DIRECTING AGENT TO MAKE SUCH
DISBURSEMENTS: (I) AT LEAST TEN (10) DAYS PRIOR TO THE DISBURSEMENT, BORROWER
SHALL SUBMIT TO LENDER A REQUEST FOR PAYMENT, WHICH REQUEST SHALL SPECIFY THE
CAPITAL EXPENDITURES TO BE PAID, (II) LENDER SHALL RECEIVE A CERTIFICATE FROM
BORROWER (A) STATING THAT THE ITEMS TO BE FUNDED BY THE REQUESTED DISBURSEMENT
ARE CAPITAL EXPENDITURES, (B) STATING THAT ALL CAPITAL EXPENDITURES (OR PART
THEREOF) AT THE PROPERTY TO BE FUNDED BY THE REQUESTED DISBURSEMENT HAVE BEEN
COMPLETED IN A GOOD AND WORKMANLIKE MANNER AND IN ACCORDANCE WITH ALL APPLICABLE
LEGAL REQUIREMENTS, SUCH CERTIFICATE TO BE ACCOMPANIED BY A COPY OF ANY LICENSE,
PERMIT OR OTHER APPROVAL REQUIRED BY ANY GOVERNMENTAL AUTHORITY IN CONNECTION
WITH THE CAPITAL EXPENDITURES, (C) IDENTIFYING EACH PERSON THAT SUPPLIED
MATERIALS OR LABOR IN CONNECTION WITH THE CAPITAL EXPENDITURES TO BE FUNDED BY
THE REQUESTED DISBURSEMENT, AND (D) STATING THAT EACH SUCH PERSON HAS BEEN PAID
IN FULL OR WILL BE PAID IN FULL (FOR ALL WORK PERFORMED TO DATE, EXCLUSIVE OF
ANY APPLICABLE RETAINAGE) UPON SUCH DISBURSEMENT, SUCH CERTIFICATE TO BE
ACCOMPANIED BY LIEN WAIVERS OR OTHER EVIDENCE OF PAYMENT REASONABLY SATISFACTORY
TO LENDER (WHICH MAY BE CONDITIONAL AS TO THE REQUESTED DISBURSEMENT), (IV) AT
LENDER'S OPTION, IF THE DISBURSEMENT IS IN EXCESS OF $100,000, LENDER SHALL
RECEIVE A TITLE SEARCH FOR THE PROPERTY INDICATING THAT THE PROPERTY IS FREE
FROM ALL LIENS, CLAIMS AND OTHER ENCUMBRANCES NOT PREVIOUSLY APPROVED BY LENDER
OTHER THAN PERMITTED ENCUMBRANCES, AND (V) LENDER SHALL RECEIVE SUCH OTHER
EVIDENCE AS LENDER SHALL REASONABLY REQUEST THAT THE CAPITAL EXPENDITURES AT THE
PROPERTY TO BE FUNDED BY THE REQUESTED DISBURSEMENT HAVE BEEN COMPLETED AND ARE
PAID FOR OR WILL BE PAID (OTHER THAN RETAINAGE, IF APPLICABLE) UPON SUCH
DISBURSEMENT TO BORROWER.
(C)
NOTHING IN THIS SECTION 6.4.2 SHALL (I) MAKE LENDER RESPONSIBLE
FOR MAKING OR COMPLETING THE CAPITAL EXPENDITURES WORK; (II) REQUIRE LENDER TO
EXPEND FUNDS IN ADDITION TO THE CAPITAL EXPENDITURE FUNDS TO COMPLETE ANY
CAPITAL EXPENDITURES WORK; (III) OBLIGATE LENDER TO PROCEED WITH THE CAPITAL
EXPENDITURES WORK; (IV) OBLIGATE LENDER TO DEMAND FROM BORROWER ADDITIONAL SUMS
TO COMPLETE ANY CAPITAL EXPENDITURES WORK; OR (V) IF LENDER HAS ACCELERATED THE
LOAN, OBLIGATE LENDER IN ANY WAY TO DISBURSE ANY CAPITAL EXPENDITURE FUNDS.
(D)
BORROWER SHALL PERMIT LENDER AND LENDER'S AGENTS AND
REPRESENTATIVES (INCLUDING, WITHOUT LIMITATION, LENDER'S ENGINEER, ARCHITECT, OR
INSPECTOR) OR THIRD PARTIES TO ENTER ONTO THE PROPERTY UPON REASONABLE ADVANCE
NOTICE DURING NORMAL BUSINESS HOURS (SUBJECT TO THE RIGHTS OF TENANTS UNDER
THEIR LEASES) TO INSPECT THE PROGRESS OF ANY CAPITAL EXPENDITURES WORK AND ALL
MATERIALS BEING USED IN CONNECTION THEREWITH AND TO EXAMINE ALL PLANS AND SHOP
DRAWINGS RELATING TO SUCH CAPITAL EXPENDITURES WORK. BORROWER SHALL USE
REASONABLE EFFORTS TO CAUSE ALL CONTRACTORS AND SUBCONTRACTORS TO COOPERATE WITH
LENDER OR LENDER'S REPRESENTATIVES OR SUCH OTHER PERSONS DESCRIBED ABOVE IN
CONNECTION WITH INSPECTIONS DESCRIBED IN THIS SECTION 6.4.2(D).
64
(E)
DURING AN ESCROW RESERVE PERIOD, IF BORROWER REQUESTS THAT CAPITAL
EXPENDITURE FUNDS IN EXCESS OF $500,000 BE