Common use of First Disbursement Clause in Contracts

First Disbursement. The Bank's obligation to disburse the Loan proceeds (the "First Disbursement") shall be subject to the satisfaction of all requirements set forth on Exhibit B hereto and to the satisfaction of the following conditions: (a) No material portion of the Project shall have been damaged by fire or other casualty and no condemnation or taking of the Project or any portion thereof shall be pending or threatened; (b) The Bank shall have received all duly executed Loan Documents on or before the Closing Date; and the Collateral Documents and other documents to be placed of record shall have been duly recorded and filed in all appropriate offices; (c) The security interest in all property described in the Collateral Documents shall have been duly perfected and shall be a valid and enforceable first Lien; (d) The Commitment Fee shall have been paid on or before the Closing Date; (e) All Governmental Approvals shall be in full force and effect, and no notices of violation or revocation with respect thereto shall have been received which have not been cured to the satisfaction of the applicable Governmental Authority; (f) The Bank shall have received, at Borrower's expense, a marked title insurance commitment to issue a lender's title insurance policy in the amount of the Loan (and a title policy reflecting such marked commitment promptly thereafter) . Such title insurance commitment and policy shall be satisfactory to the Bank and shall insure the first priority of the Lien of the Mortgage and contain no exceptions other than the Permitted Encumbrances; (g) No Event of Default or Potential Default shall have occurred and be continuing under this Agreement or any of the other Loan Documents; (h) The Franchise Agreement and Property Management Agreement shall each be in full force and effect; (i) The Bank shall have received a structural report satisfactory to Bank from its inspecting architect concerning its review of the Improvements, and the Governmental Approvals; and (j) The representations and warranties of the Borrower contained in Article 8 hereof shall be true and accurate in all material respects on and as of the date of the First Disbursement of Loan proceeds with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which relate solely to an earlier date or time, which representations and warranties shall be true and correct on and as of the specific dates or times referred to therein), and the Borrower shall have performed and complied with all covenants and conditions hereof.

First Disbursement. The Bank's obligation DHCD shall not be obligated to disburse the advance Loan proceeds (the "First Disbursement") shall be subject to the satisfaction of all requirements set forth on Exhibit B hereto and to the satisfaction of under this Agreement unless the following conditionsconditions shall have been satisfied: (a) No material portion of the Project shall have been damaged by fire or other casualty and no condemnation or taking of the Project or any portion thereof shall be pending or threatened; (b) The Bank shall have received all duly executed Loan Documents on or before the Closing Date; and the Collateral Documents and other documents to be placed of record shall have been duly recorded and filed in all appropriate offices; (c) The security interest in all property described in the Collateral Documents shall have been duly perfected and shall be a valid and enforceable first Lien; (d) The Commitment Fee shall have been paid on or before the Closing Date; (e) All Governmental Approvals shall be in full force and effect, and no notices of violation or revocation with respect thereto shall have been received which have not been cured to the satisfaction of the applicable Governmental Authority; (f) The Bank shall have received, at Borrower's expense, a marked title insurance commitment to issue a lender's title insurance policy in the amount of the Loan (and a title policy reflecting such marked commitment promptly thereafter) . Such title insurance commitment and policy shall be satisfactory to the Bank and shall insure the first priority of the Lien of the Mortgage and contain no exceptions other than the Permitted Encumbrances; (g) No Event of Default or Potential Default shall have occurred and be continuing under this Agreement or any of the other Loan Documents; (h) The Franchise Agreement and Property Management Agreement shall each be in full force and effect; (i) The Bank shall have received a structural report satisfactory to Bank from its inspecting architect concerning its review of the Improvements, and the Governmental Approvals; and (j) The representations and warranties of the Borrower contained herein and otherwise made by or on behalf of Borrower in Article 8 hereof shall be true and accurate in all material respects on and as of writing for the date of the First Disbursement of Loan proceeds with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which relate solely to an earlier date or time, which representations and warranties shall be true and correct on and as of the specific dates or times referred