Advances of Loan Proceeds. 2.6.1. Provided Borrower shall not be in default, and there shall exist no event of default under this Agreement, or the Note, or any of the Security Instruments, or any other agreement or instrument executed in connection herewith, nor shall there exist any condition or event which, with the giving of notice or lapse of time, or both, would constitute such an event of default; provided Borrower shall have complied with the provisions of Section 2.3 hereof; and provided Borrower shall have paid all interest charges then due, and all reasonable supervisory engineers and/or architects' fees and legal fees incurred in connection with the construction of the Improvements or the Note or the loan evidenced thereby, and subject to the provisions of Section 2.2 hereof, Lender, upon written application by Borrower (made not less than five (5) business days prior to the date of the requested advance under this Section 2.6 and made not more often than once every thirty (30) days), shall make advances from the Loan Proceeds as hereinafter specified. 2.6.2. The amount of each such advance shall correspond to Paragraph 4 of the Construction Contract, entitled "Progress Payments," the terms and conditions of said Paragraph 4 being incorporated herein by reference. 2.6.2.1. Notwithstanding anything to the contrary contained herein or in the Note: (a) Lender shall not be required to make advances from loan proceeds if any Contractor whose contract is in excess of $25,000.00 shall (i) declare Borrower in default of a Construction Contract; (ii) file a lien against the Project which is not bonded and discharged within forty-five (45) days; and (iii) who is not replaced with a subsequent contractor for a price which is not in excess of the original contract sum unless such increase is advanced by the Borrower or if the Architect shall declare Borrower in default of the Architect's Contract. (b) Lender shall not be required to make advances for materials which have not been installed unless such materials are stored on the Premises, Lender's inspecting engineer shall have inspected the same and approved the manner of storage, and Borrower shall have delivered to Lender certificate(s) of casualty and theft insurance, satisfactory to Lender, covering such materials. All such materials must be owned by Borrower, free of all liens and security interests, as evidenced by appropriate bills of sale and such other evidence as Lender may reasonably require. 2.6.3. Each application for advances pursuant to this Section 2.6. must be accompanied by the following: 2.6.3.1. A completed itemized request for payment, signed by the Contractor and Borrower on standard AIA Requisition Form or in such other form approved by Lender; 2.6.3.2. The written report of the Title Insurance Company as of the date of the making of such advance, affirmatively insuring such advance and that there are no liens or other encumbrances on the Premises (other than real estate taxes for the then current year, payment of which is not in default, the Security Instruments, and such other liens and encumbrances as appeared in the policy of title insurance delivered prior thereto to Lender) and no notice of contract or other notice of intention to file liens thereon in any public office; 2.6.3.3. Lender's inspection and verification, the cost of such inspection to be borne by Borrower on a per site inspection plus expenses basis, or, at Lender's option, a certificate of the supervising engineer or construction supervisor as may be selected by or be satisfactory to Lender (who will make bi-weekly inspection of the Premises and Improvements on Lender's behalf, the cost of such inspection to be borne by Borrower), that all work performed at the site of construction when the advance is requested has been performed in good and workmanlike manner, that all materials and fixtures usually furnished and installed at that time have been furnished and installed, all in accordance with the Plans, and that sufficient hard cost Loan proceeds remain undisbursed to complete the Improvements in accordance with the Plans and the Total Project Budget set forth in Exhibit "E"; 2.6.3.4. Such lien releases, waivers, or affidavits from, or the submission of other appropriate forms by Borrower, the Contractor, subcontractors and materialmen as Lender may require; and 2.6.3.5. An affidavit of Borrower that as of the date of the advance application, Borrower knows of no material or substantive fact which will or could in any way prejudice the Improvements or the loan evidenced by the Note. See the Construction Advance Request Form to be utilized for this purpose attached hereto as Exhibit "G". 2.6.4. The making of any advance or any part of an advance shall not be deemed an approval or acceptance by Lender of the work theretofore done or of materials theretofore furnished. 