DECREASES WOULD BE TO REDUCE THE AVERAGE PRICE OF THE UNITS TO LESS THAN
$300 PER NET SALEABLE SQUARE FOOT.
(DD)
PATRIOT ACT.
ALL DOCUMENTS AND INFORMATION DEEMED NECESSARY BY
LENDER TO COMPLY WITH SECTION 326 OF THE USA PATRIOT ACT AND REGULATIONS
PROMULGATED PURSUANT TO SUCH LAW.
(EE)
OWNERSHIP, MANAGEMENT AND CAPITAL STRUCTURE.
THE OWNERSHIP,
MANAGEMENT AND CAPITAL STRUCTURE OF BORROWER MUST BE ACCEPTABLE TO LENDER AND
ANY MATERIAL CHANGE TO THE OWNERSHIP, MANAGEMENT OR CAPITAL STRUCTURE OF
BORROWER OR ANY MATERIAL MODIFICATION TO THE OWNERSHIP OR MANAGEMENT OF THE
MEMBERS OF BORROWER (WHETHER DIRECT OR INDIRECT) FOLLOWING THE CLOSING DATE
SHALL BE SUBJECT TO LENDER'S PRIOR WRITTEN APPROVAL; PROVIDED HOWEVER, LENDER
ACKNOWLEDGES THAT THE SOLE MEMBER OF BORROWER IS A PUBLICLY TRADED COMPANY AND
HEREBY APPROVES OF ITS SECURITIES BEING TRADED ON THE NASDAQ MARKET.
(FF)
PROJECT SCHEDULE.
LENDER HAS RECEIVED AND APPROVED THE PROJECT
SCHEDULE.
(GG)
CONDITIONS FOR ADVANCES.
BORROWER HAS SATISFIED ALL CONDITIONS FOR
ADVANCES SET FORTH IN SECTION 5.1 AND SECTION 5.2.
ARTICLE V
OTHER PROVISIONS CONCERNING ADVANCES
This Article contains terms, conditions and delivery requirements which pertain
to Advances under this Agreement other than the Initial Disbursement.
These
terms, conditions and delivery requirements are in addition to those set forth
elsewhere in this Agreement.
SECTION 5.1
GENERAL TERMS AND CONDITIONS FOR ADVANCES.
EACH
ADVANCE SHALL BE SUBJECT TO THE FOLLOWING GENERAL TERMS AND CONDITIONS:
(A)
NO EVENT OF DEFAULT.
THE REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE GUARANTOR IN THE GUARANTY, THE ENVIRONMENTAL INDEMNITY AND EACH
OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY AND OF BORROWER IN THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS ON AND AS OF THE DATE OF SUCH ADVANCE AND NO EVENT OF DEFAULT
OR DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING.
EACH REQUEST FOR AN ADVANCE
BY BORROWER SHALL, EXCEPT AS OTHERWISE DISCLOSED TO LENDER IN WRITING, BE DEEMED
TO BE A CERTIFICATION OF THE FOREGOING.
13
(B)
ARTICLE IV CONDITIONS.
ALL REQUIREMENTS SET FORTH IN ARTICLE IV
OF THIS AGREEMENT AS A CONDITION PRECEDENT TO THE CLOSING DATE SHALL HAVE BEEN
SATISFIED, INCLUDING, BUT NOT LIMITED TO, THE DELIVERY OF EVIDENCE SATISFACTORY
TO LENDER THAT BORROWER HAS INVESTED BORROWER'S MINIMUM EQUITY INVESTMENT AND
ANY REQUIRED BORROWER'S ADDITIONAL EQUITY INTO THE PROJECT.
(C)
NOTICE, FREQUENCY AND AMOUNTS.
LENDER SHALL USE COMMERCIALLY
REASONABLY EFFORTS TO FUND REQUESTS FOR ADVANCES WITHIN TEN (10) BUSINESS DAYS;
PROVIDED, HOWEVER, THAT ALL REQUESTS FOR ADVANCES MUST BE ORDERLY, COMPLETE AND
IN WRITING AND MUST INCLUDE ALL SUBMISSIONS REQUIRED UNDER THIS AGREEMENT BEFORE
THE TEN (10) BUSINESS DAY PERIOD BEGINS TO RUN.
ADVANCES SHALL NOT BE MADE MORE
FREQUENTLY THAN ONCE A MONTH.
BORROWER SHALL PAY LENDER A PROCESSING FEE OF
$500 FOR EACH ADVANCE, WHICH SHALL BE PAYABLE FROM LOAN PROCEEDS.
(D)
PURPOSES AND PAYEES.
ALL DISBURSEMENTS OF LOAN PROCEEDS MUST BE
APPROVED BY LENDER IN ITS SOLE BUT REASONABLE DISCRETION BASED ON COSTS EXPENDED
ON THE