Common use of Procedures for Completion Clause in Contracts

Procedures for Completion. 4.1 In the event that Borrower fails to perform all of its Obligations under the Loan Agreement relating to construction of the Project and causing the Project to be Legally Open, then in any such event or at any time thereafter, the Administrative Agent may give written notice to Completion Guarantors of the occurrence of such event. 4.2 Within ten days after the date on which the Administrative Agent gives any such notice to Completion Guarantor, if and to the extent that Borrower continues to fail to perform its Obligations under the Loan Agreement relating to the construction of the Project (the “Construction Obligations”) or causing the Project to be Legally Open, Completion Guarantors shall: (a) commence to complete the construction of the Project and do all things reasonably required to cause the Project to promptly be Legally Open at their sole cost; (b) diligently prosecute the construction of the Project to completion within the time and in the manner specified in the Construction Timetable, free of Liens (other than Permitted Encumbrances and Permitted Rights of Others and Liens under Section 6.8 of the Loan Agreement) and fully paid for and diligently prosecute causing the Project to be Legally Open; and (c) defend, indemnify and hold the Administrative Agent and/or the Lenders harmless from all losses, costs, liabilities and expenses, including reasonable attorneys’ fees, incurred in connection with such completion and the Project becoming Legally Open, in each case other than arising as a result of the gross negligence or willful misconduct of the Administrative Agent or a Lender. If and to the extent that, at any time following the giving such notice, the Completion Guarantors remedy the failures of Borrower to comply with the Construction Obligations or to cause the Project to be Legally Open in a manner which is acceptable to the Administrative Agent in the exercise of its discretion (including without limitation the funding of any construction over-runs from other sources), and provided that no Default or Event of Default then exists (other than (i) Defaults or Events of Default which arise solely from the failure of Borrower to timely construct the Project or to construct it in accordance with the Approved Plans and Approved Budget and which, in the determination of the Administrative Agent, have been cured to the extent which is commercially practicable, (ii) Events of Default arising solely from the failure of Borrower to comply with any financial covenant set forth in the Loan Agreement for any past compliance period, provided that Borrower is in compliance with such financial covenant and with all other financial covenants set forth in the Loan Agreement for the then current compliance period, or (iii) other Defaults or Events of Default to the extent that the circumstances giving rise thereto have been cured or otherwise addressed to the satisfaction of the Administrative Agent in its sole and unfettered discretion), then, subject to the terms and conditions of the Loan Agreement, the Administrative Agent and the Lenders shall continue to make Loans and Letters of Credit available to the Borrower for the completion of the Project. 4.3 If Completion Guarantors fail to commence to complete the construction of the Project or diligently to prosecute such construction to timely completion as provided in Section 4.2 above, then the right of the Administrative Agent to recover under Section 5 shall not be affected or diminished by its exercise of the rights and remedies that may be available to the Administrative Agent under the Loan Agreement and the other Loan Documents, at law or in equity, including: (a) Administrative Agent may, at the Administrative Agent’s option, enter the Project Property to complete construction of the Project (either itself or through any agent, contractor or subcontractor of its selection), which option of the Administrative Agent shall be exercisable whether or not the Administrative Agent elects to proceed judicially or non-judicially to foreclose on all or any portion of the Collateral. (b) The Administrative Agent, at its option and in accordance with the Loan Agreement and the other Loan Documents, shall have the right, but shall have no obligation, to proceed judicially or non-judicially to foreclose on all or any portion of the Collateral, exercisable whether or not the Administrative Agent elects to undertake to complete the construction of the Project. (c) If the Administrative Agent elects to undertake to complete the construction of the Project, and whether or not the Administrative Agent elects to proceed judicially or non-judicially to foreclose on all or any portion of the Collateral, the Administrative Agent shall have the right to recover damages from Completion Guarantors in an amount equal to the sum of: (i) The costs reasonably incurred or reasonably estimated to be incurred by the Administrative Agent to complete the construction of the Project, provided that with respect to damages recovered for costs estimated to be incurred by the Administrative Agent, such funds shall be used for no purpose other than the construction of the Project (the “Cost to Complete”) and provided further that should the total actual costs incurred by the Administrative Agent to complete the construction of the Project be less than the Cost to Complete, the amount by which the Cost to Complete recovered by the Administrative Agent exceeds such actual construction costs shall be remitted to Completion Guarantors; plus (ii) All unreimbursed costs and expenses, including attorneys’ fees, reasonably incurred by the Administrative Agent in protecting and preserving the Project and enforcing or defending the interests of the Lenders under this Completion Guaranty (the “Unreimbursed Expenses”). (d) In any action or proceeding by the Administrative Agent to recover damages from Completion Guarantors, the Administrative Agent may exercise any and all remedies available under applicable Law. 4.4 The parties recognize that the choice of remedies by the Administrative Agent will necessarily and properly be a matter of business judgment, which the passage of time and events may or may not prove to have been the best choice to maximize recovery by the Administrative Agent at the lowest cost to either the Borrower or the Completion Guarantors. In recognition of the foregoing, to the fullest extent permitted by Law, each Completion Guarantor agrees that it shall not assert, and each Completion Guarantor hereby waives, any and all claims against the Administrative Agent, the Lenders and the other Creditors that any exercise of remedies or any election of remedies thereby has resulted (a) in actual or general damages to the Borrower, the Completion Guarantors or any Party as a result of the simple negligence of the Administrative Agent, the Lenders or any Creditor, or (b) in special, indirect, consequential, exemplary or punitive damages (as opposed to actual or general damages) except to the extent arising out any such action taken thereby in bad faith or constituting willful misconduct or gross negligence on the part of the Administrative Agent, the Lenders or any Creditor. In any event, any claim of the Completion Guarantors, or either of them alleging damages to the Borrower, the Completion Guarantors or any other Person, shall not be asserted as a defense to payment under this Completion Guaranty or as a set-off or basis for any claim of failure to mitigate damages in any action or proceeding arising from this Completion Guaranty, but shall instead be asserted in a separate action or actions against the Administrative Agent or other relevant party.

