Common use of Loan Balancing Clause in Contracts

Loan Balancing. Subject to Borrower's rights under Sections 2.06 and 2.07, if at any time Administrative Agent notifies Borrower that, in Administrative Agent's reasonable judgment, the undisbursed balance of the Loan is insufficient to pay the remaining Hard and Soft Costs, Borrower shall, at its option, either (i) within twenty (20) days of Administrative Agent's notification as aforesaid, deposit with Administrative Agent an amount equal to such deficiency, which Administrative Agent shall from time to time apply, or allow Borrower to apply, to such Hard and Soft Costs, (ii) pay for such Hard and Soft Costs, as incurred, in the amount of such deficiency so that the amount of the Loan which remains to be disbursed shall be sufficient to pay all remaining Hard and Soft Costs, and Borrower shall furnish Administrative Agent with such evidence thereof as Administrative Agent shall reasonably require or (iii) within twenty (20) days of Administrative Agent's notification as aforesaid, deliver to Administrative Agent an irrevocable unconditional letter of credit in the amount of such deficiency issued by a money center bank headquartered in the United States which has total assets of at least $100,000,000,000, whose commercial paper is rated at least "A-1/P-1" and whose long-term senior unsecured debt is rated at least "A-" and is otherwise reasonably acceptable to Administrative Agent (any such bank, an "Approved LC Bank"), which letter of credit shall name Administrative Agent as the beneficiary thereof, shall be available at sight, shall otherwise be in form and substance reasonably acceptable to Administrative Agent and can be presented for payment in the Borough of Manhattan, New York (the "Loan Balancing LC"), which Administrative Agent shall from time to time draw on and apply to such Hard and Soft Costs. Borrower hereby agrees that Administrative Agent shall have a lien on and security interest in, for the benefit of Lenders, any sums deposited pursuant to clause (i) above and that Borrower shall have no right to withdraw any such sums except for the payment of the aforesaid Hard and Soft Costs as approved by Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed). Lenders shall have no obligation to make any further advances of proceeds of the Loan in respect of such Hard and Soft Cost budget lines which were deemed by Administrative Agent to be deficient until (a) the sums required to be deposited pursuant to clause (i) above have been exhausted, (b) Borrower has actually paid such Hard and Soft Costs pursuant to clause (ii) above or (c) the sums available to be drawn under any Loan Balancing LC have been exhausted, as the case may be, and, in any such case, the Loan is back "in balance". Any such sums not used as provided in said clause (i) shall be released to Borrower or any Loan Balancing LC shall be returned to Borrower when and to the extent that Administrative Agent reasonably determines that the total remaining Hard and Soft Costs of completion of the Improvements is less than or equal to the undisbursed balance of the Loan; provided, however, that should an Event of Default occur and be continuing, Administrative Agent shall, at the option of the Required Lenders, apply such amounts on deposit or available under the Loan Balancing LC either to the Hard and Soft Costs of completion of the Improvements or to the immediate reduction of outstanding principal and/or interest under the Notes. Advance Not Waiver. Any advance of Loan proceeds hereunder made prior to or without the fulfillment by Borrower of all of the conditions precedent thereto, whether or not known to Administrative Agent or Lenders, shall not constitute a waiver by Administrative Agent or Lenders of the requirement that all conditions, including the non-performed conditions, shall be required with respect to all future advances.

