FORM OF EXHIBIT H HERETO, SIGNED BY BORROWER,
AND DATED AS OF THE DATE OF BORROWER'S REQUEST FOR SUCH REVOLVING CREDIT LOAN
ADVANCE REFLECTING THAT BORROWER HAS SUFFICIENT AVAILABILITY UNDER THE REVOLVING
CREDIT LOAN TO SUPPORT THE REVOLVING CREDIT LOAN ADVANCE REQUEST.
(e)
Lender shall have received satisfactory
Contribution Margin Pro Formas in accordance with section 7.12(a)(x) showing a
positive contribution margin.
(F)
LENDER SHALL HAVE RECEIVED SUCH OTHER
APPROVALS, OPINIONS OR DOCUMENTS AS IT MAY REASONABLY REQUEST.
Borrower agrees that the making of a request by Borrower for a Revolving Credit
Loan, whether in writing, by telephone or otherwise, shall constitute a
certification by all of Borrower and the person(s) executing or giving the same
that all representations and warranties of Borrower herein are true as of the
date thereof and that all required conditions to the making of the Revolving
Credit Loan have been met.
5.4
OTHER CONDITIONS PRECEDENT TO ADVANCES.
IN
ADDITION AND NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, LENDER
SHALL BE UNDER NO DUTY TO MAKE ANY ADVANCES UNDER EITHER OF THE LOANS UNTIL THE
FOLLOWING CONDITIONS SHALL HAVE BEEN AND SHALL CONTINUE TO BE SATISFIED, IN THE
SOLE DISCRETION OF LENDER:
(A)
NO DEFAULT OR EVENT OF DEFAULT SHALL EXIST.
(B)
NO ACTION, PROCEEDING, INVESTIGATION,
REGULATION OR LEGISLATION SHALL HAVE BEEN INSTITUTED, THREATENED OR PROPOSED
BEFORE ANY COURT, GOVERNMENTAL AGENCY OR LEGISLATIVE BODY TO
45
ENJOIN, RESTRAIN OR PROHIBIT, OR TO OBTAIN DAMAGES IN RESPECT OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
(C)
THERE SHALL NOT HAVE OCCURRED ANY MATERIAL
ADVERSE CHANGE IN THE BUSINESS, FINANCIAL CONDITION OR RESULTS OF OPERATIONS OF
BORROWER, OR THE EXISTENCE OR VALUE OF ANY COLLATERAL, OR ANY EVENT, WHICH WOULD
REASONABLY BE EXPECTED TO MATERIALLY AND ADVERSELY AFFECT THE ACTUAL OR
PROSPECTIVE BUSINESS, FINANCIAL CONDITION OR OPERATIONS OF BORROWER.
(D)
LENDER SHALL HAVE RECEIVED SUCH OTHER
FURTHER DOCUMENTS, DATA OR INFORMATION WITH RESPECT TO THE IMPROVEMENTS, AND
PROPERTY, AS LENDER MAY REASONABLY REQUEST, INCLUDING, WITHOUT LIMITATION,
SUBORDINATION AGREEMENTS, ATTORNMENT AGREEMENTS AND CONSENTS FROM ANY ENTITIES
INVOLVED IN THE LOAN TRANSACTION, ALL IN FORM AND CONTENT SATISFACTORY TO
LENDER.
(E)
BORROWER SHALL HAVE PAID ALL LEGAL FEES AND
OTHER CLOSING OR LIKE COSTS AND EXPENSES OF LENDER WHICH THE BORROWER IS
OBLIGATED TO PAY HEREUNDER.
SECTION 6.
CONSTRUCTION ADVANCES/DISBURSEMENTS.
6.1
PROJECT ADVANCES
(A)
REQUEST FOR ADVANCE.
REQUESTS FOR ADVANCES
UNDER THE CONSTRUCTION/TERM LOAN MAY NOT BE SUBMITTED MORE FREQUENTLY THAN
MONTHLY AND MUST CONTAIN THE FOLLOWING:
(I)
A REQUEST FOR ADVANCE EXECUTED BY BORROWER FOR
CONSTRUCTION OF THE PROJECT IN THE FORM OF EXHIBIT F, BORROWER'S AFFIDAVIT AND
REQUEST FOR ADVANCE, AND CONTRACTOR'S REQUEST FOR ADVANCE ACCOMPANIED BY
APPROPRIATE SCHEDULE A'S, INCLUDING AIA DOCUMENT NOS. G702 AND G703, SIGNED BY
BORROWER AND THE GENERAL CONTRACTOR.
SUCH REQUEST SHALL ONLY INCLUDE VERIFIED
PROJECT COSTS, EXCEPT AS EXPRESSLY SET FORTH HEREIN, OF WORK DONE OR MATERIALS
INCORPORATED INTO THE PROJECT BETWEEN THE NEXT PRECEDING ADVANCE AND THE ADVANCE
BEING APPLIED FOR (OR OTHER PROJECT COSTS APPROVED BY LENDER AND NOT THERETOFORE