Plenary 8: Noticeably Older, Arguably Wiser and Still in Need of Work: An A201 Analysis

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1 American Bar Association Forum on Construction Law Plenary 8: Noticeably Older, Arguably Wiser and Still in Need of Work: An A201 Analysis Neutral Revisions to Key A201 Provisions Lynn R. Axelroth Ballard Spahr LLP Philadelphia, PA Ty. D. Laurie Laurie & Brennan, LLP Chicago, IL James Duffy O Connor Maslon Minneapolis, MN Presented at the 2016 Annual Meeting April 28-30, 2016 Omni, Nashville, TN 2016 American Bar Association 1

2 INTRODUCTION Below are possible but by no means mandatory neutral revisions to some of the key A201 provisions that are often the subject of negotiation between owners and contractors. While every project is different and not one size fits all, we have taken our collective wisdom and done our best to craft evenhanded clauses to address some of the most hotly negotiated concepts in the form A201 construction contract. SECTION 1: CONSEQUENTIAL DAMAGES Delete Section of A201 and replace with the following: CLAIMS FOR CONSEQUENTIAL DAMAGES Contractor and Owner waive Claims against each other for any and all consequential damages arising out of or relating to the Contract except to the extent that such damages are covered and paid under a policy of insurance maintained by one of the parties.. This mutual waiver is applicable, without limitation, to all consequential damages due to either party s termination in accordance with Article 14, but is inapplicable to damages due to delay in completion, which are governed by Section 8.3 of these General Conditions. Delete Section of A201 and replace with the following: It is understood and agreed that (1) inexcusable delay to the completion of the Work will cause damage to the party suffering the effects of the delay; (2) it would be impracticable or extremely difficult to fix the actual damages resulting therefrom, (iii) any sums that would be payable under this Section are in the nature of liquidated damages and not a penalty ( Liquidated Damages ), and (iv) the Liquidated Damages agreed to in the Contract Documents represent reasonable estimates of fair compensation for the losses that reasonably may be anticipated from such failure. Therefore, Owner and Contractor agree that the terms and conditions set forth in this Section shall apply if Contractor fails to achieve Substantial Completion of Work within the Contract Time For delay in achieving Substantial Completion beyond the Substantial Completion Date, as revised to account for extensions of time allowed by Section 8.3, Contractor shall pay to Owner, or Owner may withhold from payments otherwise due to Contractor, Liquidated Damages calculated under Section 3.4 of the Standard Form of Agreement Between Owner and Contractor (Document A ) For each day by which Contractor s achievement of Substantial Completion is delayed by one of the following causes set out in Section 8.3 of these General Conditions: act or neglect of Owner or Architect or of an employee of either, or of a separate contractor employed by the Owner, or by other causes that Architect determines to the responsibility of Owner (excepting in any event any matter which is the basis for a Change Order under Article 7 of these General Conditions), Contractor shall be entitled to be paid, and the Contract Price shall be increased by, Liquidated Damages calculated under Section 3.4 of the Standard Form of Agreement Between Owner and Contractor.(Document A ). 2

3 Such Liquidated Damages for delay described in this Section shall be each party s exclusive remedy for compensable delays to completion of the Work; provided, however, that in the event the agreement of either party to pay liquidated damages declared unenforceable by a court or arbitration panel, the agreement of both parties to this Section shall be considered nullified. Insert the following new Section 3.4 into AIA Document A : 3.4 Liquidated Damages provided for under Section of the General Conditions shall be calculated as follows: Owner s Liquidated Damages shall be in the amount of $ per day of delay starting on the day following the Substantial Completion Date Contractor s Liquidated Damages shall be in the amount of $ per day of delay starting on the day of cumulative delay to the completion of the Work. Potential alternate: Notwithstanding anything to the contrary in the foregoing subparagraphs, the Liquidated Damages which [Owner] [Contractor] [either party] shall be entitled to receive hereunder shall be limited to the amount of $. SECTION 2: TERMINATION Section of the General Conditions is replaced with the following: 14.4 TERMINATION BY OWNER FOR CONVENIENCE Subject to Section 9.5 and 9.6 of these General Conditions, in case of such termination for Owner s convenience, Contractor shall be entitled to receive, within 20 days from the date of Contractor s final Application for Payment, payment for Work executed, and costs incurred by reason of such termination, and a termination fee based upon the percentage of Work complete at the time of termination as certified by Architect based upon the most recent Schedule of Values as follows: $ if the Work is equal to or more than % complete at time of termination; $ if the Work is between % and % complete at time of termination; or $ if the Work is equal to or less than % complete at time of termination. SECTION 3: DISPUTE RESOLUTION (including IDM and Prevailing Party Attorneys Fees) Section 6.2 of the Agreement is replaced, Sections , , of the General Conditions are replaced, and new Sections 15.3, , and 15.6 are added as follows: 3