Procedures for Completion. 4.1 In the event that Borrower fails to perform all of its Obligations under the Loan Agreement relating to construction of the Project and causing the Project to be Legally Open, then in any such event or at any time thereafter, the Administrative Agent may give written notice to Completion Guarantors of the occurrence of such event. 4.2 Within ten days after the date on which the Administrative Agent gives any such notice to Completion Guarantor, if and to the extent that Borrower continues to fail to perform its Obligations under the Loan Agreement relating to the construction of the Project (the “"Construction Obligations”") or causing the Project to be Legally Open, Completion Guarantors shall: (a) commence to complete the construction of the Project and do all things reasonably required to cause the Project to promptly be Legally Open at their sole cost; (b) diligently prosecute the construction of the Project to completion within the time and in the manner specified in the Construction Timetable, free of Liens (other than Permitted Encumbrances and Permitted Rights of Others and Liens under Section 6.8 of the Loan Agreement) and fully paid for and diligently prosecute causing the Project to be Legally Open; and (c) defend, indemnify and hold the Administrative Agent and/or the Lenders harmless from all losses, costs, liabilities and expenses, including reasonable attorneys’ ' fees, incurred in connection with such completion and the Project becoming Legally Open, in each case other than arising as a result of the gross negligence or willful wilful misconduct of the Administrative Agent or a Lender. If and to the extent that, at any time following the giving such notice, the Completion Guarantors remedy the failures of Borrower to comply with the Construction Obligations or to cause the Project to be Legally Open in a manner which is acceptable to the Administrative Agent in the exercise of its discretion (including without limitation the funding of any construction over-runs from other sources), and provided that no Default or Event of Default then exists (other than (i) Defaults or Events of Default which arise solely from the failure of Borrower to timely construct the Project or to construct it in accordance with the Approved Plans and Approved Budget and which, in the determination of the Administrative Agent, have been cured to the extent which is commercially practicable, (ii) Events of Default arising solely from the failure of Borrower to comply with any financial covenant set forth in the Loan Agreement for any past compliance period, provided that Borrower is in compliance with such financial covenant and with all other financial covenants set forth in the Loan Agreement for the then current compliance period, or (iii) other Defaults or Events of Default to the extent that the circumstances giving rise thereto have been cured or otherwise addressed to the satisfaction of the Administrative Agent in its sole and unfettered discretion), then, subject to the terms and conditions of the Loan Agreement, the Administrative Agent and the Lenders shall continue to make Loans and Letters of Credit available to the Borrower for the completion of the Project. 4.3 If Completion Guarantors fail to commence to complete the construction of the Project or diligently to prosecute such construction to timely completion as provided in Section 4.2 above, then the right of the Administrative Agent to recover under Section 5 shall not be affected or diminished by its exercise of the rights and remedies that may be available to the Administrative Agent under the Loan Agreement and the other Loan Documents, at law or in equity, including: (a) Administrative Agent may, at the Administrative Agent’s 's option, enter the Project Property to complete construction of the Project (either itself or through any agent, contractor or subcontractor of its selection), which option of the Administrative Agent shall be exercisable whether or not the Administrative Agent elects to proceed judicially or non-judicially to foreclose on all or any portion of the Collateral. (b) The Administrative Agent, at its option and in accordance with the Loan Agreement and the other Loan Documents, shall have the right, but shall have no obligation, to proceed judicially or non-judicially to foreclose on all or any portion of the Collateral, exercisable whether or not the Administrative Agent elects to undertake to complete the construction of the Project. (c) If the Administrative Agent elects to undertake to complete the construction of the Project, and whether or not the Administrative Agent elects to proceed judicially or non-judicially to foreclose on all or any portion of the Collateral, the Administrative Agent shall have the right to recover damages from Completion Guarantors in an amount equal to the sum of: (i) The costs reasonably incurred or reasonably estimated to be incurred by the Administrative Agent to complete the construction of the Project, provided that with respect to damages recovered for costs estimated to be incurred by the Administrative Agent, such funds shall be used for no purpose other than the construction of the Project (the “"Cost to Complete”") and provided further that should the total actual costs incurred by the Administrative Agent to complete the construction of the Project be less than the Cost to Complete, the amount by which the Cost to Complete recovered by the Administrative Agent exceeds such actual construction costs shall be remitted to Completion Guarantors; plus (ii) All unreimbursed costs and expenses, including attorneys’ ' fees, reasonably incurred by the Administrative Agent in protecting and preserving the Project and enforcing or defending the interests of the Lenders under this Completion Guaranty (the “"Unreimbursed Expenses”"). (d) In any action or proceeding by the Administrative Agent to recover damages from Completion Guarantors, the Administrative Agent may exercise any and all remedies available under applicable Law. 4.4 The parties recognize that the choice of remedies by the Administrative Agent will necessarily and properly be a matter of business judgment, which the passage of