Common use of Final Disbursement for Construction Clause in Contracts

Final Disbursement for Construction. Agent and the Lenders will advance to the appropriate Borrower the final Mexican Draw Disbursement and disbursement of the Capex Loans for the cost of the Construction (including retainages), when the following conditions have been complied with, provided that all other conditions in this Agreement for disbursements have been complied with: (a) The Improvements have been fully completed and equipped in accordance with the Plans and Specifications, free and clear of liens and security interests, and are ready for occupancy; (b) Borrowers shall have furnished to Agent insurance, in form and amount and with companies satisfactory to Agent, in accordance with the requirements contained herein; (c) Borrowers shall have furnished to Agent copies of all licenses and permits required by any Governmental Authority having jurisdiction for the occupancy of the Improvements and the operation thereof, including a notice or certificate of construction completion, filed with Governmental Authority at the municipality in which the Mexican Project is located; (d) Borrowers shall have furnished a plat of survey covering the completed Improvements; (e) all fixtures, furnishings, furniture, equipment and other property required for the operation of the Mexican Project shall have been installed, free and clear of all liens and security interests, except for Liens of Agent, for the benefit of the Lenders; (f) Borrowers shall have furnished to Agent a certificate from the Construction Contractor or other evidence satisfactory to Agent, dated on or about the Project Completion Date, stating that (i) the Improvements have been completed in accordance with the Plans and Specifications, and (ii) the Improvements, as so completed, comply with all applicable laws; and (g) Agent shall have received a certificate from the Consultant certifying that the Improvements have been satisfactorily completed in accordance with the Plans and Specifications.

Final Disbursement for Construction. Agent and the Lenders Lender will advance to the appropriate Borrower the final Mexican Draw Disbursement and disbursement of the Capex Loans for the cost of the Construction (including retainages), ) when the following conditions have been complied with, provided that all other conditions in this Agreement for disbursements have been complied with: (a) The Improvements have been fully completed and equipped in accordance with the Plans and Specifications, Specifications free and clear of mechanics’ liens and security interests, interests and are ready for occupancy; (b) Borrowers Borrower shall have furnished to Agent insurance, “all risks” casualty insurance in form and amount and with companies satisfactory to Agent, Agent in accordance with the requirements contained herein; (c) Borrowers Borrower shall have furnished to Agent copies of all licenses and permits required by any Governmental Authority having jurisdiction for the occupancy of the Improvements and the operation thereof, including (i) a notice or base building certificate of construction completion, filed with Governmental Authority at occupancy from the municipality in which the Mexican Project is located, or a letter from the appropriate Governmental Authority (or other evidence reasonably satisfactory to Agent) that no such certificate is issued; and (ii) any environmental or air emission permits; (d) Borrowers Borrower shall have furnished a to Agent evidence that at least 18.2 megawatts of critical load power are available for use by Tenants of the Project; (e) Borrower shall have furnished an as-built plat of survey covering the completed ImprovementsImprovements reasonably satisfactory to Agent; (ef) all All fixtures, furnishings, furniture, equipment and other property required for the operation of the Mexican Project shall have been installed, installed free and clear of all liens and security interests, except for Liens in favor of Agent, for the benefit of the Lenders; (fg) Borrowers A final affidavit from the General Contractors; and final lien releases or waivers (substantially in a form approved by Agent) by the Architect, and all contractors, subcontractors, materialmen, and other parties who have supplied labor, materials, or services for the construction of the Improvements, or who otherwise might be entitled to claim contractual, statutory or constitutional lien again the Land in accordance with the mechanic’s lien law of the State or as otherwise established by Agent; (h) Borrower shall have furnished to Agent a certificate from the Construction Contractor Architect or other evidence satisfactory to Agent, Agent dated on at or about the Project Completion Date, Date stating that (i) the Improvements have been substantially completed in accordance with the Plans and Specifications, and (ii) the Improvements, Improvements as so completed, completed comply with all applicable lawsLaws; and (gi) Agent shall have received a certificate from the Lender’s Consultant certifying for the sole benefit of Agent and Lender that the Improvements have been satisfactorily completed in accordance with the Plans and Specifications. If Borrower fails to comply with and satisfy any of the final disbursement conditions contained in this Section 13.1 within one hundred twenty (120) days after the Completion Date, such failure shall constitute an Event of Default hereunder.

