Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, Lessor hereby expressly authorizes Construction Agent, or any agent, designee or contractor of Construction Agent, and Construction Agent agrees, for the benefit of Lessor, to take all action necessary or desirable for the performance and satisfaction of all of the Site Obligations. In furtherance thereof (and without limiting the generality of the foregoing), Construction Agent is hereby granted the authority on behalf of Lessor to, and shall: (i) assist in and perform such functions as are necessary or desirable for Lessor to lease its interest in the Site and construct the Facility in accordance with the terms and conditions of the Operative Documents; (ii) perform (or cause to be performed) all management and supervisory functions and all engineering, design and supervisory work related to the Site Obligations, including the Construction, and perform all the obligations of Lessor under the Project Agreements; (iii) negotiate and/or cause to have in place all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, to procure the labor, materials, supplies and equipment necessary to perform and complete the Site Obligations, including the Construction on such terms and conditions as are customary and reasonable in light of local standards and practices; (iv) obtain (or cause to be obtained) all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable Laws, from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, in connection with the performance of the Site Obligations; (v) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, all books and records with respect to the Construction and the other Site Obligations; (vi) perform (or cause to be performed) any other acts necessary in connection with the performance of the Site Obligations in accordance with the Project Materials and all Applicable Laws, Governmental Actions and all Insurance Requirements; (vii) pay when due and payable or cause to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement; (viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations; (ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and (x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other Contractors. (b) Subject to the terms and conditions of this Agreement, the other Operative Documents and the Project Materials, as between the parties hereto, Construction Agent shall have management and control over and sole responsibility for the means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-fact. (c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreement.
Appears in 2 contracts
Sources: Construction Agency Agreement, Construction Agency Agreement (Norfolk Southern Corp)
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, The Lessor hereby expressly authorizes the Construction Agent, or any agent, designee agent or contractor of the Construction Agent, and the Construction Agent agrees, unconditionally agrees for the benefit of the Lessor, subject to Section 2.4(b), to take all commercially reasonable action necessary or desirable for the performance and satisfaction of any and all of the Site Obligations. In furtherance thereof (Lessor's obligations under any Construction Contract and without limiting the generality to fulfill all of the foregoing), obligations of the Construction Agent is hereby granted the authority on behalf of Lessor to, and shallincluding without limitation:
(i) assist in and perform such functions as are necessary or desirable for Lessor to lease its interest in the Site and construct assistance with the Facility acquisition of Properties in accordance with the terms and conditions of the Operative DocumentsParticipation Agreement;
(ii) perform (or cause to be performed) all management design and supervisory functions relating to the development, acquisition, procurement, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property and performing all engineering, design and supervisory engineering work related to the Site Obligations, including the Construction, and perform all the obligations of Lessor under the Project Agreementsthereto;
(iii) negotiate and/or cause to have in place (A) negotiating, entering into, performing and enforcing all contracts or arrangements, in each case subject and arrangements to acquire the conditions set forth in Section 2.4, Properties and to procure the labor, materials, supplies and equipment necessary to perform construct the Properties and complete (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Site ObligationsImprovements, including the Construction Equipment and the other components of the Properties on such terms and conditions as are customary and reasonable in light of local and national standards and practicespractices and the businesses in which the Lessee is engaged;
(iv) obtain (or cause to be obtained) obtaining all necessary permits, licenses, consents, approvals approvals, entitlements and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under Applicable applicable Law (including without limitation Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance development, acquisition, installation, construction and testing of the Site ObligationsImprovements, the Equipment and the other components of the Properties in accordance with the Plans and Specifications;
(v) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction Properties and the other Site Obligations;construction, operation and management thereof; and
(vi) perform (or cause to be performed) performing any other acts necessary in connection with the performance identification and acquisition of the Site Obligations Properties and the development, acquisition, installation, construction and testing of the related Improvements, Equipment and all other additional components of the Properties in accordance with the Project Materials Plans and all Applicable Laws, Governmental Actions and all Insurance Requirements;Specifications.
