CONNECTION WITH THE CONSTRUCTION OF THE
PROJECT, TO THE EXTENT NOT PREVIOUSLY DELIVERED.
(IV)
TWO (2) FULLY-EXECUTED ORIGINALS OF THE
CONSTRUCTION COMPLETION GUARANTY.
(V)
THE PAYMENT AND PERFORMANCE BONDS; PROVIDED,
HOWEVER, THAT LENDER SHALL, AT BORROWERS' REQUEST, REVIEW THE FINANCIAL
STATEMENTS OF ANY PROPOSED MAJOR CONTRACTOR AND REASONABLY CONSIDER A REQUEST BY
BORROWERS EITHER (A) NOT TO REQUIRE A PAYMENT AND PERFORMANCE BOND WITH RESPECT
TO SUCH MAJOR CONTRACTOR, OR (B) TO ACCEPT, IN LIEU OF A PAYMENT AND PERFORMANCE
BOND WITH RESPECT TO SUCH MAJOR CONTRACTOR, A "SUBGUARD POLICY" ISSUED BY ZURICH
NORTH AMERICA, TOGETHER WITH A FINANCIAL INTEREST ENDORSEMENT, ALL IN FORM AND
CONTENT REASONABLY ACCEPTABLE TO LENDER AND SUBJECT TO LIMITS ACCEPTABLE TO
LENDER IN ITS SOLE AND ABSOLUTE DISCRETION.
(VI)
A DRAW REQUEST COMPLYING WITH THE PROVISIONS
OF THIS AGREEMENT WHICH SHALL CONSTITUTE BORROWERS' REPRESENTATION AND WARRANTY
TO LENDER THAT:
(A) ANY COMPLETED CONSTRUCTION IS SUBSTANTIALLY IN ACCORDANCE
WITH THE PLANS AND SPECIFICATIONS, (B) ALL COSTS FOR THE PAYMENT OF WHICH LENDER
HAS PREVIOUSLY ADVANCED FUNDS HAVE IN FACT BEEN PAID OR ARE BEING HELD BY
BORROWERS PENDING THE RESOLUTION OF A BONAFIDE DISPUTE WITH A TRADE CONTRACTOR;
PROVIDED, HOWEVER, THAT (1) IN SUCH EVENT, THE DRAW REQUEST SHALL INCLUDE A
DESCRIPTION OF THE DISPUTE, THE IDENTITY OF THE TRADE CONTRACTOR AND THE MAXIMUM
AMOUNT IN DISPUTE, (2) IN NO EVENT SHALL BORROWERS BE HOLDING, IN THE AGGREGATE
AT ANY ONE TIME, CONSTRUCTION LOAN PROCEEDS OF MORE THAN $1,500,000.00 ON
ACCOUNT OF ALL SUCH PENDING DISPUTES WITH TRADE CONTRACTORS, AND (3) IF THE
DISPUTE IS NOT RESOLVED WITHIN SIXTY (60) DAYS FOLLOWING THE DATE ON WHICH THE
CONSTRUCTION LOAN ADVANCE WHICH WAS INTENDED TO PAY THE DISPUTED COST WAS
ADVANCED, BORROWERS SHALL RETURN TO LENDER THE AMOUNT OF CONSTRUCTION LOAN
PROCEEDS ADVANCED TO PAY SUCH DISPUTED COST, WHICH AMOUNT MAY BE REQUESTED AGAIN
BY BORROWERS WHEN THE DISPUTE IS RESOLVED, (C) ALL THE REPRESENTATIONS AND
WARRANTIES CONTAINED IN ARTICLE IV OF THIS AGREEMENT CONTINUE TO BE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS (EXCEPT TO THE EXTENT OF CHANGES IN
CIRCUMSTANCES OR CONDITIONS WHICH ARE NOT OTHERWISE PROHIBITED BY THIS
AGREEMENT), (D) NO MONETARY DEFAULT OR ANY EVENT OF DEFAULT SHALL HAVE OCCURRED
AND BE CONTINUING HEREUNDER, AND (E) BORROWERS CONTINUE TO BE IN COMPLIANCE IN
ALL MATERIAL RESPECTS WITH ALL OF THE OTHER TERMS, COVENANTS AND CONDITIONS
CONTAINED IN THIS AGREEMENT.
(VII)
AN ADVANCE REQUEST ACCOMPANIED BY A COMPLETED
AND ITEMIZED APPLICATION AND CERTIFICATE FOR PAYMENT (AIA DOCUMENT NO. G702)
ATTACHED HERETO AS EXHIBIT H OR SIMILAR FORM APPROVED BY LENDER, CONTAINING THE
CERTIFICATION OF THE CONSTRUCTION MANAGER OR TRADE CONTRACTOR TO WHOM SUCH
PAYMENT IS MADE, AS APPLICABLE, AND THE ARCHITECT AS TO THE MATERIAL ACCURACY OF
SAME, TOGETHER WITH INVOICES RELATING TO ALL ITEMS OF HARD COSTS COVERED THEREBY
AND ACCOMPANIED BY A COST BREAKDOWN SHOWING THE COST OF WORK ON, AND THE COST
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OF MATERIALS INCORPORATED INTO, THE PROJECT TO THE DATE OF THE REQUISITION.
THE
COST BREAKDOWN SHALL ALSO