of any materiality qualifier contained
therein) as of such date (except to the extent that such representation or
warranty expressly relates to an earlier date) and Agent or Requisite Lenders
have determined not to make such Advance as a result thereof or (ii) any Default
or Event of Default has occurred and is continuing or would result after giving
effect to any Advance and Agent or Requisite Lenders have determined not to make
such Advance; and (B) unless each of the following conditions are satisfied:
48
(I)
AGENT SHALL HAVE RECEIVED A COMPLETE EXECUTED ADVANCE REQUEST AND
BORROWER ADVANCE CERTIFICATION IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION
2.1(B), TOGETHER WITH ALL REQUIRED ATTACHMENTS AND DELIVERIES RELATING THERETO,
EACH OF WHICH SHALL BE IN FORM AND SUBSTANCE ACCEPTABLE TO AGENT AND
CONSTRUCTION CONSULTANT;
(II)
EVIDENCE SATISFACTORY TO THE AGENT AND THE CONSTRUCTION
CONSULTANT, IN THEIR REASONABLE DISCRETION, THAT THE PROCEEDS OF SUCH FUNDING
WILL BE PAID TO (I) QUALIFIED THIRD PARTIES FOR WORK WHICH HAS BEEN COMPLETED
(OR REQUIRES ADVANCE PAYMENT OR DEPOSIT) AND WHICH CONFORMS TO THE PLANS AND
SPECIFICATIONS AND PROJECT BUDGET, (II) AGENT AND LENDERS FOR INTEREST AND FEES
OWING IN CONNECTION WITH THIS AGREEMENT OR (III) BONDING COMPANIES FOR NECESSARY
CONSTRUCTION SURETY BONDS, GUARANTEES, AND SIMILAR CONSTRUCTION RELATED
AGREEMENTS PERMITTED UNDER SECTION 6.4(E);
(III)
SUBJECT TO SECTION 2.1(B)(VIII), DELIVERY OF INTERIM LIEN WAIVERS
IN THE FORM ATTACHED HERETO AS EXHIBITS 3.2, AS APPLICABLE FOR THE PERIOD ENDING
ONE MONTH PRIOR TO THE ADVANCE PERIOD DATE;
(IV)
EVIDENCE SATISFACTORY TO THE AGENT AND THE CONSTRUCTION CONSULTANT
THAT AS OF THE ADVANCE PERIOD DATE, CONSTRUCTION OF THE PROJECT IS ON PLAN,
SCHEDULE AND BUDGET, CONSISTENT WITH THE PLANS AND SPECIFICATIONS, PROJECT
BUDGET AND CONSTRUCTION SCHEDULE IN ALL MATERIAL RESPECTS;
(V)
CERTIFICATION TO THE AGENT THAT THE BORROWER DOES NOT HAVE CASH OR
CASH EQUIVALENTS IN AN AGGREGATE AMOUNT IN EXCESS OF $200,000;
(VI)
TO THE EXTENT ON OR PRIOR TO THE ADVANCE PERIOD DATE THAT BORROWER
HAS ENTERED INTO ANY NEW (OR AMENDED ANY EXISTING) PROJECT DOCUMENTS, ARCHITECT
AGREEMENTS, DEVELOPER CONSULTANT AGREEMENTS, GENERAL CONTRACTOR AGREEMENTS,
ENGINEER AGREEMENTS OR MAJOR TRADE CONTRACTS WITH RESPECT TO THE PROJECT, AGENT
SHALL HAVE RECEIVED COPIES OF SUCH DOCUMENTS, AGREEMENTS AND/OR AMENDMENTS, IN
EACH CASE IN FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO AGENT AND CONSTRUCTION
CONSULTANT IF AND ONLY IF AGENT HAS APPROVAL RIGHTS WITH RESPECT THERETO UNDER
THE TERMS OF THIS AGREEMENT, AND ANY NEW ARCHITECT, GENERAL CONTRACTOR, ENGINEER
OR MAJOR TRADE CONTRACTOR SHALL HAVE DELIVERED TO AGENT A DULY EXECUTED AND
COMPLETED ARCHITECT CONSENT, GENERAL CONTRACTOR CONSENT, ENGINEER CONSENT AND/OR
MAJOR TRADE CONTRACTOR CONSENT, AS APPLICABLE.
BORROWER SHALL HAVE ALSO UPDATED
THE LIST OF TRADE CONTRACTS ON OR PRIOR TO THE ADVANCE PERIOD DATE;
(VII)
AGENT SHALL HAVE RECEIVED FROM BORROWER AN UPDATED CERTIFIED LIST
OF ALL CONSTRUCTION CONTRACTS FOR THE PROJECT THAT HAVE BEEN ENTERED INTO ON OR
PRIOR TO THE ADVANCE PERIOD DATE;
(VIII)
AGENT SHALL HAVE RECEIVED AN UPDATED PROJECT BUDGET FOR THE
PROJECT AS OF THE ADVANCE