time and events may or may not prove to have been the best choice to maximize recovery by the Administrative Agent at the lowest cost to either the Borrower or the Completion Guarantors. In recognition of the foregoing, to the fullest extent permitted by Law, each Completion Guarantor agrees that it shall not assert, and each Completion Guarantor hereby waives, any and all claims against the Administrative Agent, the Lenders and the other Creditors that any exercise of remedies or any election of remedies thereby has resulted (a) in actual or general damages to the Borrower, the Completion Guarantors or any Party as a result of the simple negligence of the Administrative Agent, the Lenders or any Creditor, or (b) in special, indirect, consequential, exemplary or punitive damages (as opposed to actual or general damages) except to the extent arising out any such action taken thereby in bad faith or constituting willful wilful misconduct or gross negligence on the part of the Administrative Agent, the Lenders or any Creditor. In any event, any claim of the Completion Guarantors, or either of them alleging damages to the Borrower, the Completion Guarantors or any other Person, shall not be asserted as a defense to payment under this Completion Guaranty or as a set-off or basis for any claim of failure to mitigate damages in any action or proceeding arising from this Completion Guaranty, but shall instead be asserted in a separate action or actions against the Administrative Agent or other relevant party.

Procedures for Completion. 4.1 In the event that Borrower fails to perform all of its Obligations under the Loan Agreement relating to construction of the Phase II Project and causing the Phase II Project to be Legally Open, then in any such event or at any time thereafter, the Administrative Agent may give written notice to Completion Guarantors of the occurrence of such event. 4.2 Within ten days after the date on which the Administrative Agent gives any such notice to Completion Guarantor, if and to the extent that Borrower continues to fail to perform its Obligations under the Loan Agreement relating to the construction of the Phase II Project (the “Construction Obligations”) or causing the Phase II Project to be Legally Open, Completion Guarantors shall: (a) commence to complete the construction of the Phase II Project and do all things reasonably required to cause the Phase II Project to promptly be Legally Open at their sole cost; (b) diligently prosecute the construction of the Phase II Project to completion within the time and in the manner specified in the Construction Timetable, free of Liens (other than Permitted Encumbrances and Permitted Rights of Others and Liens under Section 6.8 of the Loan Agreement) and fully paid for and diligently prosecute causing the Phase II Project to be Legally Open; and (c) defend, indemnify and hold the Administrative Agent and/or the Lenders harmless from all losses, costs, liabilities and expenses, including reasonable attorneys’ fees, incurred in connection with such completion and the Phase II Project becoming Legally Open, in each case other than arising as a result of the gross negligence or willful misconduct of the Administrative Agent or a Lender. If and to the extent that, at any time following the giving such notice, the Completion Guarantors remedy the failures of Borrower to comply with the Construction Obligations or to cause the Phase II Project to be Legally Open in a manner which is acceptable to the Administrative Agent in the exercise of its discretion (including without limitation the funding of any construction over-runs from other sources), and provided that no Default or Event of Default then exists (other than (i) Defaults or Events of Default which arise solely from the failure of Borrower to timely construct the Phase II Project or to construct it in accordance with the Approved Plans and Approved Budget and which, in the determination of the Administrative Agent, have been cured to the extent which is commercially practicable, (ii) Events of Default arising solely from the failure of Borrower to comply with any financial covenant set forth in the Loan Agreement for any past compliance period, provided that Borrower is in compliance with such financial covenant and with all other financial covenants set forth in the Loan Agreement for the then current compliance period, or (iii) other Defaults or Events of Default to the extent that the circumstances giving rise thereto have been cured or otherwise addressed to the satisfaction of the Administrative Agent in its sole and unfettered discretion), then, subject to the terms and conditions of the Loan Agreement, the Administrative Agent and the Lenders shall continue to make Loans and Letters of Credit available to the Borrower for the completion of the Phase II Project. 4.3 If Completion Guarantors fail to commence to complete the construction of the Phase II Project or diligently to prosecute such construction to timely completion as provided in Section 4.2 above, then the right of the Administrative Agent to recover under Section 5 shall not be affected or diminished by its exercise of the rights and remedies that may be available to the Administrative Agent under the Loan Agreement and the other Loan Documents, at law or in equity, including: (a) Administrative Agent may, at the Administrative Agent’s option, enter the Phase II Project Property to complete construction of the Phase II Project (either itself or through any agent, contractor or subcontractor of its selection), which option of the Administrative Agent shall be exercisable whether or not the Administrative Agent elects to proceed judicially or non-judicially to foreclose on all or any portion of the Collateral. (b) The Administrative Agent, at its option and in accordance with the Loan Agreement and the other Loan Documents, shall have the right, but shall have no obligation, to proceed judicially or non-judicially to foreclose on all or any portion of the Collateral, exercisable whether or not the Administrative Agent elects to undertake to complete the construction of the Phase II Project. (c) If the Administrative Agent elects to undertake to complete the