Final Disbursement for Construction. Agent and the Lenders Lender will advance to the appropriate Borrower the final Mexican Draw Disbursement and disbursement of the Capex Loans for the cost of the Construction (including retainages), retainages not yet disbursed) when the following conditions have been complied with, provided that all other conditions in this Agreement for disbursements have been complied with: (a) The Improvements have been fully completed and equipped substantially in accordance with the Approved Plans and Specifications, Specifications free and clear of materialmen’s liens and security interests, interests and are ready for occupancy; (b) Borrowers Borrower shall have furnished or caused to Agent insurance, be furnished to Lender “all risks” casualty insurance and windstorm and flood insurance each in form and amount and with companies reasonably satisfactory to Agent, Lender in accordance with the requirements contained herein; (c) Borrowers Borrower shall have furnished to Agent Lender copies of all licenses and permits required by any Governmental Authority having jurisdiction for the occupancy of the Improvements and the operation thereof, including a notice or final certificate of construction completion, filed with Governmental Authority at occupancy from the municipality in which the Mexican Project is locatedlocated or a temporary certificate of occupancy, so long as (i) Residential Units may still be sold and occupied, (ii) the Hotel is open and operating in accordance with the Hotel Documents, (iii) the Commercial Space may still be rented and/or sold and occupied, and (iv) the Venue is open and operating in accordance with the management agreement reviewed and approved by Lender in accordance herewith; (d) Borrowers Borrower shall have furnished a plat of survey covering the completed ImprovementsImprovements in compliance with Section 8.1(d); (e) all All fixtures, furnishings, furniture, equipment and other property required for the operation of the Mexican Project shall have been installed, installed free and clear of all liens and security interests, except for Liens in favor of Agent, for the benefit of the LendersLender; (f) Borrowers Borrower shall have furnished to Agent Lender copies of all final waivers of lien (other than the liens that Borrower is contesting and has insured or bonded over in accordance with Section 15.1(f) of this Agreement), and sworn statements from contractors, subcontractors and material suppliers and an affidavit from the General Contractor in accordance with the mechanic’s lien law of the State or as otherwise established by Lender; (g) Borrower shall have furnished to Lender a certificate from the Construction Contractor Architect or other evidence satisfactory to Agent, Lender in Lender’s sole discretion dated on at or about the Project Completion Date, Date stating that (i) the Improvements have been completed substantially in accordance with the Approved Plans and Specifications, and (ii) the Improvements, Improvements as so completed, completed comply with all applicable lawsLaws in all material respects; and (gh) Agent Lender shall have received a certificate from Lender’s Consultant for the Consultant certifying sole benefit of Lender that the Improvements have been satisfactorily completed substantially in accordance with the Approved Plans and Specifications. Borrower shall comply with and satisfy each of the foregoing final disbursement conditions contained in this Section 13.1 within ninety (90) days after the Completion Date.

