3 - LOAN AGREEMENT FOR AMCAL_2018-01-16

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28 create or may create a lien upon the Property (or upon any personal property or fixtures used in connection with the Property), including, without limitation, non-governmental levies and assessments pursuant to applicable covenants, conditions or restrictions; and (c) all license fees, taxes and assessments imposed on Agency (other than Agency's income or franchise taxes) which are measured by or based upon (in whole or in part) the amount of the obligations secured by the Property. If permitted by law, Developer may pay any Imposition in installments (together with any accrued interest). 12.3.1 Right to Contest. Developer shall not be required to pay any Imposition so long as (a) its validity is being actively contested in good faith and by appropriate proceedings, (b) Developer has demonstrated to Agency's reasonable satisfaction that leaving such Imposition unpaid pending the outcome of such proceedings could not result in conveyance of the Property in satisfaction of such Imposition or otherwise impair the Agency’s interests under the Agency Loan Documents, and (c) Developer has furnished Agency with a bond or other security satisfactory in an amount not less than 100% of the applicable claim (including interest and penalties). 12.3.2 Evidence of Payment. Upon demand by Agency from time to time, Developer shall deliver to Agency, within thirty (30) calendar days following the due date of any Imposition, evidence of payment reasonably satisfactory to Agency. 12.3.3 Books and Records. Developer shall maintain complete books of account and other records reflecting its operations (in connection with any other businesses as well as with respect to the Property), in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to Agency. 12.4 [Intentionally Omitted] 12.5 Project Operating Budget. Developer must promptly deposit all project income directly into a segregated depository account established exclusively for the Project (“Project Operating Account”). Withdrawals from this account may be made only in accordance with the provisions of this Agreement and the approved Operating Budget, as it may be revised from time to time with prior Agency approval. Developer may make withdrawals from this account solely for the payment of project expenses and project fees. Withdrawals from this account for other purposes may be made only with the prior written approval of the Agency. 12.6 Replacement Reserve Account. Developer must establish or cause to be established a segregated replacement reserve depository account (“Replacement Reserve Account”) no later than the commencement of the permanent financing period for the Project. Developer must make monthly deposits from project income into the Replacement Reserve in accordance with Developer’s Budget, as amended from time to time. Developer may withdraw funds from the Replacement Reserve Account solely to fund capital improvements for the Project, such as replacing or repairing structural elements, fixtures or equipment of the Project that are reasonably required to preserve the EXHIBIT 3 3-38