2.6.5. Advances of the Loan Proceeds made pursuant to this Section 2.6. shall, at the option of Lender, be made (i) directly to Borrower by check or wire transfer, or by depositing same in Borrower's checking account with Lender, (ii) by check payable to Borrower and the applicable Contractor jointly and delivered either to Borrower or such Contractor, (iii) by check or wire transfer payable to the applicable Contractor or to other subcontractors, materialmen, and creditors of the Improvements, (iv) to the Title Insurance Company by check or wire transfer for disbursement in accordance with Lender's directions, or (v) by any combination of the above. 2.6.6. Lender shall advance to Borrower the balance of the funds to be loaned hereunder for the retainage after the last advance requested by Borrower under Section 2.6.3 above for which Borrower has qualified as soon as Borrower shall have delivered to Lender all of the items referred to in Section 2.6.3 above and the following: 2.6.6.1. A written certificate of the supervising engineer, independent architect and/or engineer, or construction supervisor as may be selected by or be satisfactory to Lender, that the construction of the Improvements and the installation of the equipment to be installed therein has been completed in a good workmanlike manner in accordance with the Plans; 2.6.6.2. A certificate by Borrower in form and substance satisfactory to Lender, listing all categories of Improvement costs and the amount paid by Borrower with respect to each; 2.6.6.3. The written certificates of the Borrower and the Contractors that they, and each of them, have received no affidavits or other notices in connection with the obtaining of a mechanic's lien by any contractor, subcontractor, materialman or laborer; and 2.6.6.4. A copy of the original permanent certificate of occupancy and all other applicable certificates, licenses, consents and approvals issued or required to be issued by the various governmental authorities having jurisdiction with respect to the Improvements and by the appropriate Board of Fire Underwriters, or other similar bodies. 2.6.7. Lender, in its discretion, may advance parts or the whole of any advances before the requirements in Section 2.6.3 or 2.6.6 are complied with, and all such advances or payments shall be deemed to have been made pursuant to this Agreement. 2.6.8. Borrower agrees that Lender shall assume no duty with respect to disbursement of the Loan Proceeds and that any sums disbursed by Lender in good faith and in reliance upon this Agreement, or the Security Instruments, shall be secured by the lien of the Security Instruments, and that Lender, in its discretion, upon notice to Borrower, may make such changes in the method of disbursing the Loan Proceeds and the conditions precedent thereto as Lender may deem reasonable. 2.6.9. At no time shall Lender be under any obligation to make advances of the Loan Proceeds for any costs or expenses not specifically provided for in the Total Project Budget or for any costs or expenses in excess of the specific amount budgeted for such cost or expense in the Total Project Budget, all of which costs and expenses shall be promptly paid for by Borrower from Borrower's equity funds unless Lender shall determine, in its sole discretion, that sufficient funds are otherwise available in the Total Project Budget and such funds have been reallocated to the Contingency portion of the Total Project Budget pursuant to Section 2.2.3.4 hereof. 2.6.10. All interest due under the Note shall be paid monthly. Advances from the Loan Proceeds for payment of other non-interest related soft costs shall be made (i) only in conjunction with approved advances for hard construction costs and shall not be the basis for separate advances, and (ii) only to the extent provided for in the Total Project Budget. 2.6.11. Borrower shall promptly pay when due from Borrower's own funds, any costs for which Lender shall have no obligation to make advances pursuant to the terms of this Agreement. 2.6.12. Any sum which, in accordance with any provision of this Agreement, shall be payable by Borrower to Lender, at the election of Lender, shall be deemed an advance by Lender to Borrower pursuant to the provisions of this Agreement, in which event Lender shall notify Borrower of same. 2.6.13. If Borrower shall fail to promptly pay (i) any installment of interest due under the Note, (ii) any construction inspection/supervisory fee incurred by Lender pursuant to Section 2.6.3.3 and Section 2.12.5 hereof, (iii) any reasonable expenses incurred by Lender as set forth in Section 2.10 hereof (including without limiting the generality of the foregoing, reasonable legal fees) or (iv) any other sums due to Lender under the Note, this Agreement or any of the Security Instruments, Lender shall be authorized to charge Borrower's checking account with Lender for the amount so due without the further approval of Borrower.
Appears in 1 contract
Advances of Loan Proceeds. 2.6.1. 2.6.1 Provided Borrower shall have first expended $2,500,000.00 of its initial equity funds in the payment of hard costs listed in the Total Project Budget as certified to by Lender's construction representative or in the payment of soft costs listed in the Total Project Budget as verified by proof satisfactory to Lender; provided Borrower shall not be in defaultdefault under, and there shall exist no event of default under under, this Agreement, Agreement or the Note, or any of the Security Instruments, or any other agreement or instrument executed in connection herewith, nor shall there exist any condition or event which, with the giving of notice or lapse of time, or both, would constitute such an event of default; provided Borrower shall have complied with the provisions of Section 2.3 2.2 hereof; and provided Borrower shall have paid all interest charges then due, and all reasonable supervisory engineers and/or architects' fees of Lender's construction representative and legal fees incurred in connection with the construction of the Improvements or the Note or the loan Loan evidenced thereby, and subject to the provisions of Section 2.2 2.5 hereof, Lender, upon written application by Borrower (made not less than five seven (57) business days prior to the date of the requested advance under this Section 2.6 and made not more often than once every thirty (30) days), shall make advances from the Loan Proceeds pari passu with any subordinated loans from MCRC or equity funds in excess of the first $2,500,000.00 of equity as hereinafter specified.
2.6.2. 2.6.2 The amount of each such advance advance, together with advances from MCRC, shall correspond to Paragraph 4 represent:
2.6.2.1 ninety-five percent (95%) of the total "hard costs" incurred by Borrower (i.e., costs incurred under the Construction Contract, entitled "Progress Payments," ) and approved by Lender in conformance with the terms and conditions budgeted expenses enumerated in Exhibit D in connection with the construction of said Paragraph 4 being incorporated herein by reference.
2.6.2.1. Notwithstanding anything to the contrary contained herein or in Improvements as of the Note:
(a) Lender shall not be required to make advances from loan proceeds if any Contractor whose contract is date of the advance application in excess of $25,000.00 funds required to be provided and expended by Borrower under the terms hereof as of the date of said advance application, less any amounts previously advanced by Lender from the Loan Proceeds but in no event more that the amount certified by Lender's construction representative (whose costs and fees shall (ibe borne by the Borrower) declare as then being due and payable; and
2.6.2.2 such portion of the "soft costs" enumerated in Exhibit D incurred by Borrower in default of a Construction Contract; (ii) file a lien against connection with the Project which is not bonded and discharged within forty-five (45) days; and (iii) who is not replaced with a subsequent contractor for a price which is not in excess construction of the original contract sum unless such increase is advanced by the Borrower or if the Architect shall declare Borrower in default Improvements as of the Architectdate of the advance application, as Lender in its uncontrolled discretion shall deem reasonable in relation to the hard costs incurred as of the date of the advance application, provided that the Lender agrees that it shall advance Loan Proceeds to pay the architect's fees included in the Construction Contract.
(b) Lender shall not be required to make advances for materials which have not been installed unless such materials are stored on the Premises, Lender's inspecting engineer shall have inspected the same and approved the manner of storage, and Borrower shall have delivered to Lender certificate(s) of casualty and theft insurance, satisfactory to Lender, covering such materials. All such materials must be owned by Borrower, free of all liens and security interests, as evidenced by appropriate bills of sale and such other evidence as Lender may reasonably require.
2.6.3. 2.6.3 Each application for advances pursuant to this Section 2.6. must be accompanied by the following:
2.6.3.1. A 2.6.3.1 a completed itemized request for payment, signed by the Contractor and Borrower on a standard AIA Requisition Form or in such other form approved by Lender;
2.6.3.2. The 2.6.3.2 the written report of the Title Insurance Company as of the date of the making of such advance, affirmatively insuring such advance and that there are no liens or other encumbrances on the Premises (other than real estate taxes for the then current year, payment of which is not in default, the Security Instruments, Instruments and such other liens and encumbrances as appeared in the policy of title insurance delivered prior thereto to Lender) and no notice of contract or other notice of intention to file liens thereon in any public office; unless released, subordinated or waived as provided in subparagraph 2.6.3.4 of this Section 2.6;
2.6.3.3. 2.6.3.3 Lender's inspection and verificationverification that, the cost of such inspection to be borne by Borrower on a per site inspection plus expenses basis, or, or (at Lender's option, ) a certificate of the supervising engineer or construction supervisor representative of Lender, as may be selected by or be satisfactory to Lender in its sole discretion (who will make bi-weekly inspection monthly inspections of the Premises and Improvements on Lender's behalf, the cost of each such inspection to be borne by Borrower), that all work performed at the site of construction when the advance is requested has been performed in good and workmanlike manner, that all materials and fixtures usually furnished and installed at that time have been furnished and installed, all in accordance with the Plans, and that sufficient hard cost Loan proceeds Proceeds remain undisbursed to complete the Improvements in accordance with the Plans and the Total Project Budget set forth in Exhibit "E"D;
2.6.3.4. Such 2.6.3.4 such fully executed lien releases, waivers, or partial waiver and subordination forms, and affidavits from, or the submission of other appropriate forms by by, Borrower, the Contractor, subcontractors and materialmen as Lender may require; and
2.6.3.5. An 2.6.3.5 an affidavit of Borrower that as of the date of the advance application, Borrower knows of no material or substantive fact which will or could in any way prejudice impair completion of the Improvements in accordance with the Plans or impair the loan evidenced by timely repayment of the Note. See Loan or interfere with the Construction Advance Request Form to be utilized operation of the Improvements for this purpose attached hereto as Exhibit "G"their intended purpose.
2.6.4. 2.6.4 The making of any advance or any part of an advance shall not be deemed an approval or acceptance by Lender of the work theretofore done or of materials theretofore furnished.
2.6.5. 2.6.5 Advances of the Loan Proceeds made pursuant to this Section 2.6. 2.6 shall, at the option of Lender, be made (i) directly to Borrower by check or wire transfer, or by depositing same in Borrower's checking account with Lender, (ii) by check payable to Borrower and the applicable Contractor jointly and delivered either to Borrower or such Contractor, (iii) by check or wire transfer payable to Contractor or, after the applicable Contractor occurrence of an Event of Default or if the Lender determines it is necessary to protect its lien upon the Premises, directly to other subcontractors, materialmen, and creditors of the Improvements, (iv) to the Title Insurance Company by check or wire transfer for disbursement in accordance with Lender's directions, or (v) by any combination of the above. Lender reserves the right to condition each and every advance pursuant to this Section 2.6.5 upon Borrower's certification that such advance(s) has or have been made within such time as necessary to grant and/or preserve the priority of Lender's lien on the Premises.
2.6.6. 2.6.6 Lender shall advance to Borrower the balance of the funds to be loaned hereunder for the retainage which Borrower has qualified (but not earlier than thirty (30) days after the last advance requested by Borrower of funds provided under this Section 2.6.3 above for which Borrower has qualified 2.6) as soon as Borrower shall have delivered to Lender all of the items referred to in Section 2.6.3 above and the following:
2.6.6.1. A 2.6.6.1 a written certificate of the supervising engineer, independent architect and/or engineer, or construction supervisor as may be representative selected by or be satisfactory to Lender, that the construction of the Improvements and the installation of the equipment to be installed therein has been completed in a good workmanlike manner in accordance with the Plans;
2.6.6.2. A 2.6.6.2 a duly executed, notarized and recorded Notice of Substantial Completion;
2.6.6.3 a written report of the Title Insurance Company that there are no liens or other encumbrances on the Premises (other than real estate taxes for the then current year, payment of which is not in default, the Mortgage and such other liens and encumbrances as appear in the policy of title insurance delivered prior thereto to Lender) and no notices of contract or other notice of intention to file liens thereon in any public office; if not previously submitted to and accepted by Lender in a format acceptable to Lender, a certificate by Borrower in form and substance satisfactory to Lender, listing all categories of Improvement Improvements costs and the amount paid by Borrower with respect to each;
2.6.6.3. The 2.6.6.4 the written certificates of the Borrower and the Contractors Contractor that they, and each of them, have received no affidavits affidavits, notices of identification, or other notices in connection with the obtaining of a mechanic's lien by any contractor, subcontractor, subsubcontractor, materialman or laborer; and;
2.6.6.4. A 2.6.6.5 such lien releases, notices of dissolution of lien, waivers, subordinations and affidavits from, or the submission of other appropriate forms by Borrower, Contractor, any architect, subcontractors and materialmen as Lender may require;
2.6.6.6 an affidavit of Borrower that as of the date of the final advance application Borrower knows of no material or substantive fact which will or could in any way negatively impact the Improvements, repayment of the Loan, or operation of the Premises for their intended purpose;
2.6.6.7 a copy of the original permanent certificate of occupancy and all other applicable certificates, licenses, consents and approvals issued or required to be issued by the various governmental authorities having jurisdiction with respect to the Improvements and by the appropriate Board of Fire Underwriters, or other similar bodies; and
2.6.6.8 true, correct and complete copies of "as built" plans including the location of foundations, underground utilities, septic systems, retention and detention ponds, irrigation xxxxx, drains, and irrigation system components.
2.6.7. 2.6.7 Lender, in its sole discretion, may advance parts or the whole of any advances before the requirements in Section 2.6.3 or 2.6.6 are complied with, and all such advances or payments shall be deemed to have been made pursuant to this Agreement, provided Lender will consult with Borrower prior to doing so except in cases of emergency.
2.6.8. 2.6.8 Borrower agrees that Lender shall assume no duty with respect to disbursement of the Loan Proceeds and that any sums disbursed by Lender in good faith and in reliance upon this Agreement, or the Security Instruments, shall be secured by the lien of the Security Instruments, and that Lender, in its discretion, upon notice to Borrower, may make such changes in the method of disbursing the Loan Proceeds and the conditions precedent thereto as Lender may deem reasonable.
2.6.9. At 2.6.9 With the exception of change orders of $10,000.00 or less in each instance up to an aggregate sum of $100,000.00, at no time shall Lender be under any obligation to make advances of the Loan Proceeds for any costs or expenses not specifically provided for in the Total Project Budget or for any costs or expenses in excess of the specific amount budgeted for such cost or expense in the Total Project Budget, all of which costs and expenses shall be promptly paid for by Borrower from Borrower's equity funds unless Lender shall determine, in its sole discretion, that sufficient funds are otherwise available in the Total Project Budget and such funds have been reallocated to the Contingency portion of the Total Project Budget pursuant to Section 2.2.3.4 hereoffunds.
2.6.10. 2.6.10 All interest payments due under the Note shall be paid monthlyby Borrower. Advances Borrower shall not be reimbursed for interest payments allocable to periods prior to the commencement of construction of the Improvements. After the commencement of construction of the Improvements, advances from the Loan Proceeds for reimbursement of interest paid under the Note and for payment of other non-interest related soft costs shall be made (i) only in conjunction with approved advances for hard construction costs and shall not be the basis for separate advances, and (ii) only to the extent provided for in the Total Project Budget.
2.6.11. Borrower shall promptly pay when due from Borrower's own funds, any costs for which Lender shall have no obligation to make advances pursuant to the terms of this Agreement.
2.6.12. Any sum which, in accordance with any provision of this Agreement, shall be payable by Borrower to Lender, at the election of Lender, shall be deemed an advance by Lender to Borrower pursuant to the provisions of this Agreement, in which event Lender shall notify Borrower of same.