4 6.2 BINDING DISPUTE RESOLUTION (AIA Document A101) For any Claim subject to, but not resolved by, mediation pursuant to Section 15.3 of AIA Document A , the parties agree to Arbitration pursuant to Section 15.4 of AIA Document A as their method of binding dispute resolution INITIAL DECISION Claims may be referred to Initial Decision Maker for initial decision only upon the consent of both Owner and Contractor. Architect will serve as Initial Decision Maker, unless otherwise indicated in the Agreement. An initial decision shall not be required as a condition precedent to mediation of any Claim at any time. The provisions in this Section 15.2 are for those instances in which a Claim is referred by agreement of the parties to an Initial Decision Maker Initial Decision Maker will render an initial decision approving or rejecting the Claim, or indicating that Initial Decision Maker is unable to resolve the Claim within 30 days.. This initial decision shall (1) be in writing; (2) state the reasons therefor; and (3) notify the parties and Architect, if Architect is not serving as Initial Decision Maker, of any change in the Contract Sum or Contract Time or both. The initial decision is a recommendation only, shall not be final and binding on the parties but may be used in mediation and admissible in arbitration. NEW SECTION 15.3 STEP NEGOTIATIONS. In the event a Claim is not resolved or Owner asserts a demand in writing to Contractor in which Owner claims that Contractor has breached this Agreement, the parties shall attempt in good faith to resolve the Claim promptly by negotiations, as follows. Any party may give the other party written notice of any Claim not resolved in the normal course of business. Owner and Contractor agree to meet at a mutually acceptable time and place within ten (10) days after delivery of such notice and thereafter as often as reasonably necessary to attempt to resolve the Claim. If a party intends to be accompanied at a meeting by legal counsel, the other party shall be given at least three (3) working days notice of such and also may be accompanied by legal counsel. All negotiations pursuant to this clause are confidential and shall be treated as compromise and settlement negotiations for purposes of all rules of evidence. If the matter is not resolved within thirty (30) days from the initial written notice of the Claim, or if no meeting takes place within fifteen (15) days after such initial notice, then either party may initiate mediation as provided herein (RENUMBERED FROM 15.4) ARBITRATION NEW DISCOVERY. Each party shall produce to the other all non-privileged records relating to the Work that have relevant information or are reasonably calculated to lead to the discovery of relevant information relating to the Claim or any defense to any Claim within days from the arbitration being filed. Each party shall be entitled to depose no more than fact witnesses for no longer than hours each. Each party shall be entitled to depose any and all retained expert opinion witnesses for no longer than eight (8) hours each. The Arbitrator 4

5 shall have authority to resolve all discovery disputes, including without limitation the ordering of Party or non-party documents to be produced and Party or non-party witnesses to be deposed. The Arbitrator may modify these discovery limitations for good cause shown. NEW SECTION ARBITRATOR. The Arbitrator shall have authority to order specific performance including, without limitation, interim injunctive relief prior to the Claim being resolved. The Arbitrator shall have the authority to decide all issues concerning the fulfillment of any condition precedent to the arbitrability of a claim or defense; the amount of damages to be awarded, if any; the arbitrability of the issues presented; and the reasonable time frames for discovery and hearing in order to expedite a resolution. The Arbitrator is not empowered to award damages in excess of compensatory damages, such as punitive damages. An arbitrator eligible to hear the Claim shall have at least five (5) years of experience as an arbitrator with the AAA and/or another neutral organization, be familiar with construction industry practices, and be a practicing lawyer CONSOLIDATION OR JOINDER Either party, at its sole discretion, may consolidate an arbitration conducted under this Agreement with any other arbitration to which either Owner or Contractor is a party provided that (1) the arbitration agreement governing the other arbitration permits consolidation, (2) the arbitrations to be consolidated substantially involve common questions of law or fact, and (3) the arbitrations employ materially similar procedural rules and methods for selecting arbitrator(s). NEW SECTION 15.6 PREVAILING PARTIES ATTORNEYS FEES The prevailing party, either Owner or Contractor but not both, shall be entitled to collect its reasonable attorney s fees and costs, inclusive of expert fees, incurred preparing for and attending mediation and arbitration of a Claim. The parties agree to ask for a specific finding from the Arbitrator seeking a determination of which party is prevailing. A prevailing party is one who succeeds in the majority of its claims or defenses, measured monetarily or as otherwise appropriate, as determined by the Arbitrator(s). If there are more than two parties in the Arbitration, it is possible to have more than one prevailing party. 5

