Payment of Project Costs. (a) No Net Construction Proceeds (other than the State Contribution Amount) will be transferred to the Construction Funds Trust unless and until each of the following conditions has been satisfied (the date on which such conditions are satisfied being hereafter described as the “Funding Release Date”): (i) StadCo shall have delivered to the Authority a Construction Manager at Risk Agreement satisfying the terms of this Development Agreement, including those in Section 7.7 hereof, and based on construction drawings sufficiently advanced to permit the release of amounts within any Authority Project Account established by the Authority Bond Documents to the payment of Project Costs as described in Section 3.5(b) below; (ii) StadCo shall have delivered to the Authority an updated Project Budget based upon the construction drawings on which the Construction Manager at Risk Agreement was based for purposes of determining the amount of the StadCo Contribution Amount as of the Funding Release Date, which such Project Budget shall include, without limitation, all costs identified in the Construction Manager at Risk Agreement; (iii) The PSL Contribution Amount shall have been Committed in the manner described in Section 3.2(c) above; (iv) StadCo shall have Committed the funding of the StadCo Contribution Amount in the manner described in Sections 3.2(d)(ii) above and provided assurances reasonably acceptable to the Authority and its legal counsel and financial advisors that StadCo has the financial resources available to it to fund the Cost Overrun Amount (as estimated) in the manner described in Section 3.2(d)(i); (v) The representations and warranties of the Authority and StadCo, as set forth in Sections 4.1 and 4.2, respectively, shall be true and correct as of such date; and (vi) StadCo shall have delivered to the Authority for review by the Authority’s legal counsel and financial advisors, final financing agreements related to (i) StadCo financing agreements and (ii) any PSL-related financing that is not otherwise included as part of the StadCo financing agreements, all reflecting terms consistent with this Agreement. (b) All Project Costs will be paid pursuant to the terms of this Agreement. The Authority and StadCo hereby agree to take all such steps as may be necessary to cause the Authority Contribution Amount, the PSL Contribution Amount, the StadCo Contribution Amount and any Cost Overrun Amount, as applicable, to be timely deposited to the applicable account(s) of the Construction Funds Trust Agreement. (c) Amounts on deposit in the Project Accounts shall be expended on Project Costs on a pari passu basis, as among the Authority Contribution Amount, the State Contribution Amount, the StadCo Contribution Amount and the PSL Contribution Amount; provided that until the total disbursements from the Construction Funds Trust Agreement shall equal the Catch-up Achievement Amount, amounts on deposit in the respective Project Accounts shall be expended on Project Costs on a pari passu basis, as between the Authority Contribution Amount and the State Contribution Amount, all as more fully detailed in the Construction Funds Trust Agreement. (d) On or prior to the Funding Release Date, and in order to determine the Catch-up Achievement Amount, StadCo and the Authority shall jointly determine the amount of any Project Costs paid by StadCo prior to the Funding Release Date, based on reasonably detailed evidence of the payment of Project Costs provided by StadCo, including any relevant reports from the Construction Monitor.
Appears in 1 contract
Samples: Development and Funding Agreement
Payment of Project Costs. (a) No Net Construction Proceeds (other than the State Contribution Amount) will be transferred to the Construction Funds Trust unless and until each of the following conditions has been satisfied (the date on which such conditions are satisfied being hereafter described as the “Funding Release Date”):
(i) StadCo shall have delivered to the Authority a Construction Manager at Risk Agreement satisfying the terms of this Development Agreement, including those in Section 7.7 hereof, and based on construction drawings sufficiently advanced to permit the release of amounts within any Authority Project Account established by the Authority Bond Documents to the payment of Project Costs as described in Section 3.5(b) below;
(ii) StadCo shall have delivered to the Authority an updated Project Budget based upon the construction drawings on which the Construction Manager at Risk Agreement was based for purposes of determining the amount of the StadCo Contribution Amount as of the Funding Release Date, which such Project Budget shall include, without limitation, all costs identified in the Construction Manager at Risk Agreement;
(iii) The PSL Contribution Amount shall have been Committed in the manner described in Section 3.2(c) above;
(iv) StadCo shall have Committed the funding of the StadCo Contribution Amount in the manner described in Sections 3.2(d)(ii) above and provided assurances reasonably acceptable to the Authority and its legal counsel and financial advisors that StadCo has the financial resources available to it to fund the Cost Overrun Amount (as estimated) in the manner described in Section 3.2(d)(i);
(v) The representations and warranties of the Authority and StadCo, as set forth in Sections 4.1 and 4.2, respectively, shall be true and correct as of such date; and
(vi) StadCo shall have delivered to the Authority for review by the Authority’s legal counsel and financial advisors, final financing agreements related to (i) StadCo financing agreements and (ii) any PSL-related financing that is not otherwise included as part of the StadCo financing agreements, all reflecting terms consistent with this Agreement.
(b) All Project Costs will be paid pursuant to the terms of this Agreement. The Authority and StadCo hereby agree to take all such steps as may be necessary to cause the Authority Contribution Amount, the PSL Contribution Amount, the StadCo Contribution Amount and any Cost Overrun Amount, as applicable, to be timely deposited to the applicable account(s) of the Construction Funds Trust Agreement.
(c) Amounts on deposit in the Project Accounts shall be expended on Project Costs on a pari passu basis, as among the Authority Contribution Amount, the State Contribution Amount, the StadCo Contribution Amount and the PSL Contribution Amount; provided that until the total disbursements from the Construction Funds Trust Agreement shall equal the Catch-up Achievement Amount, amounts on deposit in the respective Project Accounts shall be expended on Project Costs on a pari passu basis, as between the Authority Contribution Amount and the State Contribution Amount, all as more fully detailed in the Construction Funds Trust Agreement.
(d) On or prior to the Funding Release Effective Date, StadCo has provided the Authority with written evidence including relevant reports from the Construction Monitor, that StadCo has made the Initial StadCo Contribution. The Authority acknowledges receipt of such evidence from StadCo and advises StadCo that such evidence is satisfactory to the Authority to establish that the Initial StadCo Contribution has been made and that the provisions in order the Act requiring such evidence have been satisfied.
(ii) On or prior to determine the Catch-up Achievement AmountEffective Date, StadCo has provided the Authority with written evidence including relevant reports from the Construction Monitor, that StadCo has made payments of Project Costs (excluding for this purpose the purchase price of the Land) in excess of the Initial StadCo Contribution (such payments, the “Additional Initial StadCo Contributions”) in an amount equal to $[ ]. The Authority acknowledges receipt of such evidence from StadCo and advises StadCo that such evidence is satisfactory to the Authority to establish that, as of the Effective Date, certain Additional Initial StadCo Contributions have been made in an amount equal to $[ ].
(iii) Prior to the Initial Authority Contribution Date, StadCo and the Authority shall jointly determine the amount of any Project Costs paid Additional Initial StadCo Contributions not included in the Additional Initial StadCo Contributions acknowledged by StadCo prior the Authority pursuant to the Funding Release Date, Section 3.2(e)(ii) hereof based on reasonably detailed evidence of the payment of Project Costs provided by StadCo, StadCo including any relevant reports from the Construction Monitor. StadCo and the Authority hereby further acknowledge and agree that all Additional Initial StadCo Contributions shall be included in the StadCo Contribution Amount, including for the purpose of determining the occurrence of the Authority Catch-Up Achievement Date (as defined below).
