Common use of Special Procedures for Unpaid Contractors Clause in Contracts

Special Procedures for Unpaid Contractors. If an Event of Default has occurred and is continuing, the Borrowers agree that the Disbursement Agent shall make or cause to be made advances and transfer any or all sums in the Loan Proceeds Account to the extent directed by the Agent, either by a check (which may be made payable jointly to a Contractor and one or more of its subcontractors, vendors or materialmen) payable to, or by a deposit directly into the account of: (a) any Contractor for any amounts due and owing (including without limitation Retainage Amounts then due and payments in settlement of any Disputed Amounts) to such Contractor under the relevant Construction Contract; or (b) any other subcontractors, vendors or materialmen, in each case in payment of amounts due and owing (including without limitation Retainage Amounts then due and payments in settlement of any Disputed Amounts) to such parties from a Borrower without further authorization from the Borrower and, upon the occurrence and continuation of an Event of Default, the Borrowers hereby constitute and appoint the Disbursement Agent as their true and lawful attorney-in-fact to make or cause the making of such direct payments and this power of attorney shall be deemed to be a power coupled with an interest and shall be irrevocable; provided that the Disbursement Agent shall (i) not exercise its rights under this power of attorney except to make payments (x) as directed by a Borrower pursuant to a Disbursement Request or (y) in accordance with Section 4.1.3, and (ii) provide detailed notices to the Borrowers of any such advances concurrent with payment of the same. No further direction or authorization from the Borrowers shall be necessary to warrant or permit the Disbursement Agent to make or cause the making of such advances in accordance with the foregoing sentence. The Disbursement Agent shall consult with, and may (but shall not be obligated to) seek recommendations from, the Construction Consultant in making any advances or transfers under this Section 3.5. Provided that the Disbursement Agent shall utilize commercially reasonable practices in the performance of its duties hereunder, the Disbursement Agent shall have no liability for any advances or transfers made in accordance with this Section 3.5.

Special Procedures for Unpaid Contractors. If an Event of Default has occurred and is continuingNotwithstanding Section 2.6.1, the Borrowers parties hereto agree that the Disbursement Agent shall may make or cause to be made advances Advances and transfer any or all sums in the Loan Proceeds Disbursement Account to the extent directed by the Agent, either by a check (which may be made payable jointly to a Contractor and one or more of its subcontractors, vendors or materialmen) payable to, or by a deposit directly into the account of: (a) any Contractor from Phase II Hotel/Casino Funding Sources directly to (i) the Construction Manager for any amounts due and owing to the Construction Manager under the Construction Management Agreement, (including without limitation Retainage Amounts then ii) any other Contractor for amounts due and payments in settlement of any Disputed Amounts) owing to such Contractor under the relevant Construction Contract; Contract or (biii) any other subcontractors, vendors or materialmenSubcontractors, in each case in with respect to payment of amounts due and owing (including without limitation Retainage Amounts then due and payments in settlement of any Disputed Amounts) to such parties from a Borrower LCR with respect to amounts allocable to the Phase II Hotel/Casino and (b) from Phase II Mall Funding Sources directly to (i) the Construction Manager for amounts due and owing to the Construction Manager under the Construction Management Agreement, (ii) any other Contractor for amounts due and owing to such Contractor under the relevant Contract or (iii) any other Subcontractors, in each case with respect to payment of amounts due and owing to such parties from LCR or the Phase II Mall Borrowerswith respect to amounts allocable to the Phase II Mall without further authorization from the Borrower andparties hereto, upon and each of the occurrence and continuation of an Event of Default, the Borrowers parties hereto hereby constitute and appoint the Disbursement Agent as their true and lawful attorney-in-fact to make or cause the making of such direct payments and this power of attorney shall be deemed to be a power coupled with an interest and shall be irrevocable; provided that the Disbursement Agent shall (i) not exercise its rights under this power of attorney except to make payments (x) as directed by a Borrower LCR and/or the Phase II Mall Borrowers pursuant to