6 SECTION 4: CONSENT, ASSIGNMENT OF CONSTRUCTION CONTRACT, ACKNOWLEDGMENT AND CERTIFICATE OF CONTRACTOR THIS CONSENT, ASSIGNMENT OF CONSTRUCTION CONTRACT, ACKNOWLEDGMENT AND CERTIFICATE OF CONTRACTOR (the Consent Agreement ) made by [Name of General Contractor/Construction Manager/Design Builder], a [Type of Entity (for purposes of this form, assume it is a General Contractor in corporate form) and State in which it was formed], and its directors, officers, employees, shareholders, agents, affiliates, parent, subsidiaries, representatives, successors and assigns (collectively, Contractor ), is being furnished pursuant to the requirements of the [Construction Loan Agreement dated and effective as of the date of the Loan], as the same may be amended, modified, restated, released, waived, terminated, supplemented, assigned and/or replaced from time to time (the Loan Agreement ) between [Name of Owner, Type of Entity (for purposes of this form assume it is an LLC) and State in which it was formed], the Borrower under the Loan and its managing member and members, employees, agents, successors and assigns (collectively, Owner ) and [Name of Lender(s), Agent, Trustee, Master Trustee, Lead Participant, etc., depending upon type of financing arrangement], a [Type of Entity and State in which it was formed], as the same may be replaced, supplemented or modified from time to time, and its directors, officers, employees, agents, successors and assigns (each as collectively described, Lender ), and, as applicable, any other funding entities as and when it or they become parties to or have interests in the Loan Agreement and its and their respective representatives, directors, officers, employees, agents, lead participant, successors and assigns (including, without limitation, the Lender, individually and collectively Lenders ), which Loan Agreement provides a portion of the funds to be used in connection with the development of [Briefly Identify the Project] (the Project ). In connection with the Project, Owner and Contractor have entered into an [Identify AIA Agreement Form and AIA A201 (2007) General Conditions of the Contract for Construction], dated [Insert Date of Contract between Owner and Contractor] (collectively, the Construction Contract ). The Owner and Lender or Lenders acknowledge the terms and conditions of this Consent Agreement that apply to each of them by executing an acknowledgement of such following Contractor s execution of this Consent Agreement. 1. The introductory recital and all Exhibits referred to and attached to this Consent Agreement are incorporated and made a part of the Consent Agreement as if they all were fully set forth in this paragraph 1. Capitalized terms appearing in this Consent Agreement and not defined in the Loan Agreement shall have the meanings set forth herein; all others shall have the meanings ascribed to them in the Loan Agreement. Attached as Exhibit A are the relevant portions of the Loan Agreement setting forth definitions of the terms in this Consent Agreement. If there is any dispute as to the meaning of a term, or discrepancy or confusion between any definitions in this Consent Agreement, the Construction Document and other Contract Documents and the Loan Agreement, the terms attached from the Loan Agreement shall prevail. Contractor has executed this Consent Agreement to induce Lender or Lenders to agree to make the Loan to Owner, and Contractor understands that Lender or Lenders would not do so without Contractor s execution and delivery of this Consent Agreement. 6

