3biii Financing and Loan Agreement

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7 skating, skateboard and ice skating), racquet sports facility (including any handball or racquetball court), hot tub facility, suntan facility, racetrack, airplane, skybox or other private luxury box, health club facility, facility primarily used for gambling or store, the principal business of which is the sale of alcoholic beverages for off premises consumption. (i) No litigation at law or in equity nor any proceeding before any governmental agency or other tribunal involving the Borrower is pending or, to the actual knowledge of the Borrower threatened, in which any liability of the Borrower is not adequately covered by insurance and in which any judgment or order would have a material and adverse effect upon the business or assets of the Borrower or would materially and adversely affect the Project, the validity of this Agreement or the performance of the Borrower’s obligations thereunder or the transactions contemplated hereby. (j) No event has occurred and is continuing which with the lapse of time or the giving of notice would constitute an event of default under this Agreement or the Note. Section 2.3. Loan . The City will fund the Loan in full on the Closing Date, provided that the Borrower provides the City with at least ten (10) Business Days advance notice of said Closing Date, utilizing tax increment revenues then currently on deposit in the allocation fund for the River West Allocation Area of the River West Development Area available to the Borrower as provided herein (it being understood the total amount of the Loan shall not exceed $1,250,000). The Borrower acknowledges and agrees that such tax increment revenues are subject to appropriations thereof by the Redevelopment Commission. Such Loan is being evidenced by the execution and delivery by the Borrower of the Note substantially in the form attached hereto as Exhibit A. Within ninety (90) days after the Closing Date, and every ninety (90) days thereafter until all Project costs paid from the Loan have been reported, the Borrower shall submit to the City’s Department of Community Investment (the “Department”) a report detailing: (a) the costs of the Project paid from the Loan; (b) a summary of vendors and amounts paid to each; and (c) copies of paid invoices. ARTICLE III. COMPLETION OF THE PROJECT Section 3.1. Acquisition, Construction, Reconstruction, Rehabilitation, Equipping and Improving of Project. It is understood that improvements made for the Project are that of the Borrower and any contracts made by the Borrower with respect thereto shall acquire, construct, reconstruct and/or rehabilitate the Project. The Borrower shall use commercially reasonable efforts to construct, reconstruct and/or rehabilitate the Project with all reasonable dispatch and to complete the Project by no later than the Mandatory Project Completion Date, and shall pay when due all fees, costs and expenses incurred in connection with that acquisition, construction, reconstruction and/or rehabilitation from funds made available therefor. It is further understood that any contracts made by the Borrower with respect to the Project, whether construction contracts or otherwise, or any work to be done by the Borrower on the Project are made or done by the Borrower on its own behalf and not as agent or contractor for the City. Section 3.2. Completion Date. The Borrower shall notify the City of the Completion Date for the Project by a certificate signed by the Designated Representative stating: