Common use of Approval of Change Orders; Cost Savings Clause in Contracts

Approval of Change Orders; Cost Savings. Borrower shall permit no deviations from the Plans and Specifications during construction without the prior approval of Lender; provided, however, that Borrower may make changes without Lender’s prior written approval so long as (a) with respect to any Major Contract or Major Subcontract, such changes do not exceed two percent (2%) of the amount of the applicable contract, (b) such changes do not exceed in the aggregate $250,000.00, provided that changes which have been approved by Lender either before or after such changes have been made shall be disregarded in calculating said $250,000.00 threshold, (c) such changes do not cause any line item in the Building Loan Budget to be exceeded (after taking into account use of the Contingency Reserve to the extent permitted under Section 2.1.7, reallocations under this Section 5.1.33 and other reallocations approved by Lender in its sole discretion), (d) Borrower uses reasonable efforts to deliver to Lender and Construction Consultant prior notice of such change orders or, if Borrower is unable to deliver prior notice, Borrower shall submit to Lender and Construction Consultant copies of all change orders entered into with respect to the Project Improvements within fifteen (15) days after the same are entered into, irrespective of whether the same require the prior approval of Lender and Construction Consultant pursuant to this Agreement, (e) such changes will not materially change the gross square feet or the net rentable square feet of commercial space to be contained in the Improvements, or the basic layout of the Improvements, or involve the use of materials, furniture, fixtures and equipment that will not be at least equal in quality to the materials, furniture, fixtures and equipment originally specified in or required by the approved Plans and Specifications, and (f) such change will not prevent Borrower from completing the Project Improvements by the Required Completion Date. The foregoing to the contrary notwithstanding, Borrower may allocate cost savings actually achieved and verifiable in any line item of the Building Loan Budget to other line items of the Building Loan Budget, provided that if such costs savings are being allocated from a line item of the Building Loan Budget, (i) such Building Loan Budget line item has a firm contract or sub-contract in place, (ii) the work has commenced and is proceeding in accordance with the Construction Schedule and (iii) the Construction Consultant is satisfied with said contract or sub-contract, including, without limitation, with regard to the scope of said contract or sub-contract.

Approval of Change Orders; Cost Savings. Borrower shall permit no deviations from the Plans and Specifications during construction without the prior approval of Lender; provided, however, that Borrower may make changes without Lender’s prior written approval so long as (a) with respect to any Major Contract or Major Subcontract, such changes do not exceed two percent (2%) of the amount of the applicable contract, (b) such changes do not exceed in the aggregate $250,000.00, provided that changes which have been approved by Lender either before or after such changes have been made shall be disregarded in calculating said $250,000.00 threshold, (c) such changes do not cause any line item in the Building Loan Budget to be exceeded (after taking into account use of the Contingency Reserve to the extent permitted under Section 2.1.7, reallocations under this Section 5.1.33 and other reallocations approved by Lender in its sole discretion), (d) Borrower uses reasonable efforts to deliver to Lender and Construction Consultant prior notice of such change orders or, if Borrower is unable to deliver prior notice, Borrower shall submit to Lender and Construction Consultant copies of all change orders entered into with respect to the Project Improvements within fifteen (15) days after the same are entered into, irrespective of whether the same require the prior approval of Lender and Construction Consultant pursuant to this Agreement, (e) such changes will not materially change the gross square feet or the net rentable square feet of commercial space to be contained in the Improvements, or the basic layout of the Improvements, or involve the use of materials, furniture, fixtures and equipment that will not be at least equal in quality to the materials, furniture, fixtures and equipment originally specified in or required by the approved Plans and Specifications, and (f) such change will not prevent Borrower from completing the Project Improvements by the Required Completion Date. The foregoing to the contrary notwithstanding, Borrower may allocate cost savings actually achieved and verifiable in any line item of the Building Loan Budget to other line items of the Building Loan Budget, provided that if such costs savings are being allocated from a line item of the Building Loan Budget, (i) such Building Loan Budget line item has a firm contract or sub-contract in place, (ii) the work has 91 commenced and is proceeding in accordance with the Construction Schedule and (iii) the Construction Consultant is satisfied with said contract or sub-contract, including, without limitation, with regard to the scope of said contract or sub-contract.