7 2. Pursuant to an Assignment of Contracts (the Assignment ) dated as of the Loan Date, Owner has unconditionally and irrevocably appointed Lenders its attorney-in-fact, which appointment is coupled with an interest, to demand, receive and otherwise enforce Owner s rights and remedies under the Construction Contract and to perform all acts in the name of Owner or otherwise, and Lender has and Lenders have, as applicable assumed all of Owner s right, title, interest and benefits in and to the Construction Contract and any and all subcontracts (such term to include trade contractors and material and equipment suppliers, all of any tier), arising out of or in connection with the Construction Contract or the Project, as additional collateral and security for repayment of the Loan and the performance of all of Owner s Obligations. Contractor hereby acknowledges receipt of a copy of the Assignment attached as Exhibit B, acknowledges the terms and conditions of the Assignment, consents to the assignment of the Construction Contract and subcontracts by Owner to Lender, and has taken whatever steps are necessary to effectuate the assignments described in this Consent Agreement and the Assignment. Although the Assignment to Lender is a present assignment, Contractor acknowledges that Owner shall exercise all rights and remedies under the Construction Contract and be bound by the duties and obligations therein, unless and until (a) Lender and/or Lenders elect to enforce such Assignment by written notice to Contractor and Owner, and (b) an Event of Default by Owner has occurred and is continuing under the Loan Agreement or Owner has breached or is in default of the Construction Contract and has been unable to cure such breach or default within the time provided for it to do so, AND Lender has elected to cure and/or assume Owner s position in accordance with this Consent Agreement, the Assignment or the Loan Agreement, provided, however, that Owner shall, unless otherwise directed by a Lender, diligently enforce Owner s rights and remedies under the Construction Contract and perform all actions allocated to it. Notwithstanding the Assignment, this Consent Agreement, the Loan Document, and/or any action or inaction of the part of Lender or Lenders, Contractor agrees that no Lender shall assume any liability to Contractor for performance of, or any obligations under or derived from, the Construction Contract, or that otherwise may be thought to arise or be assumed in the role as assignee, except to the extent that a Lender fulfills all the requirements described in clauses (a) and (b) above in this paragraph 2 to effect the assignment, which may be enforced only against the Lender or Lenders identified in the notices to Contractor and Owner; and until then none of the Lenders shall have any liability whatsoever to Contractor for performance of any provisions of the Construction Contract nor to or under any subcontracts, or that otherwise may arguably be assumed by virtue of the role or roles of Lender or Lenders as assignees. The Assignment remains in effect so long as the Loan Agreement has not been terminated or any portion of the Loan remains outstanding. 3. The Loan Agreement and other Loan Documents provide rights, obligations, duties and benefits solely between Owner and Lender or Lenders. Nothing contained herein, in the Owner s Assignment, any of the other Loan Documents or the Contract Documents, as the same may be amended, modified, restated, released, waived, terminated, supplemented, assigned and/or replaced from time to time, (collectively, the Contract Documents ) but nothing stated in this Consent Agreement, the Contract Documents and/or any other documents shall be construed as binding Lender or Lenders to any amendments, modifications, restatements, releases, waivers, terminations, 7

8 supplements, assignments, and/or replacements to the Contract Documents, unless each such occurrence is undertaken in accordance with the provisions of this Consent Agreement expressly describing the circumstances under which any of the foregoing is permitted, nor to impose upon Lender or Lenders any duty or obligations to see to the application of the proceeds of the Loan by Owner or to provide any rights, remedies or benefits to any of the respective parties to such agreements except as expressly provided and limited therein, or to any third parties vis-à-vis the Lender, and without limiting the generality of the foregoing, Contractor acknowledges and consents to the fact that neither it or any parties to the subcontracts, or anyone for whom any of them may be responsible, to the fullest extent permitted by law, are express or implied beneficiaries under any of the Loan Documents, nor by virtue of any of the Contract Documents, or entering into this Consent Agreement (unless expressly stated otherwise in this Consent Agreement, and then for those limited purposes only), and consents and agrees to all of the terms of this paragraph The Contractor certifies as follows: (i) A true and complete copy of the Construction Contract as executed, including all addenda and modifications through the date hereof, is attached as Exhibit C. The Contractor acknowledges as of the date hereof that it, those entities defined as Contractor, subcontractors of any tier, and anyone for whom any of the foregoing maybe responsible, or working by, through or any of those constituting Contractor or subcontractors behalves (collectively, Contracting Parties ), has not performed any work on the Project site or that may be construed as constituting or advancing the construction of any improvements, including, without limitation, any demolition, preparation of any portion of the Project site, installing safety devices or securing any of the Project site, otherwise preparing for the commencement of the Work or anything else that could provide any of the Contracting Parties the right to file notice of, bring an action or complaint to file or enforce, or right to place a lien on all or any portion of the Project site or Work. The Contractor further affirms that there are no payments presently due or owing it or any of the Contracting Parties or which would be owing but for the giving of notice, passage of time or satisfaction of a stated condition or conditions, arising out of or related to the Project. Attached as Exhibit D is a comprehensive list of the amounts of, and respective dates on which, sums previously were paid to any of the Contracting Parties, the reasons that each amount was requisitioned and paid and the supporting documentation and other evidence required pursuant to and in accordance with the funding requirements of the Loan Documents, a copy of which payment procedures are attached as Exhibit E. Contractor acknowledges that as of the date hereof, the Mortgage and other security documents and collateral provided pursuant to the Loan Documents have priority and take precedence over any rights that any of the Contracting Parties may have to file or record a lien against Owner and/or all of any portion of the Project or Project site. Nonetheless, Lender acknowledges that once Contractor is permitted to commence construction, which shall not be before Lender has perfected its rights against Owner, the Project, Project site and with respect to any and all collateral granted to Lender pursuant to any of the Loan documents, Contractor shall not be required to provide a waiver or release of any of its lien rights arising from the performance of its Work until it requisitions payment for such Work and on the condition that it is paid for the Work it has properly performed and 8

