Common use of Subject to compliance by Holdings Clause in Contracts

Subject to compliance by Holdings. the Borrower and each Borrower Subsidiary with all of the provisions of this Agreement and so long as no Default or Event of Default then exists, Loan proceeds applicable to each Project shall be disbursed by the Lenders making Advances in accordance with the following procedures: (1) Not less than five (5) Business Days before the date on which the Borrower desires an Advance for a Project, the Borrower shall submit to the Agent Lender a request for an Advance in the form attached hereto as Exhibit H. A separate Advance request must be completed for each Project for which an Advance is requested. While Advances may be made simultaneously to finance costs of more than one Project, Advances shall be made not more than once each calendar month, and the Borrower hereby acknowledges and agrees that it must coordinate requests for multiple Projects such that the Lenders are not required to Advance more than once per month. Notwithstanding anything to the contrary herein provided, no Advances shall be made during the last five (5) Business Days in September of any year. Each request for an Advance shall identify the Project for which such Advance is made with specificity, must be signed by an Authorized Representative, must be submitted in compliance with the provisions of Section 9.7 herein (with an e-mail transmission notification to each of xxxxxx.xxxxxxx@xxx-xx.xxx, xxxxxx.xxxxxxx@xxx-xx.xxx. and xxxxx.xxxxx@xxx-xx.xxx (or such other e-mail addresses provided to Borrower by the Agent Lender) as to the incoming Advance request), and must be accompanied by the following: (i) a copy of the Project Development Budget for such Project, together with a cost breakdown by line item showing the cost of Improvements and any budgeted soft costs spent to the date of the requisition and showing the percentage of completion, certified by the Borrower as correct; (ii) AIA Documents G702 and G703 and conditional lien waivers from the General Contractor and any Major Subcontractor (as hereinafter defined) and invoices supporting all nonconstruction costs. As used herein “Major Subcontractor” means any subcontractor or supplier of materials entering into contracts for services and/or supply of materials for the Project in an amount greater than $50,000;

Subject to compliance by Holdings. the Borrower and each Borrower Subsidiary with all of the provisions of this Agreement and so long as no Default or Event of Default then exists, Loan proceeds applicable for Working Capital Expenses (other than Working Capital Expenses related to each Project Remaining Construction Projects, which shall be subject to the provisions of Section 4.1(c)) shall be disbursed by the Lenders making Advances in accordance with the following procedures: (1) Not less than five (5) Business Days before the date on which the Borrower desires an Advance for a Projectapplicable Working Capital Expenses, the Borrower shall submit to the Agent Lender a request (each, a “Working Capital Advance Request”) for an Advance in the form attached hereto as Exhibit H. R. A separate Advance request must be completed for each Project all Working Capital Expenses for which an Advance is requested. While Advances may be made simultaneously to finance costs of more than one Project, Advances for Working Capital Expenses shall be made not more than once each calendar month, and the Borrower hereby acknowledges and agrees that it must coordinate requests for multiple Remaining Construction Projects such that the Lenders are not required to Advance more than once per month. Notwithstanding anything to the contrary herein provided, no Advances shall be made during the last five (5) Business Days in September of any year. Each request for an Advance shall identify the Project for which such Advance is made with specificity, must be signed by an Authorized Representative, must be submitted in compliance with the provisions of Section 9.7 herein (with an e-mail transmission notification to each of xxxxxx.xxxxxxx@xxx-xx.xxx, xxxxxx.xxxxxxx@xxx-xx.xxx. xxxxxx.xxxxxxx@xxx-xx.xxx and xxxxx.xxxxx@xxx-xx.xxx xxxxxx.xxxxxxx@xxx-xx.xxx (or such other e-mail addresses provided to Borrower by the Agent Lender) as to the incoming Advance request)), and must be accompanied by the following: (i) a copy of the Project Development Budget for such Project, together with a cost breakdown by line item showing the cost of Improvements and any budgeted soft costs spent to the date of the requisition and showing the percentage of completion, certified by the Borrower as correct; (ii) AIA Documents G702 and G703 and conditional lien waivers from the General Contractor and any Major Subcontractor (as hereinafter defined) and invoices supporting all nonconstruction costs. As used herein “Major Subcontractor” means any subcontractor or supplier of materials entering into contracts for services and/or supply of materials for the Project in an amount greater than $50,000;