to therein), date of Initial Closing and the first disbursement. (b) Borrower shall have performed satisfied each condition precedent to the Initial Closing of the Loan contained in the Commitment Letter and complied shall have provided DHCD with such other items as may be required by the Loan Documents or as may be required by DHCD or its counsel. (c) All Loan Documents required to be recorded shall have been duly recorded and filed at no cost to DHCD according to all applicable Legal Requirements. (d) DHCD shall have received: (1) Copies of the original policies of insurance or binders, certificates or endorsements satisfactory to DHCD satisfying the Insurance Requirements; (2) Copies of all approvals, authorizations, or permits if any, required from any Legal Authority which are prerequisites to the construction of the Project, together with evidence acceptable to DHCD from the Legal Authority issuing the building permits that the Project will conform to existing zoning laws and specified variances, if any; (3) Assurances satisfactory to DHCD of the availability of any and all funds required for completion of the Project in excess of the proceeds of the Loan, including payment to DHCD of such sums as may be required by DHCD. Such assurances shall include without limitation, evidence that all other loans and grants have been closed or will be simultaneously closed with the Loan; (4) An opinion of ▇▇▇▇▇▇▇▇'s counsel to the effect that Borrower is duly organized and validly existing and in good standing under the laws of the state of its organization, authorized to do business in the State of Maryland, with full power to own the Land and execute, deliver and perform its obligations under this Agreement; that the Loan Documents executed and delivered for the Loan are valid and legally binding obligations of the Borrower; and opining as to such other matters as may be required by DHCD; (5) Evidence of the Architect's and, if applicable Inspecting Consultant's, Errors and Omissions Insurance policies in an amount acceptable to DHCD, and endorsed so that the policies will not be terminated, expired or canceled without 30 days advance written notice to DHCD; (6) A paid title policy or a marked binder, at DHCD's discretion, on an American Land Title Association (ALTA) standard loan policy form issued by a company or companies and in a form acceptable to DHCD in the amount of the Note, insuring the Deed of Trust to be a valid [first][second] lien on ▇▇▇▇▇▇▇▇'s [fee simple][leasehold] title to the Land, subject only to taxes not yet due and payable and such other exceptions satisfactory to DHCD. Such policy shall contain such covenants of affirmative insurance as DHCD may require; (7) A boundary survey prepared by a registered surveyor acceptable to DHCD; (8) Evidence that the Land is one or more separate subdivided lots and one or more separate tax lots; (9) All Contract Documents with any modifications thereto, together with evidence of written approval thereof by DHCD; (10) Intentionally Omitted; (11) Acceptable evidence indicating either that (i) the Project is located in an area which has been identified as a “Special Flood Hazard Area” (as such term is used in the Flood Disaster Protection Act of 1973, as amended) and a flood insurance policy acceptable to DHCD has been obtained and paid for, covering a period of at least one year, the original of which policy shall be deposited with DHCD and shall be maintained until the Loan has been repaid in full, or (ii) the Project does not lie within a “Special Flood Hazard Area”; and (12) All other items required by the Closing Checklist attached to the Commitment Letter. (e) Borrower and the General Contractor shall advise DHCD in writing of the individual(s) within their organizations who are authorized to sign draw requests, Change Orders, forms relating to completion and cost certification, or any other forms required by DHCD during construction, or to certify completion of construction. It shall be the responsibility of Borrower and General Contractor to notify DHCD in advance and in writing of any changes in the designated authorized signatories. (f) Borrower shall deliver to DHCD the Project Draw Schedule and the trade payment breakdown attached hereto as Exhibit D. Borrower may revise the Project Draw Schedule, with DHCD's approval, by submitting the revision to DHCD before the 15th day of any month. If approved by DHCD, the revised Project Draw Schedule will take effect on the first day of the second calendar month following its submission. (g) Borrower shall deliver to DHCD a copy of any superior mortgage or deed of trust on the Land, certified by the mortgagee, if any, as to its authenticity, together with the Superior Mortgagee's Agreement required by the Commitment Letter and, if required by DHCD, an intercreditor agreement, satisfactory to DHCD, between the superior mortgagee, DHCD and the holder of any subordinate loan. (h) Borrower shall deliver to DHCD the initial Project Draw Request together with all covenants and conditions hereofsupporting documentation. (i) Borrower shall post any required building permits on the Project site.

