Common use of Loan In Balance Clause in Contracts

Loan In Balance. As used herein, a “Shortfall” shall mean, as to any Line Item in the Development Budget as of any date, the amount determined by Lender, in Lender’s sole but reasonable judgment, by which (A) the cost of completing or satisfying such Line Item, exceeds (B) the remaining undisbursed portion of the Loan allocated to such Line Item in the Development Budget plus any sums deposited with Lender pursuant to this Section 2.1.10 to pay for such Line Item and not previously disbursed plus any Reserve Funds to the extent such Reserve Funds are available hereunder for the payment of such Line Item. From time to time and at any time during the Construction Period, Lender shall have the right, but not the obligation, to notify Borrower that it has determined a Shortfall exists as to any one or more Line Items. If Lender at any time shall so notify Borrower, Borrower shall, at its option within five (5) days of Lender’s notification as aforesaid, either: (i) deposit with Lender an amount equal to such Shortfall, which Lender disburse to Borrower to the satisfaction of the costs of such Line Item prior to advancing any further Loan proceeds on account of such costs; (ii) post an irrevocable standby Letter of Credit in the amount of such Shortfall, in favor of Lender; (iii) to the extent permitted under Sections 2.1.7 hereof and 5.1.33 of the Building Loan Agreement, and following the satisfaction of the Initial Advance Conditions allocate the Contingency Reserve, with respect to the Line Item(s) in question, to the Shortfall, and provided, further that the amount of the remaining Contingency Reserve for such Line Item(s) (following the allocation to the Shortfall) is sufficient for such Line Item(s), as determined by Lender in its sole discretion; and (iv) to the extent permitted under Section 5.1.33 of the Building Loan Agreement, and then only following the satisfaction of the Initial Advance Conditions, reallocate cost savings from the Development Budget in respect of the Loan (or other reallocations which are approved by Lender, in its sole discretion) in accordance with the terms of this Agreement, but only to the extent such cost savings can be allocated to the related Line Items. Borrower hereby agrees that Lender shall have a lien on and security interest in, for the benefit of Lender, any sums deposited pursuant to clause (i) above and that Borrower shall have no right to withdraw any such sums except for the payment of the aforesaid costs as approved by Lender. Lender shall have no obligation to make any further Advances of proceeds of the Loan as to any Line Item until the sums required to be deposited pursuant to clause (i) above as to such Line Item have been exhausted, or until Borrower has posted an irrevocable standby Letter of Credit pursuant to clause (iii) above, as the case may be, and, in any such case, the Loan is back “in balance”. Any such sums not used as provided in said clause (i) shall be released to Borrower when and to the extent that Lender reasonably determines that the amount thereof is more than the excess, if any, of the remaining Project-Related Costs over the undisbursed balance of the Loan, provided, however, that should an Event of Default occur, Lender, in its sole discretion, may apply such amounts either to the remaining Project-Related Costs or to the immediate reduction of outstanding principal and/or interest under the Note.