(viib) pay when due and payable Neither the Construction Agent nor any of its Affiliates or cause agents shall enter into any contract or consent to any contract in the name of the Lessor without the Lessor's prior written consent, such consent to be paid when due and payable given or withheld in the exercise of the Lessor's reasonable discretion; provided, however, that (subject to reimbursement or direct payment by i) no such contract will increase the obligations of the Lessor or beyond the Administrative Agent through Advances or directly obligations of the Lessor as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as are expressly set forth in the Participation AgreementOperative Agreements and (ii) all Project Costs to each such contract shall be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject expressly non-recourse to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor on terms and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect conditions that are reasonably acceptable to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other ContractorsLessor.
(bc) Subject to the terms and conditions of this Agreement, Agreement and the other Operative Documents and Agreements, the Project Materials, as between the parties hereto, Construction Agent shall have sole management and control over the installation, construction and sole responsibility for the testing means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-factProperties.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreement.
Appears in 2 contracts
Sources: Agency Agreement (Sabre Holdings Corp), Agency Agreement (Sabre Holdings Corp)
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, The Lessor hereby expressly authorizes the Construction Agent, or any agent, designee agent or contractor of the Construction Agent, and the Construction Agent agrees, unconditionally agrees for the benefit of the Lessor, subject to Section 2.4(b), to take all action necessary or desirable for the performance and satisfaction of any and all of the Site Obligations. In furtherance thereof (Lessor's obligations under any construction agreement and without limiting the generality to fulfill all of the foregoing), obligations of the Construction Agent is hereby granted the authority on behalf of Lessor to, and shallincluding without limitation:
(i) assist in the identification and perform such functions as are necessary or desirable for Lessor to lease its interest in assistance with the Site and construct the Facility acquisition of Properties in accordance with the terms and conditions of the Operative DocumentsParticipation Agreement;
(ii) perform (or cause to be performed) all management design and supervisory functions relating to the development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property and performing all engineering, design and supervisory engineering work related to the Site Obligations, including the Construction, and perform all the obligations of Lessor under the Project Agreementsthereto;
(iiiA) negotiate and/or cause to have in place negotiating, entering into, performing and enforcing all contracts and arrangements to acquire or arrangements, in each case subject to ground lease the conditions set forth in Section 2.4, Properties and to procure the labor, materials, supplies and equipment necessary to perform construct the Properties and complete (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Site ObligationsImprovements, including the Construction Equipment and the other components of the Properties on such terms and conditions as are customary and reasonable in light of local and national standards and practicespractices and the businesses in which the Lessee is engaged;
(iv) obtain (or cause to be obtained) obtaining all necessary permits, licenses, consents, approvals approvals, entitlements and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under Applicable applicable Law (including without limitation Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance development, acquisition, installation, construction and testing of the Site ObligationsImprovements, the Equipment and the other components of the Properties in accordance with the Plans and Specifications;
(v) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction Properties and the other Site Obligations;construction, operation and management thereof; and
(vi) perform (or cause to be performed) performing any other acts necessary in connection with the performance identification and acquisition or ground leasing of the Site Obligations Properties and the development, acquisition, installation, construction and testing of the related Improvements, Equipment and all other additional components of the Properties in accordance with the Project Materials Plans and all Applicable Laws, Governmental Actions and all Insurance Requirements;Specifications.
(viib) pay when due and payable Neither the Construction Agent nor any of its Affiliates or cause agents shall enter into any contract or consent to any contract in the name of the Lessor without the Lessor's prior written consent, such consent to be paid when due and payable given or withheld in the exercise of the Lessor's reasonable discretion; provided, however, that (subject to reimbursement or direct payment by i) no such contract will increase the obligations of the Lessor or beyond the Administrative Agent through Advances or directly obligations of the Lessor as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as are expressly set forth in the Participation AgreementOperative Agreements and (ii) all Project Costs to each such contract shall be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject expressly non-recourse to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor on terms and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect conditions that are reasonably acceptable to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other ContractorsLessor.
