Common use of Preliminary Notices From the Company Clause in Contracts

Preliminary Notices From the Company. (a) Subject to Section 2.2.2, the Company shall have the right, from time to time, to deliver to the Disbursement Agent and the Construction Consultant a preliminary Advance Request requesting that an Advance be made on or after the seventeenth (17th) day after delivery of such preliminary Advance Request appropriately completed and duly executed including all necessary exhibits, attachments and certificates (other than the Construction Consultant's Advance Certificate); provided, however, that the Company shall not be required to have completed its internal audit of the Project Costs described in such preliminary Advance Request. (b) The Company's preliminary Advance Request shall include, among other things, the Prime Contractor's Advance Certificate, the Golf Course Contractor's Advance Certificate, the Golf Course Designer's Advance Certificate and the Aqua Theater Designer's Advance Certificate, in each case, to the extent that such Advance Request requests that payment be made to such Person or to any Contractor or Subcontractor implementing the work designed by such Person. The Company's preliminary Advance Request shall also include, among other things, a certificate with respect to such Advance Request, in the form of Exhibit C-3 confirming, among other things, the substantial conformity of construction undertaken to date with the Final Plans and Specifications for the Project (the "Project Architect's Advance Certificate"). (c) Concurrently with the delivery by the Company of each preliminary Advance Request pursuant to subsection (a) above, the Company shall deliver (i) to the FF&E Agent, a copy of Appendix XI to the preliminary Advance Request and (ii) to the Funding Agents and the Disbursement Agent a preliminary Notice of Advance Request in the form of Exhibit D hereto. Such preliminary Notice of Advance Request shall reference the requested Advance Date set forth in the preliminary Advance Request and shall contain the other information required thereby. (d) Each preliminary Advance Request delivered by the Company pursuant to subsection (a) above shall request Advances in order to (i) until the Completion Date, pay interest and fees under the Bank Credit Agreement, the Second Mortgage Notes, and the FF&E Facility which will become due and payable on or after the requested Advance Date and prior to the next succeeding Advance Date, and/or (ii) pay other Project Costs estimated to become due and payable on or prior to the requested Advance Date (with respect to the initial Advance Request to be delivered hereunder, the Company shall request $38,000,000 be advanced under the FF&E Facility to refinance the purchase of the Aircraft described in the first sentence of Section 2.5.5), and/or (iii) issue a Letter of Credit under the Bank Credit Facility, and/or (iv) replenish funds, or increase funds on deposit, in the Soft Costs Cash Management Account or the Hard Costs Cash Management Account (or, with respect to the initial Advance Request to be delivered hereunder, the Company shall request that $2,500,000 be deposited in the Soft Costs Cash Management Account and $3,000,000 be deposited in the Hard Costs Cash Management Account) or the Operating Account to the extent necessary to pay Operating Costs set forth in the Project Budget anticipated to become due and payable through the end of the ensuing calendar month. The Company shall not be permitted to obtain Advances for the purpose of paying Debt Service at any time after the Completion Date. Each such preliminary Advance Request shall include an estimated cash flow for the requested Advance broken down by Contractor and Line Item and shall certify as to various matters including, without limitation, (1) funding sequence, (2) accuracy of the Project Budget, (3) Line Item allocations, (4) application of proceeds, (5) with respect to the Advance that will leave an amount equal to but not more than the Second Mortgage Notes Interest Reserve Amount in the Second Mortgage Notes Proceeds Account, Appendix XI to the Advance Request indicating the items of Eligible FF&E Equipment in respect of which any Advances will have been made from the Company's Funds Account or the Second Mortgage Notes Proceeds Account and which the Company would like to designate as FF&E Component and cover with the FF&E Reimbursement Advance and also indicating value thereof (segregated between amounts associated with "Gaming Equipment," "Non-Gaming Equipment" and "Transaction Costs," each as defined in the FF&E Facility Agreement) and (6) with respect to each Advance thereafter, Appendix XI to the Advance Request indicating the items of Eligible FF&E Equipment that the Company would like to designate as FF&E Component and for which an Advance is requested under the FF&E Facility in such Advance Request. Promptly after delivery of each preliminary Advance Request, the Disbursement Agent and the Construction Consultant shall review such Advance Request and attachments thereto to determine whether all required documentation has been provided, and shall use commercially reasonable efforts to notify the Company of any deficiency within three (3) Banking Days after delivery thereof by the Company, it being acknowledged that any failure to notify the Company of any deficiency in the Advance Request so delivered within the aforesaid time period shall in no event be deemed an approval thereof. The Construction Consultant also shall review the work referenced in such preliminary Advance Request, including work estimated to be completed through the applicable Advance Date as such work is being performed. (e) The FF&E Agent shall have the right to disapprove any items of Eligible FF&E Collateral listed by the