9 billed for in accordance with the Contract Documents, which must comply with the applicable requirements set forth in the Loan Documents; (ii) Contractor is duly organized and validly existing under the laws governing corporations in the State of, and is duly licensed as a general contractor under the laws of the State of and [the Project jurisdiction if different from the State of incorporation] and legally permitted and duly authorized to perform all of the requirements and obligations of, and to the full right, power and authority to execute and deliver, this Consent Agreement, the Construction Contract and the other Contract Documents, as applicable; (iii) No default or breach exists by the Contracting Party, or condition that would or could constitute a default or breach but for the passage of time or the giving of notice, exists under the Construction Contract or any of the Loan Documents to which Contractor is a party, and the Construction Contract is valid and enforceable against Contractor in accordance with its terms. 5. Contractor agrees with Lender as follows: (i) All monies disbursed to Contractor originating from the Loan Agreement, or otherwise received by Contractor from Owner or Lender in connection with the Project, shall be received and used solely for the payment of materials, labor, services and other costs involved in construction of the Project, including Contractor s fees, as permitted and limited by the Construction Contract, and for no other purpose until all bills, claims and demands for such materials, labor, services and all other costs that Contractor has an obligation to pay, have been paid in full; (ii) The Construction Contract, and the Plans and Specifications referred to therein, shall not be amended, or modified in any material respect and any amendment, modification, termination or replacement of all or any part must be made only pursuant to the terms regarding Change Orders, copies of which must be sent to Lender; and no Significant Change Order shall be made without Lender s prior written consent in each instance; (iii) The term Significant Change Order shall mean any change or changes that increases or decreases the Construction Contract Sum by more than $, individually or $ in, the aggregate, or which notwithstanding the amount constitutes a substantial change in the quality, nature or character of the Work; (iv) Lender shall at all times have the right to obtain copies of the Plans and Specifications and may use them for any purposes permitted in the Loan Documents or for any use relating to the Project once it has accepted the assignment of the Construction Contractor; (v) Contractor shall promptly notify Lender in writing of any claim on the part of a Contracting Party that Owner is in breach or default of any of Owner s obligations under the Construction Contract, and shall copy Lender on all writings to Owner concerning the same; (vi) Owner shall not be treated as being in breach or default of Owner s obligations under the Construction Contract or any of the Contract Documents, unless and until detailed written notice of a claim thereunder has been given to Lender; 9