Loan In Balance. As used herein, a “Shortfall” shall mean, as to any Line Item in the Development Budget as of any date, the amount determined by Lender, in Lender’s sole but reasonable judgment, by which (A) the cost of completing or satisfying such Line Item, exceeds (B) the remaining undisbursed portion of the Loan allocated to such Line Item in the Development Budget plus any sums deposited with Lender pursuant to this Section 2.1.10 to pay for such Line Item and not previously disbursed plus any Reserve Funds to the extent such Reserve Funds are available hereunder for the payment of such Line Item. From time to time and at any time during the Construction Period, Lender shall have the right, but not the obligation, to notify Borrower that it has determined a Shortfall exists as to any one or more Line Items. If Lender at any time shall so notify Borrower, Borrower shall, at its option within five (5) days of Lender’s notification as aforesaid, either: (i) deposit with Lender an amount equal to such Shortfall, which Lender disburse to Borrower to the satisfaction of the costs of such Line Item prior to advancing any further Loan proceeds on account of such costs; (ii) post an irrevocable standby Letter of Credit in the amount of such Shortfall, in favor of Lender; (iii) to the extent permitted under Sections 2.1.7 hereof and 5.1.33 of the Building Loan Agreement5.1.33, and following the satisfaction of the Initial Advance Conditions allocate the Contingency Reserve, with respect to the Line Item(s) in question, to the Shortfall, and provided, further that the amount of the remaining Contingency Reserve for such Line Item(s) (following the allocation to the Shortfall) is sufficient for such Line Item(s), as determined by Lender in its sole discretion; and (iv) to the extent permitted under Section 5.1.33 of the Building Loan Agreement5.1.33, and then only following the satisfaction of the Initial Advance Conditions, reallocate cost savings from the Development Budget in respect of the Loan (or other reallocations which are approved by Lender, in its sole discretion) in accordance with the terms of this Agreement, but only to the extent such cost savings can be allocated to the related Line Items. Borrower hereby agrees that Lender shall have a lien on and security interest in, for the benefit of Lender, any sums deposited pursuant to clause (i) above and that Borrower shall have no right to withdraw any such sums except for the payment of the aforesaid costs as approved by Lender. Lender shall have no obligation to make any further Advances of proceeds of the Loan as to any Line Item until the sums required to be deposited pursuant to clause (i) above as to such Line Item have been exhausted, or until Borrower has posted an irrevocable standby Letter of Credit pursuant to clause (iii) above, as the case may be, and, in any such case, the Loan is back “in balance”. Any such sums not used as provided in said clause (i) shall be released to Borrower when and to the extent that Lender reasonably determines that the amount thereof is more than the excess, if any, of the remaining Project-Related Costs over the undisbursed balance of the Loan, provided, however, that should an Event of Default occur, Lender, in its sole discretion, may apply such amounts either to the remaining Project-Related Costs or to the immediate reduction of outstanding principal and/or interest under the Note.

Loan In Balance. As used hereinLender shall not be obligated to make any Advance of Loan proceeds unless and until Borrower has provided Lender with evidence, a “Shortfall” shall meanacceptable to Lender, that the Loan is in Balance, i.e. (a) the undisbursed portion of Loan proceeds allocated to each line item in the Budget, as amended from time to time, is sufficient to complete each such line item, and (b) the then undisturbed portion of the Loan, less an amount equal to the Contingency Reserve, equals or exceeds the amount necessary to pay for all work done and not previously paid for or to be done in connection with the completion of the improvements substantially in accordance with the Plans. The initial amounts of the Reserves have been designated in this Agreement. The required amounts of said Reserves shall decline as costs and payments for which they are maintained are paid therefrom; provided, however, that the amount of any Line Item such Reserve shall never decline below an amount sufficient to pay all costs and payments for which it is maintained which then remain unpaid, as determined by Lender. If any Reserve becomes depleted, such depletion shall not limit Borrower’s obligation hereunder to pay all sums which otherwise would have been payable from such Reserve. Notwithstanding any provision