(bc) Subject to the terms and conditions of this Agreement, Agreement and the other Operative Documents and Agreements, the Project Materials, as between the parties hereto, Construction Agent shall have sole management and control over the installation, construction and sole responsibility for the testing means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-factProperties.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreement.
Appears in 2 contracts
Sources: Agency Agreement (Centennial Healthcare Corp), Agency Agreement (Dollar Tree Stores Inc)
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, The Lessor hereby expressly authorizes the Construction Agent, or any agent, designee agent or contractor of the Construction Agent, and the Construction Agent agrees, unconditionally agrees for the benefit of the Lessor, subject to Section 2.4(b), to take all action necessary or desirable for the performance and satisfaction of any and all of the Site Obligations. In furtherance thereof (Lessor's obligations under any construction agreement and without limiting the generality to fulfill all of the foregoing), obligations of the Construction Agent is hereby granted the authority on behalf of Lessor to, and shallincluding without limitation:
(i) assist in the identification and perform such functions as are necessary or desirable for Lessor to lease its interest in assistance with the Site and construct the Facility acquisition of Properties in accordance with the terms and conditions of the Operative DocumentsParticipation Agreement;
(ii) perform (or cause to be performed) all management design and supervisory functions relating to the development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property and performing all engineering, design and supervisory engineering work related to the Site Obligations, including the Construction, and perform all the obligations of Lessor under the Project Agreementsthereto;
(iiiA) negotiate and/or cause to have in place negotiating, entering into, performing and enforcing all contracts or arrangements, in each case subject and arrangements to acquire the conditions set forth in Section 2.4, Properties and to procure the labor, materials, supplies and equipment necessary to perform construct the Properties and complete (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Site ObligationsImprovements, including the Construction Equipment and the other components of the Properties on such terms and conditions as are customary and reasonable in light of local and national standards and practicespractices and the businesses in which the Lessee is engaged;
(iv) obtain (or cause to be obtained) obtaining all necessary permits, licenses, consents, approvals approvals, entitlements and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under Applicable applicable Law (including without limitation Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance development, acquisition, installation, construction and testing of the Site ObligationsImprovements, the Equipment and the other components of the Properties substantially in accordance with the Plans and Specifications;
(v) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction Properties and the other Site Obligationsconstruction, operation and management thereof;
(vi) perform (or cause to be performed) performing any other acts necessary in connection with the performance identification and acquisition of the Site Obligations in accordance with Properties and the Project Materials and all Applicable Lawsdevelopment, Governmental Actions and all Insurance Requirements;
(vii) pay when due and payable or cause to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreementacquisition, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineeringinstallation, construction and Completion testing of the Facility) and subject to Section 3.1(c) hereofrelated Improvements, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; Equipment and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other Contractors.
(b) Subject to the terms and conditions of this Agreement, the other Operative Documents and the Project Materials, as between the parties hereto, Construction Agent shall have management and control over and sole responsibility for the means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-fact.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreement.