10 (vii) Contractor shall not exercise any rights which it may have to terminate the Construction Contract on account of a default in or breach of Owner s obligations under the Construction Contract or any other Contract Documents, nor will Work on the Project be suspended or stopped on account of any claim of default of or breach by Owner, without at least thirty (30) days prior written notice by Contractor to Lender of Contractor s intentions in respect thereof and the details underlying such; (viii) Upon receipt by Lender of notice from Contractor of a default or breach by Owner under the Construction Contract or any of the other Contract Documents, Lender, by written notice to Contractor given not more than thirty (30) days after Lender s receipt of the notice of default or breach from Contractor shall have the option, but shall not be required, to: (a) cure or correct any breach of Owner s obligations within thirty (30) days following Lender s receipt of such notice, and Contractor agrees to accept such a cure from a Lender or Lenders or its or their respective assignee, or (b) give written notice to Contractor that Lender has elected to exercise Lender s rights under the Assignment and this Contractor s Consent, and without any requirement that Lender cure any past default of Owner under the Construction Contract, except as describe herein, require Contractor to complete the Work in accordance with the following: (1) Contractor shall complete the Work at a price not to exceed the fixed price, or not to exceed maximum price, referred to in the Construction Contract, less the amount previously paid thereunder; (2) Contractor shall be entitled to be paid by Lender, and Lender shall pay Contractor, for, (a) materials, labor and services delivered and/or rendered in respect of the Work commencing on the date Lender elects to continue the Construction Contract and gives written notice thereof to Contractor, (b) materials, labor and services which are the subject matter of pending requisitions or retainage for which no Loan Advance has been made; (c) amounts, if any, due after the sums due pursuant to clause (b) of this paragraph 5(viii)(2) and up to the date of the Lender s notice to Contractor, and (d) amounts due and owing for materials, labor and services for which a requisition has been made but for which no payments have been made to Contractor, despite Lender having made a Loan Advance to Owner with respect to same but which Owner has improperly withheld from the parties to whom such sums are owed, provided that Lender shall pay for only one such requisition, covering a single requisition period, for Work furnished not more than sixty (60) days prior to the date Contractor provides Lender the notice described in paragraph 5(vii) above; (3) Except for those amounts described in 5(viii)(2) above, Contractor shall not look to Lender or Lenders for payment of any other sums payable under the Construction Contract; (ix) Notwithstanding anything herein to the contrary, the assumption of the Construction Contract by Lender, and the performance of the remaining work by Contractor, shall not constitute a waiver or release of any claims which 10

11 Contractor may have against Owner and any other individuals or entities, except those expressly permitted with respect to Lender or Lenders; (x) Contractor shall provide, upon written request of Lender, from time to time, provide a written estoppel certificate with respect to the Construction Contract and other Loan Agreements so as to enable Lender to determine the amounts claimed by Contractor to be due and the existence of any alleged breaches or defaults by owner, or which could become breaches or defaults with the passage of time or the giving of notice, or both, including without limitation, claims for additional payments by Owner. Such estoppel certificate shall accompany any notice provided to Lender or Lenders under clauses (v) and (vii) of this paragraph 5; (xi) Lender shall have the right to further assign its rights under the Assignment and this Consent Agreement in whole or in part to: (1) any purchaser or transferee of all or part of the Loan or the Loan Documents, or (2) any purchaser, transferee or subsequent owner of the Property; or (3) any nominee of Lender or of such purchaser, transferee or subsequent owner. From and after any such assignment Lender shall be forever relieved and fully discharged from any liability or responsibility to Contractor thereafter accruing in connection herewith. 6. Notices shall be sufficient only if in writing and sent by registered or certified mail, return receipt requested, postage prepaid, or delivered by recognized courier service and shall be effective only upon receipt or tender for receipt in such manner during normal business hours on a business day at the appropriate notice address. The appropriate notice address for Contractor is: Attention: The appropriate notice address for Lender or Lenders is: Attention: The appropriate notice address for Owner is: Attention: 11

12 Contractor, Lender and Owner may each change its appropriate address for notices by giving written notice in the manner provided for above. 7. The Exhibits attached to this Consent Agreement and made a part hereof are: Exhibit A Applicable Definitions Set Forth in the Loan Agreement Exhibit B True and Correct Copy of the Executed Assignment of Contracts Exhibit C True and Complete Copy of the Executed Construction Contract Exhibit D List of Amounts and Dates on Which Contracting Parties Have Been Paid Exhibit E Requirements and Procedures Concerning Payment Executed and delivered by Contractor s duly authorized officer as an instrument under seal at as of the day of CONTRACTOR: By: Name: Title: Attest (Secretary/Assistant Secretary): (Seal) 12

13 ACKNOWLEDGMENT AND CONSENT Executed this day of, [NAME OF OWNER]: By: Name: Title: 13

14 ACKNOWLEDGMENT AND CONSENT Executed this day of, [NAME OF LENDER]: By: Name: Title: 14