(iv) On the Initial Authority Contribution Date and continuing until such time as the amounts funded from the Authority Contribution Trust Account for the payment of Project Costs equal to [ . ]% of the aggregate amount of Additional Initial StadCo Contributions (such amount, the “Authority Catch-up Amount”, and the date on which the Authority Catch-up Amount is fully funded by the Authority, the “Authority Catch-up Achievement Date”), the Authority shall fund (through the Authority Contribution Trust Account) 100% of the Project Costs, subject to the terms of the Construction Funds Trust Agreement; provided that, if at any time amounts deposited in the Authority Contribution Trust Account are insufficient to cover the Project Costs payable pursuant to this Section 3.2(e)(iv) (the amount of such insufficiency being referred to herein as the “Authority Contribution Shortfall”), the amount of such Authority Contribution Shortfall shall be paid from the StadCo Contribution Trust Account with proceeds deposited therein pursuant to Section 3.2(d)(i) hereof; provided further that the aggregate amount of the Authority Contribution Shortfall paid from time to time pursuant to this Section 3.2(e)(iv) (the “Aggregate Authority Contribution Shortfall”) shall be included in any determination of the Authority Catch-up Amount and of the occurrence of the Authority Catch-up Achievement Date.
(v) From and after the Authority Catch-up Achievement Date until the earlier to occur of (A) the Section 35(2)(b) Date and (B) the Pro Rata Funding Suspension Date, all Project Costs shall be paid from the Authority Contribution Trust Account, on the one hand, and the PSL Contribution Trust Account and/or the StadCo Contribution Trust Account, on the other hand, in the proportion of 44.512754226% of all Project Costs and 55.487245774% of all Project Costs, respectively, subject to the terms of the Construction Funds Trust Agreement.
(vi) From and after the occurrence of the Pro Rata Funding Suspension Date (if it occurs prior to the Section 35(2)(b) Date) until the Section 35(2)(b) Date, all Project Costs shall be paid from the PSL Contribution Trust Account and/or the StadCo Contribution Trust Account, subject to the terms of the Construction Funds Trust Agreement.
(vii) From and after the Section 35(2)(b) Date, all Project Costs shall be paid from the Authority Contribution Amount (subject to the obligations of StadCo to fund any Cost Overruns), subject to the terms of the Construction Funds Trust Agreement.
(viii) In the event the Authority Contribution Amount actually funded is less than $750,000,000, on the Final Authority Contribution Date, StadCo and the Authority shall jointly redetermine the pro rata percentages set forth in Section 3.2(e)(v) hereof. In the event that, as of the end of any calendar quarter, the projected cumulative Project Costs set forth in the then-applicable Project Budget is more than 5.00% less than projected cumulative Project Costs set forth in the Project Budget as of the Effective Date, then within ten (10) days after the end of such calendar quarter, StadCo and the Authority shall jointly re-determine the pro rata percentages set forth in Section 3.2(e)(v) hereof using the same methodology used to determine such pro rata percentages on the Effective Date.
Appears in 1 contract
Samples: Development Agreement
Payment of Project Costs. (a) No Net On or prior to the Initial Authority Contribution Date, StadCo shall provide the Authority with written evidence, including relevant reports from the Construction Proceeds Monitor, that StadCo, through itself or one of its Developer Partners, has made the Initial StadCo Contribution. Within ten (other than 10) Business Days after receipt of such written evidence, the State Authority shall provide StadCo with a written acknowledgement that such written evidence is satisfactory to the Authority to establish that the Initial StadCo Contribution has been made and that the provisions of the Act requiring such written evidence have been satisfied. [Process to address scenarios where the Authority fails to provide StadCo with such written acknowledgement or there are deficiencies in the written evidence provided by XxxxXx to be developed.]
(b) If, on or prior to the Initial Authority Contribution Date, StadCo, through itself or one of its Developer Partners, has made payments or contributions of Project Costs in excess of the Initial StadCo Contribution (such payments or contributions, the “Additional Initial StadCo Contributions”), StadCo shall also provide the Authority with written evidence, including relevant reports from the Construction Monitor, that StadCo, through itself or one of its Developer Partners, as to the amount of the Additional Initial StadCo Contributions made as of such date. Within ten (10) Business Days after receipt of such written evidence, the Authority shall provide StadCo with a written acknowledgement that such written evidence is satisfactory to the Authority to establish that the Additional Initial StadCo Contributions have been made in the amount reported by StadCo. All Additional Initial StadCo Contributions shall be included in the StadCo Contribution Amount, including for the purpose of determining the occurrence of the Authority Catch-Up Achievement Date (as defined below). [Process to address scenarios where the Authority fails to provide StadCo with such written acknowledgement or there are deficiencies in the written evidence provided by XxxxXx to be developed.]
(c) will be transferred to [Reserved.]
(d) The flow of funds from the Construction Funds Trust unless from and until each of after the Initial Authority Contribution Date shall be in accordance with the following conditions has been satisfied (the date on which such conditions are satisfied being hereafter described as the “Funding Release Date”):terms.
(i) StadCo shall have delivered [Subject at all times to the Authority a Construction Manager at Risk Agreement satisfying the terms of this Development the Construction Funds Trust Agreement, including those in Section 7.7 hereof, and based on construction drawings sufficiently advanced to permit the release one hundred percent (100%) of amounts within Projects Costs (but excluding any Authority Project Account established Costs reimbursed by the County Credit) will be paid from the Authority Bond Documents to Contribution Trust Account beginning on the Initial Authority Contribution Date and continuing until such time as the ratio of (x) the amount funded from the Authority Contribution Trust Account for the payment of Project Costs (but excluding Project Costs reimbursed by the County Credit) (such amount, the “Authority Catch-Up Amount”, and the date on which the Authority Catch-Up Amount is fully funded by the Authority, the “Authority Catch-Up Achievement Date”) to (y) an amount equal to the sum of the aggregate Additional Initial StadCo Contributions plus the Authority Catch-Up Amount is equal to the Authority’s Initial Share or the Authority’s Revised Share, as described applicable.] Notwithstanding the foregoing, if at any time amounts on deposit in the Authority Contribution Trust Account are insufficient to pay Project Costs payable pursuant to this Section 3.5(b3.9(d)(i) below;(the amount of such insufficiency being referred to herein as the “Authority Contribution Shortfall”), the amount of such Authority Contribution Shortfall shall be paid from the StadCo Contribution Trust Account with proceeds deposited therein pursuant to Section 3.8 hereof; provided that the aggregate amount of the Authority Contribution Shortfall paid from time to time from the StadCo Contribution Trust Account pursuant to this Section 3.9(d)(i) (the “Aggregate Authority Contribution Shortfall”) shall be included in the Additional Initial StadCo Contributions amount, and the Additional Initial StadCo Contributions (including the amount of the Aggregate Authority Contribution Shortfall) shall be included in any determination of whether the Authority Catch-Up Amount has been satisfied and of the occurrence of the Authority Catch-Up Achievement Date.