construction of the Phase II Project, and whether or not the Administrative Agent elects to proceed judicially or non-judicially to foreclose on all or any portion of the Collateral, the Administrative Agent shall have the right to recover damages from Completion Guarantors in an amount equal to the sum of: (i) The costs reasonably incurred or reasonably estimated to be incurred by the Administrative Agent to complete the construction of the Phase II Project, provided that with respect to damages recovered for costs estimated to be incurred by the Administrative Agent, such funds shall be used for no purpose other than the construction of the Phase II Project (the “Cost to Complete”) and provided further that should the total actual costs incurred by the Administrative Agent to complete the construction of the Phase II Project be less than the Cost to Complete, the amount by which the Cost to Complete recovered by the Administrative Agent exceeds such actual construction costs shall be remitted to Completion Guarantors; plus (ii) All unreimbursed costs and expenses, including attorneys’ fees, reasonably incurred by the Administrative Agent in protecting and preserving the Phase II Project and enforcing or defending the interests of the Lenders under this Completion Guaranty (the “Unreimbursed Expenses”). (d) In any action or proceeding by the Administrative Agent to recover damages from Completion Guarantors, the Administrative Agent may exercise any and all remedies available under applicable Law. 4.4 The parties recognize that the choice of remedies by the Administrative Agent will necessarily and properly be a matter of business judgment, which the passage of time and events may or may not prove to have been the best choice to maximize recovery by the Administrative Agent at the lowest cost to either the Borrower or the Completion Guarantors. In recognition of the foregoing, to the fullest extent permitted by Law, each Completion Guarantor agrees that it shall not assert, and each Completion Guarantor hereby waives, any and all claims against the Administrative Agent, the Lenders and the other Creditors that any exercise of remedies or any election of remedies thereby has resulted (a) in actual or general damages to the Borrower, the Completion Guarantors or any Party as a result of the simple negligence of the Administrative Agent, the Lenders or any Creditor, or (b) in special, indirect, consequential, exemplary or punitive damages (as opposed to actual or general damages) except to the extent arising out any such action taken thereby in bad faith or constituting willful misconduct or gross negligence on the part of the Administrative Agent, the Lenders or any Creditor. In any event, any claim of the Completion Guarantors, or either of them alleging damages to the Borrower, the Completion Guarantors or any other Person, shall not be asserted as a defense to payment under this Completion Guaranty or as a set-off or basis for any claim of failure to mitigate damages in any action or proceeding arising from this Completion Guaranty, but shall instead be asserted in a separate action or actions against the Administrative Agent or other relevant party.

Procedures for Completion. 4.1 (a) In the event that Borrower fails to (i) perform all of its Obligations under the Loan Credit Agreement relating to construction of the Project and causing or (ii) cause the Project Opening Date or Completion Date to be Legally Openoccur by the dates set forth in Section 2 (collectively, the "Construction Obligations"), then in any such event or at any time thereafter, the Administrative Agent may give written notice to Completion Guarantors of the occurrence of such eventevent ("Notice of Default"). 4.2 (b) Within ten five days after the date on which the Administrative Agent gives any such notice Notice of Default to the Completion GuarantorGuarantors, if and to the extent that Borrower continues to fail to perform its Obligations under the Loan Agreement relating to the construction of the Project (the “Construction Obligations”) or causing the Project to be Legally Open, Completion Guarantors shall, at the Completion Guarantors sole cost: (ai) commence to complete the construction of the Project and do all things reasonably required to cause the Project Opening Date and Completion Date to promptly be Legally Open at their sole costoccur promptly; (bii) diligently prosecute the construction of the Project to completion within the time and in the manner specified in the Construction Timetable, Plans and Timetable and free of Liens (other than Permitted Encumbrances and Permitted Rights of Others and Liens under Section 6.8 of the Loan AgreementLiens) and fully paid for diligently cause the Opening Date and diligently prosecute causing the Project Completion Date to be Legally Openoccur; and (ciii) defend, indemnify and hold the Administrative Agent and/or the Lenders each Beneficiary harmless from all losses, costs, liabilities and expenses, including reasonable attorneys’ ' fees, incurred in connection with such completion and of the Project becoming Legally Openand such occurrence of the Opening Date and Completion Date, in each case other than arising as a result of the gross negligence or willful misconduct of the Administrative Agent or a Lendersuch Beneficiary. If and to the extent that, at any time following the giving such noticeof any Notice of Default, the Completion Guarantors remedy the failures of Borrower to comply with the Construction Obligations or to cause the Project to be Legally Open in a manner which is acceptable to the Administrative Agent in the exercise of its discretion (including without limitation the funding of any construction over-runs from other sources), and provided that no Default or Event of Default then exists (other than (i) Defaults or Events of Default which arise solely from the failure of Borrower to timely construct the Project or to construct it in accordance with the Approved Construction Plans and Approved Budget and which, in the determination of the Administrative Agent, have been cured to the extent which is commercially practicable), (ii) Events of Default arising solely from the failure of Borrower