Common use of Powers, Duties and Obligations Clause in Contracts

Powers, Duties and Obligations. The Acquisition/Construction ------------------------------ Agent shall have the following powers, duties and obligations: (a) To make all funding requests for Lessor Advances under Section 2.02 of the Investment Agreement in compliance with the terms of the Investment Agreement and use the proceeds of each funding received by it only to pay the actual costs set forth in the Advance Notice, make all elections to terminate or to reduce the Lessor Investment Commitment under Section 2.03 of the Investment Agreement, and to make any request for extension of the Maturity Date under Section 2.09 of the Investment Agreement; (b) To make all payments due under the Lease directly to the Lessor; (c) To perform all acts which the Acquisition/Construction Agent may deem necessary on behalf of the Lessor, as agent for but only in the name of the Lessor, in connection with Completion, including, without limitation, performing or arranging the purchasing, designing, construction, engineering, assembling and installing of the Facility, and execution and delivery to the Lessor of the Completion Certificate in the form attached hereto as Exhibit A upon Completion of the Facility; (d) To perform or cause to be performed all work in connection with Completion to be done in a good and workmanlike manner and in compliance with all Governmental Requirements and Insurance Requirements, and in accordance with that certain Silverdale Industrial Park Tenant Restrictions and Covenants dated October 30, 1997, and recorded in Book 4968, Page 499, in the ▇▇▇▇▇▇▇▇ County, Tennessee records (the "Restrictive Covenants"), and substantially in accordance with the Facility Plan; (i) To take all actions in effecting the Completion in accordance with the requirements set forth on Schedule 1.3 hereto and in operating and managing the Facility as it would take as a reasonably prudent operator in the management and operation of its own Properties consistent with the Restrictive Covenants, and consistent with applicable Governmental Requirements, including, without limitation, fencing or otherwise securing the Site and maintaining with financially sound and reputable insurers, insurance against loss or damage of the kinds and in the amounts customarily insured against by corporations engaged in the ownership and occupancy of Property for the Permitted Use (including without limitation such insurance as may be required pursuant to the Lease), and (ii) to construct, or cause to be constructed by entering into Related Contracts with Vendors, the Facility in a manner necessary to meet Completion on or before the Completion Date; (f) To pay, or cause to be paid, in accordance with prudent industry practices in compliance with applicable Governmental Requirements all costs and expenses of Completion and perform all obligations of such Completion, and to perform or cause to be performed all contracts and other agreements, including without limitation all Related Contracts, entered into by or on behalf of the Lessor, and to preserve the Lessor's rights in the Facility and under all Related Contracts; (g) To keep the Facility free of all Liens except Permitted Liens, provided that the Company shall have the right to contest Impositions in accordance with Section 13 of the Lease; (h) To transfer and hold all of the evidence of ownership of the Facility in the name of the Lessor; (i) To cause all contracts and other agreements, including without limitation all Related Contracts, entered into by the Acquisition/Construction Agent on behalf of the Lessor to be assignable, including, without limitation, the right to be subject to the Security Instruments; (j) To avoid purchasing Property from or entering into any agreement with Affiliates of the Acquisition/Construction Agent in connection with the Facility unless upon fair and reasonable terms that are not less favorable to the Lessor than those which might be obtained in an arm's-length transaction between unaffiliated Persons in the same business at the time such terms are agreed upon; (k) In the event the Company does not exercise its option to purchase the Facility pursuant to Section 15 of the Lease, to attempt to sell the Facility for cash upon the termination or cancellation of the Lease (subject to the Lessor's prior written approval of the terms of the sale), and to grant, bargain, sell, convey or contract for the sale or conveyance of the Facility in connection with the duties in this paragraph; (l) To complete the Facility to the specifications of the Facility Plan during the Construction Term and if the cost of the Facility exceeds the Lessor Investment Commitment, use the Acquisition/Construction Agent's own funds to complete the Facility during the Construction Term up to the amount of the Completion Costs Payment Limitation, and assign all Property