2.6.13. If Borrower shall fail to promptly pay (i) any installment of interest due under the Note, (ii) any construction inspection/supervisory fee incurred by Lender pursuant to Section 2.6.3.3 and Section 2.12.5 hereof, (iii) any reasonable expenses incurred by Lender as set forth in Section 2.10 hereof (including without limiting the generality of the foregoing, reasonable legal fees) or (iv) any other sums due to Lender under the Note, this Agreement or any of the Security Instruments, Lender shall be authorized to charge Borrower's checking account with Lender for the amount so due without the further approval of Borrower.only
Appears in 1 contract
Advances of Loan Proceeds. 2.6.1. 2.6.1 Provided Borrower shall have first expended $2,500,000.00 of its initial equity funds in the payment of hard costs listed in the Total Project Budget as certified to by Lender's construction representative or in the payment of soft costs listed in the Total Project Budget as verified by proof satisfactory to Lender; provided Borrower shall not be in defaultdefault under, and there shall exist no event of default under under, this Agreement, Agreement or the Note, or any of the Security Instruments, or any other agreement or instrument executed in connection herewith, nor shall there exist any condition or event which, with the giving of notice or lapse of time, or both, would constitute such an event of default; provided Borrower shall have complied with the provisions of Section 2.3 2.2 hereof; and provided Borrower shall have paid all interest charges then due, and all reasonable supervisory engineers and/or architects' fees of Lender's construction representative and legal fees incurred in connection with the construction of the Improvements or the Note or the loan Loan evidenced thereby, and subject to the provisions of Section 2.2 2.5 hereof, Lender, upon written application by Borrower (made not less than five seven (57) business days prior to the date of the requested advance under this Section 2.6 and made not more often than once every thirty (30) days), shall make advances from the Loan Proceeds pari passu with any subordinated loans from MCRC or equity funds in excess of the first $2,500,000.00 of equity as hereinafter specified.
2.6.2. 2.6.2 The amount of each such advance advance, together with advances from MCRC, shall correspond to Paragraph 4 represent:
2.6.2.1 ninety-five percent (95%) of the total "hard costs" incurred by Borrower (i.e., costs incurred under the Construction Contract, entitled "Progress Payments," ) and approved by Lender in conformance with the terms and conditions budgeted expenses enumerated in Exhibit D in connection with the construction of said Paragraph 4 being incorporated herein by reference.
2.6.2.1. Notwithstanding anything to the contrary contained herein or in Improvements as of the Note:
(a) Lender shall not be required to make advances from loan proceeds if any Contractor whose contract is date --------- of the advance application in excess of $25,000.00 funds required to be provided and expended by Borrower under the terms hereof as of the date of said advance application, less any amounts previously advanced by Lender from the Loan Proceeds but in no event more that the amount certified by Lender's construction representative (whose costs and fees shall (ibe borne by the Borrower) declare as then being due and payable; and
2.6.2.2 such portion of the "soft costs" enumerated in Exhibit D --------- incurred by Borrower in default of a Construction Contract; (ii) file a lien against connection with the Project which is not bonded and discharged within forty-five (45) days; and (iii) who is not replaced with a subsequent contractor for a price which is not in excess construction of the original contract sum unless such increase is advanced by the Borrower or if the Architect shall declare Borrower in default Improvements as of the Architectdate of the advance application, as Lender in its uncontrolled discretion shall deem reasonable in relation to the hard costs incurred as of the date of the advance application, provided that the Lender agrees that it shall advance Loan Proceeds to pay the architect's fees included in the Construction Contract.
(b) Lender shall not be required to make advances for materials which have not been installed unless such materials are stored on the Premises, Lender's inspecting engineer shall have inspected the same and approved the manner of storage, and Borrower shall have delivered to Lender certificate(s) of casualty and theft insurance, satisfactory to Lender, covering such materials. All such materials must be owned by Borrower, free of all liens and security interests, as evidenced by appropriate bills of sale and such other evidence as Lender may reasonably require.
