Common use of Completion Costs Clause in Contracts

Completion Costs. (a) The TCR Representatives and the Transferee shall use all commercially reasonable efforts to mutually agree on the Completion Costs (the "ESTIMATED COMPLETION COSTS") anticipated to finalize construction of each of the Real Properties listed on Schedule 3.5(a) (collectively, the "DEVELOPMENT PROPERTIES"). In connection with the foregoing, the TCR Representatives shall provide, and each of the Contributors and the Contributing Partners shall cooperate with the TCR Representatives in the provision of, all reasonable information requested by the Transferee for the purpose of determining the Estimated Completion Costs for each Development Property. If the parties are unable to agree on the Estimated Completion Costs by the twentieth (20th) day prior to the Closing Date, then either party may request binding arbitration of the Estimated Completion Costs by the following method: Wils▇▇ & ▇tri▇▇▇▇▇ ▇▇ hereby appointed by the parties as a neutral arbitrator (the "COMPLETION COST ARBITRATOR") of the Estimated Completion Costs; provided that if, for any reason, Wils▇▇ & ▇tri▇▇▇▇▇ ▇▇ unable to act as Completion Cost Arbitrator, the Transferee and the TCR Representatives shall appoint a mutually acceptable arbitrator to serve in its place. The party electing determination by the Completion Cost Arbitrator shall give written notice to the Completion Cost Arbitrator and the other party of such election. Thereafter, (i) the TCR Representatives shall provide, and each of the Contributors and the Contributing Partners shall cooperate with the TCR Representatives in the provision of, all reasonable information requested by the Completion Cost Arbitrator for the purpose of determining the Estimated Completion Costs for each Development Property and (ii) each party may submit to the Completion Cost Arbitrator its proposed Estimated Completion Costs, together with any materials it wishes to submit in support of its position. The Completion Cost Arbitrator shall, within ten (10) days of such election, then make its own determination of the Estimated Completion Costs, which determination shall be conclusive and binding on all parties to this Agreement. At such time either the parties agree on the Estimated Completion Costs or the Completion Cost Arbitrator determines the Estimated Completion Costs, Schedule 3.5(a) shall be completed by incorporating such Estimated Completion Costs therein. (b) At Closing, an amount equal to the Estimated Completion Costs shall be deducted from the Cash Consideration to be delivered at the Closing. (c) The Transferee shall assume and agree to pay any actual costs to complete the Development Properties in excess of the Estimated Completion Costs. (d) The applicable Contributor and the Transferee shall enter into a master lease of the rental units of each Development Property on the terms set forth in Exhibit VI;

Completion Costs. (a) The TCR Representatives Notwithstanding anything to the contrary herein, if Guarantor shall at any time default in the performance of, or disclaim, its obligations under Section 1 above, or if Lender shall elect, in its sole and the Transferee shall use all commercially reasonable efforts absolute discretion, to mutually agree on demand payment of the Completion Costs (the "ESTIMATED COMPLETION COSTS"as hereinafter defined) anticipated to finalize construction of each of the Real Properties listed on Schedule 3.5(a) (collectivelyby Guarantor, the "DEVELOPMENT PROPERTIES"). In connection with the foregoing, the TCR Representatives shall provide, and each of the Contributors and the Contributing Partners shall cooperate with the TCR Representatives in the provision of, all reasonable information requested by the Transferee for the purpose of determining the Estimated Completion Costs for each Development Property. If the parties are unable to agree on the Estimated Completion Costs by the twentieth (20th) day prior to the Closing Date, then either party may request binding arbitration of the Estimated Completion Costs by the following method: Wils▇▇ & ▇tri▇▇▇▇▇ ▇▇ hereby appointed by the parties as a neutral arbitrator (the "COMPLETION COST ARBITRATOR") of the Estimated Completion Costs; provided that if, for any reason, Wils▇▇ & ▇tri▇▇▇▇▇ ▇▇ unable to act as Completion Cost Arbitrator, the Transferee and the TCR Representatives shall appoint a mutually acceptable arbitrator to serve in its place. The party electing determination by the Completion Cost Arbitrator shall give written notice to the Completion Cost Arbitrator and the other party of such election. Thereafter, (i) the TCR Representatives shall provide, and each of the Contributors and the Contributing Partners shall cooperate with the TCR Representatives in the provision of, all reasonable information requested by the Completion Cost Arbitrator for the purpose of determining the Estimated Completion Costs for each Development Property and (ii) each party may submit to the Completion Cost Arbitrator its proposed Estimated Completion Costs, together with any materials it wishes to submit in support of its position. The Completion Cost Arbitrator Guarantor shall, within ten (10) days of such electionat Lender’s election and upon demand by Lender, then make its own determination of the Estimated Completion Costs, which determination shall be conclusive and binding on all parties pay to this Agreement. At such time either the parties agree on the Estimated Completion Costs or the Completion Cost Arbitrator determines the Estimated Completion Costs, Schedule 3.5(a) shall be completed