Common use of Construction Financing Clause in Contracts

Construction Financing. If Owner and AtHome have both accepted Contractor's cost estimate for the Proposed Building pursuant to Paragraph 2.3.3 above, Owner shall have a period of thirty (30) days after such mutual acceptance of the cost estimate to use reasonable efforts to attempt to obtain a loan for the costs of constructing the Proposed Building ("Construction Financing"), in an amount not less than the total amount of estimated Development Costs (as defined in Paragraph 1 of Exhibit D hereto), less the Land Value (as defined in Paragraph 1.1 of Exhibit D hereto), under such commercially reasonable terms and conditions as shall be reasonably acceptable to Owner (including, if necessary, a commercially reasonable completion guaranty provided by Owner); provided, however, that in no event shall Owner be required to provide any other form of credit enhancement or any third party guaranty as security for such Construction Financing, including without limitation any guaranty from the partners or members of Owner. If Owner is unable to obtain Construction Financing under such commercially reasonable terms, Owner may, by giving written notice to AtHome within such 30-day period, elect to terminate its obligation to construct such Proposed Building, in which event such Build to Suit Option and all unexercised Build to Suit Options shall terminate and cease to be of any force or effect, effective upon the expiration of such 30-day period; provided, however, that if within such 30-day period AtHome delivers written notice to Owner whereby AtHome covenants and agrees to provide the "AtHome Loan" (as defined below) to Owner to finance the cost of constructing the Proposed Building, and AtHome funds the AtHome Loan in accordance with the following terms and conditions, then such Build to Suit Option and all unexercised Build to Suit Options shall remain in full force and effect. The AtHome Loan shall be interest-free; in an amount not less than the total amount of estimated Development Costs less the Land Value; and for a term, with a funding schedule, and on such other terms and conditions as shall be commercially reasonable, as reasonably determined by Owner (including, if necessary, a commercially reasonable completion guaranty provided by Owner); provided, however, that in no event shall Owner be required to provide any other form of credit enhancement or any third party guaranty as security for the AtHome Loan. The AtHome Loan shall be evidenced by such commercially reasonable loan documents as shall be mutually acceptable to Owner and AtHome.

Construction Financing. If Owner The Managing Venturer, in consultation and AtHome have both accepted Contractor's cost estimate for cooperation with the Proposed Building pursuant to Paragraph 2.3.3 aboveNon-Managing Venturer, Owner shall have a period of thirty (30) days after such mutual acceptance of the cost estimate to use all commercially reasonable efforts to attempt to obtain a loan for the costs of constructing the Proposed Building ("committed Construction Financing"), Financing as promptly as commercially reasonable in an amount up to $621,000,000 plus the amount of additional indebtedness, if any, allowed or reasonably anticipated by Managing Venturer to be allowed pursuant to the third sentence of this Section 4.1 on the most favorable terms available to the Joint Venture. The Managing Venturer shall have the responsibility and authority for the negotiation, structuring and documentation of the Construction Financing. Without the approval of each Venturer, the outstanding principal amount of the Construction Financing shall not less than exceed 60% of the total amount of estimated Development Costs (as defined in Paragraph 1 of Exhibit D hereto), less the Land Value (as defined in Paragraph 1.1 of Exhibit D hereto), under such commercially reasonable terms and conditions as shall be reasonably acceptable to Owner (including, if necessary, a commercially reasonable completion guaranty provided by Owner)Project Costs; provided, however, that (i) if the weighted average interest rate accrued on such indebtedness during the period beginning on the day on which the first draw on such indebtedness is made and ending on the day before the day on which the Facility opens to the general public (the "Construction Period") exceeds 10.0% per annum, the outstanding principal amount of Construction Financing may exceed 60% of the