CONSTRUCTION
SCHEDULE STATUS, GOVERNMENTAL APPROVAL STATUS, IF APPLICABLE, AND A DESCRIPTION
OF ANY ISSUES TO BE RESOLVED BETWEEN BORROWERS AND ANY DESIGNER OR TRADE
CONTRACTOR, WHICH REPORT SHALL BE REASONABLY SATISFACTORY TO LENDER AND
CONSTRUCTION CONSULTANT.
(XII)
EVIDENCE REASONABLY SATISFACTORY TO LENDER
THAT THE NOTIONAL AMOUNT OF THE INTEREST RATE CAP AGREEMENT SHALL BE NO LESS
THAN THE OUTSTANDING PRINCIPAL BALANCE, AFTER GIVING EFFECT TO THE PROPOSED
CONSTRUCTION LOAN ADVANCE.
(C)
PAYMENT OF FEES AND EXPENSES.
PAYMENT BY
BORROWERS OF ALL FEES AND EXPENSES REQUIRED BY THIS AGREEMENT, TO THE EXTENT
THEN DUE AND PAYABLE, INCLUDING, WITHOUT LIMITATION, (I) ANY FEES AND EXPENSES
REFERRED TO IN SECTION 10.13 HEREOF THEN DUE AND PAYABLE, (II) ANY REASONABLE
FEES AND EXPENSES THEN DUE AND PAYABLE TO THE CONSTRUCTION CONSULTANT, (III) ANY
UNUSED ADVANCE FEE THEN DUE AND PAYABLE, (IV) ANY ADMINISTRATIVE AGENT FEE THEN
DUE AND PAYABLE, AND/OR (V) ANY TITLE PREMIUMS AND/OR OTHER TITLE CHARGES THEN
DUE AND PAYABLE.
(D)
REQUIRED EQUITY.
IN THE EVENT THAT, AS OF
THE DATE OF THE PROPOSED CONSTRUCTION LOAN ADVANCE, THE SUM OF THE OUTSTANDING
PRINCIPAL AMOUNT OF THE ACQUISITION LOAN ADVANCE AND THE THEN APPLICABLE
CONSTRUCTION LOAN AMOUNT EXCEEDS EIGHTY PERCENT (80%) OF THE TOTAL COSTS (THE
AMOUNT IN EXCESS OF SUCH EIGHTY PERCENT (80%) THRESHOLD BEING REFERRED TO HEREIN
AS A "SUBSEQUENT REQUIRED EQUITY AMOUNT"), BORROWERS SHALL BE REQUIRED TO
PROVIDE TO LENDER, AS AN ADDITIONAL EQUITY CONTRIBUTION, THE SUBSEQUENT REQUIRED
EQUITY AMOUNT, WHICH MAY BE PROVIDED IN ONE OF, OR BY A COMBINATION OF, THE
FOLLOWING MANNERS:
(I) A VOLUNTARY PREPAYMENT OF THE LOAN IN ACCORDANCE WITH
ALL OF THE TERMS OF SECTION 2.4.1 HEREOF AND TO BE
115
APPLIED AS SET FORTH IN SECTION 2.4.3(A) HEREOF, (II) THE DELIVERY TO LENDER OF
EVIDENCE SATISFACTORY TO LENDER IN ITS REASONABLE DISCRETION THAT BORROWERS OR
ONE OR MORE AFFILIATES THEREOF HAVE PREVIOUSLY EXPENDED CASH TO SATISFY PROJECT
COSTS INCLUDED ON THE LOAN BUDGET, WHICH SHALL RESULT IN A CREDIT AGAINST THE
AMOUNT OF THE REQUIRED EQUITY AMOUNT BY THE AMOUNT OF SUCH CASH EXPENDED, AND/OR
(III) THE DELIVERY OF A REQUIRED EQUITY LETTER OF CREDIT.
(E)
SHORTFALLS.
LENDER SHALL HAVE RECEIVED
EVIDENCE REASONABLY SATISFACTORY TO LENDER THAT NO SHORTFALL SHALL THEN EXIST.
(F)
CHANGE ORDERS.
LENDER SHALL HAVE
APPROVED ALL CHANGE ORDERS ENTERED INTO SINCE THE LAST CONSTRUCTION LOAN ADVANCE
THAT REQUIRE LENDER'S APPROVAL PURSUANT TO SECTION 3.15 HEREOF.
(G)
CERTIFICATION REGARDING CHATTELS.
LENDER
SHALL HAVE RECEIVED, AT BORROWERS' EXPENSE, A SEARCH OF THE PUBLIC RECORDS THAT,
SUBJECT TO SECTION 3.11 HEREOF AND THE PERMITTED ENCUMBRANCES, DISCLOSES NO
CONDITIONAL SALES CONTRACTS, CHATTEL MORTGAGES, LEASES OF PERSONALTY, FINANCING
STATEMENTS OR TITLE RETENTION AGREEMENTS WHICH AFFECT ANY OF THE PROPERTIES.
(H)
NOTICES.
ALL NOTICES REQUIRED BY ANY
GOVERNMENTAL AUTHORITY OR BY ANY LEGAL REQUIREMENT TO BE FILED PRIOR TO
COMMENCEMENT OF CONSTRUCTION OF THAT/THOSE PORTION(S) OF THE PROJECT TO BE
FUNDED WITH THE PROCEEDS OF THE PROPOSED CONSTRUCTION LOAN ADVANCE SHALL HAVE
BEEN FILED.
(I)
NO MONETARY DEFAULT OR EVENT OF
DEFAULT.
ON THE