2.6.3. 2.6.3 Each application for advances pursuant to this Section 2.6. must be accompanied by the following:
2.6.3.1. A 2.6.3.1 a completed itemized request for payment, signed by the Contractor and Borrower on a standard AIA Requisition Form or in such other form approved by Lender;
2.6.3.2. The 2.6.3.2 the written report of the Title Insurance Company as of the date of the making of such advance, affirmatively insuring such advance and that there are no liens or other encumbrances on the Premises (other than real estate taxes for the then current year, payment of which is not in default, the Security Instruments, Instruments and such other liens and encumbrances as appeared in the policy of title insurance delivered prior thereto to Lender) and no notice of contract or other notice of intention to file liens thereon in any public office; unless released, subordinated or waived as provided in subparagraph 2.6.3.4 of this Section 2.6;
2.6.3.3. 2.6.3.3 Lender's inspection and verificationverification that, the cost of such inspection to be borne by Borrower on a per site inspection plus expenses basis, or, or (at Lender's option, ) a certificate of the supervising engineer or construction supervisor representative of Lender, as may be selected by or be satisfactory to Lender in its sole discretion (who will make bi-weekly inspection monthly inspections of the Premises and Improvements on Lender's behalf, the cost of each such inspection to be borne by Borrower), that all work performed at the site of construction when the advance is requested has been performed in good and workmanlike manner, that all materials and fixtures usually furnished and installed at that time have been furnished and installed, all in accordance with the Plans, and that sufficient hard cost Loan proceeds Proceeds remain undisbursed to complete the Improvements in accordance with the Plans and the Total Project Budget set forth in Exhibit "E";D; ---------
2.6.3.4. Such 2.6.3.4 such fully executed lien releases, waivers, or partial waiver and subordination forms, and affidavits from, or the submission of other appropriate forms by by, Borrower, the Contractor, subcontractors and materialmen as Lender may require; and
2.6.3.5. An 2.6.3.5 an affidavit of Borrower that as of the date of the advance application, Borrower knows of no material or substantive fact which will or could in any way prejudice impair completion of the Improvements in accordance with the Plans or impair the loan evidenced by timely repayment of the Note. See Loan or interfere with the Construction Advance Request Form to be utilized operation of the Improvements for this purpose attached hereto as Exhibit "G"their intended purpose.
2.6.4. 2.6.4 The making of any advance or any part of an advance shall not be deemed an approval or acceptance by Lender of the work theretofore done or of materials theretofore furnished.
2.6.5. 2.6.5 Advances of the Loan Proceeds made pursuant to this Section 2.6. 2.6 shall, at the option of Lender, be made (i) directly to Borrower by check or wire transfer, or by depositing same in Borrower's checking account with Lender, (ii) by check payable to Borrower and the applicable Contractor jointly and delivered either to Borrower or such Contractor, (iii) by check or wire transfer payable to Contractor or, after the applicable Contractor occurrence of an Event of Default or if the Lender determines it is necessary to protect its lien upon the Premises, directly to other subcontractors, materialmen, and creditors of the Improvements, (iv) to the Title Insurance Company by check or wire transfer for disbursement in accordance with Lender's directions, or (v) by any combination of the above. Lender reserves the right to condition each and every advance pursuant to this Section 2.6.5 upon Borrower's certification that such advance(s) has or have been made within such time as necessary to grant and/or preserve the priority of Lender's lien on the Premises.
2.6.6. 2.6.6 Lender shall advance to Borrower the balance of the funds to be loaned hereunder for the retainage which Borrower has qualified (but not earlier than thirty (30) days after the last advance requested by Borrower of funds provided under this Section 2.6.3 above for which Borrower has qualified 2.6) as soon as Borrower shall have delivered to Lender all of the items referred to in Section 2.6.3 above and the following:
2.6.6.1. A 2.6.6.1 a written certificate of the supervising engineer, independent architect and/or engineer, or construction supervisor as may be representative selected by or be satisfactory to Lender, that the construction of the Improvements and the installation of the equipment to be installed therein has been completed in a good workmanlike manner in accordance with the Plans;
2.6.6.2. A 2.6.6.2 a duly executed, notarized and recorded Notice of Substantial Completion;
2.6.6.3 a written report of the Title Insurance Company that there are no liens or other encumbrances on the Premises (other than real estate taxes for the then current year, payment of which is not in default, the Mortgage and such other liens and encumbrances as appear in the policy of title insurance delivered prior thereto to Lender) and no notices of contract or other notice of intention to file liens thereon in any public office; if not previously submitted to and accepted by Lender in a format acceptable to Lender, a certificate by Borrower in form and substance satisfactory to Lender, listing all categories of Improvement Improvements costs and the amount paid by Borrower with respect to each;
2.6.6.3. The 2.6.6.4 the written certificates of the Borrower and the Contractors Contractor that they, and each of them, have received no affidavits affidavits, notices of identification, or other notices in connection with the obtaining of a mechanic's lien by any contractor, subcontractor, subsubcontractor, materialman or laborer; and;
2.6.6.4. A 2.6.6.5 such lien releases, notices of dissolution of lien, waivers, subordinations and affidavits from, or the submission of other appropriate forms by Borrower, Contractor, any architect, subcontractors and materialmen as Lender may require;
2.6.6.6 an affidavit of Borrower that as of the date of the final advance application Borrower knows of no material or substantive fact which will or could in any way negatively impact the Improvements, repayment of the Loan, or operation of the Premises for their intended purpose;
2.6.6.7 a copy of the original permanent certificate of occupancy and all other applicable certificates, licenses, consents and approvals issued or required to be issued by the various governmental authorities having jurisdiction with respect to the Improvements and by the appropriate Board of Fire Underwriters, or other similar bodies; and
2.6.6.8 true, correct and complete copies of "as built" plans including the location of foundations, underground utilities, septic systems, retention and detention ponds, irrigation xxxxx, drains, and irrigation system components.