(ii) Subject at all times to the terms of the Construction Funds Trust Agreement, from and after the Authority Catch-Up Achievement Date and continuing until the earlier to occur of (x) the Last Fifty Million Date and (y) the Pro Rata Funding Suspension Date (such period of time, the “Pro Rata Funding Period”), all Project Costs (excluding Project Costs reimbursed by the County Credit) shall be paid from the Authority Contribution Trust Account (including, if applicable, using the TTC Face Value Deposits, as provided by Section 3.4 hereof), on the one hand, and the PSL Contribution Trust Account and/or the StadCo Contribution Trust Account, on the other hand, pro rata in accordance with the following: first, all Project Costs (excluding Project Costs reimbursed by the County Credit) up to the Authority’s Initial Share or the Authority’s Revised Share, as applicable, from the Authority Contribution Trust Account, and, next, all remaining Project Costs (excluding Project Costs reimbursed by the County Credit) from the PSL Contribution Trust Account and/or the StadCo Contribution Trust Account. Notwithstanding the foregoing, if at any time during the Pro Rata Funding Period amounts on deposit in the Authority Contribution Trust Account are insufficient to pay the Authority’s Initial Share or Authority’s Revised Share of Project Costs, as applicable, pursuant to this Section 3.9(d)(ii) because StadCo has not yet achieved one or more of the TTC Funding Milestones and, as a result, StadCo has not made the associated TTC Face Value Deposit(s) (the amount of such insufficiency being referred to herein as the “TTC Shortfall”), StadCo shall deposit the amount of such TTC Shortfall into the Authority Contribution Trust Account pursuant to Section 3.8 hereof (each such deposit, a “TTC Shortfall Deposit”), and such TTC Shortfall Deposit shall be deemed a contribution from the Authority to the Authority Contribution Trust Account. Upon the subsequent achievement of TTC Funding Milestone(s), the associated TTC Face Value Deposit(s) shall be reduced by the amount of such TTC Shortfall Deposit until such time as StadCo shall have delivered to received a credit for the Authority an updated Project Budget based upon the construction drawings on which the Construction Manager at Risk Agreement was based for purposes of determining the total amount of the TTC Shortfall Deposit(s) made by StadCo into the Authority Contribution Amount as of the Funding Release Date, which such Project Budget shall include, without limitation, all costs identified in the Construction Manager at Risk Agreement;Trust Account.
(iii) The From and after the occurrence of the Pro Rata Funding Suspension Date (if the Pro Rata Funding Suspension Date occurs prior to the Last Fifty Million Date) until the Last Fifty Million Date, all Project Costs (excluding Project Costs reimbursed by the County Credit) shall be paid from the PSL Contribution Amount shall have been Committed in the manner described in Section 3.2(c) above;
(iv) StadCo shall have Committed the funding of Trust Account and/or the StadCo Contribution Amount in the manner described in Sections 3.2(d)(ii) above and provided assurances reasonably acceptable to the Authority and its legal counsel and financial advisors that StadCo has the financial resources available to it to fund the Cost Overrun Amount (as estimated) in the manner described in Section 3.2(d)(i);
(v) The representations and warranties of the Authority and StadCoTrust Account, as set forth in Sections 4.1 and 4.2, respectively, shall be true and correct as of such date; and
(vi) StadCo shall have delivered to the Authority for review by the Authority’s legal counsel and financial advisors, final financing agreements related to (i) StadCo financing agreements and (ii) any PSL-related financing that is not otherwise included as part of the StadCo financing agreements, all reflecting terms consistent with this Agreement.
(b) All Project Costs will be paid pursuant subject to the terms of this Agreement. The Authority and StadCo hereby agree to take all such steps as may be necessary to cause the Authority Contribution Amount, the PSL Contribution Amount, the StadCo Contribution Amount and any Cost Overrun Amount, as applicable, to be timely deposited to the applicable account(s) of the Construction Funds Trust Agreement.
(civ) Amounts on deposit in From and after the Last Fifty Million Date, all Project Accounts Costs (excluding Project Costs reimbursed by the County Credit) shall be expended on Project Costs on a pari passu basis, as among paid from the Authority Contribution AmountAmount (subject to the obligations of StadCo to fund any Cost Overruns), subject to the State Contribution Amount, the StadCo Contribution Amount and the PSL Contribution Amount; provided that until the total disbursements from terms of the Construction Funds Trust Agreement shall equal Agreement. Notwithstanding the Catch-up Achievement Amountforegoing, if at any time from and after the Last Fifty Million Date amounts on deposit in the respective Project Accounts shall be expended on Authority Contribution Trust Account are insufficient to cover the last fifty million dollars ($50,000,000) of Project Costs on a pari passu basis(excluding Project Costs reimbursed by the County Credit) payable pursuant to this Section 3.9(d)(iv) because StadCo has not yet achieved one or more of the TTC Funding Milestones and, as between a result, StadCo has not made the associated TTC Face Value Deposit(s) (the amount of such insufficiency being referred to herein as the “Last TTC Shortfall”), StadCo shall deposit the amount of such Last TTC Shortfall (the “Last TTC Shortfall Deposit”) into the Authority Contribution Amount Trust Account pursuant to Section 3.8 hereof, and such Last TTC Shortfall Deposit shall be deemed a contribution from the State Contribution Amount, all as more fully detailed in the Construction Funds Trust Agreement.
(d) On or prior Authority to the Authority Contribution Trust Account. Upon the subsequent achievement of TTC Funding Release DateMilestone(s), and in order to determine the Catch-up Achievement Amount, StadCo and the Authority associated TTC Face Value Deposit(s) shall jointly determine be reduced by the amount of any Project Costs paid such Last TTC Shortfall Deposit until such time as StadCo shall have received a credit for the total amount of the Last TTC Shortfall Deposit made by StadCo prior to into the Funding Release Date, based on reasonably detailed evidence of the payment of Project Costs provided by StadCo, including any relevant reports from the Construction MonitorAuthority Contribution Trust Account.
Appears in 1 contract
Samples: Development Agreement
Payment of Project Costs. (a) No Net On or prior to the Initial Authority Contribution Date, StadCo shall provide the Authority with written evidence, including relevant reports from the Construction Proceeds Monitor, if any, that StadCo, through itself or one of its Developer Partners, has made the Initial StadCo Contribution. Within ten (other than 10) Business Days after receipt of such written evidence, the State Authority shall provide StadCo with a written acknowledgement that such written evidence is satisfactory to the Authority to establish that the Initial StadCo Contribution has been made and that the provisions of the Act requiring such written evidence have been satisfied (such written acknowledgement, the “Initial Contribution Approval”). If the Authority fails to either provide StadCo the Initial Contribution Approval or inform StadCo in writing of any deficiencies with the written evidence provided by StadCo within such ten (10) Business Day period, StadCo shall provide a written Notice to the Authority that the Authority has failed to timely do so, and such Notice shall prominently state that if the Authority fails to do so within ten (10) Business Days after receipt of such Notice, the written evidence provided by StadCo shall be deemed satisfactory to the Authority to establish that the Initial StadCo Contribution has been made and that the provisions of the Act requiring such written evidence have been satisfied, and such Notice shall cite this Section 3.9(a) (such Notice, the “Initial Contribution Second Notice”). If the Authority fails to either provide StadCo with the Initial Contribution Approval or inform StadCo in writing of any deficiencies with the written evidence provided by StadCo within ten (10) Business Day of Authority’s receipt of the Initial Contribution Second Notice, the written evidence provided by StadCo shall be deemed satisfactory to the Authority to establish that the Initial StadCo Contribution has been made and that the provisions of the Act requiring such written evidence have been satisfied. If the Authority timely informs StadCo in writing of any deficiencies with the written evidence provided by StadCo, StadCo shall endeavor to address such deficiencies in a timely manner, and any such resubmittal of evidence to the Authority shall be subject to the timelines and deemed approval provisions of this Section 3.9(a) as though such resubmittal was StadCo’s initial submission of such evidence to the Authority.