Company in Appendix XI to the Company's preliminary Advance Request as items to be funded in part by the FF&E Facility pursuant to the FF&E Reimbursement Advance or Section 2.5.1(a)(iii); provided, however, that the FF&E Agent's failure to so disapprove any items of Eligible FF&E Equipment identified by the Company on such Appendix XI on or before the date the Company delivers the final Advance Request pursuant to Section 2.4.2 below shall be deemed to constitute the FF&E Agent's and the FF&E Lenders' approval thereof and the items of Eligible FF&E Equipment identified on such Appendix XI shall be funded in part by the FF&E Facility pursuant to the FF&E Reimbursement Advance or Section 2.5.1(a)(iii) , as the case may be, and thereafter comprise a portion of the FF&E Component financed under the FF&E Facility. In the event that the FF&E Agent timely disapproves any items of Eligible FF&E Collateral listed on such Appendix XI, the Company shall have the option of either removing such items from the final Advance Request or requesting in the final Advance Request that such items be financed by Resort Component Funding Sources pursuant to Section 2.5.2. Notwithstanding anything to the contrary in this Section 2.4.1(e), the FF&E Agent shall have no right (1) to disapprove any items of Eligible FF&E Collateral consisting of "Gaming Equipment" or "Transaction Costs" associated with Gaming Equipment (each as defined in the FF&E Facility Agreement) listed by the Company in Appendix XI to the Company's preliminary Advance Request from and after the time that (A) the aggregate of the unutilized "Gaming Equipment Commitments" specified in the FF&E Facility and amounts on deposit in the FF&E Proceeds Account is greater than or equal to (B) the aggregate Remaining Costs for Line Items allocated to Eligible FF&E Equipment consisting of "Gaming Equipment" and "Transaction Costs" associated with Gaming Equipment (each as defined in the FF&E Facility Agreement) which has not yet been purchased; and (2) to disapprove any items of Eligible FF&E Collateral consisting of "Non-Gaming Equipment" or "Transaction Costs" associated with Non-Gaming Equipment (each as defined in the FF&E Facility Agreement) listed by the Company in Appendix XI to the Company's preliminary Advance Request from and after the time that (A) the aggregate of the unutilized "Non-Gaming Equipment Commitments" under the FF&E Facility and amounts on deposit in the FF&E Proceeds Account (excluding amounts on deposit in the FF&E Proceeds Account counted in clause (1)(A) above) is greater than or equal to (B) the aggregate Remaining Costs for Line Items allocated to Eligible FF&E Equipment consisting of "Non-Gaming Equipment" and "Transaction Costs" associated with Non-Gaming Equipment (each as defined in the FF&E Facility Agreement) which has not yet been purchased.

Preliminary Notices From the Company. (a) Subject to Section 2.2.2, the Company shall have the rightright to, from time to time, to deliver to the Disbursement Agent and the Construction Consultant a preliminary Advance Request requesting that an Advance be made on or after the seventeenth (17th) day after delivery of such preliminary Advance Request appropriately completed and duly executed including all necessary exhibits, attachments and certificates (other than the Construction Consultant's Advance Certificate); provided, however, that the Company shall not be required to have completed its internal audit of the Project Costs described in such preliminary Advance Request. (b) The Company's preliminary Advance Request shall include, among other things, the Prime Contractor's Advance Certificate, the Golf Course Contractor's Advance Certificate, the Golf Course Designer's Advance Certificate and the Aqua Theater Designer's Advance Certificate, in each case, to the extent that such Advance Request requests that payment be made to such Person or to any Contractor or Subcontractor implementing the work designed by such Person. The Company's preliminary Advance Request shall also include, among other things, a certificate with respect to such Advance Request, in the form of Exhibit C-3 confirming, among other things, the substantial conformity of construction undertaken to date with the Final Plans and Specifications for the Project (the "Project Architect's Advance Certificate"). (c) Concurrently with the delivery by the Company of each preliminary Advance Request pursuant to subsection (a) above, the Company shall deliver (i) to the FF&E Agent, a copy of Appendix XI to the preliminary Advance Request and (ii) to the Funding Agents and the Disbursement Agent a preliminary Notice of Advance Request in the form of Exhibit D hereto. Such preliminary Notice of Advance Request shall reference the requested Advance Date set forth in the preliminary Advance Request and shall contain the other information required thereby. (d) Each preliminary Advance Request delivered by the Company pursuant to subsection (a) above shall request Advances in order to (i) until the Completion Date, pay interest and fees under the Bank Credit Agreement, the Second Mortgage Notes, and the FF&E Facility which will become due and payable on or after the requested Advance Date and prior to the next succeeding Advance Date, and/or (ii) pay other Project Costs estimated to become due and payable on or prior to the requested Advance Date (with respect to the initial Advance Request to be delivered hereunder, the Company shall request $38,000,000 38,500,000 be advanced under the FF&E Facility to refinance indebtedness incurred to fund the purchase of the Aircraft described in the first sentence of Section 2.5.5Aircraft), and/or (iii) issue a Letter of Credit under the Bank Credit Facility, and/or (iv) replenish funds, or increase funds on deposit, in the Soft Costs