OF THE
REDEMPTION BY EACH MEMBER OF ITS 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 PROJECT 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 BUILDING
LOAN AGREEMENT.
55
(C)
REPRESENTATIONS AND WARRANTIES.
THE
REPRESENTATIONS AND WARRANTIES MADE BY BORROWER ENTITIES IN THE PROJECT LOAN
DOCUMENTS, OR OTHERWISE 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