Common use of Loan In Balance Clause in Contracts

Loan In Balance. Agent and the Lenders shall not be obligated to make any advance of Loan proceeds unless and until Borrower has provided Agent with evidence, acceptable to Agent, that the Loan is in balance: i.e., that all remaining unpaid costs of the Property for the remaining period until the Maturity Date, as determined by Agent, in its sole discretion exercised in good faith, including the Reserves, do not exceed the sum of the amount of the Loan proceeds not yet advanced by the Lenders, the remaining amount, if any, to be contributed in respect of the Equity Requirement, and the net operating income from the Property reasonably projected to be received during such period. The initial amount of the Reserves has been designated in the Sworn Construction Cost Statement. The required amount of said Reserves shall decline as costs and payments for which they are maintained are paid therefrom; provided, however, that the amount of any such Reserves shall never decline below an amount sufficient to pay all costs and payments for which it is maintained which then remain unpaid, as determined by Agent. If the Reserves become depleted, such depletion shall not limit Borrower’s obligation hereunder to pay all sums which otherwise would have been payable from such Reserves. Notwithstanding any provision of this Agreement to the contrary, in the event that Agent or Borrower determines in good faith that the Loan is not in balance, it shall notify the other party hereto of such determination, and Borrower shall, within ten (10) Business Days, deposit with Agent funds equal to said insufficiency in order to bring the Loan back into balance. Said funds shall be disbursed by Agent pursuant to and in accordance with the disbursement procedures set forth in this Agreement prior to any advances by Agent or the Lenders of additional Loan proceeds.

Loan In Balance. Agent Anything in this Agreement contained to the contrary notwithstanding, it is expressly understood and agreed that in the Administrative Agent’s reasonable discretion the Loan shall at all times be “In Balance” on a line-by-line and an aggregate basis. Each line item in the Budget shall be deemed to be “In Balance” only when the undisbursed portion of the then-current line item equals or exceeds the costs required to complete all elements of the construction of the Subject Property intended to be covered by such line item. The Loan shall be deemed to be “In Balance” in the aggregate only when the total of the undisbursed portion of the then-current Maximum Loan Amount less the Contingency Fund (subject to Borrower’s reallocation rights under Sections 8.2 and 8.3), equals or exceeds the aggregate of (a) the costs required to complete the construction of the Subject Property in accordance with the Plans and Specifications and the Budget, including, without limitation, all Tenant Work required to be performed by Borrower or tenant allowances to be paid for by Borrower under Leases or reasonably anticipated for unleased space; (b) the amounts to be paid as retainages to persons who have supplied labor or materials to the Subject Property; (c) the amount in excess of projected Net Operating Income required to pay interest on the Loan through the Maturity Date; and (d) all other hard and soft costs not yet paid for in connection with the Subject Property. Such costs and amounts described in clauses (a), (b), (c) and (d) may be estimated and/or approved in writing by the Administrative Agent from time to time. Borrower agrees that if for any reason, in the Administrative Agent’s reasonable discretion, the amount of such undistributed Loan proceeds shall at any time be or become insufficient for such purpose regardless of how such condition may be caused, Borrower will, within ten (10) days after written request by the Administrative Agent, deposit the deficiency with the Administrative Agent (“Deficiency Deposit”). The Deficiency Deposit shall first be exhausted before any further disbursement of Loan proceeds shall be made. Lenders shall not be obligated to make any advance of Loan proceeds unless disbursements if and until Borrower has provided Agent with evidence, acceptable to Agent, that for as long as the Loan is in balance: i.e., that all remaining unpaid costs of the Property for the remaining period until the Maturity Date, as determined by Agent, in its sole discretion exercised in good faith, including the Reserves, do not exceed the sum of the amount of the Loan proceeds not yet advanced by the Lenders, the remaining amount, if any, to be contributed in respect of the Equity Requirement, and the net operating income from the Property reasonably projected to be received during such period. The initial amount of the Reserves has been designated in the Sworn Construction Cost Statement. The required amount of said Reserves shall decline as costs and payments for which they are maintained are paid therefrom; provided, however, that the amount of any such Reserves shall never decline below an amount sufficient to pay all costs and payments for which it is maintained which then remain unpaid, as determined by Agent. If the Reserves become depleted, such depletion shall not limit Borrower’s obligation hereunder to pay all sums which otherwise would have been payable from such Reserves“In Balance”. Notwithstanding any provision of this Agreement anything contained herein to the contrary, if, as a result of any subsequent events, such Deficiency Deposit is no longer needed in the event that Agent or Borrower determines in good faith that order for the Loan is not in balanceto be “In Balance”, it shall notify then to the other party hereto extent that any portion of such determinationDeficiency Deposit has not otherwise been applied to Project Costs, and Borrower shall, within ten (10) Business Days, deposit with such Deficiency Deposit funds held by Administrative Agent funds equal to said insufficiency in order to bring the Loan back into balance. Said funds shall be disbursed by Agent pursuant returned to and in accordance with the disbursement procedures set forth in this Agreement prior to any advances by Agent or the Lenders of additional Loan proceedsBorrower.

Loan In Balance. Anything contained in this Agreement to the contrary notwithstanding, it is expressly understood and agreed that in Agent’s reasonable discretion the Loan shall at all times be “In Balance”, on a Budget Line Item and an aggregate basis. A Budget Line Item shall be deemed to be “In Balance” only if Agent in its reasonable discretion determines that the amount of such Budget Line Item is sufficient for its intended purpose. The Loan shall be deemed to be “In Balance” in the aggregate only when the total of the undisbursed portion of the Loan less the Contingency Fund (subject to Borrower’s reallocation rights under Section 10.3), equals or exceeds the aggregate of (a) the costs required to complete the construction of the Project in accordance with the Plans and Specifications and the Lenders Budget; (b) the amounts to be paid as retainages to persons who have supplied labor or materials to the Project; (c) the amount in excess of the projected Net Operating Income required to pay interest on the Loan through the Maturity Date; and (d) all other hard and soft costs not yet paid for in connection with the Project, as such costs and amounts described in clauses (a), (b), (c) and (d) may be estimated and/or approved in writing by Agent from time to time. Borrower agrees that if for any reason, in Agent’s reasonable discretion, the amount of such undistributed Loan proceeds shall at any time be or become insufficient for such purpose regardless of how such condition may be caused, Borrower will, within ten (10) days after written request by Agent, deposit the deficiency with Agent (“Deficiency Deposit”). The Deficiency Deposit shall first be exhausted before any further disbursement of Loan proceeds shall be made. Lender shall not be obligated to make any advance of Loan proceeds unless disbursements if and until Borrower has provided Agent with evidence, acceptable to Agent, that the Loan is in balance: i.e., that all remaining unpaid costs of the Property for the remaining period until the Maturity Date, as determined by Agent, in its sole discretion exercised in good faith, including the Reserves, do not exceed the sum of the amount of the Loan proceeds not yet advanced by the Lenders, the remaining amount, if any, to be contributed in respect of the Equity Requirement, and the net operating income from the Property reasonably projected to be received during such period. The initial amount of the Reserves has been designated in the Sworn Construction Cost Statement. The required amount of said Reserves shall decline long as costs and payments for which they are maintained are paid therefrom; provided, however, that the amount of any such Reserves shall never decline below an amount sufficient to pay all costs and payments for which it is maintained which then remain unpaid, as determined by Agent. If the Reserves become depleted, such depletion shall not limit Borrower’s obligation hereunder to pay all sums which otherwise would have been payable from such Reserves. Notwithstanding any provision of this Agreement to the contrary, in the event that Agent or Borrower determines in good faith that the Loan is not in balance, it shall notify the other party hereto of such determination, and Borrower shall, within ten (10) Business Days, deposit with Agent funds equal to said insufficiency in order to bring the Loan back into balance. Said funds shall be disbursed by Agent pursuant to and in accordance with the disbursement procedures set forth in this Agreement prior to any advances by Agent or the Lenders of additional Loan proceeds“In Balance”.

Loan In Balance. Agent Anything contained in this Agreement to the contrary notwithstanding, it is expressly understood and agreed that the Loan shall at all times be "In Balance", on a Budget Line Item and an aggregate basis. A Budget Line Item shall be deemed to be "In Balance" only if Lender in its reasonable discretion ----------- determines that the amount of such Budget Line Item is sufficient for its intended purpose. The Loan shall be deemed to be "In Balance" in the aggregate only when the total of the undisbursed portion of the Loan less the Contingency Fund (subject to Borrower's reallocation rights under Section 10.3), equals or exceeds the aggregate of: (a) the costs required to complete the construction of the Project in accordance with the Plans and Specifications and the Lenders Budget; (b) -25- the amounts to be paid as retainages to persons who have supplied labor or materials to the Project; and (c) all other hard and soft costs not yet paid for in connection with the Project, as such costs and amounts described in clauses ------- (a), (b) and (c) may be estimated and/or approved in writing by Lender from time --------------- to time. Borrower agrees that if for any reason, in Lender's reasonable discretion, the amount of such undistributed Loan proceeds shall at any time be or become insufficient for such purpose regardless of how such condition may be caused, Borrower will, within ten (10) days after written request by Lender, deposit the deficiency with Lender ("Deficiency Deposit"). The Deficiency --------------------- Deposit shall first be exhausted before any further disbursement of Loan proceeds shall be made. Lender shall not be obligated to make any advance of Loan proceeds unless disbursements if and until Borrower has provided Agent with evidence, acceptable to Agent, that the Loan is in balance: i.e., that all remaining unpaid costs of the Property for the remaining period until the Maturity Date, as determined by Agent, in its sole discretion exercised in good faith, including the Reserves, do not exceed the sum of the amount of the Loan proceeds not yet advanced by the Lenders, the remaining amount, if any, to be contributed in respect of the Equity Requirement, and the net operating income from the Property reasonably projected to be received during such period. The initial amount of the Reserves has been designated in the Sworn Construction Cost Statement. The required amount of said Reserves shall decline long as costs and payments for which they are maintained are paid therefrom; provided, however, that the amount of any such Reserves shall never decline below an amount sufficient to pay all costs and payments for which it is maintained which then remain unpaid, as determined by Agent. If the Reserves become depleted, such depletion shall not limit Borrower’s obligation hereunder to pay all sums which otherwise would have been payable from such Reserves. Notwithstanding any provision of this Agreement to the contrary, in the event that Agent or Borrower determines in good faith that the Loan is not in balance, it shall notify the other party hereto of such determination, and Borrower shall, within ten (10) Business Days, deposit with Agent funds equal to said insufficiency in order to bring the Loan back into balance. Said funds shall be disbursed by Agent pursuant to and in accordance with the disbursement procedures set forth in this Agreement prior to any advances by Agent or the Lenders of additional Loan proceedsIn Balance.

Loan In Balance. Anything contained in this Agreement contained to the contrary notwithstanding, it is expressly understood and agreed that in Agent’s reasonable discretion the Loan shall at all times be “In Balance”, on a Budget Line Item and an aggregate basis. A Budget Line Item shall be deemed to be “In Balance” only if Agent in its reasonable discretion determines that the amount of such Budget Line Item is sufficient for its intended purpose. The Loan shall be deemed to be “In Balance” in the aggregate only when the total of the undisbursed portion of the Loan less the Contingency Fund which Borrower may not reallocate pursuant to Section 10.3 without Agent’s approval (subject to Borrower’s reallocation rights under Section 10.3), equals or exceeds the aggregate of (a) the costs required to complete the construction of the Project in accordance with the Plans and Specifications and the Budget, including, without limitation, all Tenant Work required to be performed by Borrower or tenant allowances to be paid for by Borrower under Leases or reasonably anticipated for unleased space; (b) the amounts to be paid as retainages to persons who have supplied labor or materials to the Project; and (c) all other hard and soft costs not yet paid for in connection with the Project, as such costs and amounts described in clauses (a), (b) and (c) may be estimated and/or approved in writing by Agent from time to time. Borrower agrees that if for any reason, in Agent’s reasonable discretion, the amount of such undistributed Loan proceeds shall at any time be or become insufficient for such purpose regardless of how such condition may be caused, Borrower will, within ten (10) days after written request by Agent, deposit the deficiency with Agent (“Deficiency Deposit”). The Deficiency Deposit shall first be exhausted before any further disbursement of Loan proceeds shall be made. Lenders shall not be obligated to make any advance of Loan proceeds unless disbursements if and until Borrower has provided Agent with evidence, acceptable to Agent, that the Loan is in balance: i.e., that all remaining unpaid costs of the Property for the remaining period until the Maturity Date, as determined by Agent, in its sole discretion exercised in good faith, including the Reserves, do not exceed the sum of the amount of the Loan proceeds not yet advanced by the Lenders, the remaining amount, if any, to be contributed in respect of the Equity Requirement, and the net operating income from the Property reasonably projected to be received during such period. The initial amount of the Reserves has been designated in the Sworn Construction Cost Statement. The required amount of said Reserves shall decline long as costs and payments for which they are maintained are paid therefrom; provided, however, that the amount of any such Reserves shall never decline below an amount sufficient to pay all costs and payments for which it is maintained which then remain unpaid, as determined by Agent. If the Reserves become depleted, such depletion shall not limit Borrower’s obligation hereunder to pay all sums which otherwise would have been payable from such Reserves. Notwithstanding any provision of this Agreement to the contrary, in the event that Agent or Borrower determines in good faith that the Loan is not in balance, it shall notify the other party hereto of such determination, and Borrower shall, within ten (10) Business Days, deposit with Agent funds equal to said insufficiency in order to bring the Loan back into balance. Said funds shall be disbursed by Agent pursuant to and in accordance with the disbursement procedures set forth in this Agreement prior to any advances by Agent or the Lenders of additional Loan proceeds“In Balance”.

Loan In Balance. Agent Anything contained in this Agreement to the contrary notwithstanding, it is expressly understood and agreed that the Loan shall at all times be “In Balance”, on a Budget Line Item and an aggregate basis. A Budget Line Item shall be deemed to be “In Balance” only if Lender in its reasonable discretion determines that the amount of such Budget Line Item, after taking into account any portion of the Contingency Fund which Borrower is permitted to reallocate without Lender's consent pursuant to Section 10.3 of this Agreement and reallocated cost savings approved by Lender in accordance with Section 10.2 of this Agreement and change orders expressly permitted under Section 15.1(c) or otherwise approved in writing by Lender, is sufficient for its intended purpose. The Loan shall be deemed to be “In Balance” in the aggregate only when the total of the undisbursed portion of the Loan, less any portion of the Contingency Fund which Borrower is not entitled to re-allocate without Lender's prior reasonable approval pursuant to Section 10.3 above, and after taking into account reallocated cost savings approved by Lender in accordance with Section 10.2 of this Agreement and change orders expressly permitted under Section 15.1(c) or otherwise approved in writing by Lender, equals or exceeds the aggregate of (a) the costs required to complete the construction of the Project in accordance with the Plans and Specifications and the Lenders Budget; (b) the amounts to be paid as retainages to persons who have supplied labor or materials to the Project; (c) the amount in excess of the projected (i.e. projected pursuant to the pro forma delivered per Section 8.1(k)) Net Operating Income required to pay interest on the Loan through the Maturity Date; and (d) all other hard and soft costs not yet paid for in connection with the Project, as such costs and amounts described in clauses (a), (b), (c) and (d) may be estimated and/or approved in writing by Lender from time to time. Borrower agrees that if for any reason, in Lender’s reasonable discretion and upon receipt of certification from Lender’s construction consultants confirming the same, the amount of such undistributed Loan proceeds shall at any time be or become insufficient for such purpose regardless of how such condition may be caused, Borrower will, within ten (10) days after written request by Lender, deposit the deficiency with Lender (“Deficiency Deposit”). The Deficiency Deposit shall first be exhausted before any further disbursement of Loan proceeds shall be made. Lender shall not be obligated to make any advance of Loan proceeds unless disbursements if and until Borrower has provided Agent with evidence, acceptable to Agent, that the Loan is in balance: i.e., that all remaining unpaid costs of the Property for the remaining period until the Maturity Date, as determined by Agent, in its sole discretion exercised in good faith, including the Reserves, do not exceed the sum of the amount of the Loan proceeds not yet advanced by the Lenders, the remaining amount, if any, to be contributed in respect of the Equity Requirement, and the net operating income from the Property reasonably projected to be received during such period. The initial amount of the Reserves has been designated in the Sworn Construction Cost Statement. The required amount of said Reserves shall decline long as costs and payments for which they are maintained are paid therefrom; provided, however, that the amount of any such Reserves shall never decline below an amount sufficient to pay all costs and payments for which it is maintained which then remain unpaid, as determined by Agent. If the Reserves become depleted, such depletion shall not limit Borrower’s obligation hereunder to pay all sums which otherwise would have been payable from such Reserves. Notwithstanding any provision of this Agreement to the contrary, in the event that Agent or Borrower determines in good faith that the Loan is not in balance, it shall notify the other party hereto of such determination, and Borrower shall, within ten (10) Business Days, deposit with Agent funds equal to said insufficiency in order to bring the Loan back into balance. Said funds shall be disbursed by Agent pursuant to and in accordance with the disbursement procedures set forth in this Agreement prior to any advances by Agent or the Lenders of additional Loan proceedsIn Balance.