of this Agreement or of the Disbursing Agreement to the contrary, in the Development Budget event that Lender or Borrower determines that the unadvanced balance of Loan proceeds is insufficient to cover any cost allocation set forth on the Sworn Construction Cost Statement, or to fully fund the Reserves, and/or to complete the Project and to pay all costs and expenses of Completion and, combined with Project income, to pay all costs to operate the Project, to pay interest on the Loan, through the Maturity Date, and pay Total Project Costs, all as of any date, the amount reasonably determined by Lender, in Lender’s sole but reasonable judgment, by which (A) it shall notify the cost of completing or satisfying such Line Item, exceeds (B) the remaining undisbursed portion of the Loan allocated to such Line Item in the Development Budget plus any sums deposited with Lender pursuant to this Section 2.1.10 to pay for such Line Item and not previously disbursed plus any Reserve Funds to the extent such Reserve Funds are available hereunder for the payment other party hereto of such Line Item. From time to time determination, and at any time during the Construction Period, Lender shall have the right, but not the obligation, to notify Borrower that it has determined a Shortfall exists as to any one or more Line Items. If Lender at any time shall so notify Borrower, Borrower shall, at its option within five (5) days of Lender’s notification as aforesaidBusiness Days, either: (i) deposit with Lender an amount (or, if requested by Lender, the Title Company) funds equal to such Shortfall, which Lender disburse said insufficiency in order to Borrower bring the Loan back into Balance. Anything to the satisfaction contrary contained in this Section 3.3 notwithstanding, in the event that Borrower is required to deposit balancing funds with Lender hereunder and the Project is thereafter completed with subsequent savings that, had they occurred prior to the requirement of the costs balancing funds, would have rendered all or a portion of such Line Item prior deposit to advancing any further Loan proceeds on account be unnecessary, Borrower shall be entitled to a reimbursement of such costs; the funds deposited equal to the lesser of (iia) post an irrevocable standby Letter of Credit in the amount of such Shortfall, in favor of Lender; subsequent savings or (iiib) to the extent permitted under Sections 2.1.7 hereof and 5.1.33 of the Building Loan Agreement, and following the satisfaction of the Initial Advance Conditions allocate the Contingency Reserve, with respect to the Line Item(s) in question, to the Shortfall, and provided, further that the amount of the remaining Contingency Reserve for such Line Item(s) (following balancing funds deposit. In the allocation event that Borrower generates cash through contributions to the Shortfall) is sufficient for such Line Item(s)capital of Borrower, or through sale of any of the Land with the consent of the Lender (as determined by Lender in its sole discretion; and (iv) to the extent permitted required under Section 5.1.33 of the Building Loan Agreement, and then only following the satisfaction of the Initial Advance Conditions, reallocate cost savings from the Development Budget in respect of the Loan (or other reallocations which are approved by Lender, in its sole discretion) in accordance with the terms 5.12 of this Agreement), but only to the extent such cost savings can be allocated to the related Line Items. Borrower hereby agrees that Lender shall have a lien on and security interest in, for the benefit of Lender, any sums deposited pursuant to clause (i) above and that Borrower shall have no right to withdraw any such sums except for the payment of the aforesaid costs as approved by Lender. Lender shall have no obligation to make any further Advances of proceeds of the Loan as to any Line Item until the sums required to be deposited pursuant to clause (i) above as to such Line Item have been exhausted, or until Borrower has posted an irrevocable standby Letter of Credit pursuant to clause (iii) above, as the case may be, and, in any such case, the Loan is back “in balance”. Any such sums not used as provided in said clause (i) cash shall be released used, at the Lender’s option, to Borrower when and to reduce the extent that Lender reasonably determines that the amount thereof is more than the excess, if any, of the remaining Project-Related Costs over the undisbursed balance of the Loan, provided, however, that should an Event of Default occur, Lender, in its sole discretion, may apply such amounts either to the remaining Project-Related Costs or to the immediate reduction of outstanding principal and/or interest Principal Balance owing under the Note.