Final Disbursement for Construction. Agent and the Lenders Lender will advance to the appropriate Borrower the final Mexican Draw Disbursement and disbursement of the Capex Loans for the cost of the Construction (including retainages), ) when the following conditions have been complied with, provided that all other conditions in this Agreement for disbursements have been complied with: (a) The Improvements have been fully completed and equipped in accordance with the Plans and Specifications, Specifications free and clear of mechanics’ liens and security interests, interests and are ready for occupancy; (b) Borrowers Borrower shall have furnished to Agent insurance, Lender “all risks” casualty insurance in form and amount and with companies satisfactory to Agent, Lender in accordance with the requirements contained herein; (c) Borrowers Borrower shall have furnished to Agent Lender copies of all licenses and permits required by any Governmental Authority having jurisdiction for the occupancy of the Improvements and the operation thereof, including a notice or certificate of construction completion, filed with Governmental Authority at occupancy from the municipality in which the Mexican Project Facility is located, or a letter from the appropriate Governmental Authority that no such certificate is issued; (d) Borrowers Borrower shall have furnished a plat of survey covering the completed ImprovementsImprovements in compliance with Section 8.1(c); (e) all All fixtures, furnishings, furniture, equipment and other property required for the operation of the Mexican Project Facility shall have been installed, installed free and clear of all liens and security interests, except for Liens in favor of Agent, for the benefit of the LendersLender; (f) Borrowers Borrower shall have furnished to Agent Lender copies of all final waivers of lien and sworn statements from contractors, subcontractors and material suppliers and an affidavit from the General Contractor in accordance with the mechanic’s lien law of the State or as otherwise established by Lender; (g) Borrower shall have furnished to Lender a certificate from the Construction Contractor Architect or other evidence satisfactory to Agent, Lender dated on at or about the Project Completion Date, Date stating that (i) the Improvements have been completed in accordance with the Plans and Specifications, and (ii) the Improvements, Improvements as so completed, completed comply with all applicable lawsLaws; and (gh) Agent Lender shall have received a certificate from the Lender’s Consultant certifying for Lender’s sole benefit that the Improvements have been satisfactorily completed in accordance with the Plans and Specifications. If Borrower fails to comply with and satisfy any of the final disbursement conditions contained in this Section 10.7 within sixty (60) days after the Completion Date, such failure shall constitute an Event of Default hereunder.

Final Disbursement for Construction. Agent and the Lenders The Capital Provider will advance to the appropriate Borrower Property Owner the final Mexican Draw Disbursement and disbursement of the Capex Loans for the cost of the Construction (including retainages), ) when the following conditions have been complied with, ; provided that all other conditions in this Agreement for disbursements have been complied with:with in form and substance reasonably satisfactory to the Capital Provider (such compliance, “Completion of Construction”): (a) The the New Energy Improvements have been fully completed and equipped in accordance with the Plans and Specifications, Specifications free and clear of mechanics’ liens and security interests, interests and are in Service or are ready for occupancybeing placed into Service, being [$ ] subject only to punch list items, the cost of which shall not exceed in aggregate value, one hundred and twenty-five percent (125%) of which amount may be withheld from final disbursement by the Capital Provider until such punch list items have been fully completed; (b) Borrowers the Property Owner shall have furnished to Agent insurance, the Capital Provider for the benefit of the Capital Provider “all risks” casualty insurance in form and amount and with companies satisfactory to Agent, the Capital Provider in accordance with the requirements contained herein; (c) Borrowers the Property Owner shall have furnished to Agent the Capital Provider copies of all licenses and permits required by any Governmental Authority having jurisdiction for the occupancy of the New Energy Improvements and the operation thereof, including a notice or temporary certificate of construction completion, filed with Governmental Authority at occupancy from the municipality in which the Mexican Project is located;, [$ ] being subject only to punch list items not exceeding value; in aggregate (d) Borrowers [the Property Owner shall have furnished a plat of an as-built survey covering the completed ImprovementsNew Energy Improvements in compliance with the requirements of the Financing Agreement and the Title Company;] (e) all fixtures, furnishings, furniture, equipment and other property required for the operation of the Mexican Project shall have been installed, installed free and clear of all liens and security interests, except for Liens of Agent, for the benefit in favor of the LendersCapital Provider; (f) Borrowers the Property Owner shall furnish to the Capital Provider (i) copies of all final and conditional waivers of lien and sworn statements from the Contractor, Subcontractors and material suppliers and an affidavit from the Contractor in accordance with the mechanic’s lien law of the State or as otherwise established by the Capital Provider evidencing and confirming that there are no lien rights available to any party on or against the Project; and (ii) upon delivery of such payment, then the Property Owner shall have furnished to Agent the Capital Provider unconditional lien waivers from such parties; (g) the Property Owner and the Contractor shall have furnished to the Capital Provider a certificate from the Construction Contractor or other evidence satisfactory to Agent, the Capital Provider dated on at or about the Project Completion Date, Date stating that (i) the New Energy Improvements have been completed in accordance with the Plans and Specifications, and (ii) the Improvements, New Energy Improvements as so completed, completed comply with all applicable lawsLaws, subject only to punch [$ ] list items not exceeding in aggregate value; and (gh) Agent the Capital Provider shall have received a certificate from the Capital Provider’s Construction Consultant certifying for the benefit of the Capital Provider and the Capital Provider that the New Energy Improvements have been satisfactorily completed in accordance with the Plans and SpecificationsSpecifications and placed in use on the Property. If the Property Owner fails to comply with and satisfy any of the final disbursement conditions contained in this Section 11 within 45 days after the Completion Date, such failure shall constitute an Event of Default under the Financing Agreement.