Loan Balancing. Subject Notwithstanding anything contained herein to Borrower's rights under Sections 2.06 and 2.07the contrary, if at any time Administrative Agent notifies Borrower thator from time to time during the term of this Agreement, in Administrative the Agent's reasonable judgment’s sole (but good faith) judgment and opinion, the undisbursed unfunded balance of the Loan together with the Required Equity, the Interest Equity, Retainage and the then-applicable Senior Loan Amount is insufficient to pay the remaining Hard Costs and any and all other costs and expenses (including the payment of interest on the Loan) associated with the construction and leasing of the Project set forth in the Approved Construction Budget (“Soft Costs, Borrower shall, at its option, either ”) after taking into account all Construction Contingencies and reallocations pursuant to Section 7.1.10 hereof (i) within twenty (20) days of Administrative Agent's notification as aforesaid, deposit with Administrative Agent an amount equal to such deficiency, which Administrative Agent shall from time to time apply, or allow Borrower to apply, to such Hard and Soft Costs, (ii) pay for such Hard and Soft Costs, as incurred, in the amount of such deficiency so that deficiency, the amount “Shortfall”), no further Advances shall be made by the Lenders until the Borrower either individually or in combination (a) deposits with the Agent the Shortfall (without duplication of and except for amounts held by the Senior Lender under Section 2.1.7 of the Senior Loan which remains Agreement), (b) infuses the Shortfall into the Project by payment of expenses in cash or other manner reasonably satisfactory to be disbursed shall be sufficient the Agent and delivers to pay all remaining Hard and Soft Coststhe Agent evidence thereof reasonably satisfactory to the Agent, and Borrower shall furnish Administrative (c) provides the Agent with other assurance reasonably satisfactory to the Agent (such evidence thereof as Administrative Agent shall reasonably require or (iii) within twenty (20) days of Administrative Agent's notification as aforesaid, deliver to Administrative Agent an irrevocable unconditional a letter of credit or guaranty) that the Shortfall will be funded as and when needed, (d) to the extent permitted under Section 2.1.4 hereof, allocates the applicable portion of the Construction Contingency (or amounts in the amount Restricted Securities Account) to the Shortfall and/or (e) to the extent permitted under Section 7.1.10 hereof, reallocates cost savings from the Approved Construction Budget (or other reallocations which are approved by the Agent, in its sole discretion) in accordance with the terms of such deficiency issued by a money center bank headquartered in the United States which has total assets of at least $100,000,000,000, whose commercial paper is rated at least "A-1/P-1" and whose long-term senior unsecured debt is rated at least "A-" and is otherwise reasonably acceptable to Administrative Agent (any such bank, an "Approved LC Bank"), which letter of credit shall name Administrative Agent as the beneficiary thereof, shall be available at sight, shall otherwise be in form and substance reasonably acceptable to Administrative Agent and can be presented for payment in the Borough of Manhattan, New York (the "Loan Balancing LC"), which Administrative Agent shall from time to time draw on and apply to such Hard and Soft Coststhis Agreement. The Borrower hereby agrees that Administrative the Agent shall have a lien Lien on and security interest in, for the benefit of Lenders, any sums deposited with the Agent pursuant to clause clauses (ia) above and (c) above, that the Borrower shall have no right to withdraw any such sums except for the payment of Construction Costs, that the aforesaid Hard and Soft full amount of such sums shall be used to pay Construction Costs as approved by Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed). Lenders shall have no obligation to make any further advances of before additional proceeds of the Loan in respect of are advanced and the Agent agrees that all such Hard and Soft Cost budget lines which were deemed by Administrative Agent to sums shall be deficient until (a) the sums required to be deposited advanced pursuant to clause (i) above have been exhausted, (b) Borrower has actually paid such Hard and Soft Costs pursuant to clause (ii) above or (c) Draw Requests submitted by the sums available to be drawn under any Loan Balancing LC have been exhausted, as the case may be, and, in any such case, the Loan is back "in balance"Borrower. Any such sums not used as provided deposited in accordance with said clause (ia) or (c) shall be released to Borrower or any Loan Balancing LC shall be returned to the Borrower when and to the extent that Administrative the Agent reasonably determines that the total remaining Hard and Soft Costs of completion of amount thereof is more than the Improvements is less than or equal to the undisbursed balance of the Loanthen-existing Shortfall; provided, however, that should if an Event of Default occur and be continuingoccurs, Administrative the Agent shall, at the option of the Required Lenders, apply such amounts on deposit or available under the Loan Balancing LC either to the Hard and Soft Costs costs of completion of the Improvements or to the immediate reduction of outstanding principal (together with the applicable IRR Amount and Make-Whole Amount, if any) and/or interest under the Notes. Advance Not Waiver. Any advance Notwithstanding anything above to the contrary, at such time as the Property Owner has qualified for an aggregate of $230,000,000 of loan proceeds under and pursuant to the Senior Loan proceeds Documents (as determined by the Senior Lender), (1) the Required Equity hereunder made prior to or without the fulfillment by Borrower of all of the conditions precedent thereto, whether or not known to Administrative Agent or Lenders, shall not constitute a waiver by Administrative Agent or Lenders of the requirement that all conditions, including the non-performed conditions, shall be required with respect reduced by an amount equal to all future advancesthe amount of equity (up to $5,000,000) which is reimbursed to the Property Owner by the Senior Lender under the Senior Loan Documents as a result of such qualification and (2) the Borrower shall be permitted to distribute to the Guarantor and the Limited Guarantor the difference between such reimbursement referenced in clause (1) above and any Shortfall, calculated on the date of such reimbursement, under this Section 2.1.7.

Loan Balancing. Subject to Borrower's rights under Sections 2.06 and 2.07, if If at any time Administrative Agent notifies -------------- Borrower that, in Administrative Agent's reasonable judgmentsole judgment following consultation with Borrower, the undisbursed balance of the Loan is insufficient to pay the remaining Hard Direct and Soft Indirect Costs, Borrower shall, at its option, either (i) within twenty ten (2010) days of Administrative Agent's notification as aforesaid, deposit with Administrative Agent an amount equal to such deficiency, which Administrative Agent shall may from time to time apply, or allow Borrower to apply, to such Hard and Soft Costs, Costs or (ii) pay for such Hard and Soft Costs, as incurred, in the amount of such deficiency so that the amount of the Loan which remains to be disbursed shall be sufficient to pay all remaining Hard Direct and Soft Indirect Costs, and Borrower shall furnish Administrative Agent with such evidence thereof as Administrative Agent shall reasonably require or (iii) within twenty (20) days of Administrative Agent's notification as aforesaid, deliver to Administrative Agent an irrevocable unconditional letter of credit in the amount of such deficiency issued by a money center bank headquartered in the United States which has total assets of at least $100,000,000,000, whose commercial paper is rated at least "A-1/P-1" and whose long-term senior unsecured debt is rated at least "A-" and is otherwise reasonably acceptable to Administrative Agent (any such bank, an "Approved LC Bank"), which letter of credit shall name Administrative Agent as the beneficiary thereof, shall be available at sight, shall otherwise be in form and substance reasonably acceptable to Administrative Agent and can be presented for payment in the Borough of Manhattan, New York (the "Loan Balancing LC"), which Administrative Agent shall from time to time draw on and apply to such Hard and Soft Costsrequire. Borrower hereby agrees that Administrative Agent shall have a lien on and security interest in, for the benefit of Lenders, any sums deposited pursuant to clause (i) above and that Borrower shall have no right to withdraw any such sums except for the payment of the aforesaid Hard and Soft Costs as approved by Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed)Agent. Lenders shall have no obligation to make any further advances of proceeds of the Loan in respect of such Hard and Soft Cost budget lines which were deemed by Administrative Agent to be deficient until (a) the sums required to be deposited pursuant to clause (i) above have been exhausted, (b) exhausted or until Borrower has actually paid such Hard Direct and Soft Indirect Costs pursuant to clause (ii) above or (c) the sums available to be drawn under any Loan Balancing LC have been exhaustedabove, as the case may be, and, in any either such case, the Loan is back "in balance". Any such sums not used as provided in said clause (i) shall be released to Borrower or any Loan Balancing LC shall be returned to Borrower when and to the extent that Administrative Agent reasonably determines that the amount thereof is more than the excess, if any, of the total remaining Hard and Soft Costs of completion of the Improvements is less than or equal to over the undisbursed balance of the Loan; provided, however, that -------- ------- should an Event of Default occur and be continuingoccur, Administrative Agent shall, at the option of the Required Lenders, apply such amounts on deposit or available under the Loan Balancing LC either to the Hard and Soft Costs of completion of the Improvements or to the immediate reduction of outstanding principal and/or interest under the Notes. Advance Not Waiver. Any advance of Loan proceeds hereunder made prior to or without the fulfillment by Borrower of all of the conditions precedent thereto, whether or not known to Administrative Agent or Lenders, shall not constitute a waiver by Administrative Agent or Lenders of the requirement that all conditions, including the non-performed conditions, shall be required with respect to all future advances.