2.6.7. 2.6.7 Lender, in its sole discretion, may advance parts or the whole of any advances before the requirements in Section 2.6.3 or 2.6.6 are complied with, and all such advances or payments shall be deemed to have been made pursuant to this Agreement, provided Lender will consult with Borrower prior to doing so except in cases of emergency.
2.6.8. 2.6.8 Borrower agrees that Lender shall assume no duty with respect to disbursement of the Loan Proceeds and that any sums disbursed by Lender in good faith and in reliance upon this Agreement, or the Security Instruments, shall be secured by the lien of the Security Instruments, and that Lender, in its discretion, upon notice to Borrower, may make such changes in the method of disbursing the Loan Proceeds and the conditions precedent thereto as Lender may deem reasonable.
2.6.9. At 2.6.9 With the exception of change orders of $10,000.00 or less in each instance up to an aggregate sum of $100,000.00, at no time shall Lender be under any obligation to make advances of the Loan Proceeds for any costs or expenses not specifically provided for in the Total Project Budget or for any costs or expenses in excess of the specific amount budgeted for such cost or expense in the Total Project Budget, all of which costs and expenses shall be promptly paid for by Borrower from Borrower's equity funds unless Lender shall determine, in its sole discretion, that sufficient funds are otherwise available in the Total Project Budget and such funds have been reallocated to the Contingency portion of the Total Project Budget pursuant to Section 2.2.3.4 hereoffunds.
2.6.10. 2.6.10 All interest payments due under the Note shall be paid monthlyby Borrower. Advances Borrower shall not be reimbursed for interest payments allocable to periods prior to the commencement of construction of the Improvements. After the commencement of construction of the Improvements, advances from the Loan Proceeds for reimbursement of interest paid under the Note and for payment of other non-interest related soft costs shall be made (i) only in conjunction with approved advances for hard construction costs and shall not be the basis for separate advances, and (ii) only to the extent provided for in the Total Project Budget.
2.6.11. Borrower shall promptly pay when due from Borrower's own funds, any costs for which and (iii) only if agreed to by Lender shall have no obligation to make advances pursuant to the terms of this Agreement.
2.6.12. Any sum which, in accordance with any provision of this Agreement, shall be payable by Borrower to Lender, at the election of Lender, shall be deemed an advance by Lender to Borrower pursuant to the provisions of this Agreement, in which event Lender shall notify Borrower of same.
2.6.13. If Borrower shall fail to promptly pay (i) any installment of interest due under the Note, (ii) any construction inspection/supervisory fee incurred by Lender pursuant to Section 2.6.3.3 and Section 2.12.5 hereof, (iii) any reasonable expenses incurred by Lender as set forth in Section 2.10 hereof (including without limiting the generality of the foregoing, reasonable legal fees) or (iv) any other sums due to Lender under the Note, this Agreement or any of the Security Instruments, Lender shall be authorized to charge Borrower's checking account with Lender for the amount so due without the further approval of Borrower.2.6.2.2
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