total Project Costs and/or may be increased by an amount equal to 100% of the difference between (A) the interest accrued on such indebtedness during the Construction Period and (B) the interest which would have accrued on such indebtedness during the Construction Period if such weighted average interest rate had been 10.0% per annum; (ii) without double counting, the outstanding principal amount of Construction Financing may exceed 60% of the total Project Costs and/or may increased by the amount of Excess Government Improvement Costs, if any; (iii) the outstanding principal amount of Construction Financing may exceed 60% of the total Project Costs and/or may be increased by the actual amount of the Joint Venture's costs of creating and implementing the Jobs and Business Opportunities Program; and (iv) if acceptable to the provider of Construction Financing, if the Joint Venturers defer a portion of their respective capital contribution obligations by providing a standby letter of credit pursuant to the terms of Section 3.3(a) hereof, and if the actual total Project Costs are less than $1,035,000,000, the outstanding principal amount of Construction Financing may exceed 60% of the total Project Costs by the amount of capital contributions so deferred. In any event, without the approval of each Venturer, the aggregate principal amount of Construction Financing and all other Joint Venture indebtedness outstanding at any time (other than Venturer subordinated loans permitted by Section 3.3(a) hereof) shall not exceed the sum of $621,000,000 plus the amount of additional indebtedness, if any, permitted by the immediately preceding sentence. The interest rate and other material terms of the Construction Financing and any other Joint Venture indebtedness shall be subject to the approval of each Venturer, such approval not to be unreasonably withheld or delayed. If nonrecourse debt financing is not available to the Joint Venture on terms reasonably acceptable to the Venturers, the Venturers will cooperate in good faith to agree on alternative construction financing and to seek such alternative construction financing (and in such event such alternative construction financing shall constitute "Construction Financing" as such term is used in this Agreement). In no event shall Owner the stockholder or other Affiliates of MR Sub or Boyd Xxx be required to provide any other form of credit enhancement guarantee or any third party guaranty as security otherwise assume liability for such Construction Financing, including without limitation any guaranty from the partners or members of Owner. If Owner is unable to obtain Construction Financing under such commercially reasonable terms, Owner may, by giving written notice to AtHome within such 30-day period, elect to terminate its obligation to construct such Proposed Building, in which event such Build to Suit Option and all unexercised Build to Suit Options shall terminate and cease to be of any force or effect, effective upon the expiration of such 30-day period; provided, however, that if within such 30-day period AtHome delivers written notice to Owner whereby AtHome covenants and agrees to provide the "AtHome Loan" (as defined below) to Owner to finance the cost of constructing the Proposed Building, and AtHome funds the AtHome Loan in accordance with the following terms and conditions, then such Build to Suit Option and all unexercised Build to Suit Options shall remain in full force and effect. The AtHome Loan shall be interest-free; in an amount not less than the total amount of estimated Development Costs less the Land Value; and for a term, with a funding schedule, and on such other terms and conditions as shall be commercially reasonable, as reasonably determined by Owner (includingBoyd xxxees, if necessaryrequired by the providers of Construction Financing, a commercially reasonable completion to guarantee to the providers of Construction Financing that following Commencement of Construction of the Facility, Boyd xxxl complete the construction thereof, such guaranty provided by Owner); provided, however, that to be in no event shall Owner be required form and substance reasonably satisfactory to provide any other form Boyd xxx to the providers of credit enhancement or any third party guaranty as security for the AtHome Loan. The AtHome Loan shall be evidenced by such commercially reasonable loan documents as shall be mutually acceptable to Owner and AtHomeConstruction Financing.