Approval of Change Orders; Cost Savings. Borrower shall To permit no deviations from the Plans and Specifications (except for non-material deviations therefrom that do not adversely affect the use of the Improvements for their intended purpose or their value) during construction without the prior approval of Lenderthe Agent; provided, however, that the Borrower may make changes without Lenderthe Agent’s prior written approval so long as (a) with respect to any Major Contract or Major Subcontract, such changes do not exceed two percent (2%) of the amount of the applicable contract$250,000 each, (b) such changes do not exceed in the aggregate $250,000.00, provided that changes which have been approved by Lender either before or after such changes have been made shall be disregarded in calculating said $250,000.00 threshold1,000,000, (c) such changes do not cause any line item in the Building Loan Approved Construction Budget to be exceeded (after taking into account use of the Construction Contingency Reserve to the extent permitted under Section 2.1.72.1.4, reallocations under Section 2.1.3 and 2.1.4 and this Section 5.1.33 7.1.9 and other reallocations approved by Lender the Agent in its sole discretion), ) and (d) the Borrower uses commercially reasonable efforts to deliver to Lender and Construction Consultant the Agent prior notice of such change orders or, if the Borrower is unable to deliver prior notice, the Borrower delivers such notice as soon thereafter as is reasonably practicable. Notwithstanding the foregoing, the Borrower shall submit be allowed to Lender and Construction Consultant copies of all change orders entered into with respect to make nonmaterial field changes which do not affect the Project scope, quality or character, or increase the cost of, the Improvements within fifteen (15) days after without the same are entered intoAgent’s, irrespective of whether the same require the prior approval of Lender and Construction Consultant pursuant to this Agreement, (e) such changes will not materially change the gross square feet or the net rentable square feet of commercial space to be contained in the ImprovementsLenders’, or the basic layout of the Improvements, Construction Consultant’s consent or involve the use of materials, furniture, fixtures and equipment that will not be at least equal in quality to the materials, furniture, fixtures and equipment originally specified in or required by the approved Plans and Specifications, and (f) such change will not prevent Borrower from completing the Project Improvements by the Required Completion Dateapproval. The foregoing to the contrary notwithstandingnotwithstanding and in all events, the Borrower may allocate verifiable cost savings actually achieved and verifiable in any line item of the Building Loan Approved Construction Budget to other line items of such Approved Construction Budget which the Building Loan BudgetBorrower reasonably determines are underfunded (verifiable cost savings may be allocated to any other line items of the Approved Construction Budget in the event that no underfunding exists); provided, provided however, that if such costs savings are being allocated from a to an underfunded line item of the Building Loan Budget, Approved Construction Budget (i) such Building Loan Budget underfunded line item has a firm contract or sub-contract subcontract in place, place and (ii) the applicable work has commenced and is proceeding in accordance with the Construction Schedule and (iii) the Construction Consultant is satisfied with said contract or sub-contract, including, without limitation, with regard to the scope of said contract or sub-contractSchedule.

Approval of Change Orders; Cost Savings. Borrower Borrowers shall permit no deviations and shall cause Mortgage Borrowers to permit no deviations from the Plans and Specifications during construction without the prior written approval of Lender, which may be withheld in the sole discretion of Lender; provided, however, that Borrower Borrowers may allow Mortgage Borrowers to make changes without Lender’s prior written approval so long as (a) with respect to any Major Contract or Major Subcontract, such changes do individual change will not exceed two percent (2%) result in a change in the cost of the amount Project Improvements of the applicable contract, (b) greater than One Hundred Thousand and No/100 Dollars $100,000.00 and such changes do not exceed in aggregate the aggregate lesser of (x) ten percent (10%) of the total amount of the applicable contract or (y) Five Hundred Thousand and No/100 Dollars ($250,000.00500,000.00), provided that changes which have been approved by Lender either before or after such changes have been made shall be disregarded in calculating said $250,000.00 threshold, (cb) such changes do not cause any line item in the Building Loan Budget to be exceeded (after taking into account use of the Building Loan Contingency Reserve (Hard Costs) to the extent permitted under Section 2.1.7, reallocations under this Section 5.1.33 4.1.25 and other reallocations approved by Lender in its sole discretion), (dc) Borrower uses Borrowers use reasonable efforts to deliver or to cause to be delivered to Lender and the Construction Consultant prior notice of such change orders or, if Borrower is Borrowers are unable to deliver prior notice, Borrower Borrowers shall submit to Lender and the Construction Consultant copies of all change orders entered into with respect to the Project Improvements within fifteen (15) days after the same are entered into, irrespective of whether the same require the prior approval of Lender and the Construction Consultant pursuant to this Agreement or the Building Loan Agreement, (ed) such changes will not materially change the gross square feet or the net rentable square feet of commercial space to be contained in the Improvements or the net rentable or saleable square feet of residential space to be contained in the Improvements, or the basic layout of the Improvements, or involve the use of materials, furniture, fixtures and equipment that will not be at least equal in quality to the materials, furniture, fixtures and equipment originally specified in or required by the approved Plans and Specifications, Specifications and (fe) such change will changes do not prevent Borrower from completing adversely affect either the anticipated Gross Sales Proceeds to be received for all Units in the aggregate or the time frame within which Mortgage Borrowers are expected to sell all Units at the Property, which time frame is to be submitted by Borrowers to Lender and approved by Lender. Borrowers may allow Mortgage Borrowers to make non-material field changes that do not affect the scope of the Project Improvements and are otherwise permitted by the Required Completion Dateother provisions of this Section. The foregoing to the contrary notwithstanding, Borrower Borrowers may allow Mortgage Borrowers allocate cost savings actually achieved and verifiable in any line item of the Building Loan Budget to other line items of the Building Loan Budget, provided that if such costs savings are being allocated from a line item of the Building Loan Budget, (i) such Building Loan Budget line item has a firm contract or sub-contract subcontract in place, (ii) the work has commenced and is proceeding in accordance with the Construction Schedule Schedule, and (iii) the Construction Consultant is and Lender are satisfied with said contract or sub-contractsubcontract, including, without limitation, with regard to the scope of said contract or sub-contract.