(b) If, on or prior to the Initial Authority Contribution Date (or, with respect to an Authority Catch-Up Shortfall, on or prior to the Authority Catch-Up Achievement Date), StadCo, through itself or one of its Developer Partners, has made payments or contributions of Project Costs in excess of the Initial StadCo Contribution (such payments or contributions, including, if applicable, the Aggregate Authority Catch-Up Shortfall, collectively, the “Additional Initial StadCo Contribution”), then StadCo shall also provide the Authority, on or prior to the Initial Authority Contribution Date (or, with respect to an Authority Catch-Up Shortfall, on or prior to the Authority Catch-Up Achievement Date), with written evidence, including relevant reports from the Construction Monitor, if any, (i) that StadCo, through itself or one of its Developer Partners, has made the Additional Initial StadCo Contribution, and (ii) the amount of the Additional Initial StadCo Contribution as of such date. Within ten (10) Business Days after receipt of such written evidence, the Authority shall provide StadCo with a written acknowledgement that such written evidence is satisfactory to the Authority to establish that the Additional Initial StadCo Contribution has been made in the amount reported by StadCo (such written acknowledgement, the “Additional Contribution Approval”). If the Authority fails to either provide StadCo the Additional Contribution Approval or inform StadCo in writing of any deficiencies with the written evidence provided by StadCo within such ten (10) Business Day period, StadCo shall provide a written Notice to the Authority that the Authority has failed to timely do so, and such Notice shall prominently state that if the Authority fails to do so within ten (10) Business Days after receipt of such Notice, the written evidence provided by StadCo shall be deemed satisfactory to the Authority to establish that the Additional Initial StadCo Contribution has been made and that the provisions of the Act requiring such written evidence have been satisfied, and such Notice shall cite this Section 3.9(b) (such Notice, the “Additional Contribution Second Notice”). If the Authority fails to either provide StadCo with the Additional Contribution Approval or inform XxxxXx in writing of any deficiencies with the written evidence provided by StadCo within ten (10) Business Day of Authority’s receipt of the Additional Contribution Second Notice, the written evidence provided by StadCo shall be deemed satisfactory to the Authority to establish that the Additional Initial StadCo Contribution has been made and that the provisions of the Act requiring such written evidence have been satisfied. If the Authority timely informs StadCo in writing of any deficiencies with the written evidence provided by StadCo, StadCo shall endeavor to address such deficiencies in a timely manner, and any such resubmittal of evidence to the Authority shall be subject to the timelines and deemed approval provisions of this Section 3.9(b) as though such resubmittal was StadCo’s initial submission of such evidence to the Authority. The Additional Initial StadCo Contribution shall be included in the StadCo Contribution Amount, including for the purpose of determining the occurrence of the Authority Catch-Up Achievement Date (as defined below).
(c) will be transferred to [Reserved.]
(d) The flow of funds from the Construction Funds Trust unless from and until each of after the Initial Authority Contribution Date shall be in accordance with the following conditions has been satisfied (the date on which such conditions are satisfied being hereafter described as the “Funding Release Date”):terms.
(i) StadCo shall have delivered Subject at all times to the Authority a Construction Manager at Risk Agreement satisfying the terms of this Development the Construction Funds Trust Agreement, including those in Section 7.7 hereof, and based on construction drawings sufficiently advanced to permit the release one hundred percent (100%) of amounts within Projects Costs (but excluding any Authority Project Account established Costs reimbursed by the County Credit) will be paid from the Authority Bond Documents to Contribution Trust Account beginning on the Initial Authority Contribution Date and continuing until such time as the ratio of (x) the amount funded from the Authority Contribution Trust Account for the payment of Project Costs (but excluding Project Costs reimbursed by the County Credit) (such amount, the “Authority Catch-Up Amount”) to (y) an amount equal to the sum of the Additional Initial StadCo Contribution plus the Authority Catch-Up Amount is equal to the Authority’s Initial Share, the Authority’s Revised Share, or the Authority’s Updated Share, as described applicable. The date on which the Authority Catch-Up Amount is fully paid from the Authority Contribution Trust Account is the “Authority Catch-Up Achievement Date”. Notwithstanding the foregoing, if at any time amounts on deposit in the Authority Contribution Trust Account are insufficient to pay the Authority Catch-Up Amount payable pursuant to this Section 3.5(b3.9(d)(i) below;(the amount of such insufficiency being referred to herein as the “Authority Catch-Up Shortfall”), the amount of such Authority Catch-Up Shortfall shall be paid from the StadCo Contribution Trust Account with proceeds deposited therein pursuant to Section 3.8 hereof, and the aggregate amount of the Authority Catch-Up Shortfall paid from time to time from the StadCo Contribution Trust Account pursuant to this Section 3.9(d)(i) (the “Aggregate Authority Catch-Up Shortfall”) shall be included in the Additional Initial StadCo Contribution amount, and the Additional Initial StadCo Contribution (including the amount of the Aggregate Authority Catch-Up Shortfall) shall be included in any determination of whether the Authority Catch- Up Amount has been satisfied and of the occurrence of the Authority Catch-Up Achievement Date.
(ii) Subject at all times to the terms of the Construction Funds Trust Agreement, from and after the Authority Catch-Up Achievement Date and continuing until the earlier to occur of (x) the Last Fifty Million Date and (y) the Pro Rata Funding Suspension Date (such period of time, the “Pro Rata Funding Period”), all Project Costs (excluding Project Costs reimbursed by the County Credit) shall be paid from the Authority Contribution Trust Account (including, if applicable, using the TTC Face Value Deposits, as provided by Section 3.4 hereof), on the one hand, and the PSL Contribution Trust Account and/or the StadCo Contribution Trust Account, on the other hand, pro rata as follows: all Project Costs (excluding Project Costs reimbursed by the County Credit) shall be paid from the Authority Contribution Trust Account up to the Authority’s Initial Share, the Authority’s Revised Share, or the Authority’s Updated Share, as applicable, of such Project Costs, and all remaining Project Costs (excluding Project Costs reimbursed by the County Credit) shall be paid from the PSL Contribution Trust Account and/or the StadCo Contribution Trust Account. Notwithstanding the foregoing, if at any time during the Pro Rata Funding Period amounts on deposit in the Authority Contribution Trust Account are insufficient to pay the Authority’s Initial Share, the Authority’s Revised Share, or the Authority’s Updated Share of Project Costs, as applicable, pursuant to this Section 3.9(d)(ii) because StadCo has not yet achieved one or more of the TTC Milestones and, as a result, StadCo has not made the corresponding TTC Face Value Deposit(s) (the amount of such insufficiency being referred to herein as the “TTC Shortfall”), StadCo shall deposit the amount of such TTC Shortfall into the Authority Contribution Trust Account pursuant to Section 3.8 hereof (each such deposit, a “TTC Shortfall Deposit”), and such TTC Shortfall Deposit shall be deemed a contribution from the Authority to the Authority Contribution Trust Account. Upon the subsequent achievement of TTC Milestone(s), the associated TTC Face Value Deposit(s) shall be reduced by the amount of such TTC Shortfall Deposit(s) until such time as StadCo shall have delivered to received a credit for the total amount of all the TTC Shortfall Deposit(s) made by StadCo into the Authority an updated Project Budget based upon the construction drawings on which the Construction Manager at Risk Agreement was based for purposes of determining the amount of the StadCo Contribution Amount as of the Funding Release Date, which such Project Budget shall include, without limitation, all costs identified in the Construction Manager at Risk Agreement;Trust Account.