Cash Management Sub-Account or the Hard Costs Cash Management Sub-Account (or, with respect to the initial Advance Request to be delivered hereunder, the Company shall request that $2,500,000 3,000,000 be deposited in the Soft Costs Cash Management Sub-Account and $3,000,000 1,000,000 be deposited in the Hard Costs Cash Management Sub-Account) or the Operating Account to the extent necessary to pay Operating Costs set forth in the Project Budget anticipated to become due and payable through the end of the ensuing calendar month). The Company shall not be permitted to obtain Advances for the purpose of paying Debt Service at any time after the Completion Date. Each such preliminary Advance Request shall include an estimated cash flow for the requested Advance broken down by Contractor and Line Item and shall certify as to various matters including, without limitation, (1) funding sequence, (2) accuracy of the Project Budget, (3) Line Item allocations, (4) application of proceeds, (5) with respect to the Advance that will leave an amount equal to but not more than Exhaust the Second Mortgage Notes Interest Reserve Amount amounts on deposit in the Second Mortgage Notes Proceeds Account, Appendix XI to the Advance Request indicating the items of Eligible FF&E Equipment in respect of which any Advances will have been made from the Company's Funds Account or the Second Mortgage Notes Proceeds Account and which the Company would like to designate as FF&E Component and cover with the FF&E Reimbursement Advance and also indicating value thereof (segregated between amounts associated with "Gaming Equipment," "Non-Gaming Equipment" and "Transaction Costs," each as defined in the FF&E Facility Agreement) and (6) with respect to each Advance thereafterafter Exhaustion of the Second Mortgage Notes Proceeds, Appendix XI to the Advance Request indicating the items of Eligible FF&E Equipment that the Company would like to designate as FF&E Component and for which an Advance is requested under the FF&E Facility in such Advance Request. Promptly after delivery of each preliminary Advance Request, the Disbursement Agent and the Construction Consultant shall review such Advance Request and attachments thereto to determine whether all required documentation has been provided, and shall use commercially reasonable efforts to notify the Company of any deficiency within three (3) Banking Days after delivery thereof by the Company, it being acknowledged that any failure to notify the Company of any deficiency in the Advance Request so delivered within the aforesaid time period shall in no event be deemed an approval thereof. The Construction Consultant also shall review the work referenced in such preliminary Advance Request, including work estimated to be completed through the applicable Advance Date as such work is being performed. (e) The FF&E Agent shall have the right to disapprove any items of Eligible FF&E Collateral listed by the Company in Appendix XI to the Company's preliminary Advance Request as items to be funded in part by the FF&E Facility pursuant to the FF&E Reimbursement Advance or Section 2.5.1(a)(iii); provided, however, that the FF&E Agent's failure to so disapprove any items of Eligible FF&E Equipment identified by the Company on such Appendix XI on or before the date the Company delivers the final Advance Request pursuant to Section 2.4.2 below shall be deemed to constitute the FF&E Agent's and the FF&E Lenders' approval thereof and the items of Eligible FF&E Equipment identified on such Appendix XI shall be funded in part by the FF&E Facility pursuant to the FF&E Reimbursement Advance or Section 2.5.1(a)(iii) ), as the case may be, and thereafter comprise a portion of the FF&E Component financed under the FF&E Facility. In the event that the FF&E Agent timely disapproves any items of Eligible FF&E Collateral listed on such Appendix XI, the Company shall have the option of either removing such items from the final Advance Request or requesting in the final Advance Request that such items be financed by Resort Component Funding Sources pursuant to Section 2.5.2. Notwithstanding anything to the contrary in this Section 2.4.1(e), the FF&E Agent shall have no right (1) to disapprove any items of Eligible FF&E Collateral consisting of "Gaming Equipment" or "Transaction Costs" associated with Gaming Equipment (each as defined in the FF&E Facility Agreement) listed by the Company in Appendix XI to the Company's preliminary Advance Request from and after the time that (A) the aggregate of the unutilized "Gaming Equipment Commitments" specified in Commitments under the FF&E Facility and amounts on deposit in the FF&E Proceeds Account is greater than or equal to (B) the aggregate Remaining Costs for Line Items allocated to Eligible FF&E Equipment consisting of "Gaming Equipment" and "Transaction Costs" associated with Gaming Equipment (each as defined in the FF&E Facility Agreement) which has not yet been purchased; and (2) to disapprove any items of Eligible FF&E Collateral consisting of "Non-Gaming Equipment" or "Transaction Costs" associated with Non-Gaming Equipment (each as defined in the FF&E Facility Agreement) listed by the Company in Appendix XI to the Company's preliminary Advance Request from and after the time that (A) the aggregate of the unutilized "Non-Gaming Equipment Commitments" under the FF&E Facility and amounts on deposit in the FF&E Proceeds Account (excluding amounts on deposit in the FF&E Proceeds Account counted in clause (1)(A) above) is greater than or equal to (B) the aggregate Remaining Costs for Line Items allocated to Eligible FF&E Equipment consisting of "Non-Gaming Equipment" and "Transaction Costs" associated with Non-Gaming Equipment (each as defined in the FF&E Facility Agreement) which has not yet been purchased.