Loan In Balance. As used hereinAgent and the Lenders shall not be obligated to make any advance of Loan proceeds unless and until Borrower has provided Agent with evidence, a “Shortfall” shall meanacceptable to Agent, that the Loan is in balance: i.e., that all remaining unpaid costs of the Property for the remaining period until the Maturity Date, as to any Line Item in the Development Budget as of any date, the amount determined by LenderAgent, in Lender’s its sole but reasonable judgmentdiscretion exercised in good faith, by which (A) including the cost Reserves, do not exceed the sum of completing or satisfying such Line Item, exceeds (B) the remaining undisbursed portion of the Loan allocated to such Line Item in the Development Budget plus any sums deposited with Lender pursuant to this Section 2.1.10 to pay for such Line Item and not previously disbursed plus any Reserve Funds to the extent such Reserve Funds are available hereunder for the payment of such Line Item. From time to time and at any time during the Construction Period, Lender shall have the right, but not the obligation, to notify Borrower that it has determined a Shortfall exists as to any one or more Line Items. If Lender at any time shall so notify Borrower, Borrower shall, at its option within five (5) days of Lender’s notification as aforesaid, either: (i) deposit with Lender an amount equal to such Shortfall, which Lender disburse to Borrower to the satisfaction of the costs of such Line Item prior to advancing any further Loan proceeds on account of such costs; (ii) post an irrevocable standby Letter of Credit in the amount of such Shortfall, in favor of Lender; (iii) to the extent permitted under Sections 2.1.7 hereof and 5.1.33 of the Building Loan Agreement, and following the satisfaction of the Initial Advance Conditions allocate the Contingency Reserve, with respect to the Line Item(s) in question, to the Shortfall, and provided, further that the amount of the Loan proceeds not yet advanced by the Lenders, the remaining Contingency Reserve for such Line Item(s) (following the allocation amount, if any, to the Shortfall) is sufficient for such Line Item(s), as determined by Lender in its sole discretion; and (iv) to the extent permitted under Section 5.1.33 of the Building Loan Agreement, and then only following the satisfaction of the Initial Advance Conditions, reallocate cost savings from the Development Budget be contributed in respect of the Loan (or other reallocations which are approved by LenderEquity Requirement, in its sole discretion) in accordance with and the terms of this Agreement, but only net operating income from the Property reasonably projected to the extent be received during such cost savings can be allocated to the related Line Itemsperiod. Borrower hereby agrees that Lender shall have a lien on and security interest in, for the benefit of Lender, any sums deposited pursuant to clause (i) above and that Borrower shall have no right to withdraw any such sums except for the payment The initial amount of the aforesaid Reserves has been designated in the Sworn Construction Cost Statement. The required amount of said Reserves shall decline as costs as approved by Lender. Lender shall have no obligation to make any further Advances of proceeds of the Loan as to any Line Item until the sums required to be deposited pursuant to clause (i) above as to such Line Item have been exhausted, or until Borrower has posted an irrevocable standby Letter of Credit pursuant to clause (iii) above, as the case may be, and, in any such case, the Loan is back “in balance”. Any such sums not used as provided in said clause (i) shall be released to Borrower when and to the extent that Lender reasonably determines that the amount thereof is more than the excess, if any, of the remaining Project-Related Costs over the undisbursed balance of the Loan, payments for which they are maintained are paid therefrom; provided, however, that should the amount of any such Reserves shall never decline below an Event amount sufficient to pay all costs and payments for which it is maintained which then remain unpaid, as determined by Agent. If the Reserves become depleted, such depletion shall not limit Borrower’s obligation hereunder to pay all sums which otherwise would have been payable from such Reserves. Notwithstanding any provision of Default occur, Lenderthis Agreement to the contrary, in its sole discretionthe event that Agent or Borrower determines in good faith that the Loan is not in balance, may apply it shall notify the other party hereto of such amounts either determination, and Borrower shall, within ten (10) Business Days, deposit with Agent funds equal to said insufficiency in order to bring the remaining Project-Related Costs Loan back into balance. Said funds shall be disbursed by Agent pursuant to and in accordance with the disbursement procedures set forth in this Agreement prior to any advances by Agent or to the immediate reduction Lenders of outstanding principal and/or interest under the Noteadditional Loan proceeds.