Loan Balancing. Subject Borrower represents that the Budget sets forth all anticipated costs to Borrower's rights under Sections 2.06 be incurred by Borrower in connection with the ownership, development, construction, financing, marketing, maintenance and 2.07, if leasing of the Project from time to time through the Maturity Date as extended pursuant to Section 2.5 hereof. If at any time time, the projected costs anticipated to be incurred for any Construction Work included in any individual Budget Line Item exceeds the amount set forth in the Budget for such individual 63 Budget Line Item (as the same may be adjusted in accordance with the terms of this Agreement and taking into account (provided that no “Event of Default” then exists under (and as such term is defined in) the Minimum Equity Guaranty) a credit for all portions of the Delayed Equity Contribution for which the Guarantor remains liable under the Minimum Equity Guaranty), as determined by the Administrative Agent notifies Borrower thatand the Construction Consultant in their reasonable discretion (including any such determination that the undisbursed Loan proceeds allocated for the payment of future interest, in including any Additional Interest (the “Interest Reserve”) is insufficient) based on any factors whatsoever, including (1) the Administrative Agent's reasonable judgment, ’s projections of interest rates for period(s) up to and including the undisbursed balance full remaining term of the Loan is insufficient (and permitted extensions); (2) the effect of any Hedge Agreement; (3) cost overruns or Change Orders; or (4) failure of the Improvements to lease at the rate of absorption or otherwise at rates and terms projected by Borrower, then the Loans shall be deemed not “In Balance.” If the Loans are deemed not “In Balance,” then Borrower shall, at the Administrative Agent’s option, within ten (10) Business Days after written notice from the Administrative Agent either (a) deposit with the Administrative Agent an amount sufficient to cover such deficiency (a “Deficiency Deposit”), which Deficiency Deposit shall be deposited with the Administrative Agent in the Controlled Account or (b) make one or more equity contributions to be used by Borrower to pay costs that will bring the remaining Loans In Balance (an “Equity Balancing Contribution”), including contributions to pay future interest and Additional Interest. The Administrative Agent shall not be required to authorize any disbursement of any Loans before receiving (i) payment of any such Deficiency Deposit and the prior application of such Deficiency Deposit to the payment of Project Costs so as to bring the Loans In Balance or (ii) verification (in a manner consistent with the verification of the use of other equity contributions of Borrower in accordance with Schedule 4) that an Equity Balancing Contribution has been made and the proceeds thereof used for the payment of Project Costs so as to bring the Loans In Balance. Failure of Borrower to provide satisfactory verification of an Equity Balancing Contribution as required above shall be deemed Borrower’s election to make a Deficiency Deposit. The amounts available within the line items for Hard Costs Contingency and Soft CostsCosts Contingency from time to time shall be deemed to be costs for purposes of determining whether the Loans are In Balance. So long as the events referred to in the second sentence of this Section 4.3 do not exist, Borrower shallthe Loans shall be deemed “In Balance”. If an Event of Default shall occur and be continuing, the Administrative Agent (subject to the provisions of Section 14.3) may, at its option, either (i) within twenty (20) days of Administrative Agent's notification as aforesaid, deposit with Administrative Agent an amount equal in addition to such deficiency, which Administrative Agent shall from time to time apply, exercising any other rights or allow Borrower to apply, to such Hard and Soft Costsremedies available under the Loan Documents, (iiA) pay for such Hard and Soft Costs, as incurred, in the amount of such deficiency so that the amount of the Loan which remains to be disbursed shall be sufficient to pay all remaining Hard and Soft Costs, and Borrower shall furnish Administrative Agent with such evidence thereof as Administrative Agent shall reasonably require or (iii) within twenty (20) days of Administrative Agent's notification as aforesaid, deliver to Administrative Agent an irrevocable unconditional letter of credit in the amount of such deficiency issued by a money center bank headquartered in the United States which has total assets of at least $100,000,000,000, whose commercial paper is rated at least "A-1/P-1" and whose long-term senior unsecured debt is rated at least "A-" and is otherwise reasonably acceptable to Administrative Agent (apply any such bank, an "Approved LC Bank"), which letter of credit shall name Administrative Agent as the beneficiary thereof, shall be available at sight, shall otherwise be in form and substance reasonably acceptable to Administrative Agent and can be presented for payment in the Borough of Manhattan, New York (the "Loan Balancing LC"), which Administrative Agent shall from time to time draw on and apply to such Hard and Soft Costs. Borrower hereby agrees that Administrative Agent shall have a lien on and security interest in, for the benefit of Lenders, any sums deposited pursuant to clause (i) above and that Borrower shall have no right to withdraw any such sums except for the payment of the aforesaid Hard and Soft Costs as approved by Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed). Lenders shall have no obligation to make any further advances of proceeds of the Loan in respect of such Hard and Soft Cost budget lines which were deemed by Administrative Agent to be deficient until (a) the sums required to be deposited pursuant to clause (i) above have been exhausted, (b) Borrower has actually paid such Hard and Soft Costs pursuant to clause (ii) above or (c) the sums available to be drawn under any Loan Balancing LC have been exhausted, as the case may be, and, in any such case, the Loan is back "in balance". Any such sums not used as provided in said clause (i) shall be released to Borrower or any Loan Balancing LC shall be returned to Borrower when and unexpended Deficiency Deposit to the extent that Administrative Agent reasonably determines that the total remaining Hard and Soft Costs costs of completion of the Improvements is less than or equal to the undisbursed balance of the Loan; provided, however, that should an Event of Default occur and be continuing, Administrative Agent shall, at the option of the Required Lenders, and/or (B) apply such amounts on deposit or available under the Loan Balancing LC either to the Hard and Soft Costs of completion of the Improvements or any unexpended Deficiency Deposit to the immediate reduction of outstanding principal and/or interest any amounts due under the Notes. Advance Not Waiver. Any advance of Notes and the other Loan proceeds hereunder made prior to or without the fulfillment by Borrower of all of the conditions precedent thereto, whether or not known to Administrative Agent or Lenders, shall not constitute a waiver by Administrative Agent or Lenders of the requirement that all conditions, including the non-performed conditions, shall be required with respect to all future advancesDocuments.