Final Disbursement for Construction. Agent and the Lenders will advance to the appropriate Borrower the final Mexican Draw Disbursement and disbursement of the Capex Loans for the cost of the Construction (including retainages), ) for the Subject Property when the following conditions (“Completion Conditions”) have been complied withwith respect to the Subject Property (hereinafter, “Final Completion”), provided that all other conditions in this Agreement for disbursements have been complied with: (a) The Improvements have been fully completed (except for any Tenant Work on then-unleased portions of the Subject Property) and equipped in accordance with the Plans and Specifications, Specifications free and clear of liens any Liens (other than Permitted Liens) and any security interests, interests(other than those provided hereunder) and are ready for occupancy; (b) Borrowers Borrower shall have furnished to the Administrative Agent insurance, “all risks” casualty insurance in form and amount and with companies satisfactory to Agent, Lender in accordance with the requirements contained herein; (c) Borrowers Borrower shall have furnished to the Administrative Agent copies of all material licenses and permits required by any Governmental Authority having jurisdiction for the occupancy of the Improvements and the operation thereof, including a notice or certificate final, non-conditional certificates of construction completion, filed with Governmental Authority at occupancy from the municipality in which the Mexican Project Subject Property is located, or a letter from the appropriate Governmental Authority that no such certificate is issued; (d) Borrowers All Tenants shall have executed acknowledgments of acceptance of their respective premises to the extent required pursuant to the terms of the applicable Leases; (e) Borrower shall have furnished a plat of survey covering the completed ImprovementsImprovements in compliance with Section 6.1(j); (ef) all All fixtures, furnishings, furniture, equipment and other property required for the operation of the Mexican Project Subject Property shall have been installed, installed free and clear of all liens Liens (other than Permitted Liens) and all security interests, except for Liens of Agent, for the benefit of the Lendersinterests (other than those provided hereunder); (fg) Borrowers Borrower shall have furnished to the Administrative Agent copies of all Release and Payment Receipt Affidavits (as such term is defined in the General Contract), in the form attached as Schedule 1 to the General Contract, from the General Contractor and all subcontractors and material suppliers who supplied materials and/or performed the work and constructed the Improvements at the Subject Property, together with any other statements and forms required for compliance with the mechanics’ lien laws of the Commonwealth of Massachusetts; (h) Borrower shall have furnished to the Administrative Agent a certificate from the Construction Contractor Architect or other evidence satisfactory to Agent, the Administrative Agent dated on at or about the Project Final Completion Date, Date stating that (i) the Improvements have been completed in accordance with the Plans and Specifications, and (ii) the Improvements, Improvements as so completed, completed comply with all applicable lawsApplicable Laws; and (gi) The Administrative Agent shall have received a certificate from the Lenders’ Consultant certifying that the Improvements have been satisfactorily completed in accordance with the Plans and Specifications.