necessary for Completion of the Facility and purchased with the funds of the Acquisition/Construction Agent or its Affiliates to the Lessor to be owned as part of the Facility, provided, however, only such Property as is necessary to -------- ------- fulfill the requirements of Completion shall be assigned to the Lessor; (m) To contract with all Vendors and contractors for supplies, equipment, materials and services, including, without limitation, necessary design work affecting the Facility; (n) To keep and maintain proper books and records relating to the accounts of the Facility and the book value of the Facility and the Property comprising the Facility; (o) To pay for, exchange or otherwise settle accounts for the acquisition of supplies, equipment, materials or services affecting the Facility; (p) To ask for, demand, collect, recover, and receive all moneys which may become due and owing by reason of conveyances, whether by deed, contract, ▇▇▇▇ of sale or other instruments or to pay for, exchange or otherwise settle accounts for the acquisition of supplies, equipment, materials or services affecting the Facility; provided however, the Company shall have the right in its reasonable discretion to settle or waive claims in amounts less than $10,000. (q) To ask for, demand, collect, and recover, each in the name of Lessor, any and all sums that may be due on account of any damage to any of the Facility; (r) To manage correspondence and conduct communications with all Governmental Authorities with regard to matters affecting the Facility, including, but not limited to, the acquisition of all Permits and satisfaction of all Governmental Requirements and Insurance Requirements and with regard to rights of way and easements, if any, affecting the Facility; and (s) To provide the Lessor with copies of material Related Contracts executed by the Acquisition/Construction Agent on behalf of the Lessor promptly following such execution.

Powers, Duties and Obligations. The Acquisition/Construction ------------------------------ Agent shall have the following powers, duties and obligations: (a) To make all funding requests for Lessor Advances Loans and LI Fundings under Section 2.02 of the Investment Credit Agreement in compliance with the terms of the Investment Credit Agreement and use the proceeds of each funding received by it only to pay the actual costs set forth in the Advance Notice, make all elections to terminate or to reduce the Lessor Investment Commitment Commitments under Section 2.03 of the Investment Credit Agreement, and make all elections to continue the Loans and LI Fundings under Section 2.09 of the Credit Agreement and to make any request for extension of the Maturity Date under Section 2.09 2.10 of the Investment Credit Agreement; (b) To make all payments due under the Lease directly to the Agent for the account of the Lessor; (c) To perform all acts which the Acquisition/Construction Agent may deem necessary on behalf of the Lessor, as agent for but only in the name of the Lessor, in connection with Completion, including, without limitation, performing or arranging the purchasing, designing, construction, engineering, assembling and installing of the Facility, and execution and delivery to the Lessor and the Agent of the Completion Certificate in the form attached hereto as Exhibit A upon Completion of the Facility; (d) To perform or cause to be performed all work in connection with Completion to be done in a good and workmanlike manner and in compliance with all Governmental Requirements and Insurance Requirements, and in accordance with that certain Silverdale Industrial Park Tenant Restrictions and Covenants dated October 30, 1997, and recorded in Book 4968, Page 499, in the ▇▇▇▇▇▇▇▇ County, Tennessee records (the "Restrictive Covenants"), and substantially in accordance with the Facility PlanPermitted Use; (i) To take all actions in effecting the Completion in accordance with the requirements set forth on Schedule 1.3 hereto and in operating and managing the Facility as it would take as a reasonably prudent operator in the management and operation of its own Properties consistent with the Restrictive Covenants, and consistent with applicable Governmental Requirements, including, without limitation, fencing or otherwise securing the Site and maintaining with financially sound and reputable insurers, insurance against loss or damage of the kinds and in the amounts customarily insured against by corporations engaged in the ownership and occupancy of Property for the Permitted Use (including without limitation such insurance as may be required pursuant to the Lease), and (ii) to construct, or cause to be constructed by entering into Related Contracts with Vendors, the Facility in a manner necessary to meet Completion on or before the Completion Date;. (f) To pay, or cause to be paid, in accordance with prudent industry practices in compliance with