TO AGENT, AND SUCH STORED MATERIALS ARE
PROTECTED IN A MANNER ACCEPTABLE TO AGENT AGAINST THEFT OR DAMAGE;
(III)
OWNERSHIP OF THE STORED MATERIALS FOR WHICH
AGENT HAS PREVIOUSLY DISBURSED FUNDS HAS VESTED IN BORROWER FREE OF ALL SECURITY
INTERESTS EXCEPT THE LIENS EVIDENCED BY THE LOAN DOCUMENTS AND STATUTORY LIENS
IN FAVOR OF THE WAREHOUSEMAN, AND NO OTHER PERSON HAS ASSERTED THAT IT HAS ANY
RIGHTS TO OR INTEREST IN SUCH STORED MATERIALS;
(IV)
BORROWER HAS CAUSED THE CONTRACTOR AND ANY
OTHER PERSON THAT POSSESSES, HOLDS OR CONTROLS ACCESS TO ANY STORED MATERIALS,
TO EXECUTE AND DELIVER TO AGENT A BAILMENT LETTER IN THE FORM OF EITHER
EXHIBIT G-1 OR EXHIBIT G-2, AS APPLICABLE TO SUCH SITUATION;
(V)
WITHOUT LIMITING ANY OF THE FOREGOING
PROVISIONS OF THIS SECTION 3.2, AGENT HAS A PERFECTED, FIRST-PRIORITY SECURITY
INTEREST IN THE STORED MATERIALS FOR WHICH AGENT OR ANY OTHER PERSON HAS
PREVIOUSLY DISBURSED FUNDS;
51
(VI)
WHILE IN STORAGE, THE STORED MATERIALS ARE
COVERED BY INSURANCE AS REQUIRED BY SECTION 4.38;
(VII)
THE MATERIALMEN HAVE DELIVERED LIEN WAIVERS AND
INVOICES FOR THE FULL AMOUNT OF THE STORED MATERIALS FOR WHICH AGENT OR ANY
OTHER PERSON HAS PREVIOUSLY DISBURSED FUNDS; AND
(VIII)
ARCHITECT OR ANOTHER PARTY APPROVED BY AGENT HAS
PROVIDED A CERTIFICATION IN FORM AND SUBSTANCE SATISFACTORY TO AGENT VERIFYING
THE STORED MATERIALS ARE IN CONFORMANCE WITH THE PLANS AND SPECIFICATIONS AND
CONTAINING THE LOCATION OF AND A COMPREHENSIVE INVENTORY LIST OF SUCH STORED
MATERIALS BASED UPON A PHYSICAL INSPECTION.
SUCH CERTIFICATION SHALL BE
ACCOMPANIED BY DIGITAL PICTURES OF SUCH STORED MATERIALS.
The foregoing provisions are not intended to apply to disbursements of Loan
proceeds which are made for the purpose of making customary deposits which are
required by certain vendors with respect to purchase orders of construction
materials, so long as the same have been approved by Lender; provided, however,
that if and when any materials are paid for in full by Borrower the provisions
of this Section 3.2 above shall apply.
Y.
DEPOSITS.
DISBURSEMENTS OF LOAN PROCEEDS
FOR DEPOSITS WHICH ARE REQUIRED BY VENDORS WITH RESPECT TO PURCHASE ORDERS OF
CONSTRUCTION MATERIALS REQUESTED BY BORROWER SHALL OR BY CONTRACTORS WITH
RESPECT TO CONSTRUCTION CONTRACTS ONLY BE CONSIDERED BY AGENT TO THE EXTENT
(I) SPECIFICALLY AND SEPARATELY SET FORTH IN THE DEVELOPMENT BUDGET, INCLUDING
SUPPORTING SCHEDULES THEREOF, (II) AGENT HAS RECEIVED EVIDENCE SATISFACTORY TO
LENDER VERIFYING THE REQUIREMENTS FOR AND AMOUNT OF SUCH DEPOSIT.
Z.
NO CASUALTY OR CONDEMNATION.
AGENT SHALL
HAVE RECEIVED SUCH OTHER EVIDENCE AS AGENT MAY REQUIRE CONFIRMING THAT THE
MORTGAGED PROPERTY SHALL BE UNDAMAGED BY FIRE OR OTHER CAUSE (UNLESS RESTORATION
IS TAKING PLACE AS PERMITTED BY AND PURSUANT TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT) AND THERE SHALL BE NO CONDEMNATION OR EMINENT DOMAIN PROCEEDINGS
PENDING OR OVERTLY THREATENED (EVIDENCING AN INTENT TO SUE OR TO COMMENCE SUCH A
PROCEEDING OR INVESTIGATION) AGAINST THE MORTGAGED PROPERTY.
3.3
Conditions to Final Development Advance for
Construction.
For each Construction Contract, Agent shall make the final
disbursement