Appears in 2 contracts
Sources: Agency Agreement (Veritas Software Corp /De/), Construction Agency Agreement (Veritas Software Corp /De/)
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, the Agent Lessor hereby expressly authorizes the Construction Agent, or any agent, designee agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees, for the benefit of the Agent Lessor, to take all action necessary or desirable for the performance and satisfaction of all of the Site Obligations. In furtherance thereof (and without limiting the generality of the foregoing)Construction Agent's obligations hereunder, Construction Agent is hereby granted the authority on behalf of Lessor to, and shallincluding:
(i) assist in and perform such functions as are necessary or desirable for Lessor to lease its interest assisting in the Site and construct the Facility in accordance with the terms and conditions acquisition of the Operative DocumentsLand;
(ii) perform (or cause to be performed) performing all management design and supervisory functions and all engineering, design and supervisory engineering work related to the Site Obligations, including Construction and serving as the Construction, and perform all the obligations of Lessor under the Project Agreementsgeneral contractor;
(iii) negotiate and/or cause to have in place negotiating and entering into all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, arrangements to procure the labor, materials, supplies and equipment necessary to perform and complete construct the Site Obligations, including the Construction Premises on such terms and conditions as are customary and reasonable in light of local standards and practices;; provided, however, that the construction and design contracts (including the Construction Contract) for the Financed Improvements shall be guaranteed maximum or fixed price contracts in form and substance satisfactory to Agent Lessor and the Administrative Agent under which the cost of design of the Financed Improvements, including, without limitation, the Approved Plans and Specifications, working drawings, detailed layouts and other drawings and specifications of every kind and description required for the construction of the Financed Improvements (collectively, the "Plans") and the cost of Construction, including, without limitation, all labor, materials, equipment, supplies, permits, general conditions and other costs and fees of every kind and description required for the completion of the Financed Improvements in accordance with the Approved Plans and Specifications shall not exceed the guaranteed maximum price payable to the General Contractor under the Construction Contract.
(iv) obtain (or cause to be obtained) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable Laws (including Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance of the Site ObligationsConstruction;
(v) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction and the other Site Obligationsoperation and management of the Premises;
(vi) perform (or cause to be performed) performing any other acts necessary in connection with the performance construction and development of the Site Obligations Financed Improvements in accordance with the Project Materials Approved Plans and all Specifications, Applicable Laws, Governmental Actions any Requirements of Law and all Insurance Requirements;
(vii) pay paying when due (subject to reimbursement as provided for under this Agreement) pursuant to and payable subject to the Approved Construction Budget, or cause causing to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in accordance with the Participation Agreement) , all Project Construction Costs to be paid during the Commitment Period Interim Term (including costs associated with the Construction Agent’s 's actions as provided in Section 2.5(a)(ix2.5(a)(viii) below or which are due and payable under any Project Agreementbelow, in each case pursuant to and subject to the Project Approved Construction Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) enforcing performance by each party to each Major Project Agreement Construction Document of their respective obligations, warranties and other design, construction and other obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) Financed Improvements or pursuing remedies with respect to the breach of those obligations;; and
(ix) subject to Section 3.2 and Schedule 2.6(b)Article XIV of the Lease, use using the proceeds of any property or casualty insurance maintained with respect to the Facility (1) Financed Improvements to complete construction of or to rebuild any portion of the Facility Financed Improvements with respect to a Casualty or Condemnation occurring with respect to that portion of the Financed Improvements and (2) to fundfund all Interest, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for during such purpose; and
(x) respond to any requests for information, approvals Construction or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other Contractorsrebuilding.
(b) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract which would, directly or indirectly, impose any liability or obligation on the Agent Lessor (other than the obligations to provide Advances in accordance with and subject to the terms and conditions of the Operative Documents) for which the Agent Lessor is not fully indemnified by the Construction Agent or the Lessee under this Agreement or any of the other Operative Documents or for which insurance has not been procured.
(c) Subject to the terms and conditions of this Agreement, Agreement and the other Operative Documents and Documents, the Project Materials, as between the parties hereto, Construction Agent shall have sole management and control over and sole responsibility for the construction means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of and payment for the labor, personnel and services with respect to the performance and completion of the Site ObligationsConstruction; provided, however, that Construction this subsection (c) shall not give rise to any rights in any Person other than the Agent may execute its duties under this Agreement by or through agentsLessor, contractors, employees or attorneys-in-factthe Participants and the other Indemnitees.
(cd) All fees and expenses of Construction Agent relating to the Facility and Lessee under any Operative Document which are provided for included in the Project Approved Construction Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation AgreementAdvances.