(iii) The From and after the occurrence of the Pro Rata Funding Suspension Date (if the Pro Rata Funding Suspension Date occurs prior to the Last Fifty Million Date) until the Last Fifty Million Date, all Project Costs (excluding Project Costs reimbursed by the County Credit) shall be paid from the PSL Contribution Amount shall have been Committed in the manner described in Section 3.2(c) above;
(iv) StadCo shall have Committed the funding of Trust Account and/or the StadCo Contribution Amount in the manner described in Sections 3.2(d)(ii) above and provided assurances reasonably acceptable to the Authority and its legal counsel and financial advisors that StadCo has the financial resources available to it to fund the Cost Overrun Amount (as estimated) in the manner described in Section 3.2(d)(i);
(v) The representations and warranties of the Authority and StadCoTrust Account, as set forth in Sections 4.1 and 4.2, respectively, shall be true and correct as of such date; and
(vi) StadCo shall have delivered to the Authority for review by the Authority’s legal counsel and financial advisors, final financing agreements related to (i) StadCo financing agreements and (ii) any PSL-related financing that is not otherwise included as part of the StadCo financing agreements, all reflecting terms consistent with this Agreement.
(b) All Project Costs will be paid pursuant subject to the terms of this Agreement. The Authority and StadCo hereby agree to take all such steps as may be necessary to cause the Authority Contribution Amount, the PSL Contribution Amount, the StadCo Contribution Amount and any Cost Overrun Amount, as applicable, to be timely deposited to the applicable account(s) of the Construction Funds Trust Agreement.
(civ) Amounts on deposit in From and after the Last Fifty Million Date, all Project Accounts Costs (excluding Project Costs reimbursed by the County Credit) shall be expended on Project Costs on a pari passu basis, as among paid from the Authority Contribution AmountAmount (subject to the obligations of StadCo to fund any Cost Overruns), subject to the State Contribution Amount, the StadCo Contribution Amount and the PSL Contribution Amount; provided that until the total disbursements from terms of the Construction Funds Trust Agreement shall equal Agreement. Notwithstanding the Catch-up Achievement Amountforegoing, if at any time from and after the Last Fifty Million Date amounts on deposit in the respective Project Accounts shall be expended on Authority Contribution Trust Account are insufficient to cover the last fifty million dollars ($50,000,000) of Project Costs on a pari passu basis(excluding Project Costs reimbursed by the County Credit) payable pursuant to this Section 3.9(d)(iv) because StadCo has not yet achieved one or more of the TTC Milestones and, as between a result, StadCo has not made the associated TTC Face Value Deposit(s) (the amount of such insufficiency being referred to herein as the “Last TTC Shortfall”), StadCo shall deposit the amount of such Last TTC Shortfall (the “Last TTC Shortfall Deposit”) into the Authority Contribution Amount Trust Account pursuant to Section 3.8 hereof, and such Last TTC Shortfall Deposit shall be deemed a contribution from the State Contribution Amount, all as more fully detailed in the Construction Funds Trust Agreement.
(d) On or prior Authority to the Funding Release DateAuthority Contribution Trust Account. Upon the subsequent achievement of TTC Milestone(s), and in order to determine the Catch-up Achievement Amount, StadCo and the Authority associated TTC Face Value Deposit(s) shall jointly determine be reduced by the amount of any Project Costs paid such Last TTC Shortfall Deposit until such time as StadCo shall have received a credit for the total amount of the Last TTC Shortfall Deposit made by StadCo prior to into the Funding Release Date, based on reasonably detailed evidence of the payment of Project Costs provided by StadCo, including any relevant reports from the Construction MonitorAuthority Contribution Trust Account.
Appears in 1 contract
Samples: Development Agreement
Payment of Project Costs. (a) No Net Construction Proceeds (other than the State Contribution Amount) will be transferred to the Construction Funds Trust unless and until each of the following conditions has been satisfied (the date on which such conditions are satisfied being hereafter described as the “Funding Release Date”):
(i) StadCo shall have delivered to the Authority a Construction Manager at Risk Agreement satisfying the terms of this Development Agreement, including those in Section 7.7 hereof, and based on construction drawings sufficiently advanced to permit the release of amounts within any Authority Project Account established by the Authority Bond Documents to the payment of Project Costs as described in Section 3.5(b) below;
(ii) StadCo shall have delivered to the Authority an updated Project Budget based upon the construction drawings on which the Construction Manager at Risk Agreement was based for purposes of determining the amount of the StadCo Contribution Amount as of the Funding Release Date, which such Project Budget shall include, without limitation, all costs identified in the Construction Manager at Risk Agreement;
(iii) The PSL Contribution Amount shall have been Committed in the manner described in Section 3.2(c) above;
(iv) StadCo shall have Committed the funding of the StadCo Contribution Amount in the manner described in Sections 3.2(d)(ii) above and provided assurances reasonably acceptable to the Authority and its legal counsel and financial advisors that StadCo has the financial resources available to it to fund the Cost Overrun Amount (as estimated) in the manner described in Section 3.2(d)(i);
(v) The representations and warranties of the Authority and StadCo, as set forth in Sections 4.1 and 4.2, respectively, shall be true and correct as of such date; and
(vi) StadCo shall have delivered to the Authority for review by the Authority’s legal counsel and financial advisors, final financing agreements related to (i) StadCo financing agreements and (ii) any PSL-related financing that is not otherwise included as part of the StadCo financing agreements, all reflecting terms consistent with this Agreement.
(b) All Project Costs will be paid pursuant to the terms of this Agreement. The Authority and StadCo hereby agree to take all such steps as may be necessary to cause the Authority Contribution Amount, the PSL Contribution Amount, the StadCo Contribution Amount and any Cost Overrun Amount, as applicable, to be timely deposited to the applicable account(s) of the Construction Funds Trust Agreement.
(c) Amounts on deposit in the Project Accounts shall be expended on Project Costs on a pari passu basis, as among the Authority Contribution Amount, the State Contribution Amount, the StadCo Contribution Amount and the PSL Contribution Amount; provided that until the total disbursements from the Construction Funds Trust Agreement shall equal the Catch-up Achievement Amount, amounts on deposit in the respective Project Accounts shall be expended on Project Costs on a pari passu basis, as between the Authority Contribution Amount and the State Contribution Amount, all as more fully detailed in the Construction Funds Trust Agreement.
