FINAL PAYMENTS).
Section 3.5
No Reliance.
All conditions and
requirements of this Agreement with respect to any Construction Loan Advance are
for the sole benefit of Lender and no other Person or party (including, without
limitation, the Construction Consultant and Trade Contractors, including Major
Contractors and materialmen engaged in the construction of the Project) shall
have the right to rely on the satisfaction of such conditions and requirements
by Borrowers.
Lender shall have the right, in its sole and absolute discretion,
to waive any such condition or requirement.
Section 3.6
Procedures for Loan Advances.
(A)
AT SUCH TIME AS BORROWERS SHALL DESIRE TO
OBTAIN A CONSTRUCTION LOAN ADVANCE, BUT IN NO EVENT MORE FREQUENTLY THAN ONCE
EVERY THIRTY (30) DAYS, BORROWER SHALL COMPLETE, EXECUTE AND DELIVER TO LENDER
AND CONSTRUCTION CONSULTANT A DRAW REQUEST NOT LESS THAN TEN (10) BUSINESS DAYS
PRIOR TO THE DATE OF THE REQUESTED CONSTRUCTION LOAN ADVANCE (THE "REQUESTED
DISBURSEMENT DATE").
(B)
IN ADDITION TO THE CONDITIONS SET FORTH IN
SECTIONS 3.2, 3.3 AND 3.4 HEREOF, AS APPLICABLE, EACH CONSTRUCTION LOAN ADVANCE
SHALL BE CONDITIONED ON SATISFACTION OF THE FOLLOWING CONDITIONS PRECEDENT:
(I)
THE AMOUNT OF ANY CONSTRUCTION LOAN
ADVANCE SHALL NOT EXCEED THE UNFUNDED AMOUNT OF THE CONSTRUCTION LOAN AMOUNT;
AND
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(II)
LENDER SHALL HAVE RECEIVED FROM BORROWERS
A STATEMENT, DULY ACKNOWLEDGED, CERTIFYING THE OUTSTANDING PRINCIPAL BALANCE,
WHICH MAY BE INCLUDED IN THE APPLICABLE DRAW REQUEST.
(C)
EACH DRAW REQUEST SHALL BE ACCOMPANIED BY:
(I)
A WRITTEN REQUEST OF BORROWERS FOR ANY
NECESSARY CHANGES IN THE PLANS AND SPECIFICATIONS, THE LOAN BUDGET, THE
DISBURSEMENT SCHEDULE AND/OR THE CONSTRUCTION SCHEDULE; AND
(II)
(A) COPIES OF ALL EXECUTED CHANGE ORDERS,
(B) COPIES OF ALL EXECUTED MAJOR CONTRACTS, (C) A LIST OF ALL OTHER CONTRACTS
AND SUBCONTRACTS WHICH ARE NOT MAJOR CONTRACTS AND A COPY OF ANY SUCH
CONTRACT(S) AND/OR SUBCONTRACT(S) REQUESTED BY LENDER, AND (D) TO THE EXTENT
REASONABLY REQUESTED BY LENDER, COPIES OF ALL INSPECTION OR TEST REPORTS AND
OTHER DOCUMENTS RELATING TO THE CONSTRUCTION OF THE PROJECT, IN EACH OF THE
FOREGOING INSTANCES, TO THE EXTENT NOT PREVIOUSLY DELIVERED TO LENDER.
(D)
WITH RESPECT TO CONSTRUCTION LOAN ADVANCES
FOR A DEPOSIT UNDER ANY CONTRACT OR SUBCONTRACT FOR THE PURCHASE OF MATERIALS OR
FF&E, THE APPLICABLE DRAW REQUEST SHALL BE ACCOMPANIED BY (I) A COPY OF THE
EXECUTED CONTRACT, SUBCONTRACT OR PURCHASE ORDER WHICH REQUIRES SUCH DEPOSIT,
WHICH CONTRACT OR SUBCONTRACT EITHER (A) SHALL HAVE BEEN APPROVED BY LENDER IN
ITS REASONABLE JUDGMENT PRIOR TO EXECUTION IF IT IS A MAJOR CONTRACT, OR (B)
SHALL CONTAIN A DEPOSIT WHICH IS CUSTOMARY FOR SIMILAR MATERIALS OR FF&E, AS
APPLICABLE, IN SIMILAR PROJECTS AS THE PROJECT (OR SUCH DEPOSIT IS OTHERWISE
REASONABLY ACCEPTABLE TO LENDER), AND (II) AN INVOICE FOR PAYMENT OF SUCH
DEPOSIT FROM THE APPLICABLE CONTRACTOR OR SUBCONTRACTOR.
ADDITIONALLY,
BORROWERS SHALL NOT HAVE OUTSTANDING AT ANY ONE TIME AGGREGATE DEPOSITS
EXCEEDING $5,000,000.00 (LENDER AGREEING THAT IT SHALL NOT UNREASONABLY WITHHOLD
ITS CONSENT TO AN INCREASE OF SUCH LIMIT), IT BEING ACKNOWLEDGED AND AGREED BY