Loan In Balance. Agent Anything contained in this Agreement to the contrary notwithstanding, the Loan shall at all times be “In Balance”, on a Budget Line Item basis and in the aggregate. A Budget Line Item shall be deemed to be “In Balance” only if Lender, in its reasonable discretion, determines that the amount of such Budget Line Item is sufficient for its intended purpose. The Loan shall be deemed to be “In Balance” in the aggregate only when the total of the undisbursed portion of the Loan plus the undisbursed balance of Available Contract Deposits, less the Contingency Reserve (such total being the “Available Funds”), equals or exceeds the aggregate of: (i) the costs required to complete the Construction in accordance with the Plans and Specifications and the Lenders Construction Budget; (ii) the amounts to be paid as retainages to persons who have supplied labor or materials to the Project; (iii) the amount required to pay interest on the Loan through the Maturity Date; (iv) amounts required to be refunded or otherwise paid to any contract vendee under a Contract of Sale; and (v) all other Hard Costs and Soft Costs not yet paid for in connection with the Project, as such costs and amounts described in clauses (i) through (v) above may be estimated and/or approved in writing by Lender from time to time (such costs and amounts in (i) through (v) being the “Outstanding Loan Costs”). If, in Lender’s reasonable determination, either any Budget Line Item is insufficient for such purpose or the aggregate amount of the Available Funds is less than Outstanding Loan Costs, then Borrower shall, within fifteen (15) days after written request by Lender, (with simultaneous copies of such written request sent to Guarantors), deposit the deficiency with Lender (a “Deficiency Deposit”). The Deficiency Deposit shall first be exhausted before any further disbursement of the applicable Loan proceeds shall be made. Any Deficiency Deposit remaining after a particular Budget Line Item or the Loan, as the case may be, is back “In Balance” shall be returned to Borrower. Lender shall not be obligated to make any advance of Loan proceeds unless disbursements if and until Borrower has provided Agent with evidence, acceptable to Agent, that for as long as the Loan is in balance: i.e., that all remaining unpaid costs of the Property for the remaining period until the Maturity Date, as determined by Agent, in its sole discretion exercised in good faith, including the Reserves, do not exceed the sum of the amount of the Loan proceeds not yet advanced by the Lenders, the remaining amount, if any, to be contributed in respect of the Equity Requirement, and the net operating income from the Property reasonably projected to be received during such period. The initial amount of the Reserves has been designated in the Sworn Construction Cost Statement. The required amount of said Reserves shall decline as costs and payments for which they are maintained are paid therefrom; provided, however, that the amount of any such Reserves shall never decline below an amount sufficient to pay all costs and payments for which it is maintained which then remain unpaid, as determined by Agent. If the Reserves become depleted, such depletion shall not limit Borrower’s obligation hereunder to pay all sums which otherwise would have been payable from such Reserves“In Balance”. Notwithstanding any provision of this Agreement anything contained herein to the contrary, in Lender will forbear from requiring collection of any Deficiency Deposit until the event that Agent earlier of (a) February 11, 2007 or Borrower determines in good faith that (b) the Loan date the Public Report is not in balance, it shall notify the other party hereto of such determination, filed and Borrower shall, within ten (10) Business Days, deposit with Agent funds equal to said insufficiency in order to bring the Loan back into balance. Said funds shall be disbursed by Agent pursuant to and in accordance with the disbursement procedures set forth in this Agreement prior to any advances by Agent one or the Lenders of additional Loan proceedsmore Contract Deposits become Available Contract Deposits.

