Common use of Completion Guarantee Clause in Contracts

Completion Guarantee. 9.1 If for any reason whatsoever, the Borrower (i) fails or neglects to complete construction of the Project and the Improvements contemplated by and described in this Agreement on or before January 31, 2001, (ii) fails to prosecute with diligence and continuity the construction of the Project and the Improvements in accordance with this Agreement, (iii) commits or permits to exist an Event of Default as defined in Section 8 of this Agreement, or (iv) is unable to satisfy any condition precedent to obtaining an advance of the Loans under this Agreement, then in any such event the Bank, in addition to the Bank's other rights, remedies and recourse whether existing hereunder, under any Loan Document, or otherwise, may proceed in accordance with the terms of this Section 9. Within five (5) days from the date that the Bank notifies the Borrower of the Borrower's failure to satisfy any condition enumerated in the first part of this Paragraph 9.1, the Borrower hereby bind itself, at its sole cost and expense, to commence completion of construction of the Project and the Improvements and to diligently pursue such construction in order to complete the Project and the Improvements within the time and in the manner specified in this Agreement. The Borrower shall pay all costs and expenses in connection with such construction and shall indemnify and hold harmless the Bank from any and all losses, costs, liabilities or expenses incurred in connection with such completion. 9.2 If the Borrower shall fail to commence completion of the Project and the Improvements and to diligently pursue such construction as provided in Paragraph 9.1, the Bank shall have (in addition to its other remedies under this Agreement, the Loan Documents and applicable law), the following rights and remedies: (a) If such failure shall occur prior to a foreclosure sale of the Premises, the Bank shall have an immediate right to damages in an amount equal to the Borrower's indebtedness to the Bank arising under or in connection with the Loans, together with the right to obtain immediate judgement against the Borrower in that amount, and the Bank may exercise all remedies available under the laws of the State of New Hampshire for action on a matured contractual indebtedness; (b) If such failure occurs after a foreclosure sale of the Premises, the Bank shall have an immediate right to damages in an amount which is equal to the sum necessary to complete construction of the Project and the Improvements, as such sum may be established by construction contracts, appraisals, or other competent evidence, without any necessity of completing construction, less the sum equal to the undisbursed balance of the Loans reduced by the amount of interest accruing under the Notes and all expenses incurred by the Bank in connection with the foreclosure sale and the related actions at law; and (c) Regardless of whether such failure occurs before or after any foreclosure sale of the Premises, the Bank shall have the right, but shall have no obligation, to complete construction of the Project and the Improvements in the manner specified in this Agreement by or through any agent, contractor or subcontractor of its selection and to recover from the Borrower as damages the amount of any and all expenditures made in connection with such completion.

Completion Guarantee. 9.1 If for any reason whatsoever, (a) On or after the Borrower Note A First Advance Date and until the earlier of (i) fails or neglects the Block 1 Project Completion Date occurs and after the Borrower makes the mandatory prepayment (to complete construction of the extent applicable) under Section 3.06(c)(ii) (Block Project Completion Revised Model) with respect to Block 1, as may be delayed pursuant to Section 3.06(e) (Delayed Mandatory Prepayment Election) and the Improvements contemplated by and described in this Agreement on or before January 31, 2001, (ii) fails the Block 1 Project Completion Longstop Date after giving effect to prosecute with diligence all Equity Contributions, transfers and continuity prepayments required to be made on such earlier date (such date, the construction “Block 1 Completion Guarantee Release Date”), to the extent that (A) the sum of (x) funds on deposit in, or credited under an Acceptable Letter of Credit to, the Construction Account, and (y) the Note A Loan Commitment Amount available to be drawn is insufficient to achieve the Block 1 Project and the Improvements in accordance with this Agreement, (iii) commits Completion on or permits prior to exist an Event of Default as defined in Section 8 of this AgreementBlock 1 Project Completion Longstop Date, or (ivB) is unable to satisfy any condition the conditions precedent to obtaining the making of Note A Advances are not satisfied in time, in each case, to pay for Block 1 Project Costs when they become due and payable and remain outstanding, after giving effect to the transfers contemplated in the Accounts Agreement, no later than (1) in the case of Block 1 Project Costs, **** prior to such Block 1 Project Costs becoming due and payable and (2) in the case of such other costs and expenses required to be incurred to permit the Borrower to achieve Block 1 Project Completion, **** prior to such other costs and expenses becoming due and payable, the Sponsor shall make, or cause the Direct Shareholder to make, Equity Contributions for deposit into the Construction Account in the amounts needed to pay for such Project Costs with respect to Block 1 and other costs and expenses required to be incurred to permit the Borrower to achieve the Block 1 Project Completion. (b) On or after the Note B First Advance Date and until the earlier of (i) the Block 2 Project Completion Date and after the Borrower makes the mandatory prepayment (to the extent applicable) under Section 3.06(c)(ii) (Block Project Completion Revised Model) with respect to Block 2, as may be delayed pursuant to Section 3.06(e) (Delayed Mandatory Prepayment Election) and (ii) the Block 2 Project Completion Longstop Date after giving effect to all Equity Contributions, transfers and prepayments required to be made on such earlier date (such date, the “Block 2 Completion Guarantee Release Date”), to the extent that (A) the sum of (x) funds on deposit in, or credited under an advance Acceptable Letter of Credit to, the Construction Account and (y) the Note B Loan Commitment Amount available to be drawn is insufficient to achieve the Block 2 Project Completion on or prior to Block 2 Project Completion Longstop Date, or (B) the conditions precedent to the making of Note B Advances are not satisfied in time, in each case, to pay for Block 2 Project Costs when they become due and payable and remain outstanding, after giving effect to the transfers contemplated in the Accounts Agreement, no later than (1) in the case of Block 2 Project Costs, **** Days prior to such Block 2 Project Costs becoming due and payable and (2) in the case of such other costs and expenses required to be incurred to permit the Borrower to achieve Block 2 Project Completion, **** Days prior to such other costs and expenses becoming due and payable, the Sponsor shall make, or cause the Direct Shareholder to make, Equity Contributions for deposit into the Construction Account in the amounts needed to pay for such Project Costs with respect to Block 2 and other costs and expenses required to be incurred to permit the Borrower to achieve the Block 2 Project Completion. (i) If the Note A First Advance has occurred, on the earlier of the Loans under this AgreementBlock 1 Project Completion Date and the Block 1 Project Completion Longstop Date, then in any such event the Bank, in addition Sponsor shall make or cause the Direct Shareholder to make an Equity Contribution to the Bank's other rightsBorrower in cash in the amount necessary to initially fund the O&M Reserve Account and the Major Maintenance and Capex Reserve Account to their respective full Account Funding Requirement on such date, remedies and recourse whether existing hereunder, under any Loan Document, or otherwise, may proceed the Borrower shall cause the proceeds of such Equity Contribution to be deposited in the applicable Project Account in accordance with the terms of this Section 9. Within five (5) days from the date that the Bank notifies the Borrower of the Borrower's failure to satisfy any condition enumerated in the first part of this Paragraph 9.1, the Borrower hereby bind itself, at its sole cost and expense, to commence completion of construction of the Project and the Improvements and to diligently pursue such construction in order to complete the Project and the Improvements within the time and in the manner specified in this Accounts Agreement. The Borrower shall pay all costs and expenses in connection with such construction and shall indemnify and hold harmless the Bank from any and all losses, costs, liabilities or expenses incurred in connection with such completion. 9.2 If the Borrower shall fail to commence completion of the Project and the Improvements and to diligently pursue such construction as provided in Paragraph 9.1, the Bank shall have (in addition to its other remedies under this Agreement, the Loan Documents and applicable law), the following rights and remedies: (a) If such failure shall occur prior to a foreclosure sale of the Premises, the Bank shall have an immediate right to damages in an amount equal to the Borrower's indebtedness to the Bank arising under or in connection with the Loans, together with the right to obtain immediate judgement against the Borrower in that amount, and the Bank may exercise all remedies available under the laws of the State of New Hampshire for action on a matured contractual indebtedness; (b) If such failure occurs after a foreclosure sale of the Premises, the Bank shall have an immediate right to damages in an amount which is equal to the sum necessary to complete construction of the Project and the Improvements, as such sum may be established by construction contracts, appraisals, or other competent evidence, without any necessity of completing construction, less the sum equal to the undisbursed balance of the Loans reduced by the amount of interest accruing under the Notes and all expenses incurred by the Bank in connection with the foreclosure sale and the related actions at law; and (cii) Regardless of whether such failure occurs before or after any foreclosure sale On the earlier of the PremisesBlock 2 Project Completion Date and, if the Note B First Advance Date has occurred, the Bank Block 2 Project Completion Longstop Date, the Sponsor shall have make or cause the right, but shall have no obligation, Direct Shareholder to complete construction of make an Equity Contribution to the Project Borrower in cash in the amount necessary to eliminate any Account Shortfall in the O&M Reserve Account and the Improvements Major Maintenance and Capex Reserve Account on such date, and the Borrower shall cause the proceeds of such Equity Contribution to be deposited in the manner specified applicable Project Account in accordance with the Accounts Agreement; provided that the Sponsor may, in lieu of depositing cash pursuant to this Agreement by clause (c), deliver to the Collateral Agent an Acceptable Letter of Credit to be credited into such Reserve Accounts with an amount available to be drawn equal to the applicable Account Funding Requirement or through any agent, contractor or subcontractor of its selection and to recover from the Borrower as damages the amount of any and all expenditures made in connection with such completionAccount Shortfall.