by incorporating such Estimated Completion Costs therein. (b) At Closing, Lender an amount equal to the Estimated positive difference, if any, between: (x) the Completion Costs shall be deducted from (specifically excluding amounts in respect of leasing commissions, tenant improvement allowances and tenant improvement work unless required pursuant to Leases then in effect), and (y) the Cash Consideration sum of the unfunded portions of the Building Loan and the Project Loan (specifically excluding, however, unfunded amounts of the Building Loan and the Project Loan that are budgeted for the payment of leasing commissions, tenant improvement allowances and tenant improvement work unless required pursuant to Leases then in effect) and all Equity Deposits and School Cost Payments held by Lender and School Cost Payments anticipated to be delivered made under the School Unit Purchase Agreement and Carry Cost Reserve Funds and amounts on deposit in the Loan Reserve and amounts on deposit in the MTA Cash Collateral Account (collectively, the “Unfunded Construction Loan Proceeds”). Each component of Unfunded Construction Loan Proceeds shall only be taken into account to the extent there are corresponding Completion Costs for which such Unfunded Construction Loan Proceeds can be utilized (i.e., amounts on deposit in the MTA Cash Collateral Account shall only be taken into account to the extent of remaining MTA Work for which such amounts can be utilized). As used herein, the term “Completion Costs” means all of Lender’s direct and indirect costs incurred or estimated to be incurred in connection with (i) the Final Completion of the Construction Work as required of Borrower under the Master Loan Agreement, (ii) completion of the MTA Work in accordance with the Transit Improvement Agreement (as and to the extent required thereunder) or payment of any amounts required to be paid under the Transit Improvement Agreement in lieu of such completion (whichever is greater and could still be applicable at the Closing. time of determination), and (ciii) The Transferee shall assume completion of all SCA Additional Construction Items, SCA Fit-Out Impacted Work and agree SCA Pre- and Post-Turnover Work in accordance with the School Unit Purchase Agreement, including, without being limited to, Hard Costs, Soft Costs and School Costs (and specifically including, without limitation: all costs estimated to pay any actual costs be incurred to complete sell the Development Properties in excess Residential Units; all real estate taxes, insurance premiums, operating expenses and interest on the Loan that would have become payable during the estimated construction period), all irrespective of the Estimated Completion Costs. (d) The applicable Contributor and the Transferee shall enter into a master lease of the rental units of each Development Property on the terms amounts set forth in Exhibit VI;the Approved Budget for each line item and irrespective of the absence of any particular item of direct or indirect costs from the Approved Budget and irrespective of whether Guarantor’s obligations under the Carry Guaranty have been terminated (but without duplication of amounts payable and actually paid by Guarantor under the Carry Guaranty). Following such demand by Lender for payment by Guarantor of the Completion Costs to Lender and the actual payment by Guarantor of the amount demanded by Lender in accordance with the provisions of this Section 2 (expressly including all amounts set forth in any Demand Notice in accordance with the provisions of subsection 3(a) hereof sent prior to such payment by Guarantor), Guarantor shall be deemed to have satisfied its obligations under Sections 1(a), 1(b) and 3(a) of this Guaranty. For the purpose of this Guaranty, the Completion Costs shall, be deemed to be an amount equal to the amount of such direct and indirect costs as reasonably estimated by a third party construction consultant retained by Lender (the “Construction Consultant”) as of the date Lender elects to demand payment of the Completion Costs under this Section 2; provided, however, if such payment is not made by Guarantor within ninety (90) days following Lender’s written demand therefor, Lender may, in its sole and absolute discretion, cause the Construction Consultant to re-calculate the Completion Costs as of the date of such re-calculation at any reasonable time following the expiration of said ninety (90) day period. For purposes of this Guaranty, Lender’s direct and indirect costs shall be deemed to include, without limitation, all Hard Costs, Soft Costs, School Costs, real estate taxes, insurance premiums and operating expenses (but without duplication of amounts payable and actually paid by Guarantor under the Carry Guaranty) reasonably estimated by the Construction Consultant to be required to be incurred in order to Complete the Project and the Construction Work in accordance with the Approved Plans and the terms and provisions of the Loan Documents. Guarantor further agrees that any amount estimated by the Construction Consultant as aforesaid, and any determination by the Construction Consultant with respect to industry practices, shall be conclusive (absent manifest error) for purposes of determining Guarantor’s liability hereunder, provided that the Construction Consultant has made such estimate or determination in good faith. Such payment shall be due no later than fifteen (15) Business Days following the giving of a written demand therefor from Lender to Guarantor together with interest at the Default Rate if not paid within said fifteen (15) Business Day period.