Common use of Draw Process Clause in Contracts

Draw Process. Development Manager shall be responsible for coordinating all construction draws, and until the opening of the applicable Construction Loan (if any), the draw process shall be controlled by the provisions of this Section 2.3. Thereafter, this Section shall be deemed modified to the extent required by the Construction Lender. Draws to finance the construction on the Improvements shall be made no more often than monthly, commencing approximately one (1) month after the commencement of construction of such Improvements and terminating upon completion of the Work and issuance of the last certificate of occupancy required by Law for full occupancy of the Improvements. Funds requested under each draw shall be used solely to pay for construction, fixturing and soft costs related to the Improvements that are consistent with the terms of this Agreement. Draw requests for the Project shall be made as follows: 2.3.1 So long as General Partner is the general partner of Owner, the following procedure shall apply: (a) The General Contractor’s application for payment and other invoices shall be submitted to Development Manager (and to the Architect with respect to the General Contractor’s application for payment) no later than the tenth (10th) day of the month following the month in which the work which is the subject of such application for payment or invoices was completed; (b) Development Manager shall review the General Contractor’s application for payment and all other invoices, and the Architect shall review the General Contractor’s application for payment, and to the extent such are approved by Development Manager and the Architect, Development Manager shall submit a draw request in Development Manager’s customary internal form (an “Internal Draw Request”) to Owner no later than the twenty-first (21st) day of the month following the month in which the work which is the subject of such Internal Draw Request was completed; (c) Owner shall pay the entire amount of the Internal Draw Request for distribution no later than ten (10) business days after the Internal Draw Request is submitted to Owner. 2.3.2 Notwithstanding the foregoing provisions of Section 2.3.1, if General Partner is no longer the general partner of the Owner, then the following procedure shall apply: (a) within ten (10) days after a draw is requested, Development Manager will submit a draw request to the Owner in such detail as Owner may reasonably require designated to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. Such draw request shall include: (i) an Application and Certificate for Payment (AIA Document G702), or other document acceptable to the Owner, containing a certification by the General Contractor and the applicable Architect that construction to the date of the draw request is in accordance with the Final Plans and Specifications and, if applicable, any recommendations contained in the approved soils report; (ii) a copy of the General Contractor’s application for payment, including the General Contractor’s and subcontractors’ conditional lien waivers on progress payments; (iii) the General Contractor’s and subcontractors’ unconditional lien waivers for progress payments made from the previous draw; (iv) a line by line comparison of the budgeted versus the actual costs and estimate of the percentage of completion for the Work item covered by such line item; and (v) all other documents and information reasonably required by Owner. (b) Owner shall review the draw request and contact Development Manager as soon as reasonably practicable in the event Owner has any questions regarding the draw request or disputes any of the items for which payment is requested. In the event Owner and Development Manager are unable to agree on the draw request within twenty (20) days after such is submitted to Owner, the matter shall be submitted to the Architect, whose decision regarding the draw request shall be binding upon Owner and Development Manager so that by the tenth (10th) day of the following month, Owner shall have approved (or, in the case of a dispute submitted to the Architect for resolution, Owner shall be deemed to have approved) the draw request and shall pay the entire approved amount of the draw for distribution to the General Contractor and subcontractors.

Draw Process. Development Manager In the event that Developer wishes at any time for Owner to fund all or any portion of Owner’s Commitment for the Project, Developer shall be responsible for coordinating all construction draws, and until the opening of the applicable Construction Loan deliver written notice to Owner requesting such funding (if anya “Draw Request”), the draw process shall be controlled by the provisions of this Section 2.3. Thereafter, this Section shall be deemed modified to the extent required by the Construction Lender. Draws to finance the construction on the Improvements shall be made Developer may deliver no more often than monthly, commencing approximately one (1) month after the commencement of construction of such Improvements and terminating upon completion of the Work and issuance of the last certificate of occupancy required by Law for full occupancy of the ImprovementsDraw Request per calendar month. Funds requested under each draw shall be used solely to pay for construction, fixturing and soft costs related to the Improvements that are consistent with the terms of this Agreement. Draw requests for the Project Advances shall be made as follows: 2.3.1 So long as General Partner is only on the general partner first Business Day of a calendar month. Each Draw Request, together with all other deliverables required under this Agreement for the making of any Advance, shall be delivered by the fifteenth (15th) day of the calendar month immediately preceding the date on which Developer has requested that the applicable Advance be made (e.g., for an Advance that Developer requests be funded on September 1, the Draw Request therefor, together with all other deliverables required under this Agreement for the making of such Advance, shall be provided to Owner no later than August 15th). In order to be effective, a Draw Request shall (i) identify the specific amount requested, which shall be no less than Five Million Dollars ($5,000,000.00) for each Draw Request (other than the final Draw Request for the Project, which may be more or less than Five Million Dollars ($5,000,000.00)), (ii) identify the total amount of outstanding Project Funding (including the requested Advance) for the Project, (iii) include a certification from Developer that all of Owner’s Commitment that has been funded to the date of such Draw Request has been, and the following procedure Advance requested by such Draw Request shall applybe, applied towards hard costs actually incurred in the construction of New Improvements, (iv) specify the amount of any Retainage previously withheld and which has then become payable by Developer, and (v) include or be accompanied by the following: (a) The General Contractor’s application a duly executed, completed and itemized Application and Certificate for payment and other invoices shall be submitted to Development Manager Payment in the form of AIA