OF ANY PREPAYMENTS MADE HEREUNDER. BORROWER
AGREES THAT THIS PREPAYMENT FEE IS PAID AS A FEE FOR THE RIGHT TO PREPAY AND NOT
LIQUIDATED DAMAGES OR A PENALTY.
11.
UNUSED COMMITMENT FEE. BORROWER WILL PAY
LENDER, ON THE FIRST DAY OF EACH CALENDAR QUARTER IN ARREARS, UNUSED COMMITMENT
FEES EQUAL TO 40 BASIS POINTS (0.40%) PER ANNUM OF THE UN-DRAWN AMOUNT OF THE
2007 EXPANSION LOAN COMMITMENT AMOUNT DURING THE PERIOD BEGINNING ON THE DATE OF
THE FIRST ADVANCE UNDER THE 2007 EXPANSION LOAN FACILITY AND CONTINUING FOR THE
BALANCE OF THE FUNDING PERIOD.
12.
RELIANCE. BORROWER WILL NOT RELY ON REPORTS
RELATING TO THE PROJECT GENERATED FOR THE BENEFIT OF LENDER FOR ANY PURPOSE
WHATSOEVER. BORROWER IS RESPONSIBLE FOR MAKING ITS OWN INSPECTIONS OF THE
PROJECT DURING THE COURSE OF CONSTRUCTION AND WILL SATISFY ITSELF THAT THE WORK
PERFORMED AND THE MATERIALS FURNISHED CONFORM WITH ITS CONTRACTS. BY MAKING
ADVANCES AFTER INSPECTION OF THE PROJECT, LENDER WILL NOT BE DEEMED TO HAVE
WAIVED ANY DEFAULT OR EVENT OF DEFAULT, OR THE RIGHT TO REQUIRE THE CORRECTION
OF CONSTRUCTION DEFECTS OR TO HAVE ACKNOWLEDGED THAT THE CONSTRUCTION (AS TO
QUALITY OR VALUE OF WORK PERFORMED OR MATERIAL FURNISHED) CONFORMS WITH THE
CONSTRUCTION PLANS.
13.
INSPECTIONS. BORROWER IS RESPONSIBLE FOR
MAKING INSPECTIONS DURING THE COURSE OF CONSTRUCTION AND WILL DETERMINE TO ITS
OWN SATISFACTION THAT THE WORK DONE OR MATERIALS SUPPLIED BY THE CONTRACTORS TO
WHOM PAYMENT IS TO BE MADE OUT OF EACH DRAW REQUEST HAS BEEN PROPERLY DONE OR
SUPPLIED IN ACCORDANCE WITH THE APPLICABLE CONTRACTS WITH SUCH CONTRACTORS. IF
ANY WORK DONE OR MATERIALS SUPPLIED BY A CONTRACTOR ARE NOT SATISFACTORY TO
BORROWER, BORROWER WILL IMMEDIATELY NOTIFY LENDER IN WRITING OF SUCH FACT. IT IS
EXPRESSLY UNDERSTOOD AND AGREED THAT LENDER OR ITS AUTHORIZED REPRESENTATIVE MAY
CONDUCT SUCH INSPECTIONS OF THE REAL ESTATE AND IMPROVEMENTS THEREON AS IT MAY
DEEM APPROPRIATE FOR THE PROTECTION OF LENDER'S INTEREST, AND, SPECIFICALLY, THE
INSPECTING ENGINEER MAY, AT THE OPTION OF LENDER AND AT THE EXPENSE OF BORROWER,
CONDUCT SUCH PERIODIC INSPECTIONS, PREPARE SUCH WRITTEN PROGRESS REPORTS DURING
THE PERIOD OF CONSTRUCTION AND PREPARE SUCH WRITTEN REPORTS UPON COMPLETION OF
THE PROJECT AS LENDER MAY REQUEST. ANY INSPECTIONS MADE BY LENDER OR ITS
REPRESENTATIVE WILL BE MADE, AND ALL CERTIFICATES ISSUED BY LENDER'S
REPRESENTATIVE WILL BE ISSUED, SOLELY FOR THE BENEFIT AND PROTECTION OF LENDER,
AND BORROWER WILL NOT RELY THEREON.
14.
CONSTRUCTION. BORROWER WILL NOT BECOME A PARTY
TO ANY CONTRACT FOR THE PERFORMANCE OF ANY WORK RELATED TO THE PROJECT OR FOR
THE SUPPLYING OF ANY LABOR, MATERIALS OR SERVICES FOR THE CONSTRUCTION OF
IMPROVEMENTS THAT WOULD HAVE THE EFFECT OF INCREASING THE COSTS OF THE PROJECT
MORE THAN $3,000,000 (IN THE AGGREGATE WITH PREVIOUS SUCH COST INCREASES) ABOVE
THOSE SET FORTH IN THE SWORN CONSTRUCTION COST STATEMENT, EXCEPT IN SUCH AMOUNTS
AND UPON SUCH TERMS AND WITH SUCH PARTIES AS ARE APPROVED IN WRITING BY LENDER.
NO APPROVAL BY LENDER OF ANY CONTRACT OR CHANGE ORDER WILL MAKE LENDER