Approval of Change Orders; Cost Savings. Borrower shall permit and cause the Property Owner to permit no deviations from the Plans and Specifications (except for non-material deviations therefrom that do not adversely affect the use of the Improvements for their intended purpose or their value) during construction without the prior approval of Lenderthe Agent; provided, however, that the Borrower may make changes without Lenderthe Agent’s prior written approval so long as (a) with respect to any Major Contract or Major Subcontract, such changes do not result in changes in the Construction Costs that exceed two percent (2%) of the amount of the applicable contract$250,000 each, (b) such changes do not result in changes in the Construction Costs that exceed in the aggregate $250,000.00, provided that changes which have been approved by Lender either before or after such changes have been made shall be disregarded in calculating said $250,000.00 threshold1,000,000, (c) such changes do not cause any line item in the Building Loan Approved Construction Budget to be exceeded (after taking into account use of the portion of the Construction Contingency Reserve to the extent permitted to be applied thereto under Section 2.1.7Sections 2.1.3 and 2.1.4, reallocations under this Section 5.1.33 7.1.10 and other reallocations approved by Lender the Agent in its sole discretion), (d) the Borrower uses commercially reasonable efforts to deliver to Lender and Construction Consultant the Agent prior notice of such change orders changes or, if the Borrower is unable to deliver prior notice, the Borrower shall submit to Lender delivers such notice as soon thereafter as is reasonably practicable and Construction Consultant copies of all change orders entered into with respect to the Project Improvements within fifteen (15) days after the same are entered into, irrespective of whether the same require the prior approval of Lender and Construction Consultant pursuant to this Agreement, (e) such changes will do not materially change violate the gross square feet terms of any Approved Lease. Notwithstanding the foregoing, the Borrower shall be allowed to make nonmaterial field changes which do not affect the scope, quality or character, or increase the cost, of the Improvements without the Agent’s or the net rentable square feet Construction Consultant’s consent or approval (provided that no such changes shall be permitted if such changes would violate the terms of commercial space to be contained in the Improvements, or the basic layout of the Improvements, or involve the use of materials, furniture, fixtures and equipment that will not be at least equal in quality to the materials, furniture, fixtures and equipment originally specified in or required by the approved Plans and Specifications, and (f) such change will not prevent Borrower from completing the Project Improvements by the Required Completion Dateany Approved Lease). The foregoing to the contrary notwithstandingnotwithstanding and in all events, the Borrower may allocate verifiable cost savings actually achieved and verifiable (as determined by the Construction Consultant) in any line item of the Building Loan Approved Construction Budget to other line items of such Approved Construction Budget which the Building Loan BudgetBorrower reasonably determines are underfunded (it being agreed that verifiable cost savings, provided as determined by the Construction Consultant, may be allocated to any other line items of the Approved Construction Budget in the event that no underfunding exists); provided, however, that if such costs cost savings are being allocated from a to an underfunded line item of the Building Loan Budget, Approved Construction Budget (i) such Building Loan Budget underfunded line item has a firm contract or sub-contract subcontract in place, place and (ii) the applicable work has commenced and is proceeding in accordance with the Construction Schedule and (iii) the Construction Consultant is satisfied with said contract or sub-contract, including, without limitation, with regard to the scope of said contract or sub-contractSchedule.