BELIEVES THAT THE AMOUNT CLAIMED IS ERRONEOUS OR BECAUSE
BORROWER BELIEVES THAT THE WORK PERFORMED WAS DEFECTIVE), BORROWER (A) SHALL
PROMPTLY NOTIFY THE AGENT OF THE IDENTITY OF THE APPLICABLE VENDOR AND THE
APPLICABLE DISPUTED AMOUNT (IT BEING UNDERSTOOD THAT THE AGENT MAY TAKE A
RESERVE WITH RESPECT THERETO), (B) IS NOT REQUIRED TO PAY SUCH CONTRACTOR,
MATERIAL SUPPLIER, SERVICE PROVIDER OR OTHER VENDOR UNTIL SUCH DISPUTE IS
RESOLVED, (C) EXCEPT AS PROVIDED IN SECTION 3.3, BORROWER IS NOT REQUIRED TO
SEEK AN ADVANCE RELATING TO A DISPUTED AMOUNT AND/OR TO DELIVER INTO ESCROW ANY
PAYMENT TO THE EXTENT RELATING TO SUCH DISPUTED AMOUNT AND (D) SHALL NOT, DURING
THE PENDENCY OF SUCH DISPUTE, BE REQUIRED TO OBTAIN LIEN RELEASES OR PAYMENT
RECEIPTS RELATING TO SUCH DISPUTED AMOUNT.
NOTHING IN THIS SECTION
2.1(B)(VIII), HOWEVER, IS INTENDED TO (A) RELIEVE BORROWER OF ITS OBLIGATION
UNDER SECTION 5.10 TO KEEP THE PROJECT FREE AND CLEAR OF LIENS (OTHER THAN
PERMITTED ENCUMBRANCES) OR (B) TO LIMIT THE AGENT'S ABILITY TO MAKE A DIRECT
ADVANCE PURSUANT TO THE TERMS AND CONDITIONS OF SECTION 2.1(I).
BORROWER SHALL
REFLECT DISPUTED AMOUNTS IN THE PROJECT BUDGET IN THE MANNER REASONABLY
DETERMINED BY THE AGENT AND CONSTRUCTION CONSULTANT.
NOTWITHSTANDING ANYTHING
TO THE CONTRARY PROVIDED IN THIS AGREEMENT, NO ADVANCE REQUEST SHALL BE MADE FOR
AN AMOUNT WHICH IS THEN A DISPUTED AMOUNT; PROVIDED, HOWEVER, THAT ON SEPTEMBER
30, 2008, AND SUBJECT TO SATISFACTION OF EACH OF THE OTHER TERMS HEREOF
(INCLUDING, WITHOUT LIMITATION, SECTION 3 HEREOF), THE BORROWER MAY MAKE AN
ADVANCE REQUEST FOR THE THEN UNUSED PORTION OF THE TERM LOAN COMMITMENT IN AN
AMOUNT NOT TO EXCEED THE AGGREGATE AMOUNT OF ALL THEN CURRENT DISPUTED AMOUNTS
AS LONG AS SUCH AMOUNTS ARE TO BE FUNDED INTO AN ESCROW PURSUANT TO ARRANGEMENTS
REASONABLY SATISFACTORY TO THE AGENT.
(C)
ADVANCES FOR STORED MATERIALS.
(I)
EXCEPT TO THE EXTENT SET FORTH IN THIS SECTION 2.1(C), AGENT AND
LENDERS SHALL IN NO EVENT OR UNDER ANY CIRCUMSTANCES HAVE ANY OBLIGATION TO MAKE
ANY ADVANCE FOR OR WITH RESPECT TO MATERIALS WHICH ARE STORED OTHER THAN ON THE
PROPERTY UNLESS AGENT REASONABLY AGREES TO THE CONTRARY.
(II)
AGENT AND LENDERS SHALL NOT BE REQUIRED TO DISBURSE ANY FUNDS FOR
ANY MATERIALS, MACHINERY OR OTHER PROPERTY NOT YET INCORPORATED INTO THE
IMPROVEMENTS EXCLUDING, HOWEVER, (A) MATERIALS IN FABRICATION AND (B) ON SITE
MATERIALS (OTHER THAN FF&E) AWAITING INSTALLATION (THE "STORED MATERIALS")
UNLESS AGENT AND CONSTRUCTION CONSULTANT RECEIVE REASONABLY SATISFACTORY
EVIDENCE THAT:
(A) THE STORED MATERIALS ARE COMPONENTS IN SUBSTANTIALLY FINAL FORM READY FOR
INCORPORATION INTO THE PROJECT;
(B) THE STORED MATERIALS ARE STORED AT THE PROPERTY, IN A BONDED WAREHOUSE IN
MINNESOTA, OR AT SUCH OTHER SITE AS AGENT SHALL REASONABLY APPROVE, AND ARE
PROTECTED AGAINST THEFT AND DAMAGE;
(C) THE STORED MATERIALS UNDER MATERIALS ONLY CONTRACTS WILL BE PAID FOR IN FULL
WITH THE FUNDS TO BE DISBURSED AND STORED MATERIALS UNDER LABOR AND MATERIALS
CONTRACTS SHALL BE SUBJECT TO THE RETAINAGE REQUIREMENTS SET FORTH HEREIN, AND
ALL RIGHTS OR CLAIMS