Subject to compliance by Holdings. the Borrower and each Borrower Subsidiary with all of the provisions of this Agreement and so long as no Default or Event of Default then exists, Loan proceeds applicable to each Remaining Construction Project shall be disbursed by the Lenders making Advances in accordance with the following procedures: (1) Not less than five (5) Business Days before the date on which the Borrower desires an Advance for a Remaining Construction Project, the Borrower shall submit to the Agent Lender a request for an Advance in the form attached hereto as Exhibit H. A separate Advance request must be completed for each Project for which an Advance is requested. While Advances may be made simultaneously to finance costs of more than one Project, Advances shall be made not more than once each calendar month, and the Borrower hereby acknowledges and agrees that it must coordinate requests for multiple Projects such that the Lenders are not required to Advance more than once per month. Notwithstanding anything to the contrary herein provided, no Advances shall be made during the last five (5) Business Days in September of any year. Each request for an Advance shall identify the Remaining Construction Project for which such Advance is made with specificity, must be signed by an Authorized Representative, must be submitted in compliance with the provisions of Section 9.7 herein (with an e-mail transmission notification to each of xxxxxx.xxxxxxx@xxx-xx.xxx, xxxxxx.xxxxxxx@xxx-xx.xxx. , and xxxxx.xxxxx@xxx-xx.xxx (or such other e-mail addresses provided to Borrower by the Agent Lender) as to the incoming Advance request), and must be accompanied by the following: (i) a copy of the Project Development Budget for such Project, together with a cost breakdown by line item showing the cost of Improvements and any budgeted soft costs spent to the date of the requisition and showing the percentage of completion, certified by the Borrower as correct; (ii) AIA Documents G702 and G703 and conditional lien waivers from the General Contractor and any Major Subcontractor (as hereinafter defined) and invoices supporting all nonconstruction costs. As used herein “Major Subcontractor” means any subcontractor or supplier of materials entering into contracts for services and/or supply of materials for the Project in an amount greater than $50,000;

Subject to compliance by Holdings. the Borrower and each Borrower Subsidiary with all of the provisions of this Agreement and so long as no Default or Event of Default then exists, Loan proceeds applicable to each Project shall be disbursed by the Lenders making Advances in accordance with the following procedures: (1) Not less than five (5) Business Days before the date on which the Borrower desires an Advance for a Project, the Borrower shall submit to the Agent Lender a request for an Advance in the form attached hereto as Exhibit H. A separate Advance request must be completed for each Project for which an Advance is requested. While Advances may be made simultaneously to finance costs of more than one Project, Advances shall be made not more than once each calendar month, and the Borrower hereby acknowledges and agrees that it must coordinate requests for multiple Projects such that the Lenders are not required to Advance more than once per month. Notwithstanding anything to the contrary herein provided, no Advances shall be made during the last five (5) Business Days in September of any year. Each request for an Advance shall identify the Project for which such Advance is made with specificity, must be signed by an Authorized Representative, must be submitted in compliance with the provisions of Section 9.7 herein (with an e-mail transmission notification to each of xxxxxx.xxxxxxx@xxx-xx.xxx, xxxxxx.xxxxxxx@xxx-xx.xxx. and xxxxx.xxxxx@xxx-xx.xxx (or such other e-mail addresses provided to Borrower by the Agent Lender) as to the incoming Advance request), and must be accompanied by the following: (i) a copy of the Project Development Budget for such Project, together with a cost breakdown by line item showing the cost of Improvements and any budgeted soft costs spent to the date of the requisition and showing the percentage of completion, certified by the Borrower as correct; (ii) AIA Documents G702 and G703 and conditional lien waivers from the General Contractor and any Major Subcontractor (as hereinafter defined) and invoices supporting all nonconstruction costs. As used herein “Major Subcontractor” means any subcontractor or supplier of materials entering into contracts for services and/or supply of materials for the Project in an amount greater than $50,000; (iii) unless not available in a Project jurisdiction or otherwise waived by Agent Lender for a Project, an endorsement to the Title Policy which brings the effective date of the Title Policy insuring the Mortgage forward to the date of such Advance, which shows no unapproved title exceptions, which evidences to the Lenders’ satisfaction that there has been no change in the status of the title to the Property or the Borrower’s interest therein or creation of any new encumbrances thereon, or occurrence of any event that could in Lenders’ opinion impair the priority of the Lien of the Mortgage as of the time of each advance, and which increases the amount of title insurance thereunder, and otherwise is in form and content acceptable to the Lenders; (iv) evidence in form satisfactory to the Agent Lender that the Borrower has injected the Required Borrower Funds as to the Advance made the basis of such request in the manner described in Section 4.4 below; (v) a certificate of Borrower, Holdings and Borrower Subsidiaries to the effect that (1) the representations and warranties made by the Borrower, Holdings and Borrower Subsidiaries in this Agreement and all other Loan Documents are true and correct on and as of the date of the making of such request for an Advance with the same force and effect as if made on and as of such date, (2) no Default or Event of Default has occurred and is continuing, (3) all completed construction is substantially in accordance with the Plans and Specifications for such Project, (4) all construction and nonconstruction costs for the payment of which the Lenders have previously made Advances (including Advances for the Project made the basis of the request and all prior Advances for any other Project) have in fact been paid (except to the extent reasonable reserves have been established with respect to amounts due or to become due), (5) as of the date of such Advance, to its knowledge, none of Holdings, Borrower or any Borrower Subsidiaries has any defenses, equities or setoffs with respect to the Loan Obligations, (6) that the Project Development Budgets (as the same may have been amended to the extent permitted herein and including any amendments thereto of which Borrower is then providing the required notice to Agent Lender) for all other Approved Projects remain true, accurate and complete in all material respects and include all costs required to develop and open the Projects to which they pertain; and (7) including such other certifications, representations and warranties as Agent Lender may reasonably request; and (vi) such other items related to (i), (ii), (iii) and (iv) above as may be reasonably required by the Agent Lender in connection with any such request for an Advance.