Common use of Construction Loan Clause in Contracts

Construction Loan. The Company shall cause the T1 Subsidiary to take out a Construction Loan or Construction Loans to finance the development of the Project on the Development Parcel. The Construction Loan shall not close unless and until fee title to the Property has been conveyed by the Master Landlord to the Subsidiaries in accordance with Section 4.1.1(b). The Lender of the Construction Loan(s) shall be selected by the HF Managing Member. Any guarantees (completion, payment or otherwise) required by the Lender of the Construction Loan(s) shall be provided by HF (or an Affiliate of HF). HF shall cause an HF Affiliate acceptable to the Construction Lender to provide such guarantees. If a Construction Loan (or Construction Loans) sufficient to fund the entire cost of developing the Project on the Development Parcel (considering the Initial Capital Contribution to be made by Skechers) cannot be obtained, HF may, at its option, loan its own funds (or funds of its Affiliates) to the T1 Subsidiary in lieu of the Construction Loan, and in the latter case such loan will be part of the HF Loan (provided, however, the interest rate on the portion of the HF Loan comprising the in-lieu construction loan shall be the rate which is then being charged by institutional construction lenders in the marketplace for construction loans of this amount and nature). HF shall take the lead in procuring the Construction Loan, and Skechers shall cooperate with HF in connection therewith. Skechers shall have the right to review and comment on the terms and conditions of the Construction Loan(s), and the Construction Loan documentation, but the decisions of HF in this regard shall control and will be final and conclusive (provided that HF shall act in good faith and consistent with its fiduciary duties hereunder) and the HF Managing Member, acting alone, is authorized and empowered to execute and deliver on behalf of the Company, as the sole member of the T1 Subsidiary, all Construction Loan Documents, and the Construction Lender may rely on the signature of the HF Managing Member as binding the Company and the T1 Subsidiary regardless of any possible claims by Skechers that HF did not act in good faith or consistent with its fiduciary obligations hereunder. Notwithstanding the foregoing, Skechers Parent shall not be required to materially amend or modify the Lease in connection with obtaining the Construction Loan (except for any reasonable and customary modifications which may be required under a subordination, non-disturbance and attornment agreement). Skechers shall be given reasonable advance notice of any regularly scheduled meetings with the prospective Construction Lender at which material issues regarding the Construction Loan are expected to be discussed and shall have the right to attend all such meetings (whether conducted in person or by telephone or electronic meeting). Skechers shall also have the right to communicate directly with the Construction Lender to discuss the status of the Construction Loan, but will not negotiate any of its terms or conditions without the express prior approval of the HF Managing Member.

Construction Loan. The Company shall cause (a) Developer intends to obtain a construction loan (a “Construction Loan”) in order to construct the T1 Subsidiary to take out a Construction Loan Building. On or Construction Loans to finance the development of the Project on the Development Parcel. The Construction Loan shall not close unless and until fee title prior to the Property has been conveyed by the Master Landlord to the Subsidiaries in accordance with Section 4.1.1(b). The Lender of the Construction Loan(s) shall be selected by the HF Managing Member. Any guarantees (completion, payment or otherwise) required by the Lender of the Construction Loan(s) shall be provided by HF (or an Affiliate of HF). HF shall cause an HF Affiliate acceptable to the Construction Lender to provide such guarantees. If a Construction Loan (or Construction Loans) sufficient to fund the entire cost of developing the Project on the Development Parcel (considering the Initial Capital Contribution to be made by Skechers) cannot be obtained, HF may, at its option, loan its own funds (or funds of its Affiliates) to the T1 Subsidiary in lieu closing of the Construction Loan, and in the latter case such loan existing mortgage encumbering the Property will be part of satisfied or assigned to the HF Loan (provided, however, construction lender. Unless the interest rate on the portion of the HF Loan comprising the in-lieu construction loan lender shall be the rate which is then being charged by institutional construction lenders in the marketplace for construction loans of this amount and nature). HF shall take the lead in procuring the Construction Loana Qualified Lender, and Skechers shall cooperate with HF in connection therewith. Skechers SCA shall have the right to review and comment on approve the terms and conditions construction lender, such approval not to be unreasonably withheld, conditioned or delayed. SCA shall have a further right to approve the loan documents (to the extent the provisions thereof are, in any material respect, inconsistent with Developer’s obligations under this Agreement), such consent not to be unreasonably withheld, conditioned or delayed. Without limitation, SCA may require that the following