First Disbursement. The BankOwner's obligation to disburse make the Loan proceeds (the "First Disbursement") shall be ------------------ initial Disbursement is subject to the satisfaction of all requirements set forth on Exhibit B hereto and to the satisfaction by Developer of the following conditions: (a) No material portion Owner shall have received each of the following in the form attached hereto as exhibits, or as otherwise reasonably acceptable to Owner: (i) the original executed Environmental Indemnity; (ii) the original executed Assignment of Contracts; (iii) the original executed copy of each of Architect's Consent and Agreement and the Contractor's Consent and Agreement; (iv) a written opinion of Developer's counsel or counsels covering such material relating to Developer, the Project and this Agreement (including enforceability) as Owner reasonably requires; (v) copies of Developer's organizational documents, certificates of good standing from the appropriate state authority, and Certificates of Authority authorizing the execution, delivery and performance of the Documents, all certified to be true, accurate and complete by a Designated Representative; (vi) the Approved Budget; (vii) a current survey of the Property indicating the location of all building lines, easements (visible, reflected in the public records or otherwise) and any existing improvements or encroachments, which survey shall contain no state of facts objectionable to Owner and shall be accompanied by a survey certificate acceptable to Owner and Title Company. The survey shall indicate whether the Property is located in a "Flood Control Area"; (viii) certificates of insurance for all policies required pursuant to Section 11 hereof; (ix) all financial statements of Developer (i) required by Owner; or (ii) necessary to provide Owner with true, accurate and complete knowledge of the financial condition of Developer; (x) evidence satisfactory to Owner of the availability of all necessary utilities to the Property and the zoning of the Property to allow the construction of the Improvements; (xi) a Phase I environmental report prepared by a Person, and in form and substance, satisfactory to Owner; (xii) a list of subcontractors employed in connection with the Project whose agreements call for payment in excess of $150,000.00. The list shall show the name, license number, address, contract name and telephone number of each such subcontractor, a general statement of the nature of the work to be done, the labor and materials to be supplied, the names of materialmen, if known and the approximate dollar value of labor, work and materials itemized with respect to each subcontractor and materialman. Owner and its agents shall have been damaged the right (but not the obligation) to directly contact each subcontractor and materialman to verify the facts disclosed by fire or any such list; (xiii) Payment and Performance bonds in such amounts showing Owner as an obligee, in such form and issued by such companies as are reasonably acceptable to Owner; and (xiv) all other casualty and no condemnation or taking of the Project or any portion thereof shall be pending or threatened;documents reasonably required by Owner. (b) The Bank Owner shall have received and approved in writing (a) a soils report for the Property (the "Soils Report"); (b) a full set of the Improvement Plans; (c) evidence that all necessary or appropriate approvals of Governmental Agencies required in connection with the construction, use and operation of the Project have been obtained (except as provided in Section 6.5(b) and other than a certificate of occupancy or construction inspections), including without implied limitation, plot plan approvals, subdivision approvals, environmental approvals (including an environmental impact report if required under applicable law), sewer and water permits and zoning and land use entitlements; and (d) copies of all Project Agreements. (c) Developer shall have delivered to Owner the Title Policy subject only to the Permitted Encumbrances, the cost of which shall be paid for from the Approved Budget. (d) Owner shall have received a sworn statement from an A.I. A. Architect acceptable to Owner giving, in such detail as Owner may reasonably require, an estimate of the time and cost of completing the construction of the Project and stating, with such supporting details as Owner may reasonably require, that to the best of their knowledge and belief, and after due inquiry (a) the Approved Budget is an accurate reflection of all of the Maximum Project Amount, (b) the amounts to be subsequently advanced for such purpose under this Agreement will be sufficient to pay all Project Costs, and (c) the Project can be completed in accordance with the Improvement Plans within the time period required hereunder. (e) Owner shall have received reasonably satisfactory evidence from Developer, the Architect, or such other parties as Owner shall in its sole discretion require that the Improvement Plans are in compliance with all applicable statutory requirements (if any) regarding the elimination of architectural barriers for handicapped persons. (f) Owner shall have approved all Project Agreements, access rights, easements, and other arrangements necessary, in the judgement of Owner, for the uninterrupted and orderly operation of the Project. (g) At Owner's election, Owner shall have received a current Appraisal of the completed Project. (h) Owner shall have received all duly executed Loan Documents on or before the Closing Date; other evidence and the Collateral Documents and other documents to be placed of record shall have been duly recorded and filed in all appropriate offices; (c) The security interest in all property described in the Collateral Documents shall have been duly perfected and shall be a valid and enforceable first Lien; (d) The Commitment Fee shall have been paid on or before the Closing Date; (e) All Governmental Approvals shall be in full force and effect, and no notices of violation or revocation with respect thereto shall have been received which have not been cured to the satisfaction of the applicable Governmental Authority; (f) The Bank shall have received, at Borrower's expense, a marked title