CERTIFICATE SHALL BE SATISFACTORY EVIDENCE) THAT ALL WORK
PERFORMED IN CONNECTION WITH THE CONSTRUCTION OF THE PROJECT HAS BEEN PERFORMED
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 7.37 HEREOF.
(L)
NOTICES.
ALL NOTICES REQUIRED BY ANY GOVERNMENTAL AUTHORITY OR
BY ANY APPLICABLE LEGAL REQUIREMENTS TO BE FILED PRIOR TO THE DATE OF THIS
AGREEMENT IN CONNECTION WITH THE PROJECT OR THE BUILDING LOAN SHALL HAVE BEEN
FILED.
(M)
APPRAISAL.
AN APPRAISAL SATISFACTORY TO AGENT PREPARED BY AN
APPRAISER SATISFACTORY TO AGENT (AN "APPRAISAL").
(N)
PERFORMANCE; NO DEFAULT.
EACH BORROWER ENTITY SHALL HAVE
PERFORMED AND COMPLIED WITH ALL TERMS AND CONDITIONS OF THE BUILDING LOAN
DOCUMENTS TO WHICH EACH IS A PARTY REQUIRED TO BE PERFORMED OR COMPLIED WITH BY
IT AT OR PRIOR TO THE CLOSING DATE, AND ON THE CLOSING DATE, THERE SHALL EXIST
NO DEFAULT OR EVENT OF DEFAULT HEREUNDER.
(O)
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES MADE BY THE BORROWER ENTITIES IN THE BUILDING LOAN DOCUMENTS OR
OTHERWISE MADE BY OR ON BEHALF OF SUCH BORROWER ENTITIES IN CONNECTION THEREWITH
SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON THE CLOSING DATE.
(P)
PROCEEDINGS.
ALL PROCEEDINGS IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT AND THE OTHER BUILDING LOAN DOCUMENTS SHALL BE
SATISFACTORY TO AGENT AND AGENT'S COUNSEL, AND AGENT SHALL HAVE RECEIVED ALL
INFORMATION AND SUCH COUNTERPART ORIGINALS OR CERTIFIED COPIES OF SUCH DOCUMENTS
AND SUCH OTHER CERTIFICATES, OPINIONS OR DOCUMENTS AS AGENT AND AGENT'S COUNSEL
MAY REQUIRE.
(Q)
LIEN WAIVERS.
AGENT AND CONSTRUCTION CONSULTANT SHALL HAVE
RECEIVED DULY EXECUTED LIEN WAIVERS IN SUBSTANTIALLY THE FORM SET FORTH IN
EXHIBIT L HERETO (OR SUCH OTHER FORM AS MAY BE APPROVED BY AGENT) FROM ALL LIEN
WAIVER PARTIES TO THE EXTENT PAYMENT THERETO HAS BEEN MADE PRIOR TO, OR IS BEING
MADE ON, THE CLOSING DATE.
NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT
THERE SHALL EXIST ANY DISPUTE WITH ANY SUCH LIEN WAIVER PARTY AS TO PAYMENT FOR
ALL OR ANY PORTION OF THE WORK PERFORMED OR
54
LABOR, MATERIALS OR GOODS SUPPLIED PRIOR TO THE CLOSING DATE BY SUCH LIEN WAIVER
PARTY, AND PROVIDED THAT IN THE REASONABLE OPINION OF AGENT AND CONSTRUCTION
CONSULTANT, BORROWER HAS A REASONABLE, GOOD-FAITH POSITION IN SUCH DISPUTE AND
IS DILIGENTLY WORKING TO RESOLVE SUCH DISPUTE, AGENT SHALL ACCEPT A PARTIAL LIEN
WAIVER FROM SUCH LIEN WAIVER PARTY COVERING THE PORTION OF SUCH PAYMENT NOT IN
DISPUTE, PROVIDED THAT (X) SUCH DISPUTES WITH ALL LIEN WAIVER PARTIES SHALL NOT,
WITHOUT AGENT'S CONSENT, EXCEED $2,000,000 IN THE AGGREGATE AND (Y) EITHER (1)
BORROWER SHALL DEMONSTRATE, TO AGENT'S REASONABLE SATISFACTION, THAT EACH
APPLICABLE LIEN WAIVER PARTY DOES NOT HAVE A MATERIAL LIKELIHOOD OF PREVAILING,
IN WHOLE OR IN PART (INCLUDING PURSUANT TO A SETTLEMENT), IN ITS DISPUTE OR (2)
TO THE EXTENT THE FOREGOING CLAUSE (1) DOES NOT APPLY, THE LOANS MUST REMAIN IN
BALANCE AFTER ASSUMING THAT SUCH LIEN WAIVER PARTIES WILL PREVAIL IN SUCH
DISPUTES.
(R)
PROJECT LOAN.
ALL ENTITIES (OTHER THAN AGENT) REQUIRED TO
EXECUTE OR