buildings, and all other applicable certificates, licenses, consents and approvals issued by governmental authorities with respect to the Project and the Buildings except for those that are not required for the temporary occupancy of the Buildings. Borrower shall obtain and provide Lender with copies of the permanent certificates of occupancy when issued. (vi) With respect to the final Construction Advance, final lien waivers (on AIA documents or other form reasonably satisfactory to Lender) from the general contractor and such disbursement laborers, subcontractors and indicating that materialmen as may be reasonably requested by Lxxxxx, duly executed and notarized. (vii) With respect to the final Construction Advance, ff requested by Lxxxxx, copies of the warranties issued by the general contractor to Borrower pursuant to any contract for construction, and of all other warranties issued to Borrower by subcontractors and manufacturers for labor performed and materials supplied in connection with the construction of the improvements (if any). (viii) (v) With respect to the final Construction Advance, a final endorsement is issued by the title insurance company insuring the aggregate of all Advances made by Lxxxxx under Lxxxxx’s Mortgage showing no intervening liens exist encumbrances against the Project; (e) Upon request, the Borrower shall deliver a foundation survey to Administrative Agent after the footings and foundation of the Improvements are in place, which survey shall show the location of the foundations of the Improvements on the Land with relation to the boundary lines of the Land and all easements and set-back lines and shall be prepared by a registered engineer who shall certify that such foundation is in compliance with all required set-back or building restriction liens; and at any time a survey is required from the Borrower, as aforesaid, the Contractor shall certify on each such survey that the construction completed to date as shown on such survey disclosed no violations, encroachments, or variations of set-back or other restrictions Premises other than those which Administrative Agent may waive in writing; and (f) The Borrower shall have paid to Administrative Agent or any Lender any and all fees then due and payable in cash to Administrative Agent or such Lender the Permitted Encumbrances and any and all costs then due and payable additional encumbrances previously consented to in cash incurred writing by Administrative Agent and Lenders up to the date of such Construction Advance (and the Borrower hereby authorizes Administrative Agent to increase the Disbursement Request by such amounts to effectuate payment to Administrative Agent and Lenders).Lxxxxx. Loan Agreement -9- BankNewport/PHR Cherry Propco, LLC