Appears in 1 contract
Sources: Construction Agency Agreement (Adc Telecommunications Inc)
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative DocumentsAgreements, the Lessor hereby expressly authorizes the Construction Agent, or any agent, designee or contractor Construction Agency Person acting on behalf of the Construction Agent, and the Construction Agent agrees, unconditionally agrees for the benefit of the Lessor, subject to Section 2.4(b), to take all action necessary or desirable for the performance and satisfaction of any and all of the Site Obligations. In furtherance thereof (Lessor’s obligations under any construction agreement and without limiting the generality to fulfill all of the foregoing), obligations of the Construction Agent is hereby granted the authority on behalf of Lessor to, and shallincluding without limitation:
(i) assist in the identification and perform such functions as are necessary or desirable for Lessor to lease its interest assistance with the acquisition in the Site and construct name of the Facility Lessor of the Property in accordance with the terms and conditions of the Operative DocumentsParticipation Agreement;
(ii) perform (or cause to be performed) all management design and supervisory functions relating to the development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the Property and performing all engineering, design and supervisory engineering work related to the Site Obligations, including the Construction, and perform all the obligations of Lessor under the Project Agreementsthereto;
(iii) negotiate and/or cause to have in place (A) negotiating, entering into, performing and enforcing all contracts and arrangements to acquire or arrangements, in each case subject to ground lease the conditions set forth in Section 2.4, Property and to procure the labor, materials, supplies and equipment necessary to perform construct the Property and complete (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct, repair, renovate, replace and test the Site ObligationsImprovements, including the Construction Equipment and the other components of the Property on such terms and conditions as are customary and reasonable in light of local and national standards and practicespractices and the businesses in which the Construction Agent is engaged;
(iv) obtain (or cause to be obtained) obtaining all necessary permits, licenses, consents, approvals approvals, entitlements and other authorizations, including without limitation all of the foregoing required for the Property and the use and occupancy thereof and those required under Applicable applicable Law (including without limitation Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance development, acquisition, installation, construction and testing of the Site ObligationsImprovements, the Equipment and the other components of the Property in accordance with the Construction Documents;
(v) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction Property and the other Site Obligationsconstruction, operation and management thereof;
(vi) perform (or cause to be performed) performing any other acts necessary in connection with the performance identification and acquisition or ground leasing of the Site Obligations Property and the development, acquisition, installation, construction, repair, renovation, replacement and testing of the related Improvements, Equipment and all other additional components of the Property in accordance with the Project Materials and all Applicable Laws, Governmental Actions and all Insurance RequirementsConstruction Documents;
(vii) pay performing or causing the performance of any other acts necessary or desirable (as reasonably determined by the Construction Agent) in connection with the construction and development of the Improvements in accordance with all applicable Laws and all Insurance Requirements unless the failure to comply is not reasonably likely to give rise to a Material Adverse Effect; provided, however, that the foregoing shall not limit the Construction Agent’s right to engage in permitted contests in accordance with Section 3.10;
(viii) paying when due and payable or cause causing to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions conditions, if any in the case of such reimbursement, relating to Construction Advances as set forth in the Participation Agreement) pursuant to and subject to the Construction Budget, and the Operative Agreements, all Project Property Costs to be paid during the Commitment Period (including costs associated with the Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement2.4(a)(x), in each case pursuant to and subject to the Project Construction Budget), provided, however, that the foregoing shall not limit the Construction Agent’s right to engage in permitted contests in accordance with Section 3.10; provided, in no eventfurther, shall that the Construction Agent have the authority to shall pay or incur directly any Project Cost Property Costs either (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2x) during