Loan In Balance. Agent Anything contained in this Agreement to the contrary notwithstanding, it is expressly understood and agreed that the Loan shall at all times be “In Balance”, on a Budget Line Item and an aggregate basis. A Budget Line Item shall be deemed to be “In Balance” only if Lender determines that the amount of such Budget Line Item is sufficient for its intended purpose. The Loan shall be deemed to be “In Balance” in the aggregate only when the total of the undisbursed portion of the Loan less the Contingency Fund (subject to Borrower’s reallocation rights under Section 7.2) equals or exceeds the aggregate of (a) the costs required to complete the Construction of the Improvements in accordance with the Plans and Specifications and the Lenders Budget; (b) the amounts to be paid as retainages to persons who have supplied labor or materials to the Project; and (c) all other hard and soft costs not yet paid for in connection with the Project, as such costs and amounts described in clauses (a), (b) and (c) may be estimated and/or approved in writing by Lender from time to time. Borrower agrees that if for any reason, in Lender’s reasonable discretion, the amount of such undistributed Loan proceeds shall at any time be or become insufficient for such purpose regardless of how such condition may be caused, Borrower will, within ten (10) days after written request by Lender, deposit the deficiency with Lender (“Deficiency Deposit”). The Deficiency Deposit shall first be exhausted before any further disbursement of Loan proceeds shall be made. Lender shall not be obligated to make any advance of Loan proceeds unless disbursements if and until Borrower has provided Agent with evidence, acceptable to Agent, that the Loan is in balance: i.e., that all remaining unpaid costs of the Property for the remaining period until the Maturity Date, as determined by Agent, in its sole discretion exercised in good faith, including the Reserves, do not exceed the sum of the amount of the Loan proceeds not yet advanced by the Lenders, the remaining amount, if any, to be contributed in respect of the Equity Requirement, and the net operating income from the Property reasonably projected to be received during such period. The initial amount of the Reserves has been designated in the Sworn Construction Cost Statement. The required amount of said Reserves shall decline long as costs and payments for which they are maintained are paid therefrom; provided, however, that the amount of any such Reserves shall never decline below an amount sufficient to pay all costs and payments for which it is maintained which then remain unpaid, as determined by Agent. If the Reserves become depleted, such depletion shall not limit Borrower’s obligation hereunder to pay all sums which otherwise would have been payable from such Reserves. Notwithstanding any provision of this Agreement to the contrary, in the event that Agent or Borrower determines in good faith that the Loan is not in balance, it shall notify the other party hereto of such determination, and Borrower shall, within ten (10) Business Days, deposit with Agent funds equal to said insufficiency in order to bring the Loan back into balance. Said funds shall be disbursed by Agent pursuant to and in accordance with the disbursement procedures set forth in this Agreement prior to any advances by Agent or the Lenders of additional Loan proceedsIn Balance.

Loan In Balance. Agent Anything contained in this Agreement to the contrary notwithstanding, it is expressly understood and agreed that, in Lender's reasonable discretion, the Loan shall at all times be "In Balance", on a Budget line item and an aggregate basis. The Loan shall be deemed to be "In Balance" in the aggregate only when the total of the undisbursed portion of the Loan less the Contingency Fund (subject to Borrower's reallocation rights under Section 10.3), equals or exceeds the aggregate of (a) the costs required to complete the construction of the Project in accordance with the Plans and Specifications and the Lenders Budget, including, without limitation, all Tenant Work required to be performed by Borrower or tenant allowances to be paid for by Borrower under Leases or reasonably anticipated for unleased space; (b) the amounts to be paid as retainages to persons who have supplied labor or materials to the Project; (c) the amount required to pay interest on the Loan through the Maturity Date; and (d) all other hard and soft costs not yet paid for in connection with the Project, as such costs and amounts described in clauses (a), (b), (c) and (d) may be estimated and/or approved in writing by Lender from time to time. Borrower agrees that if for any reason, in Lender's reasonable discretion, the amount of such undistributed Loan proceeds shall at any time be or become insufficient for such purpose regardless of how such condition may be caused, Borrower will, within ten (10) days after written request by Lender, deposit the deficiency with Lender ("Deficiency Deposit"). The Deficiency Deposit shall first be exhausted before any further disbursement of Loan proceeds shall be made. Lender shall not be obligated to make any advance of Loan proceeds unless disbursements if and until Borrower has provided Agent with evidence, acceptable to Agent, that the Loan is in balance: i.e., that all remaining unpaid costs of the Property for the remaining period until the Maturity Date, as determined by Agent, in its sole discretion exercised in good faith, including the Reserves, do not exceed the sum of the amount of the Loan proceeds not yet advanced by the Lenders, the remaining amount, if any, to be contributed in respect of the Equity Requirement, and the net operating income from the Property reasonably projected to be received during such period. The initial amount of the Reserves has been designated in the Sworn Construction Cost Statement. The required amount of said Reserves shall decline long as costs and payments for which they are maintained are paid therefrom; provided, however, that the amount of any such Reserves shall never decline below an amount sufficient to pay all costs and payments for which it is maintained which then remain unpaid, as determined by Agent. If the Reserves become depleted, such depletion shall not limit Borrower’s obligation hereunder to pay all sums which otherwise would have been payable from such Reserves. Notwithstanding any provision of this Agreement to the contrary, in the event that Agent or Borrower determines in good faith that the Loan is not in balance, it shall notify the other party hereto of such determination, and Borrower shall, within ten (10) Business Days, deposit with Agent funds equal to said insufficiency in order to bring the Loan back into balance. Said funds shall be disbursed by Agent pursuant to and in accordance with the disbursement procedures set forth in this Agreement prior to any advances by Agent or the Lenders of additional Loan proceeds"In Balance".

