SIDE LETTER FROM AGENT TO BORROWER DATED AS OF EVEN DATE HEREWITH PURSUANT TO
WHICH BORROWER HAS AGREED TO MAKE CERTAIN PAYMENTS TO AGENT (THE "SIDE LETTER
RE: FEES").
SECTION 2.08
DISCLOSURE SIDE LETTER.
THE SIDE LETTER FROM BORROWER TO AGENT DATED AS OF EVEN DATE HEREWITH PURSUANT
TO WHICH BORROWER HAS DISCLOSED OR SUBMITTED TO AGENT, AND AGENT HAS APPROVED,
CERTAIN MATTERS, SCHEDULES, FORMS AND DOCUMENTS REFERRED TO HEREIN (THE
"DISCLOSURE SIDE LETTER").
ARTICLE 3
AGREEMENT TO LEND AND
PAYMENT OF PROJECT LOAN
Subject to the terms and conditions set forth in this Agreement and each
Borrower Entity's compliance with all of the provisions hereof and in the other
Loan Documents, and relying on each Borrower Entity's representations,
warranties and covenants set forth herein and the other Loan Documents, Lenders
severally and not jointly agree to make Advances of the Project Loan to Borrower
from time to time and Borrower agrees to borrow from Lenders up to the Project
Loan Amount, in accordance with the provisions hereof, during the period from
the date hereof to the Maturity Date in
34
an aggregate principal amount of up to the Project Loan Amount, to be used by
Borrower to pay Project Loan Costs actually incurred in connection with the
construction of the Project.
SECTION 3.01
ADVANCES.
EACH BUDGET
REFLECTS, BY CATEGORY AND LINE ITEMS, THE PURPOSES AND THE AMOUNTS FOR WHICH
FUNDS TO BE ADVANCED BY LENDERS UNDER THIS AGREEMENT ARE TO BE USED.
LENDERS
SHALL NOT BE REQUIRED TO DISBURSE FOR ANY CATEGORY OR LINE ITEM OF PROJECT LOAN
COSTS WITH RESPECT TO THE FC UNITS OR THE NYTC UNITS MORE THAN THE AMOUNT
SPECIFIED THEREFOR IN THE APPLICABLE BUDGET, SUBJECT TO CHANGES APPROVED BY
AGENT IN ACCORDANCE WITH SECTIONS 3.02, 3.03, 3.20 AND 7.11 HEREOF (OR OTHER
REALLOCATIONS APPROVED BY AGENT).
NO LENDER IS OBLIGATED TO FUND AMOUNTS IN
EXCESS OF ITS RATABLE SHARE OF THE PROJECT LOAN AMOUNT AND NOT MORE THAN ITS
RATABLE SHARE OF ANY CATEGORY OR LINE ITEM SET FORTH IN ANY BUDGET.
SECTION 3.02
COST OVERRUNS.
EACH
BUDGET SHALL, WITH RESPECT TO EACH DRAW REQUEST, BE REVISED TO ADDRESS ANY
CHANGE OR ANTICIPATED CHANGE IN PROJECT LOAN COSTS THAT BORROWER IS AWARE OF
WHICH WILL INCREASE A CATEGORY OR LINE ITEM OF PROJECT LOAN COSTS REFLECTED IN
ANY BUDGET (INCLUDING ALL ANTICIPATED COSTS OF ALL CHANGE ORDERS, REGARDLESS OF
WHETHER THE AMOUNT OF SUCH CHANGE ORDER AND/OR ANY EXTENSION OF TIME WITH
RESPECT THERETO HAS BEEN AGREED TO AND REGARDLESS OF WHETHER WORK ON SUCH CHANGE
ORDER HAS COMMENCED).
LENDERS SHALL HAVE NO OBLIGATION TO MAKE ANY FURTHER
ADVANCES WITH RESPECT TO THE UNITS WHICH ARE THE SUBJECT OF SUCH REVISED BUDGET
UNLESS AND UNTIL SUCH REVISED BUDGET IS APPROVED BY AGENT, SUCH APPROVAL NOT TO
BE UNREASONABLY WITHHELD OR DELAYED.
SECTION 3.03
CONTINGENCY RESERVES.
AT ANY TIME AND FROM TIME TO TIME, THE AMOUNTS ALLOCATED IN EACH BUDGET AS
PROJECT LOAN CONTINGENCY SHALL BE DISBURSED OR MOVED TO ANOTHER LINE ITEM UPON