CONDITIONS PRECEDENT TO THE OBLIGATION OF LENDER TO MAKE
PROJECT ADVANCES ARE IMPOSED SOLELY FOR THE BENEFIT OF LENDER AND NO OTHER PARTY
MAY REQUIRE SATISFACTION OF ANY SUCH CONDITION PRECEDENT OR BE ENTITLED TO
ASSUME THAT LENDER WILL REFUSE TO MAKE EITHER THE FUTURE FUNDING OR ANY PROJECT
ADVANCE IN THE ABSENCE OF STRICT COMPLIANCE WITH SUCH CONDITIONS PRECEDENT.
ANY
OR ALL REQUIREMENTS OF THIS AGREEMENT MAY BE WAIVED BY LENDER, IN WHOLE OR IN
PART, AT ANY TIME AND ANY SUCH WAIVER SHALL NOT BE DEEMED A MODIFICATION OF THIS
AGREEMENT.
3.1.3.
AMOUNT OF ADVANCES.
(A)
SUBJECT TO THE TERMS OF THIS SECTION 3.1, SO LONG AS NO EVENT OF
DEFAULT SHALL EXIST, PROJECT ADVANCES SHALL BE MADE WITH RESPECT TO ANY PROJECT
FROM TIME TO TIME IN ACCORDANCE WITH THE CONSTRUCTION SCHEDULE AND THE
DISBURSEMENT SCHEDULE AS SUCH PROJECT PROGRESSES, BUT NO MORE FREQUENTLY THAN
TWICE IN EACH CALENDAR MONTH.
(B)
SUBJECT TO THE OTHER PROVISIONS OF THIS AGREEMENT, ANY PROJECT
ADVANCE SHALL BE MADE ON THE BASIS OF (I) THE LINE ITEMS FOR HARD COSTS AND SOFT
COSTS SPECIFIED IN THE PROJECT BUDGET, AND (II) THE DOCUMENTED COST OF WORK FOR
THE PROJECT IN PLACE AND PERFORMED AND SERVICES PROVIDED, AND TO THE EXTENT
PROVIDED IN SECTION 3.1.12, MATERIALS STORED ON OR OFF THE PROPERTY, IN EACH
CASE AS SUCH COST IS REASONABLY DETERMINED BY LENDER AS PROVIDED IN THIS
AGREEMENT; PROVIDED, THAT LENDER SHALL AT NO TIME BE OBLIGATED TO DISBURSE ANY
PROCEEDS OF THE
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FUTURE FUNDING FOR WORK PERFORMED, MATERIALS FURNISHED OR SERVICES PROVIDED
UNDER CONSTRUCTION CONTRACTS THAT ARE NOT FULLY EXECUTED AND DELIVERED.
(C)
WITH RESPECT TO EACH PROJECT, (I) THE PROJECT BUDGET FOR SUCH
PROJECT SHALL REFLECT, BY CATEGORY AND LINE ITEM, THE PURPOSES AND THE AMOUNTS
FOR WHICH FUNDS TO BE ADVANCED BY LENDER UNDER THIS AGREEMENT ARE TO BE USED,
AND (II) SUBJECT TO THE PROVISIONS OF SECTION 3.1.10 OR AS LENDER MAY OTHERWISE
AGREE IN ITS SOLE DISCRETION, LENDER SHALL NOT BE REQUIRED TO DISBURSE FOR ANY
LINE ITEM MORE THAN THE AMOUNT SPECIFIED FOR SUCH LINE ITEM IN THE PROJECT
BUDGET FOR SUCH PROJECT.
(D)
THE CALCULATION OF ANY PROJECT ADVANCE SHALL ACCOUNT FOR RETAINAGE
AS PROVIDED FOR IN SECTION 3.6.
IT IS HEREBY ACKNOWLEDGED AND AGREED THAT THE
RETAINAGE IS INTENDED TO PROVIDE A CONTINGENCY FUND PROTECTING LENDER AGAINST
THE FAILURE OF BORROWER OR GUARANTORS TO FULFILL ANY OBLIGATIONS UNDER THE LOAN
DOCUMENTS AND THAT LENDER MAY CHARGE AMOUNTS TO PAY FOR THE PROJECT COSTS
AGAINST SUCH RETAINAGE IN THE EVENT LENDER IS REQUIRED OR ELECTS TO EXPEND FUNDS
TO CURE ANY EVENT OF DEFAULT.
3.1.4.
ADVANCES FOR HARD COSTS.
WITH RESPECT TO EACH PROJECT, NO PROJECT
ADVANCE WILL BE MADE FOR ANY HARD COSTS UNLESS THE AMOUNT OF THE HARD COSTS
THEREOF ARE SET FORTH IN THE PROJECT BUDGET AS LINE ITEMS (OR PORTIONS THEREOF)
TO BE FUNDED FROM THE FUTURE FUNDING.
PROJECT ADVANCES MAY BE MADE FOR ADVANCE
DEPOSITS FOR MATERIAL TO BE