the existence continuance of any Default or an Agency Agreement Event of Default under Sections 5.1(e)or (y) while it is unable to satisfy all of the conditions for a Construction Advance set forth in Section 5.4 of the Participation Agreement (it being understood, 5.1(k)(2) or 5.1(l)(2); provided furtherhowever, that the Construction Agent shall have no authority may be reimbursed for Property Costs paid by it prior to incur Project Costs the occurrence of the events described in clauses (x) and (y) to the extent permitted under Section 5.17 of the Core and Shell Construction Agreement in excess of $80,000,000 until Participation Agreement). The Construction Agent has satisfied acknowledges that any liability resulting to any Primary Financing Party or any other Indemnified Person as a result of or arising from any permitted contest, or act or omission of the requirements Construction Agent or its designees with respect to such permitted contest will be a Claim subject to indemnification, and subject to the limitations regarding indemnification, under Section 11 of Section 2.9 of this the Participation Agreement;
(viiiix) cause each Major Project Agreement to remain enforcing or causing the enforcement in full force and effect and enforce (in a commercially reasonable manner) all material respects of performance by each party to each Major Project Agreement Construction Document of their its respective obligations, warranties and other design, construction and other obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) Improvements on the Land or pursuing remedies with respect to the breach of those obligations;, in each case, as deemed appropriate by the Construction Agent in its discretion; and
(ixx) subject to Section 3.2 and Schedule 2.6(b), use using the proceeds of any property or casualty insurance maintained with respect to the Facility (1) Improvements to complete construction of or to rebuild any portion of the Facility such Improvements with respect to a Casualty or Condemnation and to fund all Interest accrued on the Loans and Lessor Yield accrued on the Lessor Advances and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves not duplicative) all Capitalized Costs during the Construction Period or rebuild, provided that the foregoing shall not affect the Construction Agent’s right to purchase the Property in accordance with Article XX of the Project Budget are not available for such purpose; and
(x) respond to any requests for informationLease which shall be applicable during the Construction Period and is hereby incorporated herein by reference, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other Contractorsmutatis mutandis.
(b) Neither the Construction Agent nor any Construction Agency Person shall enter into any contract or consent to any contract in the name of the Lessor without the Lessor’s prior written consent, such consent to be given or withheld in the exercise of the Lessor’s reasonable discretion (acting at the direction of the Agent); provided, however, that (i) no such contract will increase the obligations of the Lessor beyond the obligations of the Lessor as are expressly set forth in the Operative Agreements and (ii) each such contract shall be expressly non-recourse to the Lessor on terms and conditions that are reasonably acceptable to the Lessor, (iii) each such contract shall expressly acknowledge that the Lessor shall not have any liability, as principal for the acts of the Construction Agent under such contracts or for the acts of any other Construction Agency Person, (iv) each such contract shall contain an express waiver of the other party’s rights to assert any Lien or Claim against the Lessor arising out of any such purported agency relationship, and (v) each such contract shall otherwise be on terms and conditions that are reasonably acceptable to the Lessor. It is deemed to be reasonable for the Lessor to withhold its consent to any contract which fails to comply, in the Lessor’s judgment, with any of clauses (i) through (v) of this subparagraph (b).
(c) Subject to the terms and conditions of this Agreement, Agreement and the other Operative Documents and Agreements, the Project Materials, as between the parties hereto, Construction Agent shall have sole management and control over the installation, construction and sole responsibility for the testing means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-factProperty.
(cd) All fees As between the Lessor and expenses of the Construction Agent, the Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid responsible for all acts or reimbursed through Advances omissions of each Construction Agency Person. The Lessor and the Construction Agent agree that the Construction Agent shall at all times be deemed to the extent be in possession and control of the aggregate Available Commitment Property at all times until such possession and subject control is relinquished pursuant to the terms and conditions set forth in of the Participation AgreementOperative Agreements.