Loan Balancing. Subject Borrower represents that the Budget sets forth all anticipated costs to Borrower's rights under Sections 2.06 be incurred by Borrower in connection with the ownership, development, construction, financing, marketing, maintenance and 2.07, if leasing of the Project from time to time through the Maturity Date as extended pursuant to Section 2.5 hereof. If at any time time, the projected costs anticipated to be incurred for any Construction Work included in any individual Budget Line Item exceeds the amount set forth in the Budget for such individual Budget Line Item (as the same may be adjusted in accordance with the terms of this Agreement and taking into account (provided that no “Event of Default” then exists under (and as such term is defined in) the Minimum Equity Guaranty) a credit for all portions of the Delayed Equity Contribution for which the Guarantor remains liable under the Minimum Equity Guaranty), as determined by the Administrative Agent notifies Borrower thatand the Construction Consultant in their reasonable discretion (including any such determination that the undisbursed Loan proceeds allocated for the payment of future interest, in including any Additional Interest (the “Interest Reserve”) is insufficient) based on any factors whatsoever, including (1) the Administrative Agent's reasonable judgment, ’s projections of interest rates for period(s) up to and including the undisbursed balance full remaining term of the Loan is insufficient (and permitted extensions); (2) the effect of any Hedge Agreement; (3) cost overruns or Change Orders; or (4) failure of the Improvements to lease at the rate of absorption or otherwise at rates and terms projected by Borrower, then the Loans shall be deemed not “In Balance.” If the Loans are deemed not “In Balance,” then Borrower shall, at the Administrative Agent’s option, within ten (10) Business Days after written notice from the Administrative Agent either (a) deposit with the Administrative Agent an amount sufficient to cover such deficiency (a “Deficiency Deposit”), which Deficiency Deposit shall be deposited with the Administrative Agent in the Controlled Account or (b) make one or more equity contributions to be used by Borrower to pay costs that will bring the remaining Loans In Balance (an “Equity Balancing Contribution”), including contributions to pay future interest and Additional Interest. The Administrative Agent shall not be required to authorize any disbursement of any Loans before receiving (i) payment of any such Deficiency Deposit and the prior application of such Deficiency Deposit to the payment of Project Costs so as to bring the Loans In Balance or (ii) verification (in a manner consistent with the verification of the use of other equity contributions of Borrower in accordance with Schedule 4) that an Equity Balancing Contribution has been made and the proceeds thereof used for the payment of Project Costs so as to bring the Loans In Balance. Failure of Borrower to provide satisfactory verification of an Equity Balancing Contribution as required above shall be deemed Borrower’s election to make a Deficiency Deposit. The amounts available within the line items for Hard Costs Contingency and Soft CostsCosts Contingency from time to time shall be deemed to be costs for purposes of determining whether the Loans are In Balance. So long as the events referred to in the second sentence of this Section 4.3 do not exist, Borrower shallthe Loans shall be deemed “In Balance”. If an Event of Default shall occur and be continuing, the Administrative Agent (subject to the provisions of Section 14.3) may, at its option, either (i) within twenty (20) days of Administrative Agent's notification as aforesaid, deposit with Administrative Agent an amount equal in addition to such deficiency, which Administrative Agent shall from time to time apply, exercising any other rights or allow Borrower to apply, to such Hard and Soft Costsremedies available under the Loan Documents, (iiA) pay for such Hard and Soft Costs, as incurred, in the amount of such deficiency so that the amount of the Loan which remains to be disbursed shall be sufficient to pay all remaining Hard and Soft Costs, and Borrower shall furnish Administrative Agent with such evidence thereof as Administrative Agent shall reasonably require or (iii) within twenty (20) days of Administrative Agent's notification as aforesaid, deliver to Administrative Agent an irrevocable unconditional letter of credit in the amount of such deficiency issued by a money center bank headquartered in the United States which has total assets of at least $100,000,000,000, whose commercial paper is rated at least "A-1/P-1" and whose long-term senior unsecured debt is rated at least "A-" and is otherwise reasonably acceptable to Administrative Agent (apply any