Preliminary Notices From the Company. (a) Subject to Section 2.2.2, the Company shall have the rightright to, from time to time, to deliver to the Disbursement Agent and the Construction Consultant a preliminary Advance Request requesting that an Advance be made on or after the seventeenth nineteenth (17th19th) day after delivery of such preliminary Advance Request appropriately completed and duly executed including all necessary exhibits, attachments and certificates (other than the Construction Consultant's Advance Certificate); provided, however, that the Company shall not be required to have completed its internal audit of the Project Costs described in such preliminary Advance Request. (b) The Company's preliminary Advance Request shall include, among other things, the Prime Contractor's Advance Certificate, the Golf Course Contractor's Advance Certificate, the Golf Course Designer's Advance Certificate and the Aqua Theater Designer's Advance Certificate, in each case, to the extent that such Advance Request requests that payment be made to such Person or to any Contractor or Subcontractor implementing the work designed by such Person. The Company's preliminary Advance Request shall also include, among other things, a certificate with respect to such Advance Request, in the form of Exhibit C-3 confirming, among other things, the substantial conformity of construction undertaken to date with the Final Plans and Specifications for the Project (the "Project Architect's Advance Certificate"). (c) Concurrently with the delivery by the Company of each preliminary Advance Request pursuant to subsection (a) above, the Company shall deliver (i) to the FF&E Agent, a copy of Appendix XI to the preliminary Advance Request and (ii) to the Funding Agents and the Disbursement Agent a preliminary Notice of Advance Request in the form of Exhibit D heretoFunding Request. Such preliminary Notice of Advance Funding Request shall reference the requested Advance Date set forth in the preliminary Advance Request and shall contain the other information required thereby. Each of the Interim Mall Lender, the Mortgage Notes Indenture Trustee and the HVAC Provider shall, as soon as practicable (but no later than two (2) Banking Days) after receiving each Notice of Funding Request, deliver a notice confirming such receipt to the Disbursement Agent. (dc) Each preliminary Advance Request delivered by the Company pursuant to subsection (a) above shall request Advances in order to (i) until the Completion Opening Date, pay interest and fees under the Bank Credit Agreement, the Second Interim Mall Credit Agreement, the Mortgage Notes, the Approved Equipment Funding Commitments and the FF&E Facility Subordinated Notes which will become due and payable on or after the requested Advance Date and prior to the next succeeding Advance Date, and/or (ii) pay other Project Costs estimated to become due and payable on or prior to the requested Advance Date (with respect to the initial Advance Request to be delivered hereunder, the Company shall request $38,000,000 be advanced under the FF&E Facility to refinance the purchase of the Aircraft described in the first sentence of Section 2.5.5)Date, and/or (iii) issue a Letter of Credit under the Bank Credit Facility, and/or (iv) replenish funds, or increase funds on deposit, in the Soft Costs HC/Mall Component Cash Management Sub-Account or and/or the Hard Costs HVAC Component Cash Management Sub-Account (or, with respect to the initial Advance Request to be delivered hereunder, the Company shall request that $2,500,000 5,500,000 be deposited in the Soft Costs HC/Mall Component Cash Management Sub-Account and $3,000,000 1,000,000 be deposited in the Hard Costs HVAC Component Cash Management Sub-Account) or the Operating Account to the extent necessary to pay Operating Costs set forth in the Project Budget anticipated to become due and payable through the end of the ensuing calendar month). The Company shall not be permitted to obtain Advances for the purpose of paying Debt Service at any time after the Completion Opening Date. Each such preliminary Advance Request shall include an estimated cash flow for the requested Advance broken down by Contractor Contractor, Subcontractor and Line Item and shall certify as to various matters including, without limitation, (1) funding sequence, (2) accuracy of the Project Budget, (3) Line Item allocations, (4) application of proceeds, (5) with respect to the Advance that will leave an amount equal to but not more than the Second Mortgage Notes Interest Reserve Amount in the Second Mortgage