a Disbursement an Advance Request or (y) in accordance after direction from the Bank Agent (for amounts payable with Section 4.1.3, and (ii) provide detailed notices respect to the Borrowers Phase II Hotel/Casino) and/or the Phase II Mall Agent (for amounts payable with respect to the Phase II Mall) upon the occurrence and continuation of any such advances concurrent with payment an Event of the sameDefault. No further direction or authorization from the Borrowers any Person shall be necessary to warrant or permit the Disbursement Agent to make or cause the making of such advances Advances in accordance with the foregoing sentence. The Disbursement Agent shall consult with, and may (but shall not be obligated to) seek recommendations fromand, to the Construction Consultant extent funds in making any advances or transfers under this Section 3.5. Provided that the Disbursement Agent shall utilize commercially reasonable practices in the performance of its duties hereunderAccount are not sufficient to make such Advances, the Disbursement Agent shall have no liability withdraw the shortfall (A) for any advances amounts payable with respect to the Phase II Hotel Casino, with the consent of the Bank Agent, from the Phase II Hotel/Casino Equity Account, the Bank Proceeds Account, the Free Cash Flow Sub-Account and/or the Supplemental Hotel/Casino Cash Account and (B) for amounts payable with respect to the Phase II Mall, with the consent of the Phase II Mall Agent, from the Phase II Mall Equity Account, the Phase II Mall Loan Proceeds Account or transfers made in accordance with this Section 3.5the Supplemental Mall Cash Account, as applicable, and transfer available funds from the applicable Accounts to the Disbursement Account as needed to make such Advances.

Special Procedures for Unpaid Contractors. If an Event of Default has occurred and is continuing, the Borrowers agree Borrower agrees that the Disbursement Agent may, but shall not be obligated to, make or cause to be made advances and transfer (i) any or all sums in the Loan Company Funds Account to the extent directed by the Administrative Agent, (ii) any or all sums in the Bank Proceeds Account to the extent directed by the Administrative Agent or (iii) any or all sums in the Mezz Proceeds Account to the extent directed by the Second Lien Collateral Agent; provided that the Disbursement Agent may continue to make advances and transfers out of the Mezz Proceeds Account under this Section 3.5 without the consent of the Second Lien Collateral Agent until such time as the Second Lien Collateral Agent has given an Exclusive Control Notice (as defined in the Account Control Agreement), either by a check (which may be made payable jointly to a Contractor and one or more of its subcontractors, vendors or materialmen) payable to, or by a deposit in each case directly into the account of: of (a) any Contractor for any amounts due and owing (including without limitation Retainage Amounts then due and payments in settlement of any Disputed Amounts) to such Contractor under the relevant Construction Contract; Contract or (b) any other subcontractors, vendors or materialmenmaterialsmen, in each case in payment of amounts due and owing (including without limitation Retainage Amounts then due and payments in settlement of any Disputed Amounts) to such parties from a Borrower the Loan Parties without further authorization from the Borrower and, upon the occurrence and continuation of an Event of Default, the Borrowers Borrower hereby constitute constitutes and appoint appoints the Disbursement Agent as their its true and lawful attorney-in-fact to make or cause the making of such direct payments and this power of attorney shall be deemed to be a power coupled with an interest and shall be irrevocable; provided that the Disbursement Agent shall (i) not exercise its rights under this power of attorney except to make payments (x) as directed by a the Borrower pursuant to a Disbursement Request or (y) in accordance with Section 4.1.3, and (ii) provide detailed notices to the Borrowers of any such advances concurrent with payment of the same. No further direction or authorization from the Borrowers Borrower shall be necessary to warrant or permit the Disbursement Agent to make or cause the making of such advances in accordance with the foregoing sentence. The Disbursement Agent shall consult with, and may (but shall not be obligated to) seek recommendations direction from, the Construction Consultant in making any advances or transfers under this Section 3.5. Provided that the Disbursement Agent shall utilize commercially reasonable practices in the performance of its duties hereunder, the Disbursement Agent shall have no liability for any advances or transfers made in accordance with this Section 3.5.

Special Procedures for Unpaid Contractors. If an Event of Default has occurred and is continuingNotwithstanding Section 2.5.1 above, the Borrowers agree Company agrees that the Disbursement Agent shall may make or cause to be made advances Advances and transfer any or all sums in the Loan Proceeds General Disbursement Account or (to the extent directed by such Advances relate to the Agent, either by a check (which may be made payable jointly to a Contractor and one payment of Non-Casino Project Costs) the Non-Casino Disbursement Account or more of its subcontractors, vendors or materialmen) payable to, or by a deposit the Local Currency Loans Account directly into the account of: of (a) any Contractor Construction Manager for any amounts due and owing to such Construction Manager under the relevant Construction Management Agreement, (including without limitation Retainage Amounts then b) any Contractor for amounts due and payments in settlement of any Disputed Amounts) owing to such Contractor under the relevant Construction Contract; Contract or (bc) any other subcontractors, vendors or materialmenSubcontractors, in each case in payment of amounts due and owing (including without limitation Retainage Amounts then due and payments in settlement of any Disputed Amounts) to such parties directly or indirectly from a Borrower the Company or any Loan Party without further authorization from the Borrower and, upon Company or any Loan Party and the occurrence Company and continuation of an Event of Default, the Borrowers each Loan Party hereby constitute constitutes and appoint appoints the Disbursement Agent as their its true and lawful attorney-in-fact to make or cause the making of such direct payments and this power of attorney shall be deemed to be a power coupled with an interest and shall be irrevocable; provided that that, the Disbursement Agent shall (i) not exercise its rights under this power of attorney except to make payments (xa) as directed by a Borrower the Company pursuant to a Disbursement an Advance Request or (yb) in accordance with Section 4.1.3, upon the occurrence and (ii) provide detailed notices to the Borrowers continuation of any such advances concurrent with payment an Event of the sameDefault. No further direction or authorization from the Borrowers Company or any Loan Party shall be necessary to warrant or permit the Disbursement Agent to make or cause the making of such advances Advances in accordance with the foregoing sentence. The sentence and, to the extent funds in the General Disbursement Agent shall consult with, and may (but shall not be obligated to) seek recommendations fromAccount, the Construction Consultant in making any advances or transfers under this Section 3.5. Provided that Non-Casino Disbursement Account and/or the Disbursement Agent shall utilize commercially reasonable practices in the performance of its duties hereunderLocal Currency Loans Account are not sufficient to make such Advances, the Disbursement Agent shall have no liability for withdraw the shortfall (or any advances portion thereof) from the Company Equity Account, the Assets Sales Proceeds Sub-Account, the Sales Deposit Account, the Term Loans Disbursement Account (or transfers made any Term Loans Disbursement Sub-Account), the Local Currency Loans Account or the Supplemental Equity Contribution Account in accordance with this Section 3.5Sections 2.5.1 and/or 2.5.2 and the other terms hereof and transfer sufficient funds to the General Disbursement Account and the Non-Casino Disbursement Account (pro-rata given the respective Commitments of the Lenders under such tranches) and/or the Local Currency Loans Account as needed to make such Advances.