insurance commitment to issue a lender's title insurance policy in the amount of the Loan (and a title policy reflecting such marked commitment promptly thereafter) . Such title insurance commitment and policy shall be satisfactory to the Bank and shall insure the first priority of the Lien of the Mortgage and contain no exceptions other than the Permitted Encumbrances; (g) No Event of Default or Potential Default shall have occurred and be continuing under this Agreement or any of the other Loan Documents; (h) The Franchise Agreement and Property Management Agreement shall each be in full force and effect;information that it may reasonably require. (i) The Bank All of the conditions set forth in the Master Development Agreement shall have received a structural report satisfactory to Bank from its inspecting architect concerning its review of the Improvements, and the Governmental Approvals; and (j) The representations and warranties of the Borrower contained in Article 8 hereof shall be true and accurate in all material respects on and as of the date of the First Disbursement of Loan proceeds with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which relate solely to an earlier date or time, which representations and warranties shall be true and correct on and as of the specific dates or times referred to therein), and the Borrower shall have performed and complied with all covenants and conditions hereofsatisfied.

First Disbursement. The Bank's Lender is not required to advance any funds under the Loan until all conditions to such advance are satisfied in a manner reasonably acceptable to Lender. If each of such conditions is not satisfied by September 30, 1996, Lender shall have no obligation to disburse the Loan proceeds (the "First Disbursement") shall be subject to the satisfaction of all requirements set forth on Exhibit B hereto and to the satisfaction of the following conditions: (a) No material fund any portion of the Project shall have been damaged by fire or other casualty and no condemnation or taking Loan. Those conditions are the following: a. Lender receives all of the Project or any portion thereof shall be pending or threatened; (b) The Bank shall have received all Loan Documents duly executed Loan Documents on or before by Borrower and all third parties thereto, and acknowledged when required. b. Lender receives all of the Closing Date; and the Collateral Documents and other documents to Documents. c. Lender must receive a "Draw Request" (as defined herein)for all funds requested at such time. d. The Deed of Trust must be placed of record shall have been duly recorded and filed in all appropriate offices;a first-priority lien position, and the Easement and Operating Agreement must be duly recorded and superior to both the Deed of Trust and the liens and other security interests of Northwestern Mutual Life Insurance Company ("Mortgagee"). (c) The e. Lender's security interest in all personal property described and fixtures covered by the Deed of Trust must be duly perfected and in a first-priority lien position. f. The preconstruction requirements that are contained in Paragraphs B.II and B.III of the Collateral Documents article of the Lease captioned "IMPROVEMENTS TO BE CONSTRUCTED BY LANDLORD" shall have been duly perfected satisfied by Borrower to Lender's reasonable satisfaction and certified by Borrower's Architect as being substantially completed in accordance with the Plans and Specifications. g. If any funds are being requested, Borrower has provided to Lender receipted invoices and other materials reasonably satisfactory to Lender (including lien waivers) evidencing that Borrower has paid at least Borrower's Initial Costs in preparing the Land and constructing the Improvements. h. The general construction contract (the "CONSTRUCTION CONTRACT") has been submitted to and approved by Lender in writing in connection with the construction of the Improvements. The Construction Contract shall be a valid lump sum contract. i. No default (taking into account applicable notice and enforceable first Lien; cure periods) under any Loan Document, the Lease or any other lease for space in the Shopping Center (das that term is defined in the Lease) The Commitment Fee shall have been paid on or before between Borrower and the Closing Date; (e) All Governmental Approvals shall be tenants listed in full force and effect, and no notices of violation or revocation with respect thereto shall have been received which have not been cured to the satisfaction article of the applicable Governmental Authority; Lease captioned "OTHER TENANCIES" (fcollectively, the "OTHER LEASES") The Bank shall have received, at Borrower's expense, a marked title insurance commitment to issue a lender's title insurance policy in the amount of the Loan (and a title policy reflecting such marked commitment promptly thereafter) . Such title insurance commitment and policy shall be satisfactory to the Bank and shall insure the first priority of the Lien of the Mortgage and contain no exceptions other than the Permitted Encumbrances; (g) No Event of Default or Potential Default shall have occurred and or be continuing under ( but this Agreement or any of shall apply to the other Loan Documents; (h) The Franchise Agreement and Property Management Agreement shall each be in full force and effect; (i) The Bank shall have received a structural report satisfactory to Bank from its inspecting architect concerning its review of Other Leases only if the Improvements, and the Governmental Approvals; and (j) The representations and warranties contained in the article of the Borrower contained in Article 8 hereof Lease captioned "OTHER TENANCIES" shall be true and accurate in all material respects on and as of the date of the First Disbursement of Loan proceeds with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which relate solely to an earlier date or time, which representations and warranties shall be true and correct on and as of the specific dates or times referred to thereinrendered inaccurate thereby), and Borrower has provided to Lender a Certificate of Borrower in the Borrower shall have performed and complied with all covenants and conditions hereof.form attached hereto as EXHIBIT N.

