10-25-01 11. DISBURSING AGREEMENT

Home Browse Search

deposited with it, except and to the extent that the Disbursing Agent fails to remit to the Trustee undisbursed funds deposited with it in accordance with this Section 4.02, in which event interest shall be payable on demand to the Trustee for credit to the applicable subaccount of Project Account at the rate provided in the Bonds from the date such funds were deposited with the Disbursing Agent. Section 4.03 Books and Records. The Disbursing Agent will keep and maintain, at all times, full,true and accurate books and records, in sufficient detail to reflect the disbursements made by it hereunder. The Trustee,acting by and through its officers,employees and agents, may, at any time and from time to time, during normal business hours, examine all books and records of the Disbursing Agent pertaining to disbursements made by it hereunder and make extracts therefrom and copies thereof. Section 4.04 Exculpation. Neither the Trustee nor the Disbursing Agent nor any of their respective directors, officers or employees shall be liable for any action taken or omitted by it or them,except for its or their own negligence,bad faith or willful misconduct; nor shall they be liable or responsible for the validity,enforceability or sufficiency of any document furnished to the Disbursing Agent pursuant to Article II or III hereof,nor shall they be responsible for any representations or statements made in any of those documents; provided,however,that if the Disbursing Agent shall obtain actual knowledge of any misrepresentation in any documents furnished to it under this Agreement, it shall promptly notify the Trustee and the Borrower in writing of such misrepresentation. The Disbursing Agent shall be entitled to rely upon advice of counsel concerning legal matters and upon any document or notice delivered to it hereunder which it believes to be genuine or to have been presented by a proper person. A disbursement by the Disbursing Agent shall not be deemed to be an approval by it or the Trustee of any work performed on the Project or any materials furnished with respect thereto or a representation by it that the unused Bond proceeds are sufficient to pay remaining construction costs. It is expressly understood that the provisions of this Section 4.04 are applicable only to the Disbursing Agent's actions or omissions in the performance of its duties under Sections 4.01,4.02 and 4.03 hereof, and that none of the provisions of this Section 4.04 shall relieve it from the obligation to issue its title insurance policy in accordance with the provisions of Section 4.05 hereof. Section 4.05 Title Insurance. Whether or not any work was commenced on the Land prior to the recording of the Mortgage,the Disbursing Agent acknowledges that it will issue its ALTA-1992 mortgagee's title insurance policy to the Trustee,pursuant to the Disbursing Agent's Commitment No. 45029C ,(the"Commitment")effective on the date of issuance of the Bonds and to be updated to the date of recording of the Mortgage,regardless of the period of time that has elapsed since the date of such Commitment, insuring the mortgage lien granted pursuant to the Mortgage to be a valid first lien,on the Land securing the full amount of all disbursements(i)paid out or to be paid out by the Disbursing Agent pursuant to Section 4.02 of this Agreement, or(ii)otherwise disbursed by the Trustee or the Disbursing Agent in any manner to or for the account of the Borrower under the Indenture or the Loan Agreement(but not in excess of the amount set forth in said Commitment). Such policy shall be issued without so- called"pending disbursements"clauses or endorsements,and the mortgage lien so insured shall not be subject to any claims or encumbrances except as contained in the Commitment. ARTICLE V Miscellaneous Section 5.01 Binding Effect; Governing Law. This Agreement shall be binding upon the parties hereto and their respective successors and assigns; provided,however,that the