such bank, an "Approved LC Bank"), which letter of credit shall name Administrative Agent as the beneficiary thereof, shall be available at sight, shall otherwise be in form and substance reasonably acceptable to Administrative Agent and can be presented for payment in the Borough of Manhattan, New York (the "Loan Balancing LC"), which Administrative Agent shall from time to time draw on and apply to such Hard and Soft Costs. Borrower hereby agrees that Administrative Agent shall have a lien on and security interest in, for the benefit of Lenders, any sums deposited pursuant to clause (i) above and that Borrower shall have no right to withdraw any such sums except for the payment of the aforesaid Hard and Soft Costs as approved by Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed). Lenders shall have no obligation to make any further advances of proceeds of the Loan in respect of such Hard and Soft Cost budget lines which were deemed by Administrative Agent to be deficient until (a) the sums required to be deposited pursuant to clause (i) above have been exhausted, (b) Borrower has actually paid such Hard and Soft Costs pursuant to clause (ii) above or (c) the sums available to be drawn under any Loan Balancing LC have been exhausted, as the case may be, and, in any such case, the Loan is back "in balance". Any such sums not used as provided in said clause (i) shall be released to Borrower or any Loan Balancing LC shall be returned to Borrower when and unexpended Deficiency Deposit to the extent that Administrative Agent reasonably determines that the total remaining Hard and Soft Costs costs of completion of the Improvements is less than or equal to the undisbursed balance of the Loan; provided, however, that should an Event of Default occur and be continuing, Administrative Agent shall, at the option of the Required Lenders, and/or (B) apply such amounts on deposit or available under the Loan Balancing LC either to the Hard and Soft Costs of completion of the Improvements or any unexpended Deficiency Deposit to the immediate reduction of outstanding principal and/or interest any amounts due under the Notes. Advance Not Waiver. Any advance of Notes and the other Loan proceeds hereunder made prior to or without the fulfillment by Borrower of all of the conditions precedent thereto, whether or not known to Administrative Agent or Lenders, shall not constitute a waiver by Administrative Agent or Lenders of the requirement that all conditions, including the non-performed conditions, shall be required with respect to all future advancesDocuments.

Loan Balancing. Subject Anything contained in this Agreement to Borrower's rights under Sections 2.06 the contrary notwithstanding, it is expressly understood and 2.07agreed that the Loan shall at all times be "IN BALANCE." The Loan shall be deemed to be "IN BALANCE" only at such time and from time to time, if at any time Administrative as Agent notifies Borrower thatmay determine in its reasonable discretion, in Administrative Agent's reasonable judgment, that the then undisbursed balance portion of the Loan and the then unpaid portion of the Required Equity (it being expressly understood that no Advances of the Loans shall be made until the Required Equity is insufficient fully paid) equals or exceeds the amount necessary for the timely and full payment of all costs and expenses relative to pay construction and leasing of the remaining Project, including without limitation, all Hard Costs and Soft Costs for (i) all work done and not theretofore paid for or to be done in connection with the completion of the construction of the Improvements in accordance with the Plans, applicable Requirements and the Ground Lease, including, without limitation, the installation of all utility services, fixtures and equipment required for access to and operation of the Improvements both on-site and off-site, and (ii) all other costs incurred and not theretofore paid for, or to be incurred in connection with the Premises, including, without limitation all Hard Costs, all Soft Costs, Borrower shallall interest on the Loan, at its option, either (i) within twenty (20) days of Administrative Agent's notification as aforesaid, deposit with Administrative Agent an amount equal to such deficiency, which Administrative Agent shall from time to time apply, or allow Borrower to apply, to such Hard and Soft Costs, (ii) pay for such Hard and Soft Costs, as incurred, in the amount of such deficiency so that the amount of the Loan which remains to be disbursed shall be sufficient to pay all remaining Hard and Soft Costs, and Borrower shall furnish Administrative Agent with such evidence thereof any interest reserve or interest contingency (as Administrative Agent shall reasonably require or (iii) within twenty (20) days of Administrative determined by Agent's