Loan In Balance. As used herein(a) At all times prior to repayment of the Loan in full, a “Shortfall” shall mean, as (i) the sum of (A) the undisbursed proceeds from the Loan (net of any unpaid accrued interest on the Loan) allocated to any Line Item each line item in the Development Budget (including any reserve specifically set aside for such line item) plus (B) the aggregate amount of all amounts deposited by Borrower pursuant to Section 5.8(c) (the aggregate amount of such proceeds being hereinafter referred to as of any date, the amount determined by Lender“Available Proceeds”) must be sufficient, in Lender’s sole but reasonable judgmentand absolute determination, by which to pay the unpaid costs and expenses that will be incurred to complete such item, and (Aii) the cost aggregate Available Proceeds must be sufficient, in Lender’s reasonable determination, to pay all Project Costs remaining unpaid and all operating, management and other expenses of completing or satisfying such Line Item, exceeds the Project. (Bb) If Lender determines that (i) the costs and expenses to complete any line item in the Budget exceeds the Available Proceeds allocated therefor, or (ii) the Project Costs remaining undisbursed unpaid and all estimated operating, management and other expenses of the Project, exceed the sum of the Available Proceeds, then the Loan shall be deemed “out of balance” to the extent of such excess. (c) If Lender deems the Loan to be out of balance as aforesaid, Borrower shall, within ten (10) days after written request by Lender, deposit into an account maintained at Lender (and pledged to Lender as additional security for the Loan) an amount equal to the excess amount or amounts determined pursuant to subparagraphs (a) and (b) above of this Section 5.8 (the “Balancing Deposit”‘) The sums thus deposited with Lender will be disbursed by Lender to complete the Work prior to any further disbursement of Loan proceeds. If such deposit is not made within such time, an Event of Default shall be deemed to have occurred. No interest shall be payable to Borrower on the amounts so deposited pursuant to this subparagraph. Anything to the contrary contained in this Section 5.8 notwithstanding, in the event that Borrower is required to deposit the Balancing Deposit and the Project is thereafter completed with subsequent savings that, had said savings occurred prior to the requirement of the Balancing Deposit, would have rendered all or a portion of the Balancing Deposit to be unnecessary, Borrower shall be entitled to a reimbursement from Lender equal to the lesser of (a) the amount of such subsequent savings, and (b) the amount of the Balancing Deposit. (d) Lender shall not be required to disburse any portion of the Loan allocated to such Line Item in the Development Budget plus any sums deposited with Lender pursuant to this Section 2.1.10 to pay for such Line Item and not previously disbursed plus any Reserve Funds to the extent such Reserve Funds are available hereunder for the payment of such Line Item. From time to time and at any time during the Construction Period, Lender shall have the right, but not the obligation, to notify Borrower that it has determined a Shortfall exists as to any one or more Line Items. If Lender at any time shall so notify Borrower, Borrower shall, at its option within five (5) days of Lender’s notification as aforesaid, either: (i) deposit with Lender an amount equal to such Shortfall, which Lender disburse to Borrower to the satisfaction of the costs of such Line Item prior to advancing any further Loan proceeds on account of such costs; (ii) post an irrevocable standby Letter of Credit in the amount of such Shortfall, in favor of Lender; (iii) to the extent permitted under Sections 2.1.7 hereof and 5.1.33 of the Building Loan Agreement, and following the satisfaction of the Initial Advance Conditions allocate the Contingency Reserve, with respect to the Line Item(s) in question, to the Shortfall, and provided, further that the amount of the remaining Contingency Reserve for such Line Item(s) (following the allocation to the Shortfall) is sufficient for such Line Item(s), as determined by Lender in its sole discretion; and (iv) to the extent permitted under Section 5.1.33 of the Building Loan Agreement, and then only following the satisfaction of the Initial Advance Conditions, reallocate cost savings from the Development Budget in respect of the Loan (or other reallocations which are approved by Lender, in its sole discretion) in accordance with the terms of this Agreement, but only to the extent such cost savings can be allocated to the related Line Items. Borrower hereby agrees that Lender shall have a lien on and security interest in, for the benefit of Lender, any sums deposited pursuant to clause (i) above and that Borrower shall have no right to withdraw any such sums except for the payment of the aforesaid costs as approved by Lender. Lender shall have no obligation to make any further Advances of proceeds of the Loan as to any Line Item until the sums required to be deposited pursuant to clause (i) above as to such Line Item have been exhausted, or until Borrower has posted an irrevocable standby Letter of Credit pursuant to clause (iii) above, as the case may be, and, in any such case, the Loan is back “in out of balance”. Any such sums not used as provided in said clause (i) shall ” or if the requested disbursement would cause the Loan to be released to Borrower when and to the extent that Lender reasonably determines that the amount thereof is more than the excess, if any, “out of the remaining Project-Related Costs over the undisbursed balance of the Loan, provided, however, that should an Event of Default occur, Lender, in its sole discretion, may apply such amounts either to the remaining Project-Related Costs or to the immediate reduction of outstanding principal and/or interest under the Notebalance.” 5.9