(d) On or prior to the Funding Release Effective Date, StadCo has provided the Authority with written evidence including relevant reports from the Construction Monitor, that StadCo has made the Initial StadCo Contribution. The Authority acknowledges receipt of such evidence from StadCo and advises StadCo that such evidence is satisfactory to the Authority to establish that the Initial StadCo Contribution has been made and that the provisions in order the Act requiring such evidence have been satisfied.
(ii) On or prior to determine the Catch-up Achievement AmountEffective Date, StadCo has provided the Authority with written evidence including relevant reports from the Construction Monitor, that StadCo
(iii) Prior to the Initial Authority Contribution Date, StadCo and the Authority shall jointly determine the amount of any Project Costs paid Additional Initial StadCo Contributions not included in the Additional Initial StadCo Contributions acknowledged by StadCo prior the Authority pursuant to the Funding Release Date, Section 3.2(e)(ii) hereof based on reasonably detailed evidence of the payment of Project Costs provided by StadCo, StadCo including any relevant reports from the Construction Monitor. StadCo and the Authority hereby further acknowledge and agree that all Additional Initial StadCo Contributions shall be included in the StadCo Contribution Amount, including for the purpose of determining the occurrence of the Authority Catch-Up Achievement Date (as defined below).
(iv) On the Initial Authority Contribution Date and continuing until such time as the amounts funded from the Authority Contribution Trust Account for the payment of Project Costs equal to 44.512754226% of the aggregate amount of Additional Initial StadCo Contributions (such amount, the “Authority Catch-up Amount”, and the date on which the Authority Catch-up Amount is fully funded by the Authority, the “Authority Catch-up Achievement Date”), the Authority shall fund (through the Authority Contribution Trust Account) 100% of the Project Costs, subject to the terms of the Construction Funds Trust Agreement; provided that, if at any time amounts deposited in the Authority Contribution Trust Account are insufficient to cover the Project Costs payable pursuant to this Section 3.2(e)(iv) (the amount of such insufficiency being referred to herein as the “Authority Contribution Shortfall”), the amount of such Authority Contribution Shortfall shall be paid from the StadCo Contribution Trust Account with proceeds deposited therein pursuant to Section 3.2(d)(i) hereof; provided further that the aggregate amount of the Authority Contribution Shortfall paid from time to time pursuant to this Section 3.2(e)(iv) (the “Aggregate Authority Contribution Shortfall”) shall be included in any determination of the Authority Catch-up Amount and of the occurrence of the Authority Catch-up Achievement Date.
(v) From and after the Authority Catch-up Achievement Date until the earlier to occur of (A) the Section 35(2)(b) Date and (B) the Pro Rata Funding Suspension Date, all Project Costs shall be paid from the Authority Contribution Trust Account, on the one hand, and the PSL Contribution Trust Account and/or the StadCo Contribution Trust Account, on the other hand, in the proportion of 44.512754226% of all Project Costs and 55.487245774% of all Project Costs, respectively, subject to the terms of the Construction Funds Trust Agreement.
(vi) From and after the occurrence of the Pro Rata Funding Suspension Date (if it occurs prior to the Section 35(2)(b) Date) until the Section 35(2)(b) Date, all Project Costs shall be paid from the PSL Contribution Trust Account and/or the StadCo
(vii) From and after the Section 35(2)(b) Date, all Project Costs shall be paid from the Authority Contribution Amount (subject to the obligations of StadCo to fund any Cost Overruns), subject to the terms of the Construction Funds Trust Agreement.
(viii) In the event the Authority Contribution Amount actually funded is less than $750,000,000, on the Final Authority Contribution Date, StadCo and the Authority shall jointly redetermine the pro rata percentages set forth in Section 3.2(e)(v) hereof. In the event that, as of the end of any calendar quarter, the projected cumulative Project Costs set forth in the then-applicable Project Budget is more than 5.00% less than projected cumulative Project Costs set forth in the Project Budget as of the Effective Date, then within ten (10) days after the end of such calendar quarter, StadCo and the Authority shall jointly re-determine the pro rata percentages set forth in Section 3.2(e)(v) hereof using the same methodology used to determine such pro rata percentages on the Effective Date.
Appears in 1 contract
Samples: Development Agreement
Payment of Project Costs. (a) No Net Construction Proceeds (other than the State Contribution Amount) will be transferred to the Construction Funds Trust unless and until each of the following conditions has been satisfied (the date on which such conditions are satisfied being hereafter described as the “Funding Release Date”):
(i) StadCo shall have delivered to the Authority a Construction Manager at Risk Agreement satisfying the terms of this Development Agreement, including those in Section 7.7 hereof, and based on construction drawings sufficiently advanced to permit the release of amounts within any Authority Project Account established by the Authority Bond Documents to the payment of Project Costs as described in Section 3.5(b) below;
(ii) StadCo shall have delivered to the Authority an updated Project Budget based upon the construction drawings on which the Construction Manager at Risk Agreement was based for purposes of determining the amount of the StadCo Contribution Amount as of the Funding Release Date, which such Project Budget shall include, without limitation, all costs identified in the Construction Manager at Risk Agreement;
(iii) The PSL Contribution Amount shall have been Committed in the manner described in Section 3.2(c) above;
(iv) StadCo shall have Committed the funding of the StadCo Contribution Amount in the manner described in Sections 3.2(d)(ii) above and provided assurances reasonably acceptable to the Authority and its legal counsel and financial advisors that StadCo has the financial resources available to it to fund the Cost Overrun Amount (as estimated) in the manner described in Section 3.2(d)(i);
(v) The representations and warranties of the Authority and StadCo, as set forth in Sections 4.1 and 4.2, respectively, shall be true and correct as of such date; and
(vi) StadCo shall have delivered to the Authority for review by the Authority’s legal counsel and financial advisors, final financing agreements related to (i) StadCo financing agreements and (ii) any PSL-related financing that is not otherwise included as part of the StadCo financing agreements, all reflecting terms consistent with this Agreement.
(b) All Project Costs will be paid pursuant to the terms of this Agreement. The Authority and StadCo hereby agree to take all such steps as may be necessary to cause the Authority Contribution Amount, the PSL Contribution Amount, the StadCo Contribution Amount and any Cost Overrun Amount, as applicable, to be timely deposited to the applicable account(s) of the Construction Funds Trust Agreement.
(c) Amounts on deposit in the Project Accounts shall be expended on Project Costs on a pari passu basis, as among the Authority Contribution Amount, the State Contribution Amount, the StadCo Contribution Amount and the PSL Contribution Amount; provided that until the total disbursements from the Construction Funds Trust Agreement shall equal the Catch-up Achievement Amount, amounts on deposit in the respective Project Accounts shall be expended on Project Costs on a pari passu basis, as between the Authority Contribution Amount and the State Contribution Amount, all as more fully detailed in the Construction Funds Trust Agreement.
