TAKING INTO ACCOUNT USE
OF THE CONTINGENCY LINE ITEMS TO THE EXTENT PERMITTED UNDER SECTION 3.10 HEREOF,
REALLOCATIONS UNDER SECTION 3.9 HEREOF AND ANY OTHER REALLOCATIONS APPROVED BY
LENDER IN ITS SOLE AND ABSOLUTE DISCRETION), UNLESS BORROWERS ELIMINATE THE
SHORTFALL CAUSED THEREBY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3.12
HEREOF;
(E)
SUCH PROPOSED CHANGE ORDER, TOGETHER WITH
ALL OTHER CHANGES ORDERS IN THE AGGREGATE, SHALL NOT, IN ANY MATERIAL FASHION,
ALTER OR CHANGE (A) ANY STRUCTURAL COMPONENTS, CONSTRUCTION DESIGN, LAYOUT,
SCOPE AND/OR SQUARE FOOTAGE OF THE PROJECT, AND/OR (B) THE STRUCTURAL INTEGRITY,
UTILITY, QUALITY OF MATERIALS AND/OR ASSET QUALITY OF THE PROJECT;
(F)
SUCH PROPOSED CHANGE ORDER, TOGETHER WITH
ALL OTHER CHANGES ORDERS IN THE AGGREGATE, SHALL NOT RESULT IN ANY MATERIAL
ADVERSE DIFFERENCES IN THE CONSTRUCTION SCHEDULE SUBMITTED TO AND APPROVED BY
LENDER; AND
(G)
WITH RESPECT TO ANY CHANGE ORDER WHICH DOES
NOT SATISFY ONE OR MORE OF THE FOREGOING CONDITIONS IN THIS SECTION 3.15, OR
WHICH PURSUANT TO SUCH PROVISIONS REQUIRE LENDER'S APPROVAL, BORROWER SHALL HAVE
SUBMITTED TO LENDER AND THE CONSTRUCTION CONSULTANT, AND THE APPLICABLE MAJOR
CONTRACTORS AND/OR OTHER TRADE CONTRACTORS, THE REQUESTED CHANGE, TOGETHER WITH
CHANGES IN THE PLANS AND SPECIFICATIONS NECESSARY TO ACCOMPLISH SUCH CHANGE, A
CERTIFICATE OF THE ARCHITECT IN REGARD TO SAME, AND A CHANGE ORDER TO THE
APPLICABLE TRADE CONTRACTOR REFLECTING SUCH CHANGE; AND LENDER SHALL HAVE
RECEIVED THE APPROVAL OF SUCH CHANGE BY THE CONSTRUCTION CONSULTANT, AND THE
APPROVED AND SIGNED CHANGE ORDER FROM THE APPLICABLE TRADE CONTRACTOR REFLECTING
THE INCREASE IN COST OF CONSTRUCTION OF THE PROJECT AND/OR THE EXTENSION OF TIME
FOR COMPLETION OF THE WORK TO BE PERFORMED UNDER THE APPLICABLE MAJOR CONTRACT
OR OTHER CONTRACT OR SUBCONTRACT WITH A TRADE CONTRACTOR, AND BORROWERS SHALL
HAVE RECEIVED LENDER'S WRITTEN APPROVAL THEREOF, WHICH APPROVAL SHALL NOT BE
UNREASONABLY WITHHELD.
(H)
IF A CHANGE ORDER IS PERMITTED WITHOUT
LENDER'S APPROVAL AS PROVIDED IN THIS SECTION 3.15 OR IS APPROVED BY LENDER AS
REQUIRED BY THIS SECTION 3.15, THEN THE LOAN BUDGET SHALL BE DEEMED AMENDED BY
SUCH CHANGE ORDER AND ALL REFERENCES TO THE LOAN BUDGET CONTAINED IN THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE DEEMED TO REFER TO THE LOAN
BUDGET AS SO AMENDED.
Section 3.16
Construction Covenants.
(A)
CONSTRUCTION MANAGEMENT AGREEMENT.
THE
CONSTRUCTION OF THE PROJECT SHALL BE MANAGED BY THE CONSTRUCTION MANAGER
PURSUANT TO THE CONSTRUCTION MANAGEMENT AGREEMENT.
THE CONSTRUCTION MANAGER AND
THE CONSTRUCTION MANAGEMENT AGREEMENT SHALL BE SUBJECT TO APPROVAL BY LENDER IN
ITS REASONABLE DISCRETION.
BORROWERS SHALL (I) ENFORCE THE CONSTRUCTION
MANAGEMENT AGREEMENT, (II) WAIVE NONE OF THE MATERIAL OBLIGATIONS OF ANY OF THE
PARTIES THEREUNDER, (III) DO NO ACT WHICH WOULD RELIEVE THE CONSTRUCTION MANAGER
FROM ITS MATERIAL OBLIGATIONS THEREUNDER TO CONSTRUCT THE PROJECT ACCORDING TO
THE PLANS AND
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SPECIFICATIONS, AND (IV) MAKE NO MATERIAL AMENDMENT TO OR CHANGE ORDER UNDER THE
CONSTRUCTION MANAGEMENT AGREEMENT, EXCEPT AS PERMITTED UNDER SECTION 3.15
HEREOF, WITHOUT THE PRIOR APPROVAL OF LENDER IN ITS REASONABLE DISCRETION.
(B)
GENERAL CONTRACT.
THE GENERAL CONTRACTOR