Loan In Balance. As used hereinBanks shall not be obligated to make any Advance on the Real Estate Loan proceeds unless and until X.Xxx has provided Administrative Bank with evidence reasonably acceptable to Administrative Bank that the Real Estate Loan is “In Balance”. For purposes of this Agreement, the term “In Balance” means that (a) X.Xxx has paid, in cash, costs of the Project shown in the Budget, equal to at least the amount of item (i) under X.Xxx’s Equity (not including any payments to a “Shortfall” shall mean, Related Party that Administrative Bank does not permit to be included as a portion of X.Xxx’s Equity); (b) as to any Line Item line item in the Development Budget Budget, all remaining unpaid costs of completing such line item, as of any datedetermined by Administrative Bank , do not exceed the amount determined by Lender, in Lender’s sole but reasonable judgment, by which (A) the cost of completing or satisfying such Line Item, exceeds (B) the remaining undisbursed portion of the Real Estate Loan proceeds allocated to such Line Item line item, as reflected in the Development Budget Budget, and not yet advanced by Banks (plus any sums deposited with Lender pursuant to this Section 2.1.10 to pay for such Line Item and not previously disbursed plus any Reserve Funds unused contingency amount in the Budget that may be applied by X.Xxx at its discretion); (c) as to the extent such Reserve Funds are available hereunder for Project, all remaining unpaid cost of construction of the payment Project, as reasonably determined by Administrative Bank do not exceed the amount of the Real Estate Loan proceeds not yet advanced by Banks plus item (ii) under X.Xxx’s Equity; and (d) X.Xxx is in compliance with the Loan to Value Requirement as established by the most recent Bank Approved Appraisal required by this Agreement. Notwithstanding any provision of this Agreement to the contrary, in the event that Administrative Bank or X.Xxx reasonably determines that the unadvanced balance of the Real Estate Loan proceeds plus item (ii) in X.Xxx’s Equity is insufficient to (i) cover any cost allocation set forth on the Budget, and (ii) pay all costs and expenses of Completion, it shall notify the other parties hereto of such Line Item. From time to time determination, and at any time during the Construction Period, Lender shall have the right, but not the obligation, to notify Borrower that it has determined a Shortfall exists as to any one or more Line Items. If Lender at any time shall so notify Borrower, Borrower X.Xxx shall, at its option within five (5) days Business Days following demand made to X.Xxx, deposit with Administrative Bank funds equal to said insufficiency in order to bring the Real Estate Loan back In Balance. In addition, in the event there is an increase in any cost category line item of Lender’s notification as aforesaidthe Budget, either: that is not to be funded through a re-allocation of the amounts set forth in the Budget that is permitted hereby, X.Xxx shall, within five (5) Business Days following demand made to X.Xxx, deposit with Administrative Bank funds in an amount necessary to bring said line item back “In Balance.” All sums so deposited shall be advanced by Administrative Bank to pay costs of the Project in the same manner as, and prior to, further Advances on the Real Estate Loan proceeds hereunder. In the event that (i) deposit with Lender an amount equal funds are deposited by X.Xxx pursuant to such Shortfallthis Section 3.5, which Lender disburse to Borrower to the satisfaction of the costs of such Line Item prior to advancing any further Loan proceeds on account of such costs; (ii) post an irrevocable standby Letter those funds are used to achieve Completion, and (iii) not all of Credit the Real Estate Commitment is advanced to achieve Completion, X.Xxx may request in writing a final Advance on the Real Estate Loan prior to Conversion in the amount of such Shortfall, in favor the lesser of Lender; (iiix) all amounts deposited pursuant to this Section 3.5 and used to achieve Completion and (y) the extent permitted under Sections 2.1.7 hereof and 5.1.33 of the Building Loan Agreement, and following the satisfaction of the Initial Advance Conditions allocate the Contingency Reserve, with respect to the Line Item(s) in question, to the Shortfall, and provided, further that the remaining undisbursed amount of the remaining Contingency Reserve Real Estate Loan. Notwithstanding anything to the contrary herein or in any other Loan Document, such amounts may be distributed by X.Xxx to Overstock if the requirements for such Line Item(s) (following the allocation to the Shortfall) is sufficient for