matters be included in the loan documents for the benefit of SCA: (i) Subject to Section 3.03(b) below, the construction lender must not permit any changes in the Project specifications or application of Construction Loan proceeds in a manner inconsistent with Section 3.01(a)(vi) hereof regarding the size of the Construction Loan(sSchool Unit or that would otherwise adversely affect the School Unit or its functionality or, except to a de minimis extent, operations of the School Program, without the consent of SCA and the City of New York if such change (A) would be inconsistent in any material respect with the 100% School Base Building CD’s (as applicable), or (B)(1) would adversely affect the functionality or, except to a de minimis extent, operations of the School Program and/or (2) would cause the hard costs of the School Fit-Out Work to be increased (unless Developer agrees to pay such excess). (ii) Performance under the loan documents by Developer must meet the time requirements set forth in this Agreement. (iii) The construction lender must, if it succeeds to the interest of Developer with respect to the Sublease (as defined below), cause the project to be completed with a deed delivered for the School Unit, regardless of any remedy obtainable by the construction lender, including foreclosure. (iv) If the construction lender completes the Building it must use either a Qualified Developer or another developer approved by SCA and the City of New York, such approval not to be unreasonably withheld, conditioned or delayed. (v) Any purchaser of Developer’s interest in the Sublease in connection with a foreclosure of the mortgage securing the Construction Loan documentationor any successor-in-interest to such purchaser will complete the Building in accordance with this Agreement, but deliver a deed for the decisions School Unit to the SCA as contemplated herein, and use either a Qualified Developer or another developer approved by SCA and the City of HF New York (such approval not to be unreasonably withheld, conditioned or delayed) within a time period approved by SCA (such approval not to be unreasonably withheld, conditioned or delayed). (vi) SCA will have remedies upon a failure to complete and deliver the School Unit within an agreed upon amount of time, including the right to cancel the Sublease if the construction lender defaults on its obligations and the construction lender fails to take adequate steps to cure after it succeeds to Developer’s interest in this regard the Sublease. (vii) SCA shall control be entitled to terminate the GMP Contract (as defined below) in the event Developer’s construction lender defaults beyond notice and will be final and conclusive cure in its obligations to SCA after succeeding to Developer’s interest in the Sublease (provided that HF shall act a “Construction Lender Event of Default”). In the event of a Construction Lender Event of Default, SCA may elect to perform the School Base Building Work in good faith and consistent accordance with its fiduciary duties hereunder) and statutory procurement requirements but such performance by SCA shall not, in any material respect, impair the HF Managing Member, acting alone, is authorized and empowered to execute and deliver on behalf development of the Company, as the sole member remainder of the T1 Subsidiary, all Construction Loan Documents, and the Construction Lender may rely Project. (viii) Developer’s construction lender will either subordinate its mortgage on the signature of fee interest in the HF Managing Member as binding Property to the Company and the T1 Subsidiary regardless of any possible claims by Skechers that HF did not act in good faith Master Lease or consistent provide SCA with its fiduciary obligations hereunder. Notwithstanding the foregoing, Skechers Parent shall not be required to materially amend or modify the Lease in connection with obtaining the Construction Loan (except for any reasonable and customary modifications which may be required under a subordination, subordination non-disturbance and attornment agreement); (b) SCA will enter into the Interparty Agreement under which, if Developer defaults (beyond notice and cure) in its construction obligations, if and when the construction lender succeeds to Developer’s interest under the Sublease, the construction lender will be required to perform Developer’s construction obligations under this Agreement within a time period reasonably acceptable to SCA. Skechers shall be given reasonable advance notice If a party other than a construction lender succeeds to Developer’s interest under the Sublease, that party will have an obligation to fulfill such construction obligations. The Interparty Agreement will include the rights and obligations of any regularly scheduled meetings the parties in the event the construction lender or a successor does not or cannot complete the School Base Building Work. Also, the Interparty Agreement will address (1) a default by Developer both before and after the conveyance of the School Unit to SCA, and (2) who has priority with respect to the prospective Construction Lender at which material issues regarding the Construction Loan are expected respective guaranties to be discussed provided to each of SCA and the construction lender. (c) For the avoidance of doubt, Developer’s financing of the Project may include EB-5 financing, even if the EB-5 lender is not a Qualified