Construction Financing. If Owner The Managing Venturer, in consultation and AtHome have both accepted Contractor's cost estimate for cooperation with the Proposed Building pursuant to Paragraph 2.3.3 aboveNon-Managing Venturer, Owner shall have a period of thirty (30) days after such mutual acceptance of the cost estimate to use all commercially reasonable efforts to attempt to obtain a loan for the costs of constructing the Proposed Building ("committed Construction Financing"), Financing as promptly as commercially reasonable in an amount up to $621,000,000 plus the amount of additional indebtedness, if any, allowed or reasonably anticipated by Managing Venturer to be allowed pursuant to the third sentence of this Section 4.1 on the most favorable terms available to the Joint Venture. The Managing Venturer shall have the responsibility and authority for the negotiation, structuring and documentation of the Construction Financing. Without the approval of each Venturer, the outstanding principal amount of the Construction Financing shall not less than exceed 60% of the total amount of estimated Development Costs (as defined in Paragraph 1 of Exhibit D hereto), less the Land Value (as defined in Paragraph 1.1 of Exhibit D hereto), under such commercially reasonable terms and conditions as shall be reasonably acceptable to Owner (including, if necessary, a commercially reasonable completion guaranty provided by Owner)Project Costs; provided, however, that (i) if the weighted average interest rate accrued on such indebtedness during the period beginning on the day on which the first draw on such indebtedness is made and ending on the day before the day on which the Facility opens to the general public (the "Construction Period") exceeds 10.0% per annum, the outstanding principal amount of Construction Financing may exceed 60% of the total Project Costs and/or may be increased by an amount equal to 100% of the difference between (A) the interest accrued on such indebtedness during the Construction Period and (B) the interest which would have accrued on such indebtedness during the Construction Period if such weighted average interest rate had been 10.0% per annum; (ii) without double counting, the outstanding principal amount of Construction Financing may exceed 60% of the total Project Costs and/or may increased by the amount of Excess Government Improvement Costs, if any; (iii) the outstanding principal amount of Construction Financing may exceed 60% of the total Project Costs and/or may be increased by the actual amount of the Joint Venture's costs of creating and implementing the Jobs and Business Opportunities Program; and (iv) if acceptable to the provider of Construction Financing, if the Joint Venturers defer a portion of their respective capital contribution obligations by providing a standby letter of credit pursuant to the terms of Section 3.3(a) hereof, and if the actual total Project Costs are less than $1,035,000,000, the outstanding principal amount of Construction Financing may exceed 60% of the total Project Costs by the amount of capital contributions so deferred. In any event, without the approval of each Venturer, the aggregate principal amount of Construction Financing and all other Joint Venture indebtedness outstanding at any time (other than Venturer subordinated loans permitted by Section 3.3(a) hereof) shall not exceed the sum of $621,000,000 plus the amount of additional indebtedness, if any, permitted by the immediately preceding sentence. The interest rate and other material terms of the Construction Financing and any other Joint Venture indebtedness shall be subject to the approval of each Venturer, such approval not to be unreasonably withheld or delayed. If nonrecourse debt financing is not available to the Joint Venture on terms reasonably acceptable to the Venturers, the Venturers will cooperate in good faith to agree on alternative construction financing and to seek such alternative construction financing (and in such event such alternative construction financing shall constitute "Construction Financing" as such term is used in this Agreement). In no event shall Owner the stockholder or other Affiliates of MR Sub or Xxxx Sub be required to provide any other form of credit enhancement guarantee or any third party guaranty as security otherwise assume liability for such Construction Financing, including without limitation any guaranty from the partners or members of Owner. If Owner is unable to obtain Construction Financing under such commercially reasonable terms, Owner may, by giving written notice to AtHome within such 30-day period, elect to terminate its obligation to construct such Proposed Building, in which event such Build to Suit Option and all unexercised Build to Suit Options shall terminate and cease to be of any force or effect, effective upon the expiration of such 30-day period; provided, however, that if within such 30-day period AtHome delivers written notice to Owner whereby AtHome covenants and agrees to provide the "AtHome Loan" (as defined below) to Owner to finance the cost of constructing the Proposed Building, and AtHome funds the AtHome Loan in accordance with the following terms and conditions, then such Build to Suit Option and all unexercised Build to Suit Options shall remain in full force and effect. The AtHome Loan shall be interest-free; in an amount not less than the total amount of estimated Development Costs less the Land Value; and for a term, with a funding schedule, and on such other terms and conditions as shall be commercially reasonable, as reasonably determined by Owner (includingXxxx agrees, if necessaryrequired by the providers of Construction Financing, a commercially reasonable completion to guarantee to the providers of Construction Financing that following Commencement of Construction of the Facility, Xxxx will complete the construction thereof, such guaranty provided by Owner); provided, however, that to be in no event shall Owner be required form and substance reasonably satisfactory to provide any other form Xxxx and to the providers of credit enhancement or any third party guaranty as security for the AtHome Loan. The AtHome Loan shall be evidenced by such commercially reasonable loan documents as shall be mutually acceptable to Owner and AtHomeConstruction Financing.

