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hereby whether or not any such inaccuracy was known by Borrower to be incorrect, including but <br /> not limited to construction-related claims unless the claim for indemnification is the result of the <br /> intentional misconduct of MBI. <br /> (ee) Borrower will indemnify, defend and hold MBI harmless from and against any <br /> claim, loss or damage to which MBI is subjected as a result of the presence of any Hazardous <br /> Material or the use, handling, storage, transportation or disposal thereof within or upon any real <br /> estate owned by Borrower or violation of the covenants, representations and warranties contained <br /> in this Agreement unless such matters arise solely out of the intentional misconduct of MBI. <br /> (ff) Borrower will notify MBI in writing within ten (10) days after obtaining <br /> knowledge of the initiation of any criminal investigation or proceeding initiated by any federal, <br /> state or local agency, department, or instrumentality against (i) Borrower, (ii) any Co-Maker, or <br /> (iii) any employee of Borrower if such investigation or proceeding could have a material adverse <br /> effect on the financial condition, business operations or assets of Borrower or result in any <br /> collateral granted to MBI in connection with the Loan being seized pursuant to 18 U.S.C. Sec. <br /> 1963, 21 U.S.C. Sec. 853, 21 U.S.C. Sec. 881, 46 App. U.S.C. Sec. 1904, I.C. 34-24-1 et sec. or <br /> any similar federal, state or local law and/or regulation adopted in publications promulgated <br /> pursuant to such laws, or as such laws or regulations may be further amended, modified or <br /> supplemented. <br /> (gg) Borrower will not create or permit to exist any mortgage, deed of trust, pledge, <br /> security interest,title retention device or other encumbrance on the Project or any other property, <br /> right, or asset owned or hereafter acquired by Borrower, except for the Permitted Encumbrances . <br /> (hh) Borrower will not dispose of any of its assets or properties other than in the <br /> ordinary course of business for fair value. <br /> (ii) Borrower will not directly or indirectly make (i) any loan, gift, distribution, <br /> transfer or advance of cash or other real, personal or intangible property, or (ii) any transfer of <br /> any other benefit or thing of value to any person except for fair value received by Borrower; it is <br /> intended that this paragraph prohibit, by way of example and not by way of limitation, any <br /> payment by Borrower characterized as a commission or referral fee, and any payments by <br /> Borrower characterized as the consideration for a purchase to the extent that such payment is not <br /> bona fide or exceeds the real value received by Borrower. <br /> (jj) Borrower will not make payments to any affiliate of Borrower out of <br /> disbursements from the Loan except for payments approved by MBI to a general contractor or <br /> subcontractor for the construction or rehabilitation of the Improvements or as otherwise included <br /> in the Development Budget. <br /> (kk) Borrower will not make any capital distributions to any partner of Borrower. <br /> (11) Borrower will not assume, guarantee or otherwise become liable as guarantor or <br /> surety for the obligation of any person or entity except in connection with the endorsement of <br /> checks for deposit in the ordinary course of business and other similar collection transactions in <br /> the ordinary course of business and construction contracts for the Improvements. <br /> (mm) [This paragraph is intentionally left blank]. <br /> Page 49 <br />