Document No. G702 (and to including AIA Form G703 as an attachment thereto), or similar form reasonably approved by Owner, containing the executed certification from Architect with respect to the General Contractor’s application for payment) no later than AIA Form G702 and G703 and the tenth (10th) day General Contractor as to the accuracy of the month following same, together with all invoices relating to all items of cost covered thereby and further accompanied by a cost breakdown showing the month cost of work on, and the cost of materials incorporated into, the New Improvements to the date of the requisition. The cost breakdown shall also show the percentage of completion of each Line Item in which the work which is the subject of such application for payment or invoices was completedBudget; (b) Development Manager in connection with any Advance in respect of which all or portions thereof shall review be applied to the General final payment to a Trade Contractor, a duly executed, completed and itemized Contractor’s application for payment Affidavit of Payment of Debt and all other invoices, and Claim in the Architect shall review the General form of AIA Document No. G706 from each Trade Contractor’s application for payment, and to the extent such are approved by Development Manager and the Architect, Development Manager shall submit a draw request in Development Manager’s customary internal form (an “Internal Draw Request”) to Owner no later than the twenty-first (21st) day of the month following the month in which the work which is the subject of such Internal Draw Request was completed; (c) each of the following to the extent applicable: (A) a duly executed lien waiver in a form reasonably acceptable to Owner shall pay from each Trade Contractor (other than the entire General Contractor), in each case, for work performed and goods, labor and materials supplied for which payment has been received (i.e. a “trailing lien waiver”) (which may be conditioned only on payment from the applicable Advance), (B) a duly executed lien waiver substantially in a form reasonably acceptable to Owner from the General Contractor for work performed and goods, labor and materials supplied for which payment thereof is requested in such Draw Request (which may be conditioned on payment from the applicable Advance), and (C) with respect to any request for final payment from a Trade Contractor, duly executed lien waivers in a form reasonably acceptable to Owner from such Trade Contractor, for work performed and goods, labor and materials supplied for which payment thereof is requested in such Draw Request, in each case, excluding any such parties whose lien rights or liens have been bonded over in a manner (and with a bond provider) satisfactory to Owner; (d) current requisitions for payment from (A) all Material Trade Contractors, and (B) to the extent the same are delivered to the General Contractor, any subcontractors; (e) a list of (A) all Trade Contracts and (B) any other Trade Contracts that have been provided to Developer by the General Contractor, in each case, executed since the date of the then last preceding Advance, and a true and complete copy of each such Trade Contract; (f) a list of all Change Orders then to date and a list of all pending Change Orders; (g) evidence reasonably satisfactory to Owner that the full amount of the Internal Draw Request for distribution no later than ten portion of the proceeds of the then last preceding Advance have been paid out in full to the Persons with respect to whom such Advance was made and otherwise in accordance with this Agreement; (10h) business days after if the Internal Draw Request is submitted Construction Schedule has been updated following the prior delivery thereof to Owner. 2.3.2 Notwithstanding the foregoing provisions of Section 2.3.1, if General Partner is no longer the general partner of the Owner, then the following procedure shall apply: (a) within ten (10) days after a draw is requested, Development Manager will submit a draw request to the Owner in such detail as Owner may reasonably require designated to the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. Such draw request shall include:an updated Construction Schedule; (i) an Application and a Construction Consultant Certificate; provided that, Owner shall use commercially reasonable efforts to cause the Construction Consultant to timely deliver each Construction Consultant Certificate for Payment (AIA Document G702), or other document acceptable otherwise provide written notice to the Owner, containing a certification by the General Contractor Owner and the applicable Architect that construction Developer as to the date reasons that it cannot provide such Construction Consultant Certificate; (j) an updated version of the draw request is Sources and Uses statement delivered pursuant to Section 2.2(d) identifying all prior and anticipated sources of financing for the development, construction, Completion and Opening of all New Improvements, and such other evidence as may be reasonably requested by Owner to evidence the availability to Developer of funding for the development, construction, Completion and Opening of all New Improvements for the Project within the Budget beyond Owner’s Commitment pursuant to this Agreement; (k) to the extent not previously provided, any information, documents and/or Permits reasonably requested by Owner to confirm that Developer will be able to use the New Improvements upon the Opening Date thereof in accordance with the Final Plans and Specifications and, if applicable, any recommendations contained in the approved soils report; (ii) a copy of the General Contractor’s application for payment, including the General Contractor’s and subcontractors’ conditional lien waivers on progress payments; (iii) the General Contractor’s and subcontractors’ unconditional lien waivers for progress payments made from the previous draw; (iv) a line by line comparison of the budgeted versus the actual costs and estimate of the percentage of completion for the Work item covered by such line itemPrimary Intended Use; and (vl) all other documents and information reasonably required to the extent not previously delivered by Owner. (b) Owner shall review the draw request and contact Development Manager as soon as reasonably practicable in the event Owner has any questions regarding the draw request or disputes any of the items for which payment is requested. In the event Owner and Development Manager are unable to agree on the draw request within twenty (20) days after such is submitted Developer to Owner, the matter shall be submitted to the Architecta list and true and correct copies of all Plans and Specifications, whose decision regarding the draw request shall be binding upon Owner Project Agreements, and Development Manager so that by the tenth Permits (10th) day of the following monthin each case together with all amendments, Owner shall have approved (orsupplements, in the case of a dispute submitted to the Architect for resolution, Owner shall be deemed to have approved) the draw request and shall pay the entire approved amount of the draw for distribution to the General Contractor and subcontractorsand/or other modifications thereto).