notification as aforesaid, deliver to Administrative Agent an irrevocable unconditional letter of credit in the amount of such deficiency issued by a money center bank headquartered in the United States which has total assets of at least $100,000,000,000, whose commercial paper is rated at least "A-1/P-1" and whose long-term senior unsecured debt is rated at least "A-" and is otherwise reasonably acceptable to Administrative Agent (any such bank, an "Approved LC Bank"), which letter of credit shall name Administrative Agent as the beneficiary thereof, shall be available at sight, shall otherwise be in form and substance reasonably acceptable to Administrative Agent and can be presented for payment in the Borough of Manhattan, New York (the "Loan Balancing LC"), which Administrative Agent shall from time to time draw on and apply to such Hard and Soft Costs. Borrower hereby agrees that Administrative Agent shall have a lien on and security interest in, for the benefit of Lenders, any sums deposited pursuant to clause (i) above and that Borrower shall have no right to withdraw any such sums except for the payment of the aforesaid Hard and Soft Costs as approved by Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed). Lenders shall have no obligation to make any further advances of proceeds of the Loan in respect of such Hard and Soft Cost budget lines which were deemed by Administrative Agent to be deficient until (a) the sums required to be deposited pursuant to clause (i) above have been exhausted, (b) Borrower has actually paid such Hard and Soft Costs pursuant to clause (ii) above or (c) the sums available to be drawn under any Loan Balancing LC have been exhausted, as the case may be, and, in any such case, the Loan is back "in balance". Any such sums not used as provided in said clause (i) shall be released to Borrower or any Loan Balancing LC shall be returned to Borrower when and to the extent that Administrative if Agent reasonably determines that the total remaining Hard and Soft Costs of completion Loxx xx xxt "IN BALANCE", Borrower shall, within thirty (30) days after written demand by Agent, deposit the deficiency with Agent (the "DEFICIENCY DEPOSIT"), which Deficiency Deposit shall first be exhausted before any further disbursement of the Improvements Loans is less than made, or, if the Loan is not in balance due, in whole or equal in part, to the undisbursed balance insufficiency of the Loan; provided, however, that should an Event interest reserve line item of Default occur and be continuing, Administrative Agent shallthe Budget, at the option Borrower's option, in lieu of the Required Lenders, apply such amounts on deposit or available under the Loan Balancing LC either to the Hard and Soft Costs of completion of the Improvements or to the immediate reduction of outstanding principal and/or interest under the Notes. Advance Not Waiver. Any advance of Loan proceeds hereunder made prior to or without the fulfillment by Borrower of all of the conditions precedent thereto, whether or not known to Administrative Agent or Lenders, shall not constitute making a waiver by Administrative Agent or Lenders of the requirement that all conditions, including the non-performed conditions, shall be required Deficiency Deposit with respect to such interest deficiency, direct the Agent, by written notice, to permanently reduce the remaining available Development Fee line item of the Budget in sufficient amount to increase the interest reserve line item of the Budget and thereby cause the Loan to then be "in balance" which notice shall be accompanied by the written consent of the Developer to such permanent reduction of the payment of the Development Fee from Loan proceeds. Notwithstanding anything contained in the foregoing to the contrary, Borrower shall comply with all future advancesrequirements of the New York Lien Law. The Lenders shall not be obligated to make Advances and Agent shall not be obligated to make any Loan disbursement of proceeds of Advances if and so long as the Loan is not in balance. Among the various events that could cause the Loan to be "OUT OF BALANCE" are determinations by Agent that (i) the Budget is insufficient or inadequate, or (ii) the Improvements (based upon the progress and pace of construction through the date of such determination) will not be Completed and occupied in accordance with the Occupancy Schedule set forth on EXHIBIT F. In making any determination as to the projected interest component of any completion/lease up cost calculation, Agent shall use the then-current rates on the Advances. In making any determination as to whether the Loan is in balance, Agent shall consider, among other things, the Budget, the amount available in the Contingency line item of the Budget, the progress of construction and overall the status of the Project.

Loan Balancing. Subject Notwithstanding anything contained herein to Borrower's rights under Sections 2.06 and 2.07the contrary, if at any time Administrative Agent notifies Borrower thator from time to time during the term of this Agreement, in Administrative the Agent's reasonable judgment’s sole (but good faith) judgment and opinion, the undisbursed unfunded balance of the Loan together with Retainage, the amount of the Required Equity and the amount of the Mezzanine Financing is insufficient to pay the remaining Hard Costs and any and all other costs and expenses associated with the construction of the Project set forth in the Approved Construction Budget (“Soft Costs, Borrower shall, at its option, either ”) after taking into account all Construction Contingencies and reallocations pursuant to Section 7.1.9 hereof (i) within twenty (20) days of Administrative Agent's notification as aforesaid, deposit with Administrative Agent an amount equal to such deficiency, which Administrative Agent shall from time to time apply, or allow Borrower to apply, to such Hard and Soft Costs, (ii) pay for such Hard and Soft Costs, as incurred, in the amount of such deficiency so that deficiency, the amount of the Loan which remains to be disbursed “Shortfall”), no further Advances shall be sufficient made by the Lenders until the Borrower either individually or in combination (a) deposits with the Agent the Shortfall, (b) infuses the Shortfall into the Project by payment of expenses in cash or other manner reasonably satisfactory to pay all remaining Hard the Agent and Soft Costsdelivers to the Agent evidence thereof reasonably satisfactory to the Agent, and Borrower shall furnish Administrative (c) provides the Agent with other assurance reasonably satisfactory to the Agent (such evidence thereof as Administrative Agent shall reasonably require or (iii) within twenty (20) days of Administrative Agent's notification as aforesaid, deliver to Administrative Agent an irrevocable unconditional a letter of credit or guaranty) that the Shortfall will be funded as and when needed, (d) to the extent permitted under Section 2.1.4 hereof, allocates the Construction Contingency to the Shortfall and/or (e) to the extent permitted under Section 7.1.9 hereof, reallocates cost savings from the Approved Construction Budget (or other reallocations which are approved by the Agent, in its sole discretion) in accordance with the amount terms of such deficiency issued by a money center bank headquartered in the United States which has total assets of at least $100,000,000,000, whose commercial paper is rated at least "A-1/P-1" and whose long-term senior unsecured debt is rated at least "A-" and is otherwise reasonably acceptable to Administrative Agent (any such bank, an "Approved LC Bank"), which letter of credit shall name Administrative Agent as the beneficiary thereof, shall be available at sight, shall otherwise be in form and substance reasonably acceptable to Administrative Agent and can be presented for payment in the Borough of Manhattan, New York (the "Loan Balancing LC"), which Administrative Agent shall from time to time draw on and apply to such Hard and Soft Coststhis Agreement. The Borrower hereby agrees that Administrative the Agent shall have a lien on and security interest in, for the benefit of Lenders, any sums deposited pursuant to clause clauses (ia) and (c) above and that the Borrower shall have no right to withdraw any such sums except for the payment of Construction Costs and the aforesaid Hard and Soft Costs as approved by Administrative Agent (agrees that all such approval not to sums shall be unreasonably withheld, conditioned or delayed). Lenders shall have no obligation to make any further advances of proceeds of the Loan in respect of such Hard and Soft Cost budget lines which were deemed by Administrative Agent to be deficient until (a) the sums required to be deposited advanced pursuant to clause (i) above have been exhausted, (b) Borrower has actually paid such Hard and Soft Costs pursuant to clause (ii) above or (c) Draw Requests submitted by the sums available to be drawn under any Loan Balancing LC have been exhausted, as the case may be, and, in any such case, the Loan is back "in balance"Borrower. Any such sums not used as provided deposited in accordance with said clause (ia) or (c) shall be released to Borrower or any Loan Balancing LC shall be returned to the Borrower when and to the extent that Administrative the Agent reasonably determines that the total remaining Hard and Soft Costs of completion of amount thereof is more than the Improvements is less than or equal to the undisbursed balance of the Loanthen-existing Shortfall; provided, however, that should if an Event of Default occur and be continuingoccurs, Administrative the Agent shall, at the option of the Required Lenders, apply such amounts on deposit or available under the Loan Balancing LC either to the Hard and Soft Costs costs of completion of the Improvements or to the immediate reduction of outstanding principal and/or interest under the Notes. Advance Not WaiverNotes (it being agreed that such application shall not result in an obligation of the Borrower to pay Breakage Costs). Any advance of Loan proceeds hereunder made prior to or without funds remaining in the fulfillment by Borrower of all of the conditions precedent thereto, whether or not known to Administrative Agent or Lenders, shall not constitute a waiver by Administrative Agent or Lenders of the requirement that all conditions, including the non-performed conditions, Construction Contingency after Substantial Completion has been achieved shall be required with respect used to all future advancesreimburse the Borrower for any Shortfall funded by the Borrower under this Section 2.1.7.