(d) On or prior to the Funding Release Effective Date, StadCo has provided the Authority with written evidence including relevant reports from the Construction Monitor, that StadCo has made the Initial StadCo Contribution. The Authority acknowledges receipt of such evidence from StadCo and advises StadCo that such evidence is satisfactory to the Authority to establish that the Initial StadCo Contribution has been made and that the provisions in order the Act requiring such evidence have been satisfied.
(ii) On or prior to determine the Catch-up Achievement AmountEffective Date, StadCo has provided the Authority with written evidence including relevant reports from the Construction Monitor, that StadCo has made payments of Project Costs (excluding for this purpose the purchase price of the Land) in excess of the Initial StadCo Contribution (such payments, the “Additional Initial StadCo Contributions”) in an amount equal to $[ ]. The Authority acknowledges receipt of such evidence from StadCo and advises StadCo that such evidence is satisfactory to the Authority to establish that, as of the Effective Date, certain Additional Initial StadCo Contributions have been made in an amount equal to $[ ].
(iii) Prior to the Initial Authority Contribution Date, StadCo and the Authority shall jointly determine the amount of any Project Costs paid Additional Initial StadCo Contributions not included in the Additional Initial StadCo Contributions acknowledged by StadCo prior the Authority pursuant to the Funding Release Date, Section 3.2(e)(ii) hereof based on reasonably detailed evidence of the payment of Project Costs provided by StadCo, StadCo including any relevant reports from the Construction Monitor. StadCo and the Authority hereby further acknowledge and agree that all Additional Initial StadCo Contributions shall be included in the StadCo Contribution Amount, including for the purpose of determining the occurrence of the Authority Catch-Up Achievement Date (as defined below).
(iv) On the Initial Authority Contribution Date and continuing until such time as the amounts funded from the Authority Contribution Trust Account for the payment of Project Costs equal to [ . ]% of the aggregate amount of Additional Initial StadCo Contributions (such amount, the “Authority Catch-up Amount”, and the date on which the Authority Catch-up Amount is fully funded by the Authority, the “Authority Catch-up Achievement Date”), the Authority shall fund (through the Authority Contribution Trust Account) 100% of the Project Costs, subject to the terms of the Construction Funds Trust Agreement; provided that, if at any time amounts deposited in the Authority Contribution Trust Account are insufficient to cover the Project Costs payable pursuant to this Section 3.2(e)(iv) (the amount of such insufficiency being referred to herein as the “Authority Contribution Shortfall”), the amount of such Authority Contribution Shortfall shall be paid from the StadCo Contribution Trust Account with proceeds deposited therein pursuant to Section 3.2(d)(i) hereof; provided further that the aggregate amount of the Authority Contribution Shortfall paid from time to time pursuant to this Section 3.2(e)(iv) (the “Aggregate Authority Contribution Shortfall”) shall be included in any determination of the Authority Catch-up Amount and of the occurrence of the Authority Catch-up Achievement Date.
(v) From and after the Authority Catch-up Achievement Date until the earlier to occur of (A) the Section 35(2)(b) Date and (B) the Pro Rata Funding Suspension Date, all Project Costs shall be paid from the Authority Contribution Trust Account, on the one hand, and the PSL Contribution Trust Account and/or the StadCo Contribution Trust Account, on the other hand, in the proportion of [ . ]44.512754226% of all Project Costs and [ . ]55.487245774% of all Project Costs, respectively, subject to the terms of the Construction Funds Trust Agreement.
(vi) From and after the occurrence of the Pro Rata Funding Suspension Date (if it occurs prior to the Section 35(2)(b) Date) until the Section 35(2)(b) Date, all Project Costs shall be paid from the PSL Contribution Trust Account and/or the StadCo Contribution Trust Account, subject to the terms of the Construction Funds Trust Agreement.
(vii) From and after the Section 35(2)(b) Date, all Project Costs shall be paid from the Authority Contribution Amount (subject to the obligations of StadCo to fund any Cost Overruns), subject to the terms of the Construction Funds Trust Agreement.
(viii) In the event the Authority Contribution Amount actually funded is less than $750,000,000, on the Final Authority Contribution Date, StadCo and the Authority shall jointly redetermine the pro rata percentages set forth in Section 3.2(e)(v) hereof. In the event that, as of the end of any calendar quarter, the projected cumulative Project Costs set forth in the then-applicable Project Budget is more than 5.00% less than projected cumulative Project Costs set forth in the Project Budget as of the Effective Date, then within ten (10) days after the end of such calendar quarter, StadCo and the Authority shall jointly re-determine the pro rata percentages set forth in Section 3.2(e)(v) hereof using the same methodology used to determine such pro rata percentages on the Effective Date.
Appears in 1 contract
Samples: Development Agreement
Payment of Project Costs. (a) No Net Construction Proceeds (other than the State Contribution Amount) will be transferred to the Construction Funds Trust unless and until each of the following conditions has been satisfied (the date on which such conditions are satisfied being hereafter described as the “Funding Release Date”):
(i) StadCo shall have delivered to the Authority a Construction Manager at Risk Agreement satisfying the terms of this Development Agreement, including those in Section 7.7 hereof, and based on construction drawings sufficiently advanced to permit the release of amounts within any Authority Project Account established by the Authority Bond Documents to the payment of Project Costs as described in Section 3.5(b) below;
(ii) StadCo shall have delivered to the Authority an updated Project Budget based upon the construction drawings on which the Construction Manager at Risk Agreement was based for purposes of determining the amount of the StadCo Contribution Amount as of the Funding Release Date, which such Project Budget shall include, without limitation, all costs identified in the Construction Manager at Risk Agreement;
(iii) The PSL Contribution Amount shall have been Committed in the manner described in Section 3.2(c) above;
(iv) StadCo shall have Committed the funding of the StadCo Contribution Amount in the manner described in Sections 3.2(d)(ii) above and provided assurances reasonably acceptable to the Authority and its legal counsel and financial advisors that StadCo has the financial resources available to it to fund the Cost Overrun Amount (as estimated) in the manner described in Section 3.2(d)(i);
(v) The representations and warranties of the Authority and StadCo, as set forth in Sections 4.1 and 4.2, respectively, shall be true and correct as of such date; and
(vi) StadCo shall have delivered to the Authority for review by the Authority’s legal counsel and financial advisors, final financing agreements related to (i) StadCo financing agreements and (ii) any PSL-related financing that is not otherwise included as part of the StadCo financing agreements, all reflecting terms consistent with this Agreement.
(b) All Project Costs will be paid pursuant to the terms of this Agreement. The Authority and StadCo hereby agree to take all such steps as may be necessary to cause the Authority Contribution Amount, the PSL Contribution Amount, the StadCo Contribution Amount and any Cost Overrun Amount, as applicable, to be timely deposited to the applicable account(s) of the Construction Funds Trust Agreement.
(c) Amounts on deposit in the Project Accounts shall be expended on Project Costs on a pari passu basis, as among the Authority Contribution Amount, the State Contribution Amount, the StadCo Contribution Amount and the PSL Contribution Amount; provided that until the total disbursements from the Construction Funds Trust Agreement shall equal the Catch-up Achievement Amount, amounts on deposit in the respective Project Accounts shall be expended on Project Costs on a pari passu basis, as between the Authority Contribution Amount and the State Contribution Amount, all as more fully detailed in the Construction Funds Trust Agreement.