First Disbursement. The BankPurchaser's obligation to disburse make the Loan proceeds (first advance of principal under the "First Disbursement") shall be Note is subject to the satisfaction of all requirements set forth on Exhibit B hereto and to by the satisfaction Company or waiver in writing by the Purchaser of the following conditions: (a) No material portion The Company shall have delivered or shall have caused to be delivered the documents and other items listed in the Closing Documents List provided in connection with this Agreement, together with any other documents and items reasonably requested by the Purchaser to document the agreements and intent of the Project shall have been damaged by fire or Loan Documents, in each case fully executed and delivered where applicable and in each case in form and substance satisfactory to the Purchaser, including the following documents and other casualty items: (i) this Agreement, the Note, the Structuring Fee Agreement; (ii) the Warrants, and no condemnation or taking of the Project or any portion thereof shall be pending or threatenedRegistration Rights Agreement; (iii) the Pledge Agreement, the Guaranty, the Security Agreement, the Assignment Agreement, the Consent and Agreement, and all related share certificates, stock powers, financing statements and other lien filings, and lien searches; (b) The Bank shall have received all duly executed Loan Documents on or before Where applicable, the Closing Date; and the Collateral Documents financing statements and other documents to be placed of record and agreements requiring filing or recording in public records shall have been duly recorded delivered to the appropriate offices for filing or recording and filed the Purchaser shall have received confirmations of receipt thereof by the appropriate filing or recording offices, if available, with all filing fees, mortgage tax, and intangible tax paid by the Company, and the original copies of all share certificates and other items requiring possession for perfection shall have been delivered to the Purchaser in all appropriate offices;form for transfer; and (c) The security interest in all property described in the Collateral Documents Company shall have been duly perfected and shall be a valid and enforceable first Lien; (d) The Commitment Fee shall have been paid on or before the Closing Date; (e) All Governmental Approvals shall be in full force and effect, and no notices of violation or revocation with respect thereto shall have been received which have not been cured provided direction to the satisfaction Purchaser to pay on behalf of the applicable Governmental Authority; (f) The Bank shall have received, at Borrower's expense, a marked title insurance commitment to issue a lender's title insurance policy in Company the amount of fees contemplated by the Loan (and a title policy reflecting such marked commitment promptly thereafter) . Such title insurance commitment and policy shall be satisfactory to the Bank and shall insure the first priority of the Lien of the Mortgage and contain no exceptions other than the Permitted Encumbrances; (g) No Event of Default or Potential Default shall have occurred and be continuing under this Agreement or any of the other Loan Documents; (h) The Franchise Structuring Fee Agreement and Property Management Agreement shall each be all legal fees and expense of counsel and local counsel for the Purchaser incurred in full force and effect; (i) The Bank shall have received a structural report satisfactory to Bank from its inspecting architect concerning its review of the Improvements, and the Governmental Approvals; and (j) The representations and warranties of the Borrower contained in Article 8 hereof shall be true and accurate in all material respects on and as of the date of the First Disbursement of Loan proceeds connection with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which relate solely to an earlier date or time, which representations and warranties shall be true and correct on and as of the specific dates or times referred to therein), and the Borrower shall have performed and complied with all covenants and conditions hereofthis Agreement.