COST SAVING IS
SUBSTANTIATED BY EVIDENCE REASONABLY SATISFACTORY TO AGENT AND CONSTRUCTION
CONSULTANT, THEN BORROWER SHALL HAVE THE RIGHT TO REALLOCATE SUCH COST SAVING TO
THE "COST SAVINGS CONTINGENCY".
WITHOUT THE PRIOR APPROVAL OF AGENT, WHICH
APPROVAL SHALL NOT BE UNREASONABLY WITHHELD, BORROWER SHALL IN NO EVENT OR UNDER
ANY CIRCUMSTANCES HAVE THE RIGHT TO REALLOCATE ANY PORTION OF THE LINE ITEMS FOR
INTEREST, FEES OR OTHER EXPENSES HEREUNDER TO THE COST SAVING CONTINGENCY.
34
(III)
ALLOCATION FROM COST SAVINGS CONTINGENCY.
BORROWER MAY UPON
NOTICE TO AGENT, WITHOUT AGENT'S CONSENT, REVISE THE PROJECT BUDGET FROM TIME TO
TIME TO MOVE AMOUNTS AVAILABLE UNDER ANY LINE ITEM DESIGNATED AS "COST SAVINGS
CONTINGENCY" TO OTHER LINE ITEMS; PROVIDED, HOWEVER, THAT ADEQUATE FUNDS REMAIN
FOR EACH PARTICULAR LINE ITEM AS CERTIFIED BY THE ARCHITECT TO THE BEST OF
ARCHITECT'S KNOWLEDGE AND BELIEF.
(IV)
NEW LINE ITEMS.
WITHOUT THE PRIOR WRITTEN CONSENT OF AGENT IN
EACH INSTANCE, (I) BORROWER SHALL NOT BE PERMITTED TO CREATE ANY NEW LINE ITEM
IN THE PROJECT BUDGET, AND (II) THE LINE ITEM DESIGNATED "GENERAL CONTINGENCY"
OR "COST SAVINGS CONTINGENCY" MAY NOT BE REALLOCATED TO ANY SUCH NEW LINE ITEM.
(V)
PROJECT BUDGET AS OF ADVANCE PERIOD DATE.
A COPY OF AN UPDATED
PROJECT BUDGET SHALL BE PREPARED AS OF EACH ADVANCE PERIOD DATE AND PROMPTLY
DELIVERED TO THE AGENT.
(F)
LOAN BALANCING AND SHORTFALLS.
(I)
AGENT AND LENDERS WILL NOT BE REQUIRED TO MAKE ADVANCES PURSUANT
TO THE PROVISIONS OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS FOR MORE
THAN THE AMOUNT OF ANY LINE ITEM IN THE PROJECT BUDGET, UNLESS COST SAVINGS FROM
OTHER LINE ITEMS HAVE PREVIOUSLY BEEN REALLOCATED IN ACCORDANCE WITH THE TERMS
HEREOF OR ALL OR A PORTION OF THE LINE ITEM DESIGNATED AS "GENERAL CONTINGENCY"
OR "COST SAVINGS CONTINGENCY" HAS BEEN REALLOCATED TO SUCH LINE ITEM IN
ACCORDANCE WITH THE TERMS HEREOF OR ANY OF THE ACTIONS OTHER SET FORTH IN THIS
SECTION 2.1(F).
(II)
IN THE EVENT THAT AGENT SHALL DETERMINE THAT THERE EXISTS ANY
SHORTFALL WITH RESPECT TO ANY ADVANCE AS OF THE ADVANCE PERIOD DATE, AGENT SHALL
DELIVER NOTICE OF SUCH DETERMINATION TO BORROWER AND THEREAFTER UNTIL BORROWER
HAS ADVANCED FUNDS EQUAL TO SUCH SHORTFALL, AGENT AND LENDERS WILL NOT BE
OBLIGATED TO MAKE ANY ADVANCES UNDER THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS AND, WITHIN TEN (10) DAYS OF RECEIPT OF SUCH NOTICE OF DETERMINATION,
BORROWER SHALL TAKE ANY OF THE FOLLOWING ACTION:
(A)
ESTABLISH TO AGENT'S REASONABLE SATISFACTION THAT CONTRARY TO AGENT'S PRIOR
DETERMINATION, NO SHORTFALL THEN EXISTS;
(B)
MOVE ANY LINE ITEM DESIGNATED AS "GENERAL CONTINGENCY" OR "COST SAVING
CONTINGENCY" PURSUANT TO THE TERMS HEREOF SUCH THAT THE AGGREGATE SUM OF THE
SHORTFALL IS REDUCED TO ZERO; OR
(C)
MAKE ONE OR MORE PAYMENTS ON ACCOUNT OF HARD COSTS AND/OR SOFT COSTS, UNTIL
THE SHORTFALL HAS BEEN REDUCED TO ZERO.
(G)
CHANGE ORDERS.
(I)
TO THE EXTENT NOT PREVIOUSLY PROVIDED TO AGENT AND CONSTRUCTION
CONSULTANT, BORROWER SHALL PROVIDE TO AGENT AND CONSTRUCTION