such Line Item(s), as determined by Lender in its sole discretion; and (iv) to the extent permitted a distribution under Section 5.1.33 of 5.22 are met. The Administrative Bank agrees to provide to X.Xxx on request, the Building Loan Agreement, and then only following calculations used by the satisfaction of the Initial Advance Conditions, reallocate cost savings from the Development Budget in respect of the Loan (or other reallocations which are approved by Lender, in its sole discretion) in accordance with the terms of this Agreement, but only to the extent such cost savings can be allocated to the related Line Items. Borrower hereby agrees that Lender shall have a lien on and security interest in, for the benefit of Lender, any sums deposited pursuant to clause (i) above and that Borrower shall have no right to withdraw any such sums except for the payment of the aforesaid costs as approved by Lender. Lender shall have no obligation to make any further Advances of proceeds of the Loan as to any Line Item until the sums required to be deposited pursuant to clause (i) above as to such Line Item have been exhausted, or until Borrower has posted an irrevocable standby Letter of Credit pursuant to clause (iii) above, as the case may be, and, Administrative Bank in any such case, determination that the Real Estate Loan is back not “in balanceIn Balance.”. Any such sums not used as provided in said clause (i) shall be released to Borrower when and to the extent that Lender reasonably determines that the amount thereof is more than the excess, if any, of the remaining Project-Related Costs over the undisbursed balance of the Loan, provided, however, that should an Event of Default occur, Lender, in its sole discretion, may apply such amounts either to the remaining Project-Related Costs or to the immediate reduction of outstanding principal and/or interest under the Note.

Loan In Balance. As used herein, a “Shortfall” shall mean, as to any Line Item in the Development Budget as of any date, the amount determined by Lender, in Lender’s sole but reasonable judgment, by which (A) the cost of completing or satisfying such Line Item, exceeds (B) the remaining undisbursed portion of the Loan allocated to such Line Item in the Development Budget plus any sums deposited with Lender pursuant to this Section 2.1.10 to pay for such Line Item and not previously disbursed plus any Reserve Funds to the extent such Reserve Funds are available hereunder for the payment of such Line Item. From time to time and at any time during the Construction Period, Lender shall have the right, but not the obligation, to notify Borrower that it has determined a Shortfall exists as to any one or more Line Items. If Lender at any time shall so notify Borrower, Borrower shall, at its option within five (5) days of Lender’s notification as aforesaid, either: (i) deposit with Lender an amount equal to such Shortfall, which Lender disburse to Borrower to the satisfaction of the costs of such Line Item prior to advancing any further Loan proceeds on account of such costs; (ii) post an irrevocable standby Letter of Credit in the amount of such Shortfall, in favor of Lender; (iii) to the extent permitted under Sections 2.1.7 hereof and 5.1.33 of the Building Loan Agreement, and following the satisfaction of the Initial Advance Conditions allocate the Contingency Reserve, with respect to the Line Item(s) in question, to the Shortfall, and provided, further that the amount of the remaining Contingency Reserve for such Line Item(s) (following the 8 allocation to the Shortfall) is sufficient for such Line Item(s), as determined by Lender in its sole discretion; and (iv) to the extent permitted under Section 5.1.33 of the Building Loan Agreement, and then only following the satisfaction of the Initial Advance Conditions, reallocate cost savings from the Development Budget in respect of the Loan (or other reallocations which are approved by Lender, in its sole discretion) in accordance with the terms of this Agreement, but only to the extent such cost savings can be allocated to the related Line Items. Borrower hereby agrees that Lender shall have a lien on and security interest in, for the benefit of Lender, any sums deposited pursuant to clause (i) above and that Borrower shall have no right to withdraw any such sums except for the payment of the aforesaid costs as approved by Lender. Lender shall have no obligation to make any further Advances of proceeds of the Loan as to any Line Item until the sums required to be deposited pursuant to clause (i) above as to such Line Item have been exhausted, or until Borrower has posted an irrevocable standby Letter of Credit pursuant to clause (iii) above, as the case may be, and, in any such case, the Loan is back “in balance”. Any such sums not used as provided in said clause (i) shall be released to Borrower when and to the extent that Lender reasonably determines that the amount thereof is more than the excess, if any, of the remaining Project-Related Costs over the undisbursed balance of the Loan, provided, however, that should an Event of Default occur, Lender, in its sole discretion, may apply such amounts either to the remaining Project-Related Costs or to the immediate reduction of outstanding principal and/or interest under the Note.