to comply with any financial covenant set forth in the Loan Credit Agreement for any past compliance period, provided that Borrower is in compliance with such financial covenant and with all other financial covenants set forth in the Loan Credit Agreement for the then current compliance period, or (iii) other Defaults or Events of Default to the extent that the circumstances giving rise thereto have been cured or otherwise addressed to the satisfaction of the Administrative Agent in its sole and unfettered discretion), then, subject to the terms and conditions of the Loan Credit Agreement, the Administrative Agent and the Lenders shall continue to make Loans and Letters of Credit available to the Borrower for the completion of the ProjectProject (or, in the event that the Completion Guarantors have assumed responsibility for the construction of the Project in writing in a manner which is reasonably acceptable to the Administrative Agent and the Required Lenders, the Lenders shall make replacement capital available to the Completion Guarantors for the construction of the Project in an aggregate amount not to exceed the Commitments (less the Operating Reserve), but only to the extent that the In-Balance Test is satisfied). 4.3 (c) If Completion Guarantors fail to commence to complete the construction of the Project or diligently to prosecute such construction to timely completion as provided in Section 4.2 4(b) above, then the right of the Administrative Agent to recover under Section 5 from the Completion Guarantors hereunder shall not be affected or diminished by its exercise of the rights and remedies that may be available to the Administrative Agent under the Loan Credit Agreement and the other Loan Documents, at law or in equity, including: (ai) Administrative Agent may, at the Administrative Agent’s 's option, enter the Project Property Site to complete construction of the Project (either itself or through any agent, contractor or subcontractor of its selection), which option of the Administrative Agent shall be exercisable whether or not the Administrative Agent elects to proceed judicially or non-non judicially to foreclose on all or any portion of the Collateral.; (bii) The the Administrative Agent, at its option and in accordance with the Loan Credit Agreement and the other Loan Documents, shall have the right, but shall have no obligation, to proceed judicially or non-judicially to foreclose on all or any portion of the Collateral, exercisable whether or not the Administrative Agent elects to undertake to complete the construction of the Project.; (ciii) If if the Administrative Agent elects to undertake to complete the construction of the Project, and whether or not the Administrative Agent elects to proceed judicially or non-judicially to foreclose on all or any portion of the Collateral, the Administrative Agent shall have the right to recover damages from Completion Guarantors in an amount equal to the sum of: (iA) The costs reasonably incurred the greater of the Remaining Costs forecast in the latest Remaining Cost Report or reasonably the amount of the Project Costs estimated to be incurred by the Administrative Agent to complete (in consultation with the Construction Consultant or other professional construction of the Project, provided that with respect to damages recovered for costs estimated to be incurred managers selected by the Administrative Agent, such funds shall be used for no purpose other than the construction of ) as required to complete the Project (but in any event including debt service in respect of the “Obligations until the Opening Date, the "Cost to Complete”") and provided further that should the total actual costs Project Costs incurred by the Administrative Agent to complete the construction of the Project be less than the Cost to Complete, the amount by which the Cost to Complete recovered by the Administrative Agent exceeds such actual construction costs Project Costs shall be remitted to Completion GuarantorsGuarantors upon the Final Completion Date; plus (iiB) All all unreimbursed costs and expenses, including attorneys’ ' fees, reasonably incurred by the Administrative Agent in protecting and preserving the Project and enforcing or defending the interests of the Lenders Beneficiaries under this Completion Guaranty (the “"Unreimbursed Expenses”"); minus (C) the amount by which the aggregate outstanding Obligations owed to the Lenders as of that date are less than $420,000,000. (div) In in any action or proceeding by the Administrative Agent to recover damages from Completion Guarantors, the Administrative Agent may exercise any and all remedies available under applicable Law. 4.4 (d) The parties recognize that the choice of remedies by the Administrative Agent will necessarily and properly be a matter of business judgment, which the passage of time and events may or may not prove to have been the best choice to maximize recovery by the Administrative Agent at the lowest cost to either the Borrower or the Completion Guarantors. In recognition of the foregoing, to the fullest extent permitted by Law, each Completion Guarantor agrees that it shall not assert, and each Completion Guarantor hereby waives, any and all claims against the Administrative Agent, the Lenders Agent and the other Creditors Beneficiaries that any exercise of remedies or any election of remedies thereby has resulted (a) in actual or general damages to the Borrower, the Completion Guarantors or any Party as a result of the simple negligence of the Administrative Agent, Agent or the Lenders or any Creditorother Beneficiaries, or (b) in special, indirect, consequential, exemplary or punitive damages (as opposed to actual or general damages) except to the extent arising out any such action taken thereby in bad faith or constituting willful misconduct or gross negligence on the part of the Administrative Agent, the Lenders or any Creditor. In any event, any claim of the Completion Guarantors, or either of them alleging damages to the Borrower, the Completion Guarantors or any other Person, shall not be asserted as a defense to payment under this Completion Guaranty or as a set-off or basis for any claim of failure to mitigate damages in any action or proceeding arising from this Completion Guaranty, but shall instead be asserted in a separate action or actions against the Administrative Agent or other relevant party.as

