AND
PERFORMANCE BOND CONTRACTS").
NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED HEREIN, (X) IN NO EVENT SHALL THE GUARANTEED MAXIMUM PRICE CONTRACT BE
A PAYMENT AND PERFORMANCE BOND CONTRACT FOR PURPOSES OF CLAUSE (I) OF THE
PRECEDING SENTENCE AND (Y) TO THE EXTENT THAT THE WORK TO BE PERFORMED UNDER A
PAYMENT AND PERFORMANCE BOND CONTRACT HAS BEEN COMPLETED IN FULL (AND THE
APPLICABLE CONTRACTOR HAS DELIVERED A FINAL, UNCONDITIONAL LIEN WAIVER WITH
RESPECT THERETO) PRIOR TO THE INITIAL ADVANCE, THEN FOR ALL PURPOSES HEREUNDER A
PAYMENT AND PERFORMANCE BOND SHALL BE DEEMED TO HAVE BEEN OBTAINED WITH RESPECT
TO SUCH CONTRACT;
(7)
INTEREST RATE CAPS.
AS A CONDITION TO THE INITIAL ADVANCE ONLY,
AND ONLY IF BREAKEVEN LEASING HAS NOT BEEN ACHIEVED BY THE REQUESTED ADVANCE
DATE FOR THE INITIAL ADVANCE, BORROWER SHALL HAVE DELIVERED TO AGENT AN INTEREST
RATE CAP IN FORM AND SUBSTANCE ACCEPTABLE TO AGENT (THE "INITIAL ADVANCE
INTEREST RATE CAP") BETWEEN BORROWER AND A COUNTERPARTY ACCEPTABLE TO AGENT
WHICH SHALL CAP THE LIBOR RATE FOR THE BUILDING LOAN AND PROJECT LOAN UNTIL THE
MATURITY DATE (WITHOUT GIVING EFFECT TO ANY EXTENSIONS UNDER SECTION 3.19(A)
HEREOF) AT THE RATES, AND FOR THE CORRESPONDING PERIODS SET FORTH IN, SCHEDULE 2
HERETO, TOGETHER WITH (I) A COLLATERAL ASSIGNMENT OF THE INITIAL ADVANCE
INTEREST RATE CAP IN THE FORM OF EXHIBIT M HERETO (AN "ASSIGNMENT OF INTEREST
RATE CAP"), (II) A CONSENT BY THE COUNTERPARTY THERETO TO SUCH COLLATERAL
ASSIGNMENT AND (III) AN OPINION, IN FORM AND SUBSTANCE AND FROM COUNSEL
REASONABLY ACCEPTABLE TO AGENT, AS TO THE DUE AUTHORIZATION, EXECUTION AND
DELIVERY BY
58
BORROWER AND ENFORCEABILITY OF, AND OTHER CUSTOMARY MATTERS WITH RESPECT TO, THE
INITIAL ADVANCE INTEREST RATE CAP AND THE ASSIGNMENT OF INTEREST RATE CAP, BUT
IN NO EVENT AS TO ANY MATTERS WITH RESPECT TO SUCH COUNTERPARTY (OTHER THAN
ENFORCEABILITY OF THE INITIAL ADVANCE INTEREST RATE CAP AGAINST SUCH
COUNTERPARTY).
IF BREAKEVEN LEASING HAS BEEN ACHIEVED BY THE REQUESTED ADVANCE
DATE WITH RESPECT TO THE INITIAL ADVANCE (AND THEREFORE BORROWER SHALL NOT HAVE
BEEN REQUIRED TO DELIVER THE INITIAL ADVANCE INTEREST RATE CAP), BORROWER SHALL
HAVE DELIVERED TO AGENT THE FUTURE ADVANCE INTEREST RATE CAPS AND OTHER ITEMS AS
AND TO THE EXTENT REQUIRED BY SECTION 7.20 HEREOF AS OF THE REQUESTED ADVANCE
DATE AS A CONDITION TO ANY SUBSEQUENT ADVANCE;
(8)
APPLICATION FOR PAYMENT.
FROM EACH MAJOR CONTRACTOR (INCLUDING
THE GENERAL CONTRACTOR), A COMPLETED AND ITEMIZED APPLICATION AND CERTIFICATE
FOR PAYMENT IN THE FORM OF AIA DOCUMENT NO. G702 (INCLUDING AIA FORM G703 AS AN
ATTACHMENT THERETO), OR SIMILAR FORM REASONABLY APPROVED BY AGENT, CONTAINING
THE REQUIRED CERTIFICATION OF SUCH MAJOR CONTRACTOR AND BORROWER'S ARCHITECTS,
TOGETHER WITH ALL INVOICES RELATING TO ALL ITEMS OF BUILDING LOAN COSTS COVERED
THEREBY AND FURTHER ACCOMPANIED BY A COST BREAKDOWN SHOWING THE COST OF WORK ON,
AND THE COST OF MATERIALS INCORPORATED INTO, THE PROJECT TO THE DATE OF THE
REQUISITION.
THE COST BREAKDOWN SHALL ALSO SHOW THE PERCENTAGE OF COMPLETION OF
EACH LINE ITEM IN THE