Lender. So long as the EB-5 lender meets all of the criteria of a Permitted Lender, it shall have the right rights of a Qualified Lender hereunder. If a default under an EB-5 loan has occurred and is continuing, the EB-5 lender shall not be entitled to attend all such meetings (whether conducted in person or by telephone or electronic meeting). Skechers enforce any of the rights applicable to a Qualified Lender under Article XV of the Sublease unless and until the EB-5 lender shall also have the right to communicate directly provided SCA with the Construction applicable loan default notice. Further, the EB-5 lender shall not be entitled to recognition under the Sublease or a new sublease as contemplated by Article XV of the Sublease, unless and until the EB-5 lender is or engages a Qualified Developer to perform any outstanding work required to be performed by Developer under this Agreement. In the event Developer uses EB-5 financing, Developer agrees to indemnify, defend and hold harmless the SCA Indemnitees, DOE, New York City, and any agency thereof (individually an “NYC Indemnitee” and collectively, the “NYC Indemnitees”) in the event of any investigation, prosecution or other litigation related to EB-5 financing for the Project (but excluding any of the foregoing arising out of the negligence, willful misconduct or breach of this Agreement by any NYC Indemnitee) and shall use counsel chosen by Developer and reasonably acceptable to SCA, at the expense of the Developer. The foregoing sentence shall survive Closing or termination of this Agreement. At the option of SCA, Developer will cause the EB-5 Lender to discuss the status of the Construction Loan, but will not negotiate any of its terms or conditions without the express prior approval of the HF Managing Memberenter into an interparty agreement with SCA as is contemplated with respect to a Qualified Lender.

Construction Loan. The Company shall cause the T1 Subsidiary to take out a Construction Loan or Construction Loans to finance the development of the Project on the Development ParcelProperty. The Construction Loan shall not close unless and until fee title to Except as set forth in Section 6.4, the Property has been conveyed by the Master Landlord to the Subsidiaries in accordance with Section 4.1.1(b). The Lender of the Construction Loan(s) shall be selected by the HF Managing Member. Any guarantees (completion, payment or otherwise) required by the Lender of the Construction Loan(s) shall be provided by both HF (or an Affiliate of HF) and Skechers (or an Affiliate of Skechers). HF shall cause an HF Affiliate acceptable to the Construction Lender to provide such guarantees. , and Skechers shall cause a Skechers Affiliate acceptable to the Construction Lender to provide such guarantee.. If a Construction Loan (or Construction Loans) sufficient to fund the entire cost of developing the Project on the Development Parcel (considering the Initial Capital Contribution to be made by Skechers) Property cannot be obtained, HF may, at its option, loan its own funds (or funds of its Affiliates) to the T1 Subsidiary Company in lieu of the Construction Loan, and in the latter case such loan will be part of the HF Loan (provided, however, the interest rate on the portion of the HF Loan comprising the in-lieu construction loan shall be the rate which is then being charged by institutional construction lenders in the marketplace for construction loans of this amount and nature, and the terms and conditions of such loan shall be comparable to loans then being made by such institutional construction lenders). HF shall take the lead in procuring the Construction Loan, and Skechers shall cooperate with HF in connection therewith. Skechers shall have the right to review and comment on the terms and conditions of the Construction Loan(s), and the Construction Loan documentation, but (except as set forth in Section 6.4) the decisions of HF in this regard shall control and will be final and conclusive (provided that HF shall act in good faith and consistent with its fiduciary duties hereunder) and the HF Managing Member, acting alone, is authorized and empowered to execute and deliver on behalf of the Company, as the sole member of the T1 Subsidiary, all Construction Loan Documents, and the Construction Lender may rely on the signature of the HF Managing Member as binding the Company and the T1 Subsidiary regardless of any possible claims by Skechers that HF did not act in good faith or consistent with its fiduciary obligations hereunder. Notwithstanding the foregoing, Skechers Parent shall not be required to materially amend or modify the Lease in connection with obtaining the Construction Loan (except for any reasonable and customary modifications which may be required under a subordination, non-disturbance and attornment agreement). Skechers shall be given reasonable advance notice of any regularly scheduled meetings with the prospective Construction Lender at which material issues regarding the Construction Loan are expected to be discussed and shall have the right to attend all such meetings (whether conducted in person or by telephone or electronic meeting). Skechers shall also have the right to communicate directly with the Construction Lender to discuss the status of the Construction Loan, but will not negotiate any of its terms or conditions without the express prior approval of the HF Managing Member.