Procedures for Completion. 4.1 5.1 In the event that Borrower fails to perform all of its Obligations under the Loan Agreement relating to construction of the Project and causing the Project to be Legally OpenProject, then in any such event or at any time thereafter, the Administrative Managing Agent may give written notice to Completion Guarantors of the occurrence of such event. 4.2 5.2 Within ten (10) days after the date on which the Administrative Managing Agent gives any such notice to Completion GuarantorGuarantors, if and but subject to confirmation by the extent Managing Agent that Borrower continues any undisbursed Loans will be made pursuant to fail to perform its Obligations under the Loan Agreement relating subject to the construction terms and conditions thereof, Guarantors, at their sole cost (exclusive of the Project (the “Construction Obligations”) or causing the Project to be Legally Openundisbursed Loans), Completion Guarantors shall: (a) shall commence to complete the construction of the Project and do all things reasonably required to cause the Project to promptly be Legally Open at their sole cost; (b) diligently prosecute the such construction of the Project to completion within the time and in the manner specified in the Construction Timetable, free of Liens (other than Permitted Encumbrances and Permitted Rights of Others and Liens under Section 6.8 of the Loan AgreementEncumbrances) and fully paid for for, ----- ---- and diligently prosecute causing the Project to be Legally Open; and (c) shall defend, indemnify and hold the Administrative Managing Agent and/or the Lenders Banks harmless from all losses, costs, liabilities and expenses, including reasonable attorneys’ ' fees, incurred in connection with such completion and the Project becoming Legally Open, in each case other than arising as a result of the gross negligence or willful misconduct of the Administrative Agent or a Lendercompletion. If and to at the extent that, at any time following the giving date of such notice, the Completion Guarantors remedy the failures of Borrower there are no undisbursed Loans allocated to comply with the Construction Obligations or to cause the Project to be Legally Open in a manner which is acceptable to the Administrative Agent in the exercise of its discretion (including without limitation the funding of any construction over-runs from other sources), and provided that no Default or Event of Default then exists (other than (i) Defaults or Events of Default which arise solely from the failure of Borrower to timely construct the Project or to construct it in accordance with the Approved Plans and Approved Budget and which, in the determination of the Administrative Agent, have been cured to the extent which is commercially practicable, (ii) Events of Default arising solely from the failure of Borrower to comply with any financial covenant set forth in the Loan Agreement for any past compliance period, provided that Borrower is in compliance with such financial covenant and with all other financial covenants set forth in the Loan Agreement for the then current compliance period, or (iii) other Defaults or Events of Default to the extent that the circumstances giving rise thereto have been cured or otherwise addressed to the satisfaction of the Administrative Agent in its sole and unfettered discretion), then, subject to the terms and conditions of the Loan Agreement, the Administrative Agent and the Lenders shall continue to make Loans and Letters of Credit available to the Borrower for the completion of the Project, the Guarantors' obligations under this Section shall be absolute. If on such date there are any such undisbursed Loans, the obligations of the Guarantors under this Section shall be that percentage of the remaining costs to complete the Project equal to 100% minus the percentage thereof represented by the undisbursed Loans. 4.3 5.3 If Completion Guarantors fail to commence to complete the construction of the Project or diligently to prosecute such construction to timely completion as provided in Section 4.2 above, then the right of the Administrative Agent in addition to recover under Section 5 shall not be affected or diminished by its exercise of the all other rights and ----------- remedies that may be available to the Administrative Managing Agent under the Loan Agreement and the other Loan Documents, at law or in equity, includingthe Managing Agent may proceed as follows: (a) Administrative Managing Agent may, at the Administrative Managing Agent’s 's option, enter the Project Property to complete construction of the Project (either itself or through any agent, contractor or subcontractor of its selection), which option of the Administrative Managing Agent shall be exercisable whether or not the Administrative Managing Agent elects to proceed judicially or non-judicially to foreclose on all or any portion of the Collateral. (b) The Administrative Managing Agent, at its option and in accordance with the Loan Agreement and the other Loan Documents, shall have the right, but shall have no obligation, to proceed judicially or non-judicially to foreclose on all or any portion of the Collateral, exercisable whether or not the Administrative Managing Agent elects to undertake to complete the construction of the Project. (c) If the Administrative Managing Agent elects to undertake to complete the construction of the Project, and whether or not the Administrative Managing Agent elects to proceed judicially or non-judicially to foreclose on all or any portion of the Collateral, the Administrative Managing Agent shall have the right to recover damages from Completion Guarantors Guarantors' in an amount equal to the sum of: (i) The the costs reasonably incurred or reasonably estimated to be incurred by the Administrative Managing Agent to complete the construction of the ProjectProject as set forth in Paragraph 2 hereof minus any undisbursed Loans allocated to construction of the Project (the "Cost to Complete"), provided -------- that with respect to damages recovered for costs estimated to be incurred by the Administrative Managing Agent, such funds shall be used for no purpose other than the construction of the Project (the “Cost to Complete”) and provided -------- further that should the total actual costs incurred by the Administrative ------- Managing Agent to complete the construction of the Project be less than the Cost to Complete, the amount by which the Cost to Complete recovered by the Administrative Managing Agent exceeds such actual construction costs shall be remitted to Completion Guarantors; plus (ii) All unreimbursed costs and expenses, including attorneys’ ' fees, reasonably incurred by the Administrative Managing Agent in protecting and preserving the Project and enforcing or defending the interests of the Lenders Banks under this Completion Guaranty (the “"Unreimbursed Expenses”"). (d) In any action or proceeding by the Administrative Managing Agent to recover damages from Completion Guarantors, the Administrative Managing Agent may exercise any and all remedies available under applicable Law. 4.4 5.4 The remedy of specific performance, the recovery of damages and all other rights and remedies under this Guaranty, under the Loan Agreement and the other Loan Documents, at law or in equity are intended to be non- exclusive and cumulative. The parties recognize that the choice of remedies by the Administrative Managing Agent will necessarily and properly be a matter of business judgment, which the passage of time and events may or may not prove to have been the best choice to maximize recovery by the Administrative Managing Agent at the lowest cost to either the Borrower or the Completion Guarantors. In recognition Nevertheless, the choice of alternatives by the foregoing, to the fullest extent permitted by Law, each Completion Guarantor agrees that it Managing Agent shall not assert, and each Completion Guarantor hereby waives, any and all claims against the Administrative Agent, the Lenders and the other Creditors that any exercise of remedies be subject to question or any election of remedies thereby has resulted (a) in actual or general damages to the Borrower, the Completion Guarantors or any Party as a result of the simple negligence of the Administrative Agent, the Lenders or any Creditor, or (b) in special, indirect, consequential, exemplary or punitive damages (as opposed to actual or general damages) except to the extent arising out any such action taken thereby in bad faith or constituting willful misconduct or gross negligence on the part of the Administrative Agent, the Lenders or any Creditor. In any event, any claim of the Completion Guarantors, or either of them alleging damages to the Borrower, the Completion challenge by Guarantors or any other Person, nor shall not any such choice be asserted as a defense to payment under this Completion Guaranty or as a defense, set-off or basis for any claim of failure to mitigate damages in any action or proceeding arising from this Completion Guaranty, but shall instead be asserted in a separate action or actions against the Administrative Agent or other relevant party.

Procedures for Completion. 4.1 In the event that Borrower fails to perform all of its Obligations under the Loan Agreement relating to construction of the Project and causing the Project to be Legally OpenProject, then in any such event or at any time thereafter, the Administrative Managing Agent may give written notice to Completion Guarantors Guarantor of the occurrence of such event. 4.2 Within ten (10) days after the date on which the Administrative Managing Agent gives any such notice to Completion Guarantor, if and but subject to confirmation by the extent Managing Agent that Borrower continues any undisbursed Loans will be made pursuant to fail to perform its Obligations under the Loan Agreement relating subject to the construction terms and conditions thereof and confirmation by the Equipment Lessors that any undisbursed advances for equipment purchase prices will be made pursuant to the Equipment Lease, Guarantor, at its sole cost (exclusive of the Project (the “Construction Obligations”undisbursed Loans) or causing the Project to be Legally Open, Completion Guarantors shall: (a) shall commence to complete the construction of the Project and do all things reasonably required to cause the Project to promptly be Legally Open at their sole cost; (b) diligently prosecute the such construction of the Project to completion within the time and in the manner specified in the Construction Timetable, free of Liens (other than OTHER THAN Permitted Encumbrances and Permitted Rights of Others and Liens under Section 6.8 of the Loan Agreement) and fully paid for for, and diligently prosecute causing the Project to be Legally Open; and (c) shall defend, indemnify and hold the Administrative Managing Agent and/or the Lenders harmless from all losses, costs, liabilities and expenses, including reasonable attorneys’ ' fees, incurred in connection with such completion and the Project becoming Legally Open, in each case other than arising as a result of the gross negligence or willful wilful misconduct of the Administrative Managing Agent or a Lender. If and to at the extent that, at any time following the giving date of such notice, the Completion Guarantors remedy the failures of Borrower there are no undisbursed Loans allocated to comply with the Construction Obligations or to cause the Project to be Legally Open in a manner which is acceptable to the Administrative Agent in the exercise of its discretion (including without limitation the funding of any construction over-runs from other sources), and provided that no Default or Event of Default then exists (other than (i) Defaults or Events of Default which arise solely from the failure of Borrower to timely construct the Project or to construct it in accordance with the Approved Plans and Approved Budget and which, in the determination of the Administrative Agent, have been cured to the extent which is commercially practicable, (ii) Events of Default arising solely from the failure of Borrower to comply with any financial covenant set forth in the Loan Agreement for any past compliance period, provided that Borrower is in compliance with such financial covenant and with all other financial covenants set forth in the Loan Agreement for the then current compliance period, or (iii) other Defaults or Events of Default to the extent that the circumstances giving rise thereto have been cured or otherwise addressed to the satisfaction of the Administrative Agent in its sole and unfettered discretion), then, subject to the terms and conditions of the Loan Agreement, the Administrative Agent and the Lenders shall continue to make Loans and Letters of Credit available to the Borrower for the completion of the Project, the Guarantor's obligations under this Section shall be absolute. If on such date there are any such undisbursed Loans the obligations of the Guarantor under this Section shall be that percentage of the remaining costs to complete the Project equal to 100% minus the percentage thereof represented by the undisbursed Loans. 4.3 If Completion Guarantors fail Guarantor fails to commence to complete the construction of the Project or diligently to prosecute such construction to timely completion as provided in Section SECTION 4.2 above, then the right of the Administrative Managing Agent to recover under Section 5 shall not be affected or diminished by its exercise of the rights and remedies that may be available to the Administrative Managing Agent under the Loan Agreement and the other Loan Documents, at law or in equity, including: (a) Administrative Managing Agent may, at the Administrative Managing Agent’s 's option, enter the Project Property to complete construction of the Project (either itself or through any agent, contractor or subcontractor of its selection), which option of the Administrative Managing Agent shall be exercisable whether or not the Administrative Managing Agent elects to proceed judicially or non-judicially to foreclose on all or any portion of the Collateral. (b) The Administrative Managing Agent, at its option and in accordance with the Loan Agreement and the other Loan Documents, shall have the right, but shall have no obligation, to proceed judicially or non-judicially to foreclose on all or any portion of the Collateral, exercisable whether or not the Administrative Managing Agent elects to undertake to complete the construction of the Project. (c) If the Administrative Managing Agent elects to undertake to complete the construction of the Project, and whether or not the Administrative Managing Agent elects to proceed judicially or non-judicially to foreclose on all or any portion of the Collateral, the Administrative Managing Agent shall have the right to recover damages from Completion Guarantors Guarantor in an amount equal to the sum of: (i) The costs reasonably incurred or reasonably estimated to be incurred by the Administrative Managing Agent to complete the construction of the ProjectProject as set forth in Paragraph 2 hereof minus any undisbursed Loans allocated to construction of the Project (the "Cost to Complete"), provided PROVIDED that with respect to damages recovered for costs estimated to be incurred by the Administrative Managing Agent, such funds shall be used for no purpose other than the construction of the Project (the “Cost to Complete”) and provided further PROVIDED FURTHER that should the total actual costs incurred by the Administrative Managing Agent to complete the construction of the Project be less than the Cost to Complete, the amount by which the Cost to Complete recovered by the Administrative Managing Agent exceeds such actual construction costs shall be remitted to Completion GuarantorsGuarantor; plus (ii) All unreimbursed costs and expenses, including attorneys’ ' fees, reasonably incurred by the Administrative Managing Agent in protecting and preserving the Project and enforcing or defending the interests of the Lenders under this Completion Guaranty (the “"Unreimbursed Expenses”"). (d) In any action or proceeding by the Administrative Managing Agent to recover damages from Completion GuarantorsGuarantor, the Administrative Managing Agent may exercise any and all remedies available under applicable Law. 4.4 The remedy of specific performance, the recovery of damages and all other rights and remedies under this Guaranty, under the Loan Agreement and the other Loan Documents, at law or in equity are intended to be non- exclusive and cumulative. The parties recognize that the choice of remedies by the Administrative Managing Agent will necessarily and properly be a matter of business judgment, which the passage of time and events may or may not prove to have been the best choice to maximize recovery by the Administrative Managing Agent at the lowest cost to either the Borrower or the Completion GuarantorsGuarantor. In recognition Nevertheless, the choice of alternatives by the foregoing, to the fullest extent permitted by Law, each Completion Guarantor agrees that it Managing Agent shall not assert, and each Completion be subject to question or challenge by Guarantor hereby waives, any and all claims against the Administrative Agent, the Lenders and the other Creditors that any exercise of remedies or any election of remedies thereby has resulted (a) in actual or general damages to the Borrower, the Completion Guarantors or any Party as a result of the simple negligence of the Administrative Agent, the Lenders or any Creditor, or (b) in special, indirect, consequential, exemplary or punitive damages (as opposed to actual or general damages) except to the extent arising out any such action taken thereby in bad faith or constituting willful misconduct or gross negligence on the part of the Administrative Agent, the Lenders or any Creditor. In any event, any claim of the Completion Guarantors, or either of them alleging damages to the Borrower, the Completion Guarantors or any other Person, nor shall not any such choice be asserted as a defense to payment under this Completion Guaranty or as a defense, set-off or basis for any claim of failure to mitigate damages in any action or proceeding arising from this Completion Guaranty, but shall instead be asserted in a separate action or actions against the Administrative Agent or other relevant party.