Appears in 1 contract
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, the Lessor hereby expressly authorizes the Construction Agent, Agent (or any agent, designee consultant, advisor, developer, employee, attorney-in-fact or contractor of the Construction AgentAgent to which the Construction Agent has made a delegation of authority pursuant to the terms of this Agreement), and the Construction Agent unconditionally agrees, for the benefit of the Lessor, to use commercially reasonable efforts to take all action necessary or (as determined by the Construction Agent) desirable for the performance and satisfaction of all of the Site Obligations. In furtherance thereof (and without limiting Construction Agent's obligations hereunder, including: K. performing or causing the generality performance of the foregoing), Construction Agent is hereby granted the authority on behalf of Lessor to, and shall:
(i) assist in and perform such functions as are necessary or desirable for Lessor to lease its interest in the Site and construct the Facility in accordance with the terms and conditions of the Operative Documents;
(ii) perform (or cause to be performed) all management design and supervisory functions and all engineering, design and supervisory engineering work related to the Site Obligations, including the Construction, and perform all the obligations retention and supervision of Lessor under the Project Agreements;
(iii) negotiate and/or cause to have in place General Contractor; L. negotiating and entering into, or causing the negotiation and execution and delivery of, all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, arrangements to procure the labor, materials, supplies and equipment necessary to perform and complete the Site Obligations, including or (as determined by the Construction Agent) desirable to construct the Improvements on such terms and conditions as are customary and reasonable in light of local standards and state practices;
(iv) obtain (; M. granting on behalf of Lessor such easements, licenses, rights-of-way or cause other rights of ingress and egress as are necessary or appropriate to effect the Construction or that otherwise would not have a material adverse effect on the as-built value, utility, residual value at the end of the Lease Term Expiration Date or remaining economic life of the Facility; N. obtaining or causing to be obtained) obtained all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable Laws (including Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance of the Site Obligations;
(v) maintain (Construction; O. maintaining or cause causing to be maintained), in accordance with Prudent Industry Practice, maintained all books and records with respect to the Construction and the other Site Obligations;
(vi) perform (operation and management of the Facility; P. performing or cause to be performed) causing the performance of any other acts necessary or desirable (as reasonably determined by the Construction Agent) in connection with the performance construction and development of the Site Obligations Improvements in accordance in all material respects with the Project Materials and all Construction Materials, any Applicable Laws, Governmental Actions Environmental Laws and all Insurance Requirements;
(vii) pay when due and payable or cause to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other Contractors.
(b) Subject to the terms and conditions of this Agreement, the other Operative Documents and the Project Materials, as between the parties hereto, Construction Agent shall have management and control over and sole responsibility for the means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-fact.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreement.
Appears in 1 contract
Sources: Participation Agreement, Lease Agreement and Construction Agency Agreement (Ross Stores Inc)
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative DocumentsDocuments with respect to each Construction Property, the Lessor hereby expressly authorizes the Construction Agent, or any agent, designee agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees, for the benefit of the Lessor, to take all action necessary or desirable for the performance and satisfaction of all of the Site Obligations. In furtherance thereof (and without limiting the generality of the foregoing)Construction Agent's obligations hereunder, Construction Agent is hereby granted the authority on behalf of Lessor to, and shallincluding:
(i) identify and assist in and perform such functions as are necessary or desirable for Lessor to lease its interest in with the Site and construct the Facility acquisition of related Improvements in accordance with the terms and conditions of the Operative DocumentsLease and the Plans and Specifications for such Property;
(ii) perform (or cause to be performed) performed all management design and supervisory functions and all engineering, design and supervisory engineering work related to the Site Obligations, including the Construction, and perform all the obligations of Lessor under the Project AgreementsConstruction to be performed in connection with such Property;
(iii) negotiate and/or cause to have in place and enter into all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, arrangements to procure the labor, materials, supplies and equipment necessary to perform and complete construct the Site Obligations, including the Construction Improvements to be constructed on such Property on such terms and conditions as are customary and reasonable in light of local standards and practices;
(iv) obtain (or cause to be obtained) obtained all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable LawsLaw, from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance Construction to be performed in connection with such Property and grant on behalf of the Site ObligationsLessor such easements as are necessary or appropriate to effect such Construction or that otherwise would not have an adverse effect on the value of any Property;
(v) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, all books and records with respect to the Construction and the other Site Obligations;to be performed in connection with such Property; and
(vi) perform (or cause all of its obligations under the Construction Documents relating to be performed) such Property and any other acts necessary in connection with the performance acquisition of such Property and the construction and development of the Site Obligations Improvements in accordance with the Project Materials Plans and all Applicable Laws, Governmental Actions and all Insurance Requirements;
(vii) pay when due and payable or cause to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available Specifications for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other ContractorsProperty.
