APPROVED BY AGENT.
SECTION 3.4.
[INTENTIONALLY DELETED]
SECTION 3.5.
OPTIONAL DISBURSEMENTS.
(A)
WAIVER OF CONDITIONS.
IF ANY OR ALL CONDITIONS PRECEDENT TO
MAKING A DISBURSEMENT HAVE NOT BEEN SATISFIED ON THE DATE SUCH DISBURSEMENT WAS
REQUESTED TO BE MADE, AGENT MAY, AT ITS OPTION (I) WAIVE SO MANY OF SUCH
CONDITIONS PRECEDENT AS IT MAY ELECT, AND/OR (II) DISBURSE ONLY THAT PORTION OF
THE REQUESTED DISBURSEMENT FOR WHICH ALL OF THE CONDITIONS PRECEDENT HAVE BEEN
SATISFIED.
TO THE EXTENT AGENT MAKES A DISBURSEMENT FOR WHICH ANY OF THE
CONDITIONS PRECEDENT HAVE NOT BEEN SATISFIED, THE MAKING OF SUCH DISBURSEMENT
SHALL CONSTITUTE A WAIVER OF SUCH UNSATISFIED CONDITIONS FOR SUCH DISBURSEMENT
(BUT NOT FOR ANY OTHER DISBURSEMENT), UNLESS OTHERWISE SET FORTH IN A WRITTEN
NOTICE FROM AGENT TO BORROWER.
(B)
DISBURSEMENTS TO THIRD PARTIES.
DURING THE EXISTENCE OF AN EVENT
OF DEFAULT, AGENT SHALL HAVE THE RIGHT (BUT NO OBLIGATION) TO MAKE ANY OR ALL
DISBURSEMENTS DIRECTLY TO CONTRACTORS OR ANY OTHER PERSON TO WHOM PAYMENT IS DUE
WITH RESPECT TO SUCH APPROVED LEASING COSTS.
THE EXECUTION OF THIS AGREEMENT BY
BORROWER SHALL, AND HEREBY DOES, CONSTITUTE AN IRREVOCABLE DIRECTION AND
AUTHORIZATION TO SO DISBURSE SUCH DISBURSEMENTS.
FOLLOWING AN EVENT OF DEFAULT
AND DURING ITS CONTINUANCE, NO FURTHER DIRECTION OR AUTHORIZATION FROM BORROWER
SHALL BE NECESSARY OR REQUIRED FOR SUCH DIRECT DISBURSEMENTS AND ALL SUCH
DISBURSEMENTS SHALL
51
SATISFY PRO TANTO THE OBLIGATIONS OF AGENT HEREUNDER AND SHALL BE SECURED BY THE
APPLICABLE LOAN DOCUMENTS AS FULLY AS IF MADE DIRECTLY TO BORROWER, REGARDLESS
OF THE DISPOSITION THEREOF BY THE PAYEE.
SECTION 3.6.
USE OF DISBURSEMENTS.
DISBURSEMENTS SHALL BE RECEIVED, HELD AND USED BY BORROWER TO PAY FOR APPROVED
LEASING COSTS.
ARTICLE IV
CONDITIONS PRECEDENT TO THE
EFFECTIVENESS OF THIS LOAN AGREEMENT
This Loan Agreement shall not be effective until the following conditions shall
have been satisfied, except to the extent that Agent may elect (which election
may be made without written or express notice of such waiver) to waive any such
conditions:
SECTION 4.1.
REPRESENTATIONS AND
WARRANTIES.
THE REPRESENTATIONS AND WARRANTIES MADE BY BORROWER AND GUARANTOR
IN THE LOAN DOCUMENTS AND IN ANY CERTIFICATE, DOCUMENT, OR FINANCIAL OR OTHER
STATEMENT FURNISHED BY BORROWER OR GUARANTOR PURSUANT TO OR IN CONNECTION
THEREWITH, SHALL BE TRUE AND CORRECT ON AND AS OF THE CLOSING DATE.
SECTION 4.2.
CLOSING DOCUMENTS, ETC.
AGENT SHALL HAVE RECEIVED FULLY EXECUTED AND, WHERE APPROPRIATE, ACKNOWLEDGED
COUNTERPARTS OF THIS LOAN AGREEMENT, THE NOTE AND EACH OF THE OTHER LOAN
DOCUMENTS, INCLUDING, WITHOUT LIMITATION, THE RECOURSE LIABILITY AGREEMENT, THE
INTEREST RATE PROTECTION GUARANTY AND THE ENVIRONMENTAL INDEMNITY, EACH OF WHICH
SHALL BE DATED AS OF THE CLOSING DATE, UNLESS OTHERWISE EXPRESSLY STATED (ALL OF
WHICH SHALL BE IN SUCH FORM, SUBSTANCE AND CONTENT SATISFACTORY TO AGENT AND
BORROWER).
SECTION 4.3.
RECEIPT OF ITEMS AND
DOCUMENTS BY AGENT.
AGENT SHALL HAVE RECEIVED AND APPROVED THE FOLLOWING ITEMS
AND DOCUMENTS, DULY EXECUTED AND IN RECORDABLE FORM WHERE APPLICABLE, IN EACH
CASE IN FORM AND SUBSTANCE SATISFACTORY TO AGENT AND LENDERS: