Common use of Assets Under Development Clause in Contracts

Assets Under Development. (a) Certain of the Assets are under development as set forth on Schedule 14.30 (each, an “Asset Under Development”, and collectively, the “Assets Under Development”), which schedule shows (x) the estimated total project cost budget for each Asset Under Development (each, an “Estimated Asset Under Development Budget”, and collectively, the “Estimated Assets Under Development Budgets”) and whether and to what extent each Asset Under Development is above or below budget, and (y) the estimated first year Fixed Rents for each Asset Under Development for the period commencing upon the first day of the month following the applicable Closing Date (each, an “Estimated Asset Under Development Fixed Rent”, and collectively, the “Estimated Assets Under Development Fixed Rents”). If the applicable Closing occurs, then: (1) at the applicable Closing, the Sellers agree to give the Buyer a credit in the amount of the cost to complete the Assets Under Development as set forth on Schedule 14.30, as such schedule may be adjusted at the applicable Closing, as evidenced by copies of partial lien waivers from the general contractors delivered from the Sellers to the Buyer (provided that the Sellers may elect to deliver conditional partial lien waivers to satisfy this obligation if the amounts due under the conditional partial lien waivers are disbursed at applicable Closing), (1) the Buyer shall be responsible for all construction and development costs in connection with the Assets Under Development, including pursuant to the Contracts described in clause (iii) below, subject to adjustment as provided in this Section 14.30, (1) the Sellers shall assign to the Buyer, and the Buyer agrees to assume, all of the construction and development Contracts in connection with the Assets Under Development, which Contracts are set forth on Schedule 14.30(a)(iii), and (1) the Buyer agrees that, notwithstanding the obligations of the Sellers under Section 8.8, the Buyer will deliver to the Title Company a title affidavit certifying the Assets Under Development and indemnifying the Title Company for Liens arising from the Assets Under Development, and (1) the Sellers shall not object to the Buyer seeking to obtain prior to the applicable Closing estoppel certificates from each such counterparty to the Contracts to the effect that the Contracts are in full force and effect, there are no defaults thereunder, and the contractor has been paid by the Sellers for all bills rendered through the applicable Closing (it being understood and agreed that this right in favor of Buyer shall not constitute a closing condition hereunder). (b) The Allocated Asset Value for each Asset Under Development is based on the Estimated Asset Under Development Fixed Rent for that particular Asset Under Development divided by the cap rate depicted on Schedule 14.30 (the “Cap Rate”). The Estimated Asset Under Development Fixed Rent for each Asset Under Development includes any “free rent” or other concessions pertaining to the period from and after the applicable Closing, but does not account for adjustments to the Estimated Asset Under Development Fixed Rent for such Asset Under Development that would result from increases or decreases in the Final Asset Under Development Budget for such Asset Under Development. (c) The Buyer and the Sellers agree that if it is determined that the Final Asset Under Development Fixed Rent is greater than the Estimated Asset Under Development Fixed Rent shown on Schedule 14.30 for any Asset Under Development, then in respect of each such Asset Under Development: (i) the Sellers will reimburse the Buyer for any amounts paid by the Buyer towards the Final Asset Under Development Budget that are in excess of the Estimated Asset Under Development Budget shown on Schedule 14.30 for such Asset Under Development, to the extent that such amounts were not previously credited to the Buyer by the Sellers in accordance with Section 14.30(a)(i) or otherwise, and which are not subject to reimbursement by any Tenants, and (ii) the Buyer will pay the Sellers the difference between (A) (x) the Final Asset Under Development Fixed Rent for such Asset Under Development and (y) the Estimated Asset Under Development Fixed Rent shown on Schedule 14.30 for such Asset Under Development, divided by (B) the Cap Rate. (d) The Buyer and the Sellers agree that if it is determined that the Final Asset Under Development Fixed Rent is less than the Estimated Asset Under Development Fixed Rent shown on Schedule 14.30 for any Asset Under Development, then in respect of each such Asset Under Development: (i) the Buyer will reimburse the Sellers for the difference between the Estimated Asset Under Development Budget shown on Schedule 14.30 for such Asset Under Development and the Final Asset Under Development Budget for such Asset Under Development, and (ii) the Sellers will pay the Buyer the difference between (A) (x) the Estimated Asset Under Development Fixed Rent shown on Schedule 14.30 for such Asset Under Development and (y) the Final Asset Under Development Fixed Rent for such Asset Under Development, divided by (B) the Cap Rate. (e) No later than six (6) months following the completion of any Asset Under Development, the Buyer shall deliver to the Sellers a statement setting forth (i) the actual, final project cost for such Asset Under Development (the “Final Asset Under Development Budget”); provided that the Buyer has provided the Sellers with cost calculations, lien waivers and other proof of project costs and payments reasonably requested by the Sellers, and (ii) the actual first year Fixed Rents for such Asset Under Development (the “Final Asset Under Development Fixed Rent”), as evidenced by a certificate of occupancy or similar documentation issued by the municipality where such Asset Under Development is located. If the Sellers dispute the accuracy of such statement, the parties shall negotiate in good faith to resolve the disputed items during the thirty (30) day period after the Sellers notify the Buyer of any such dispute. If the Sellers and the Buyer have not resolved all disputed items during such thirty (30)-day period, then either party may submit all remaining disputed items to such independent accounting firm as the parties may agree for binding resolution of such disputed items. The fees and expenses of such independent accounting firm shall be paid one-half by the Sellers and one-half by the Buyer.

Assets Under Development. (a) Certain of the Assets are under development as set forth on Schedule 14.30 (each, an “Asset Under Development”, and collectively, the “Assets Under Development”), which schedule shows (x) the estimated total project cost budget for each Asset Under Development (each, an “Estimated Asset Under Development Budget”, and collectively, the “Estimated Assets Under Development Budgets”) and whether and to what extent each Asset Under Development is above or below budget, and (y) the estimated first year Fixed Rents for each Asset Under Development for the period commencing upon the first day of the month following the applicable Closing Date (each, an “Estimated Asset Under Development Fixed Rent”, and collectively, the “Estimated Assets Under Development Fixed Rents”). If the applicable Closing occurs, then: (1i) at the applicable Closing, the Sellers agree to give the Buyer a credit in the amount of the cost to complete the Assets Under Development as set forth on Schedule 14.30, as such schedule may be adjusted at the applicable Closing, as evidenced by copies of partial lien waivers from the general contractors delivered from the Sellers to the Buyer (provided that the Sellers may elect to deliver conditional partial lien waivers to satisfy this obligation if the amounts due under the conditional partial lien waivers are disbursed at applicable Closing), (1ii) the Buyer shall be responsible for all construction and development costs in connection with the Assets Under Development, including pursuant to the Contracts described in clause (iii) below, subject to adjustment as provided in this Section 14.30, (1iii) the Sellers shall assign to the Buyer, and the Buyer agrees to assume, all of the construction and development Contracts in connection with the Assets Under Development, which Contracts are set forth on Schedule 14.30(a)(iii), and (1iv) the Buyer agrees that, notwithstanding the obligations of the Sellers under Section 8.8, the Buyer will deliver to the Title Company a title affidavit certifying the Assets Under Development and indemnifying the Title Company for Liens arising from the Assets Under Development, and (1v) the Sellers shall not object to the Buyer seeking to obtain prior to the applicable Closing estoppel certificates from each such counterparty to the Contracts to the effect that the Contracts are in full force and effect, there are no defaults thereunder, and the contractor has been paid by the Sellers for all bills rendered through the applicable Closing (it being understood and agreed that this right in favor of Buyer shall not constitute a closing condition hereunder). (b) The Allocated Asset Value for each Asset Under Development is based on the Estimated Asset Under Development Fixed Rent for that particular Asset Under Development divided by the cap rate depicted on Schedule 14.30 (the “Cap Rate”). The Estimated Asset Under Development Fixed Rent for each Asset Under Development includes any “free rent” or other concessions pertaining to the period from and after the applicable Closing, but does not account for adjustments to the Estimated Asset Under Development Fixed Rent for such Asset Under Development that would result from increases or decreases in the Final Asset Under Development Budget for such Asset Under Development. (c) The Buyer and the Sellers agree that if it is determined that the Final Asset Under Development Fixed Rent is greater than the Estimated Asset Under Development Fixed Rent shown on Schedule 14.30 for any Asset Under Development, then in respect of each such Asset Under Development: (i) the Sellers will reimburse the Buyer for any amounts paid by the Buyer towards the Final Asset Under Development Budget that are in excess of the Estimated Asset Under Development Budget shown on Schedule 14.30 for such Asset Under Development, to the extent that such amounts were not previously credited to the Buyer by the Sellers in accordance with Section 14.30(a)(i) or otherwise, and which are not subject to reimbursement by any Tenants, and (ii) the Buyer will pay the Sellers the difference between (A) (x) the Final Asset Under Development Fixed Rent for such Asset Under Development and (y) the Estimated Asset Under Development Fixed Rent shown on Schedule 14.30 for such Asset Under Development, divided by (B) the Cap Rate. (d) The Buyer and the Sellers agree that if it is determined that the Final Asset Under Development Fixed Rent is less than the Estimated Asset Under Development Fixed Rent shown on Schedule 14.30 for any Asset Under Development, then in respect of each such Asset Under Development: (i) the Buyer will reimburse the Sellers for the difference between the Estimated Asset Under Development Budget shown on Schedule 14.30 for such Asset Under Development and the Final Asset Under Development Budget for such Asset Under Development, and (ii) the Sellers will pay the Buyer the difference between (A) (x) the Estimated Asset Under Development Fixed Rent shown on Schedule 14.30 for such Asset Under Development and (y) the Final Asset Under Development Fixed Rent for such Asset Under Development, divided by (B) the Cap Rate. (e) No later than six (6) months following the completion of any Asset Under Development, the Buyer shall deliver to the Sellers a statement setting forth (i) the actual, final project cost for such Asset Under Development (the “Final Asset Under Development Budget”); provided that the Buyer has provided the Sellers with cost calculations, lien waivers and other proof of project costs and payments reasonably requested by the Sellers, and (ii) the actual first year Fixed Rents for such Asset Under Development (the “Final Asset Under Development Fixed Rent”), as evidenced by a certificate of occupancy or similar documentation issued by the municipality where such Asset Under Development is located. If the Sellers dispute the accuracy of such statement, the parties shall negotiate in good faith to resolve the disputed items during the thirty (30) day period after the Sellers notify the Buyer of any such dispute. If the Sellers and the Buyer have not resolved all disputed items during such thirty (30)-day period, then either party may submit all remaining disputed items to such independent accounting firm as the parties may agree for binding resolution of such disputed items. The fees and expenses of such independent accounting firm shall be paid one-half by the Sellers and one-half by the Buyer.