applicable Governmental Requirements all costs and expenses of Completion and perform all obligations of such Completion, and to perform or cause to be performed all contracts and other agreements, including without limitation all Related Contracts, entered into by or on behalf of the Lessor, and to preserve the Lessor's rights in the Facility and under all Related Contracts; (g) To keep the Facility free of all Liens except Permitted Liens, provided that the Company shall have the right to contest Impositions and certain other nonconsensual Liens in accordance with Section 13 of the Lease; (h) To transfer and hold all of the evidence of ownership of the Facility in the name of the Lessor; (i) To cause all contracts and other agreements, including without limitation all Related Contracts, entered into by the Acquisition/Construction Agent on behalf of the Lessor to be assignable, including, without limitation, the right to be subject to the Security Instruments; (j) To avoid purchasing Property from or entering into any agreement with Affiliates of the Acquisition/Construction Agent in connection with the Facility unless upon fair and reasonable terms that are not less favorable to the Lessor than those which might be obtained in an arm's-length transaction between unaffiliated Persons in the same business at the time such terms are agreed upon; (k) In the event the Company does not exercise its option to purchase the Facility pursuant to Section 15 of the Lease, to attempt to sell the Facility for cash upon the termination or cancellation of the Lease (with the exclusive right with respect to effecting any such sale for a period not to exceed six (6) months after the Lease Termination Date (the "Exclusivity Period"), but subject to (i) payment of the Final Rent Payment when due, and (ii) the Lessor's and Agent's prior written approval of the terms of any such sale, unless the salenet proceeds of such sale are determined by the Agent and the Lessor to be sufficient to pay in full all Tranche B Loans, interest thereon, all unrecovered Lessor Investment, LI Yield, Support Expenses, and all other amounts owed hereunder at such time), and to grant, bargain, sell, convey or contract for the sale or conveyance of the Facility in connection with the duties in this paragraph;paragraph (k), provided that the Lessor and the Agent shall also have the right (but not the obligation) to sell the Facility and/or solicit bids, each in its sole and absolute discretion, after the Exclusivity Period; and (l) To substantially complete the Facility to the specifications of the Facility Plan during the Construction Term and if the cost of the Facility exceeds the Lessor Investment Commitmentsum of the Commitments, use the Acquisition/Construction Agent's own funds to complete the Facility during the Construction Term up to the amount of the Completion Costs Payment Limitation, and assign all Property necessary for Completion of the Facility and purchased with the funds of the Acquisition/Construction Agent or its Affiliates to the Lessor to be owned as part of the Facility, provided, however, only such -------- ------- Property as is necessary to -------- ------- fulfill the requirements of Completion shall be assigned to the Lessor; (m) To contract with all Vendors and contractors for supplies, equipment, materials and services, including, without limitation, necessary design work affecting the Facility; (n) To keep and maintain proper books and records relating to the accounts of the Facility and the book value of the Facility and the Property comprising the Facility; (o) To pay for, exchange or otherwise settle accounts for the acquisition of supplies, equipment, materials or services affecting the Facility; (p) To ask for, demand, collect, recover, and receive all moneys which may become due and owing by reason of conveyances, whether by deed, contract, ▇▇▇▇ of sale or other instruments or to pay for, exchange or otherwise settle accounts for the acquisition of supplies, equipment, materials or services affecting the Facility; provided however, the Company shall have the right in its reasonable discretion to settle or waive claims in amounts less than $10,000. (q) To ask for, demand, collect, and recover, each in the name of Lessor, any and all sums that may be due on account of any damage to any of the Facility; (r) To manage correspondence and conduct communications with all Governmental Authorities with regard to matters affecting the Facility, including, but not limited to, the acquisition of all Permits and satisfaction of all Governmental Requirements and Insurance Requirements and with regard to rights of way and easements, if any, affecting the Facility; and (s) To provide the Lessor and the Acquisition/Construction Agent with copies of material Related Contracts executed by the Acquisition/Construction Agent on behalf of the Lessor promptly following such execution.