Notes Proceeds Account, Appendix XI to the Advance Request indicating the items of Eligible FF&E Equipment in respect of which any Advances will have been made from the Company's Funds Account or the Second Mortgage Notes Proceeds Account and which the Company would like to designate as FF&E Component and cover with the FF&E Reimbursement Advance and also indicating value thereof (segregated between amounts associated with "Gaming Equipment," "Non-Gaming Equipment" and "Transaction Costs," each as defined in the FF&E Facility Agreement) and (6) with respect to each Advance thereafter, Appendix XI to the Advance Request indicating the items of Eligible FF&E Equipment that the Company would like to designate as FF&E Component and for which an Advance is requested under the FF&E Facility in such Advance RequestItem. Promptly after delivery of each preliminary Advance Request, the Company, the Disbursement Agent and the Construction Consultant shall review such Advance Request and attachments thereto to determine whether all required documentation has been provided, and shall use commercially reasonable efforts to notify the Company of any deficiency within three (3) Banking Days after delivery thereof by the Company, it being acknowledged that any failure to notify the Company of any deficiency in the Advance Request so delivered within the aforesaid time period shall in no event be deemed an approval thereof. The Company and the Construction Consultant also shall review the work referenced in such preliminary Advance Request, including work estimated to be completed through the applicable Advance Date as such work is being performed. (e) The FF&E Agent shall have the right to disapprove any items of Eligible FF&E Collateral listed by the Company in Appendix XI to the Company's preliminary Advance Request as items to be funded in part by the FF&E Facility pursuant to the FF&E Reimbursement Advance or Section 2.5.1(a)(iii); provided, however, that the FF&E Agent's failure to so disapprove any items of Eligible FF&E Equipment identified by the Company on such Appendix XI on or before the date the Company delivers the final Advance Request pursuant to Section 2.4.2 below shall be deemed to constitute the FF&E Agent's and the FF&E Lenders' approval thereof and the items of Eligible FF&E Equipment identified on such Appendix XI shall be funded in part by the FF&E Facility pursuant to the FF&E Reimbursement Advance or Section 2.5.1(a)(iii) , as the case may be, and thereafter comprise a portion of the FF&E Component financed under the FF&E Facility. In the event that the FF&E Agent timely disapproves any items of Eligible FF&E Collateral listed on such Appendix XI, the Company shall have the option of either removing such items from the final Advance Request or requesting in the final Advance Request that such items be financed by Resort Component Funding Sources pursuant to Section 2.5.2. Notwithstanding anything to the contrary in this Section 2.4.1(e), the FF&E Agent shall have no right (1) to disapprove any items of Eligible FF&E Collateral consisting of "Gaming Equipment" or "Transaction Costs" associated with Gaming Equipment (each as defined in the FF&E Facility Agreement) listed by the Company in Appendix XI to the Company's preliminary Advance Request from and after the time that (A) the aggregate of the unutilized "Gaming Equipment Commitments" specified in the FF&E Facility and amounts on deposit in the FF&E Proceeds Account is greater than or equal to (B) the aggregate Remaining Costs for Line Items allocated to Eligible FF&E Equipment consisting of "Gaming Equipment" and "Transaction Costs" associated with Gaming Equipment (each as defined in the FF&E Facility Agreement) which has not yet been purchased; and (2) to disapprove any items of Eligible FF&E Collateral consisting of "Non-Gaming Equipment" or "Transaction Costs" associated with Non-Gaming Equipment (each as defined in the FF&E Facility Agreement) listed by the Company in Appendix XI to the Company's preliminary Advance Request from and after the time that (A) the aggregate of the unutilized "Non-Gaming Equipment Commitments" under the FF&E Facility and amounts on deposit in the FF&E Proceeds Account (excluding amounts on deposit in the FF&E Proceeds Account counted in clause (1)(A) above) is greater than or equal to (B) the aggregate Remaining Costs for Line Items allocated to Eligible FF&E Equipment consisting of "Non-Gaming Equipment" and "Transaction Costs" associated with Non-Gaming Equipment (each as defined in the FF&E Facility Agreement) which has not yet been purchased.