DATE OF THE CONSTRUCTION LOAN ADVANCE THERE SHALL EXIST NO
MONETARY DEFAULT OR ANY EVENT OF DEFAULT.
(J)
REPRESENTATIONS AND WARRANTIES.
ALL
REPRESENTATIONS AND WARRANTIES MADE BY BORROWERS AND/OR GUARANTORS IN THE LOAN
DOCUMENTS OR OTHERWISE MADE BY OR ON BEHALF OF BORROWERS AND/OR GUARANTORS IN
CONNECTION THEREWITH OR AFTER THE DATE THEREOF SHALL CONTINUE TO BE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS ON THE DATE OF THE CONSTRUCTION LOAN ADVANCE
(EXCEPT TO THE EXTENT OF CHANGES IN CIRCUMSTANCES OR CONDITIONS WHICH ARE NOT
OTHERWISE PROHIBITED BY THIS AGREEMENT).
(K)
NO DAMAGE.
THE IMPROVEMENTS (INCLUDING ANY
PARTIALLY CONSTRUCTED PORTION OF THE PROJECT) SHALL NOT HAVE BEEN INJURED OR
DAMAGED BY FIRE, EXPLOSION, ACCIDENT, FLOOD OR OTHER CASUALTY, UNLESS (I) SUCH
INJURY OR DAMAGE CONSTITUTES A MINOR CASUALTY, OR (II) THE DAMAGE THEREFROM
SHALL HAVE BEEN FULLY RESTORED, OR (III) NET PROCEEDS IN AN AMOUNT SUFFICIENT
FOR RESTORATION SHALL HAVE BEEN RECEIVED BY BORROWERS OR LENDER AS REQUIRED
PURSUANT TO THIS AGREEMENT.
(L)
CONSTRUCTION CONSULTANT APPROVAL.
LENDER SHALL HAVE RECEIVED A CONSTRUCTION CONSULTANT APPROVAL WITH RESPECT TO
THE CONSTRUCTION LOAN ADVANCE, IT BEING EXPRESSLY AGREED BY LENDER THAT LENDER
SHALL DILIGENTLY PURSUE OBTAINING CONSTRUCTION CONSULTANT'S RESPONSE WITHIN A
COMMERCIALLY REASONABLE TIME PERIOD FOLLOWING ANY DRAW REQUEST WHICH INCLUDES
ALL THE REQUIRED ITEMS AS SET FORTH HEREIN.
(M)
LOAN DOCUMENT MODIFICATIONS.
MODIFICATIONS TO
ANY LOAN DOCUMENTS, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO LENDER, AS
SHALL BE REQUIRED IN
116
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, SHALL HAVE BEEN DULY EXECUTED AND
DELIVERED BY THE PARTIES THERETO AND SHALL BE IN FULL FORCE AND EFFECT, AND
LENDER SHALL HAVE RECEIVED THE ORIGINALS OR FULLY EXECUTED COUNTERPARTS THEREOF.
Section 3.4
Conditions of Final Construction
Loan Advance.
In addition to the conditions set forth in Section 3.3 hereof,
Lender's obligation to make the final Construction Loan Advance, including,
without limitation, in respect of any Retainage pursuant to this Agreement,
shall be subject to the occurrence of Final Completion as evidenced by Lender's
receipt (or waiver of receipt by Lender in its sole discretion) of the
following:
(A)
APPROVAL BY CONSTRUCTION CONSULTANT.
NOTIFICATION FROM THE CONSTRUCTION CONSULTANT THAT THE PROJECT (INCLUDING THE
PUNCH LIST ITEMS) HAS BEEN COMPLETED SUBSTANTIALLY IN ACCORDANCE WITH THE PLANS
AND SPECIFICATIONS, ALL LEGAL REQUIREMENTS, ALL MATERIAL PERMITTED ENCUMBRANCES
AND THIS AGREEMENT.
(B)
CERTIFICATES.
AN UPDATED (A) ARCHITECT'S
CERTIFICATE, (B) CONSTRUCTION MANAGER'S CERTIFICATE, AND (C) AT LENDER'S
REQUEST, AN UPDATED CONTRACTOR'S CERTIFICATE FROM ANY MAJOR CONTRACTOR.
(C)
CERTIFICATES OF OCCUPANCY.
A COPY OF THE
CERTIFICATE(S) OF OCCUPANCY AND ALL OTHER MATERIAL GOVERNMENTAL APPROVALS FOR
THE PROJECT.
(D)
LIEN WAIVERS.
(I) AN UPDATED LIEN WAIVER
LOG, (II) DULY EXECUTED CONDITIONAL LIEN WAIVERS IN THE FORM SET FORTH IN
EXHIBIT L-3 (FINAL PAYMENT) HERETO FROM ALL MAJOR CONTRACTORS WHO HAVE PERFORMED
WORK, FOR THE WORK SO PERFORMED, AND/OR WHO HAVE SUPPLIED LABOR AND/OR
MATERIALS, FOR THE LABOR AND/OR MATERIALS SO SUPPLIED, EXCEPT FOR SUCH WORK OR
LABOR AND/OR MATERIALS FOR WHICH PAYMENT THEREOF IS REQUESTED, AS TO WHICH DULY
EXECUTED