Special Procedures for Unpaid Contractors. If an Event of Default has occurred and is continuing, the Borrowers agree Borrower agrees that the Disbursement Agent may, but shall not be obligated to, make or cause to be made advances and transfer any or all sums in the Loan Proceeds Account to the extent directed by the Administrative Agent, either by a check (which may be made payable jointly to a Contractor and one or more of its subcontractors, vendors or materialmen) payable to, or by a deposit directly into the account of: (a) any Contractor for any amounts due and owing (including without limitation Retainage Amounts then due and payments in settlement of any Disputed Amounts) to such Contractor under the relevant Construction Contract; or (b) any other subcontractors, vendors or materialmen, in each case in payment of amounts due and owing (including without limitation Retainage Amounts then due and payments in settlement of any Disputed Amounts) to such parties from a the Borrower without further authorization from the Borrower and, upon the occurrence and continuation of an Event of Default, the Borrowers Borrower hereby constitute and appoint appoints the Disbursement Administrative Agent as their its true and lawful attorney-in-fact to make or cause the making of such direct payments and this power of attorney shall be deemed to be a power coupled with an interest and shall be irrevocable; provided that the Disbursement Administrative Agent shall (i) not exercise its rights under this power of attorney except to make payments (x) as directed by a the Borrower pursuant to a Disbursement Request or (y) in accordance with Section 4.1.3, and (ii) provide detailed notices to the Borrowers Borrower of any such advances concurrent with not less than three (3) Business Days prior to payment of the same; provided, however, that the Administrative Agent shall not be liable for any failure to provide such written notice. No further direction or authorization from the Borrowers Borrower shall be necessary to warrant or permit the Disbursement Agent to make or cause the making of such advances in accordance with the foregoing sentence. The Disbursement Administrative Agent shall consult with, and may (but shall not be obligated to) seek recommendations from, the Construction Consultant in making directing any advances or transfers under this Section 3.5. Provided that the Disbursement Agent shall utilize commercially reasonable practices in the performance of its duties hereunder, the Disbursement Agent shall have no liability for any advances or transfers made in accordance with this Section 3.5.

Special Procedures for Unpaid Contractors. If an Event of Default has occurred and is continuing, the Borrowers agree The Borrower agrees that the Disbursement Agent may, but shall not be obligated to, make or cause to be made advances and transfer transfers of any or all sums in the Loan Proceeds Construction Disbursement Account to the extent directed by the Agent, either by a check (which may be made payable jointly to a Contractor and one or more of its subcontractors, vendors or materialmen) payable to, or by a deposit directly into the account of: (a) of any Contractor for any amounts due and owing (including without limitation Retainage Amounts then due and payments in settlement of any Disputed Amounts) to such Contractor under from the relevant Construction Contract; or (b) any other subcontractors, vendors or materialmen, in each case in payment of amounts due and owing (including without limitation Retainage Amounts then due and payments in settlement of any Disputed Amounts) to such parties from a Borrower without further authorization from the Borrower and, upon and the occurrence Borrower hereby constitutes and continuation of an Event of Default, the Borrowers hereby constitute and appoint appoints the Disbursement Agent as their its true and lawful attorney-in-fact solely and exclusively to make or cause the making of such direct payments and this power of attorney shall be deemed to be a power coupled with an interest and shall be irrevocable; provided that the Disbursement Agent shall (i) not exercise its rights under this power of attorney except to make payments (x) as directed by a the Borrower pursuant to a Disbursement Request or Request, (y) in accordance with Section 4.1.3, and or (iiz) provide detailed notices to during the Borrowers existence of any such advances concurrent with payment an Event of the sameDefault. No further direction or authorization from the Borrowers Borrower shall be necessary to warrant or permit the Disbursement Agent to make or cause the making of such advances in accordance with the foregoing sentencesentences. The Disbursement Agent shall consult with, and may (but shall not be obligated to) seek recommendations direction from, the Construction Consultant Administrative Agent in making any advances or transfers under the first sentence of this Section 3.5. Provided that the Disbursement Agent shall utilize commercially reasonable practices in the performance of its duties hereunder, the The Disbursement Agent shall have no liability for any advances or transfers made in accordance with this Section 3.5 absent gross negligence or willful misconduct or material breach of the provisions hereof on the part of the Disbursement Agent (in each case, as determined by a court of competent jurisdiction in a final judicial determination). The Disbursement Agent shall provide written notice of its intent to exercise its rights in this Section 3.5, provided, however, that the Disbursement Agent shall not be liable for any failure to provide such written notice. 4.