UNITS.
(Z)
APPROVALS.
BORROWER SHALL HAVE DELIVERED A LETTER OR OTHER
ACKNOWLEDGMENT IN FORM AND SUBSTANCE SATISFACTORY TO AGENT (I) FROM ING MEMBER
AND FC 41ST STREET THAT THE LOANS ARE AN "ACCEPTABLE CONSTRUCTION LOAN" FOR
PURPOSES OF THE FC OPERATING AGREEMENT AND (II) FROM ING MEMBER APPROVING THE
EQUITY CONTRIBUTION AND WAIVING ITS RIGHT TO CONTEST ANY DRAW REQUEST.
(AA)
OTHER DOCUMENTS.
BORROWER SHALL HAVE DELIVERED SUCH OTHER
DOCUMENTS AND CERTIFICATES AS AGENT OR ITS COUNSEL MAY REASONABLY REQUIRE.
SECTION 4.02
Conditions of Advances.
The obligation of the Lenders to
make the initial Advance (the "Initial Construction Advance") or any subsequent
Advances (unless any such condition precedent is waived by Agent in its sole
discretion (subject to Section 8.03 hereof)) of the Building Loan shall be
subject to the following conditions precedent:
(A)
PRIOR CONDITIONS SATISFIED.
ALL CONDITIONS PRECEDENT SET FORTH IN
SECTION 4.01 SHALL CONTINUE TO BE SATISFIED AS OF THE DATE OF EACH ADVANCE,
PROVIDED THAT ALL SUCH CONDITIONS PRECEDENT SHALL BE DEEMED TO BE CONTINUED TO
BE SATISFIED AND BORROWER SHALL HAVE NO OBLIGATION TO DELIVER OR SATISFY ANY
SUCH CONDITIONS EXCEPT THAT BORROWER SHALL BE OBLIGATED TO DELIVER THE DOCUMENTS
REFERRED TO IN SECTIONS 4.01(F) AND (G) HEREOF (IF NOT PREVIOUSLY DELIVERED) AND
ANY AMENDMENTS, MODIFICATIONS, SUBSTITUTIONS, REPLACEMENTS OR SUPPLEMENTS TO THE
DOCUMENTS REFERRED TO IN SECTIONS 4.01(C)-(H) AND (K)-(L) HEREOF.
(B)
PERFORMANCE; NO DEFAULT.
ON THE DATE OF SUCH ADVANCE THERE SHALL
EXIST NO NOTICED DEFAULT OR EVENT OF DEFAULT HEREUNDER AND NO NOTICED DEFAULT OR
EVENT OF DEFAULT UNDER AND AS DEFINED IN THE PROJECT LOAN AGREEMENT.
(C)
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES MADE BY BORROWER ENTITIES IN THE BUILDING LOAN DOCUMENTS, OR
OTHERWISE
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MADE BY OR ON BEHALF OF BORROWER ENTITIES IN CONNECTION THEREWITH AFTER THE DATE
THEREOF, SHALL HAVE BEEN TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON THE DATE
ON WHICH MADE AND SHALL ALSO BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON THE
DATE OF SUCH ADVANCE, EXCEPT (A) IN EACH CASE TO THE EXTENT THAT THE FAILURE OF
ANY SUCH REPRESENTATION OR WARRANTY TO BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS ON THE DATE OF SUCH ADVANCE DOES NOT HAVE, AND IS NOT REASONABLY LIKELY
TO HAVE, A MATERIAL ADVERSE EFFECT (IT BEING AGREED, HOWEVER, THAT IF THE FACTS
CAUSING SUCH FAILURE OF ANY REPRESENTATION OR WARRANTY TO BE UNTRUE OR INCORRECT
SHALL CONSTITUTE A DEFAULT OR EVENT OF DEFAULT, NOTHING HEREIN SHALL BE
CONSTRUED TO CONSTITUTE A WAIVER BY AGENT OF SUCH DEFAULT OR EVENT OF DEFAULT)
AND (B) THAT THE REPRESENTATIONS MADE IN SECTION 6.04(B) AND THE SECOND SENTENCE
OF SECTION 6.05(A) AND THE REPRESENTATIONS MADE IN SECTION 6.10 AND SECTION 6.13
WITH RESPECT TO THE GUARANTORS NEED NOT BE TRUE AND CORRECT ON THE DATE OF EACH
ADVANCE.
(D)
NO DAMAGE.
THE PROJECT SHALL NOT HAVE BEEN INJURED OR DAMAGED BY
FIRE, EXPLOSION, ACCIDENT, FLOOD OR OTHER CASUALTY, OR BEEN SUBJECT TO ANY
CONDEMNATION, GOVERNMENTAL TAKING OR EMINENT DOMAIN