TO ANY CONDEMNATION, GOVERNMENTAL TAKING OR EMINENT DOMAIN
PROCEEDING (OTHER THAN THE "CONDEMNATION" AS DEFINED IN THE GROUND LEASE AND THE
SEVERANCE SUBLEASES) UNLESS AGENT SHALL HAVE RECEIVED (OR SHALL HAVE RECEIVED
EVIDENCE REASONABLY SATISFACTORY TO AGENT THAT AGENT WILL RECEIVE IN A TIMELY
MANNER) NET PROCEEDS, NET AWARDS OR PROCEEDS AND/OR A COMPLETION DEPOSIT
SUFFICIENT IN THE REASONABLE JUDGMENT OF AGENT TO EFFECT THE SATISFACTORY
RESTORATION OF THE PROJECT, "SUBSTANTIAL COMPLETION" (AS DEFINED IN THE GROUND
LEASE) TO BE ACHIEVED BY NO LATER THAN THE FIXED SUBSTANTIAL COMPLETION DATE
(SUBJECT TO UNAVOIDABLE DELAY) AND FINAL COMPLETION TO BE ACHIEVED NO LATER THAN
THE MATURITY DATE, WHICH RESTORATION SHALL BE GOVERNED BY THE TERMS OF THE
PROJECT LOAN MORTGAGE.
(E)
RECEIPT BY AGENT AND CONSTRUCTION
CONSULTANT.
AGENT AND CONSTRUCTION CONSULTANT SHALL HAVE RECEIVED THE FOLLOWING
AT LEAST 10 BUSINESS DAYS PRIOR TO (OR, IN THE CASE OF CLAUSE (3), ON) THE
REQUESTED ADVANCE DATE:
(1)
DRAW REQUEST.
A DRAW REQUEST (WHICH SHALL
ALSO BE SUBMITTED TO THE DISBURSEMENT AGENT, BUT ONLY TO THE EXTENT AGENT HAS
INFORMED BORROWER THAT THE ADVANCE IN QUESTION WILL BE ADVANCED BY DISBURSEMENT
AGENT PURSUANT TO SECTION 5.02(B) HEREOF) SPECIFYING THE DATE PROPOSED FOR SUCH
ADVANCE, WHICH DATE MUST BE A BUSINESS DAY (THE "REQUESTED ADVANCE DATE");
(2)
SCHEDULE OF OTHER FUNDING SOURCES.
IF
APPLICABLE, A STATEMENT AS TO THE AMOUNT OF BUILDING LOAN COSTS AND PROJECT LOAN
COSTS INTENDED TO BE PAID OR FUNDED ON THE REQUESTED ADVANCE DATE WITH OTHER
FUNDS;
(3)
TITLE CONTINUATION LETTER.
A CONTINUATION
LETTER WITH RESPECT TO THE TITLE INSURANCE POLICY THERETOFORE DELIVERED, WHICH
CONTINUATION LETTER SHALL BE SUBSTANTIALLY IN THE FORM REQUIRED BY THE
56
CONSTRUCTION LOAN DISBURSEMENT AGREEMENT AND SHALL SHOW NO EXCEPTIONS TO TITLE
OTHER THAN PERMITTED EXCEPTIONS;
(4)
[INTENTIONALLY OMITTED]
(5)
ARCHITECT'S AND GENERAL CONTRACTOR'S
CERTIFICATES.
A GENERAL CONTRACTOR'S CERTIFICATE FROM THE GENERAL CONTRACTOR
AND AN ARCHITECT'S CERTIFICATE FROM THE LEAD ARCHITECT;
(6)
[INTENTIONALLY OMITTED]
(7)
INTEREST RATE CAPS.
AS A CONDITION TO THE
INITIAL ADVANCE ONLY, AND ONLY IF BREAKEVEN LEASING HAS NOT BEEN ACHIEVED BY THE
REQUESTED ADVANCE DATE FOR THE INITIAL ADVANCE, BORROWER SHALL HAVE DELIVERED TO
AGENT AN INTEREST RATE CAP IN FORM AND SUBSTANCE ACCEPTABLE TO AGENT (THE
"INITIAL ADVANCE INTEREST RATE CAP") BETWEEN BORROWER AND A COUNTERPARTY
ACCEPTABLE TO AGENT WHICH SHALL CAP THE LIBOR RATE FOR THE BUILDING LOAN AND
PROJECT LOAN UNTIL THE MATURITY DATE (WITHOUT GIVING EFFECT TO ANY EXTENSIONS
UNDER SECTION 3.19(A) HEREOF) AT THE RATES, AND FOR THE CORRESPONDING PERIODS
SET FORTH IN, SCHEDULE 2 HERETO, TOGETHER WITH (I) A COLLATERAL ASSIGNMENT OF
THE INITIAL ADVANCE INTEREST RATE CAP IN THE FORM OF EXHIBIT M HERETO (AN
"ASSIGNMENT OF INTEREST RATE CAP"), (II) A CONSENT BY THE COUNTERPARTY THERETO
TO SUCH COLLATERAL ASSIGNMENT AND (III) AN OPINION, IN FORM AND SUBSTANCE AND
FROM COUNSEL REASONABLY ACCEPTABLE TO AGENT, AS TO THE DUE AUTHORIZATION,
EXECUTION AND DELIVERY BY BORROWER AND ENFORCEABILITY OF, AND OTHER CUSTOMARY
MATTERS WITH RESPECT TO, THE INITIAL ADVANCE INTEREST RATE