Loan In Balance. Agent Anything in this Agreement contained to the contrary notwithstanding, it is expressly understood and agreed that in the Administrative Agent’s reasonable discretion the Loan shall at all times be “In Balance” on a line-by-line and an aggregate basis. Each line item in the Budget shall be deemed to be “In Balance” only when the undisbursed portion of the then-current line item equals or exceeds the costs required to complete all elements of the construction of the Project intended to be covered by such line item. The Loan shall be deemed to be “In Balance” in the aggregate only when the total of (i) the undisbursed portion of the then-current Maximum Loan Amount less (ii) the then-current Contingency Fund plus (iii) the undisbursed portion of the Borrower’s Equity Requirement (collectively, the “Total Undisbursed Committed Funds”) equals or exceeds the aggregate of (a) the costs required to complete the Construction of the Project in accordance with the Plans and Specifications and the Budget, including, without limitation, all Tenant Work required to be performed by Borrower or tenant allowances to be paid for by Borrower under Leases or reasonably anticipated for unleased space in any Phase; (b) the amounts to be paid as retainages to persons who have supplied labor or materials to the Project; (c) the cost to acquire the Phase III Retail Unit; (d) the amount in excess of projected NOI required to pay interest on the Loan through the Maturity Date; and (e) all other hard and soft costs not yet paid for in connection with the Project. Such costs and amounts described in clauses (a), (b), (c), (d) and (e) may be estimated and/or approved in writing by the Administrative Agent from time to time. Borrower agrees that if for any reason, in the Administrative Agent’s reasonable discretion, the amount of the Total Undisbursed Committed Funds shall at any time be or become insufficient for such purpose regardless of how such condition may be caused, Borrower will, within ten (10) days after written request by the Administrative Agent, deposit the deficiency with the Administrative Agent (“Deficiency Deposit”). The Deficiency Deposit shall first be exhausted before any further disbursement of Loan proceeds shall be made. Lenders shall not be obligated to make any advance of Loan proceeds unless disbursements if and until Borrower has provided Agent with evidence, acceptable to Agent, that for as long as the Loan is in balance: i.e., that all remaining unpaid costs of the Property for the remaining period until the Maturity Date, as determined by Agent, in its sole discretion exercised in good faith, including the Reserves, do not exceed the sum of the amount of the Loan proceeds not yet advanced by the Lenders, the remaining amount, if any, to be contributed in respect of the Equity Requirement, and the net operating income from the Property reasonably projected to be received during such period. The initial amount of the Reserves has been designated in the Sworn Construction Cost Statement. The required amount of said Reserves shall decline as costs and payments for which they are maintained are paid therefrom; provided, however, that the amount of any such Reserves shall never decline below an amount sufficient to pay all costs and payments for which it is maintained which then remain unpaid, as determined by Agent. If the Reserves become depleted, such depletion shall not limit Borrower’s obligation hereunder to pay all sums which otherwise would have been payable from such Reserves“In Balance”. Notwithstanding any provision of this Agreement anything contained herein to the contrary, if, as a result of any subsequent events, such Deficiency Deposit is no longer needed in the event that Agent or Borrower determines in good faith that order for the Loan is not in balanceto be “In Balance”, it shall notify then to the other party hereto extent that any portion of such determinationDeficiency Deposit has not otherwise been applied to Project Costs, and Borrower shall, within ten (10) Business Days, deposit with such Deficiency Deposit funds held by Administrative Agent funds equal to said insufficiency in order to bring the Loan back into balance. Said funds shall be disbursed by Agent pursuant returned to and in accordance with the disbursement procedures set forth in this Agreement prior to any advances by Agent or the Lenders of additional Loan proceedsBorrower.