(d) On or prior to the Funding Release Effective Date, StadCo has provided the Authority with written evidence including relevant reports from the Construction Monitor, that StadCo has made the Initial StadCo Contribution. The Authority acknowledges receipt of such evidence from StadCo and advises StadCo that such evidence is satisfactory to the Authority to establish that the Initial StadCo Contribution has been made and that the provisions in order the Act requiring such evidence have been satisfied.
(ii) On or prior to determine the Catch-up Achievement AmountEffective Date, StadCo has provided the Authority with written evidence including relevant reports from the Construction Monitor, that StadCo has made payments of Project Costs (excluding for this purpose the purchase price of the Land) in excess of the Initial StadCo Contribution (such payments, the “Additional Initial StadCo Contributions”) in an amount equal to $[ ].3 The Authority acknowledges receipt of such evidence from StadCo and advises StadCo that such evidence is satisfactory to the Authority to establish that, as of the Effective Date, certain Additional Initial StadCo Contributions have been made in an amount equal to $[ ].
(iii) Prior to the Initial Authority Contribution Date, StadCo and the Authority shall jointly determine the amount of any Project Costs paid Additional Initial StadCo Contributions not included in the Additional Initial StadCo Contributions acknowledged by StadCo prior the Authority pursuant to the Funding Release Date, Section 3.2(e)(ii) hereof based on reasonably detailed evidence of the payment of Project Costs provided by StadCo, StadCo including any relevant reports from the Construction Monitor. StadCo and the Authority hereby further acknowledge and agree that all Additional Initial StadCo Contributions shall be included in the StadCo Contribution Amount, including for the purpose of determining the occurrence of the Authority Catch-Up Achievement Date (as defined below).
(iv) On the Initial Authority Contribution Date and continuing until such time as the amounts funded from the Authority Contribution Trust Account for the payment of Project Costs equal to [ . ]%4 of the aggregate amount of Additional Initial StadCo Contributions (such amount, the “Authority Catch-up Amount”, and the date on which the Authority Catch-up Amount is fully funded by the Authority, the “Authority Catch-up Achievement Date”), the Authority shall fund (through the Authority Contribution Trust 3 Note to Draft – StadCo to provide data to support amount of Additional Initial StadCo Contributions.
Appears in 1 contract
Samples: Development Agreement
Payment of Project Costs.
(a) No Net Construction Proceeds (other than the State Contribution Amount and the PSL Contribution Amount) will be transferred to the Construction Funds Trust unless and until each of the following conditions has been satisfied (the later of (i) the date on which all such conditions are satisfied and (ii) August 1, 2023 being hereafter described as the “Funding Release Date”):
(i) StadCo shall have delivered to the Authority a Construction Manager at Risk Agreement satisfying the terms of this Development Agreement, including those in Section 7.7 hereof, and based on construction drawings sufficiently advanced to permit the release of amounts within any Authority Project Account established by the Authority Bond Documents to the payment of Project Costs as described in Section 3.5(b) below;
(ii) StadCo shall have delivered to the Authority an updated Project Budget based upon the construction drawings on which the Construction Manager at Risk Agreement was based for purposes of determining the amount of the StadCo Contribution Amount as of the Funding Release Date, which such Project Budget shall include, without limitation, all costs identified in the Construction Manager at Risk Agreement;
(iii) The PSL Contribution Amount shall have been Committed in the manner described in Section 3.2(c) above;
(iv) StadCo shall have Committed the funding of the StadCo Contribution Amount in the manner described in Sections 3.2(d)(ii) above and provided assurances reasonably acceptable to the Authority and its legal counsel and financial advisors that StadCo has the financial resources available to it to fund the Cost Overrun Amount (as estimated) in the manner described in Section 3.2(d)(i);
(v) The representations and warranties of the Authority and StadCo, as set forth in Sections 4.1 and 4.2, respectively, shall be true and correct as of such date; and
(vi) StadCo shall have delivered to the Authority for review by the Authority’s legal counsel and financial advisors, final financing agreements related to (i) StadCo financing agreements and (ii) any PSL-related financing that is not otherwise included as part of the StadCo financing agreements, all reflecting terms consistent with this Agreement.
(b) All Project Costs will be paid pursuant to the terms of this Agreement. The Authority and StadCo hereby agree to take all such steps as may be necessary to cause the Authority Contribution Amount, the PSL Contribution Amount, the StadCo Contribution Amount and any Cost Overrun Amount, as applicable, to be timely deposited to the applicable account(s) of the Construction Funds Trust Agreement.
(c) Amounts on deposit in the Project Accounts shall be expended on Project Costs on a pari passu basis, as among the Authority Contribution Amount, the State Contribution Amount, the StadCo Contribution Amount and the PSL Contribution Amount; provided that (i) until the Funding Release Date, amounts on deposit in the Project Accounts shall be expended on Project Costs exclusively from amounts in respect of the PSL Contribution Amount; (ii) if the Funding Release Date precedes the Funding Drop-Dead Date, then (A) from and after the Funding Release Date and until the Funding Drop-Dead Date, amounts on deposit in the Project Accounts shall be expended on Project Costs exclusively from amounts in respect of the State Contribution Amount (provided that no more than the lesser of (x) $50,000,000 or (y) the amount of Project Costs paid by StadCo prior to the Funding Release Date, as determined in accordance with Section 3.5(d), may be so expended prior to the Funding Drop-Dead Date), and (B) from and after the Funding Drop-Dead Date, amounts on deposit in the Project Accounts shall be expended on Project Costs exclusively from amounts in respect of the Authority Contribution Amount until the amount so expended equals 152% of the amount (if any) previously expended on Project Costs from amounts in respect of the State Contribution Amount pursuant to the preceding clause (A) (the date on which the amount expended from amounts in respect of the Authority Contribution Amount satisfies the requirements of this clause (B), the “Authority/State Equilibrium Date”); (iii) from and after either (A) the Authority/State Equilibrium Date, or (B) (if the Funding Release Date occurs on the Funding Drop-Dead Date) the Funding Release Date, until the total disbursements from the Construction Funds Trust Agreement shall equal the Catch-up Achievement Amount, amounts on deposit in the respective Project Accounts shall be expended on Project Costs on a pari passu basis, as between amounts in respect of (X) the Authority Contribution Amount and (Y) the State Contribution Amount, all as more fully detailed in the Construction Funds Trust Agreement; and (iv) from and after the Funding Release Date, any amount of Project Costs that would have been paid from amounts in respect of the PSL Contribution Amount but for the failure of the PSL Contribution Amount to be timely funded as required by the Personal Seat License Marketing and Sales Agreement shall be paid solely from amounts in respect of the StadCo Contribution Amount, rather than such Project Costs being paid on a pari passu basis from amounts on deposit in the respective Project Accounts as among the Authority Contribution Amount, the State Contribution Amount and the StadCo Contribution Amount.
(d) On or prior to the Funding Release Date, and in order to determine the Catch-up Achievement Amount, StadCo and the Authority shall jointly determine the amount of any Project Costs paid by StadCo prior to the Funding Release Date, based on reasonably detailed evidence of the payment of Project Costs provided by StadCo, including any relevant reports from the Construction Monitor.
Appears in 1 contract
Samples: Development and Funding Agreement