Loan In Balance. As used herein, a “Shortfall” shall mean, as to any Line Item in the Development Budget as of any date, the amount determined by Lender, in Lender’s sole but reasonable judgment, by which (A) the cost of completing or satisfying such Line Item, exceeds (B) the remaining undisbursed portion of the Loan allocated to such Line Item in the Development Budget plus any sums deposited with Lender pursuant to this Section 2.1.10 to pay for such Line Item and not previously disbursed plus any Reserve Funds to the extent such Reserve Funds are available hereunder for the payment of such Line Item. From time to time and at any time during the Construction Period, Lender shall have the right, but not the obligation, to notify Borrower that it has determined a Shortfall exists as to any one or more Line Items. If Lender at any time shall so notify Borrower, Borrower shall, at its option within five (5) days of Lender’s notification as aforesaid, either: (i) deposit with Lender an amount equal to such Shortfall, which Lender disburse to Borrower to the satisfaction of the costs of such Line Item prior to advancing any further Loan proceeds on account of such costs; (ii) post an irrevocable standby Letter of Credit in the amount of such Shortfall, in favor of Lender; (iii) to the extent permitted under Sections 2.1.7 hereof and 5.1.33 of the Building Loan Agreement5.1.33, and following the satisfaction of the Initial Advance Conditions allocate the Contingency Reserve, with respect to the Line Item(s) in question, to the Shortfall, and provided, further that the amount of the remaining Contingency Reserve for such Line Item(s) (following the allocation to the Shortfall) is sufficient for such Line Item(s), as determined by Lender in its sole discretion; and (iv) to the extent permitted under Section 5.1.33 of the Building Loan Agreement5.1.33, and then only following the satisfaction of the Initial Advance Conditions, reallocate cost savings from the Development Budget in respect of the Loan (or other reallocations which are approved by Lender, in its sole discretion) in accordance with the terms of this Agreement, but only to the extent such cost savings can be allocated to the related Line Items. Borrower hereby agrees that Lender shall have a lien on and security interest in, for the benefit of Lender, any sums deposited pursuant to clause (i) above and that Borrower shall have no right to withdraw any such sums except for the payment of the aforesaid costs as approved by Lender. Lender shall have no obligation to make any further Advances of proceeds of the Loan as to any Line Item until the sums required to be deposited pursuant to clause (i) above as to such Line Item have been exhausted, or until Borrower has posted an irrevocable standby Letter of Credit pursuant to clause (iii) above, as the case may be, and, in any such case, the Loan is back “in balance”. Any such sums not used as provided in said clause (i) shall be released to Borrower when and to the extent that Lender reasonably determines that the amount thereof is more than the excess, if any, of the remaining Project-Related Costs over the undisbursed balance of the Loan, provided, however, that should an Event of Default occur, Lender, in its sole discretion, may apply such amounts either to the remaining Project-Related Costs or to the immediate reduction of outstanding principal and/or interest under the Note.38