Construction Financing. If Owner The Managing Venturer, in consultation and AtHome have both accepted Contractor's cost estimate for cooperation with the Proposed Building pursuant to Paragraph 2.3.3 aboveNon-Managing Venturer, Owner shall have a period of thirty (30) days after such mutual acceptance of the cost estimate to use all commercially reasonable efforts to attempt to obtain a loan for the costs of constructing the Proposed Building ("as promptly as practicable committed Construction Financing"), Financing in an amount up to $450,000,000 plus the amount of additional indebtedness, if any, allowed pursuant to the third sentence of this Section 4.1 on the most favorable terms available to the Joint Venture. The Managing Venturer shall have the responsibility and authority for the negotiation, structuring and documentation of the Construction Financing. Without the approval of each Venturer, the outstanding principal amount of the Construction Financing shall not less than exceed 60% of the total amount of estimated Development Costs (as defined in Paragraph 1 of Exhibit D hereto), less the Land Value (as defined in Paragraph 1.1 of Exhibit D hereto), under such commercially reasonable terms and conditions as shall be reasonably acceptable to Owner (including, if necessary, a commercially reasonable completion guaranty provided by Owner)Project Costs; provided, however, that (i) if the weighted average interest rate accrued on such indebtedness during the period beginning on the day on which the first draw on such indebtedness is made and ending on the day before the day on which the Facility opens to the general public (the "Construction Period") exceeds 8.5% per annum, the outstanding principal amount of Construction Financing may exceed 60% of the total Project Costs by an amount equal to 100% of the difference between (A) the interest accrued on such indebtedness during the Construction Period and (B) the interest which would have accrued on such indebtedness during the Construction Period if such weighted average interest rate had been 8.5% per annum, and (ii) without double counting, the outstanding principal amount of Construction Financing may be increased by the amount of Excess Government Improvement Costs, if any. In any event, without the approval of each Venturer, the aggregate principal amount of Construction Financing and all other Joint Venture indebtedness outstanding at any time (other than Venturer subordinated loans permitted by Section 3.3(a) hereof) shall not exceed the sum of $450,000,000 plus the amount of additional indebtedness, if any, permitted by the immediately preceding sentence. The interest rate and other terms of the Construction Financing and any other Joint Venture indebtedness shall be subject to the approval of each Venturer, such approval not to be unreasonably withheld or delayed. If nonrecourse debt financing is not available to the Joint Venture on terms reasonably acceptable to the Venturers, the Venturers will cooperate in good faith to agree on alternative construction financing and to seek such alternative construction financing (and in such event such alternative construction financing shall constitute "Construction Financing" as such term is used in this Agreement). In no event shall Owner the stockholder or other Affiliates of MR Sub or Boyd Xxx be required to provide any other form of credit enhancement guarantee or any third party guaranty as security otherwise assume liability for such Construction Financing, including without limitation any guaranty from the partners or members of Owner. If Owner is unable to obtain Construction Financing under such commercially reasonable terms, Owner may, by giving written notice to AtHome within such 30-day period, elect to terminate its obligation to construct such Proposed Building, in which event such Build to Suit Option and all unexercised Build to Suit Options shall terminate and cease to be of any force or effect, effective upon the expiration of such 30-day period; provided, however, that if within such 30-day period AtHome delivers written notice to Owner whereby AtHome covenants and agrees to provide the "AtHome Loan" (as defined below) to Owner to finance the cost of constructing the Proposed Building, and AtHome funds the AtHome Loan in accordance with the following terms and conditions, then such Build to Suit Option and all unexercised Build to Suit Options shall remain in full force and effect. The AtHome Loan shall be interest-free; in an amount not less than the total amount of estimated Development Costs less the Land Value; and for a term, with a funding schedule, and on such other terms and conditions as shall be commercially reasonable, as reasonably determined by Owner (including, if necessary, a commercially reasonable completion guaranty provided by Owner); provided, however, that in no event shall Owner be required to provide any other form of credit enhancement or any third party guaranty as security for the AtHome Loan. The AtHome Loan shall be evidenced by such commercially reasonable loan documents as shall be mutually acceptable to Owner and AtHome.