EACH AS REASONABLY VERIFIED AND APPROVED BY CONSTRUCTION
CONSULTANT.
3.1.13.
CHANGE ORDERS.
(A)
BORROWER SHALL PROVIDE TO LENDER AND CONSTRUCTION CONSULTANT
COPIES OF ALL ORDERS, DOCUMENTS OR REVISIONS TO PLANS AND SPECIFICATIONS
REFLECTING CHANGE ORDERS FOR THE PROJECT, REGARDLESS OF WHETHER THE PRIOR
APPROVAL BY LENDER AND/OR CONSTRUCTION CONSULTANT OF ANY SUCH ORDER, DOCUMENT OR
REVISION IS REQUIRED PURSUANT TO THE TERMS HEREOF.
(B)
BORROWER SHALL NOT REQUEST, INITIATE, AGREE TO, ACCEPT, CAUSE OR
SUFFER DIRECTLY OR INDIRECTLY ANY MATERIAL CHANGE ORDER (AS DEFINED BELOW)
WITHOUT LENDER'S PRIOR WRITTEN CONSENT,
89
NOT TO BE UNREASONABLY WITHHELD.
ANY CHANGE ORDER OTHER THAN A MATERIAL CHANGE
ORDER SHALL NOT REQUIRE LENDER'S CONSENT.
NO CHANGE ORDER, WHETHER OR NOT
APPROVED BY LENDER (I) SHALL OBLIGATE LENDER TO INCREASE THE AMOUNT OF THE
FUTURE FUNDING, AND (II) NOR OBLIGATE LENDER TO MAKE ANY ADVANCE TO THE EXTENT
THE SAME WOULD NOT OTHERWISE BE OBLIGATED PURSUANT TO THIS AGREEMENT TO MAKE
SUCH ADVANCE.
BORROWER SHALL SUBMIT TO LENDER AND CONSTRUCTION CONSULTANT
COPIES OF EACH PROPOSED MATERIAL CHANGE ORDER PRIOR TO ENTERING INTO IT,
TOGETHER WITH DOCUMENTATION REASONABLY SATISFACTORY TO LENDER AND CONSTRUCTION
CONSULTANT, SETTING FORTH ALL ADDITIONS AND SUBTRACTIONS THERETOFORE MADE TO OR
FROM THE SCOPE OF THE PROJECT.
LENDER SHALL PROMPTLY REVIEW ALL MATERIAL CHANGE
ORDERS SO SUBMITTED, AND GRANT OR DENY ITS CONSENT WITHIN TEN (10) BUSINESS DAYS
OF BORROWER'S REQUEST THEREFOR; PROVIDED THAT THE REQUEST IS ACCOMPANIED BY A
NOTICE, WHICH PROVIDES IN UPPER CASE BOLD-FACED TYPE:
"THIS IS A REQUEST FOR AN
APPROVAL WITH RESPECT TO A MATERIAL CHANGE ORDER.
IF LENDER FAILS TO RESPOND
WITHIN 10 BUSINESS DAYS OF THE EFFECTIVENESS OF THIS NOTICE, THE REQUESTED
ACTION WITH RESPECT TO THE MATERIAL CHANGE ORDER WILL BE DEEMED APPROVED", IF
LENDER DOES NOT RESPOND DURING SUCH TEN (10) BUSINESS DAY PERIOD, IT SHALL BE
DEEMED TO HAVE APPROVED SUCH MATERIAL CHANGE ORDERS.
IF ANY MATERIAL CHANGE
ORDER SHALL REQUIRE THE CONSENT OR APPROVAL OF ANY THIRD PARTY, BORROWER SHALL
PROVIDE LENDER WITH WRITTEN EVIDENCE OF SUCH CONSENT OR APPROVAL.
BORROWER
SHALL SUBMIT TO LENDER AND CONSTRUCTION CONSULTANT COPIES OF ALL CHANGE ORDERS
ENTERED INTO WITH RESPECT TO THE PROJECT WITHIN FIFTEEN (15) DAYS AFTER THE SAME
ARE ENTERED INTO (AND IN ANY EVENT CONCURRENTLY WITH ANY ADVANCE REQUEST TO
WHICH SUCH CHANGE ORDER RELATES), IRRESPECTIVE OF WHETHER THE SAME REQUIRE THE
PRIOR APPROVAL OF LENDER AND CONSTRUCTION CONSULTANT PURSUANT TO THIS
AGREEMENT.
NOTHING HEREIN SHALL BE DEEMED TO RESTRICT BORROWER'S ABILITY TO
FUND LINE ITEM INCREASES WITH EQUITY PAYMENTS, PROVIDED THAT LENDER'S APPROVAL
IS NOT OTHERWISE REQUIRED HEREUNDER.
AS USED HEREIN, A "MATERIAL CHANGE ORDER"
SHALL MEAN ANY CHANGE ORDER WITH RESPECT TO THE RENOVATION PROJECT, THAT
TOGETHER WITH ALL OTHER CHANGE ORDERS THERETOFORE ENTERED INTO WITH RESPECT TO
THE RENOVATION PROJECT, INCREASES (I) ANY "DIVISION" OF LINE ITEMS IN THE
RENOVATION PROJECT BUDGET IN EXCESS OF 10% OF THE AMOUNT OF SUCH "DIVISION" OF
LINE ITEMS ON THE DATE HEREOF, OR (II) THE AGGREGATE PROJECT COSTS SET FORTH IN