(b) Subject to the terms and conditions of this Agreement, Agreement and the other Operative Documents and Documents, the Project Materials, as between the parties hereto, Construction Agent shall have management and control over and sole responsibility for the means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion of the Site Obligations; provided, however, that Construction Agent may execute any of its duties under this Agreement by or through agents, contractors, subcontractors, employees or attorneys-in-fact.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject Subject to the terms and conditions set forth of this Agreement and the other Operative Documents, the Construction Agent shall have sole and exclusive management and control over the construction means, methods, sequences and procedures with respect to the Construction to be performed in connection with such Property.
(d) Neither the Participation AgreementConstruction Agent nor any of its Affiliates or agents shall enter into any contract which would, directly or indirectly, impose any liability or obligation on the Lessor arising out of the Lessee's actions or failures to act for which the Lessor is not indemnified by the Lessee under the Lease or any of the other Operative Documents.
Appears in 1 contract
Sources: Master Construction Agency Agreement (Iron Mountain Inc/Pa)
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, the Lessor hereby expressly authorizes the Construction Agent, or any agent, designee agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees, for the benefit of the Lessor, to take all action necessary or desirable for the performance and satisfaction of all of the Site Obligations. In furtherance thereof (and Construction Agent's obligations hereunder, including, without limiting the generality of the foregoing), Construction Agent is hereby granted the authority on behalf of Lessor to, and shalllimitation:
(i) assist in performing all design and perform such supervisory functions as are necessary or desirable for Lessor and all engineering work related to lease its interest in the Site and construct the Facility in accordance with the terms and conditions of the Operative DocumentsConstruction;
(ii) perform (or cause to be performed) all management negotiating and supervisory functions and all engineering, design and supervisory work related to the Site Obligations, including the Construction, and perform all the obligations of Lessor under the Project Agreements;
(iii) negotiate and/or cause to have in place entering into all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, arrangements to procure the labor, materials, supplies and equipment necessary to perform and complete construct the Site Obligations, including the Construction Subject Improvements on such terms and conditions as are customary and reasonable in light of local standards and practices;
(iviii) obtain (or cause to be obtained) obtaining all necessary Material permits, licenses, consents, approvals and other authorizations, including those required under Applicable Law (including Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance Construction and granting on behalf of the Site ObligationsLessor such easements as are necessary or appropriate to effect the Construction or that otherwise would not have an adverse effect on the value of the Subject Improvements or the Land on which the Subject Improvements are located;
(viv) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction and the other Site Obligations;Construction; and
(viv) perform (or cause to be performed) performing any other acts necessary in connection with the performance construction and development of the Site Obligations Subject Improvements in accordance with the Project Materials Plans and all Applicable Laws, Governmental Actions and all Insurance Requirements;
(vii) pay when due and payable or cause to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other ContractorsSpecifications.
(b) Subject to the terms and conditions of this Agreementhereof, the other Operative Documents and the Project Materials, as between the parties hereto, Construction Agent shall have management and control over and sole responsibility for the means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion of the Site Obligations; provided, however, that Construction Agent may execute any of its duties under this Agreement by or through agents, contractors, employees or attorneys-in-fact.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject Subject to the terms and conditions set forth in of this Agreement and the Participation Agreementother Operative Documents, the Construction Agent shall have sole management and control over the construction means, methods, sequences and procedures with respect to the Construction.
(d) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract which would, directly or indirectly, impose any material liability or obligation on the Lessor for which the Lessor is not indemnified by the Construction Agent or the Lessee under this Agreement or any of the other Operative Documents.
Appears in 1 contract
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, The Lessor hereby expressly authorizes the Construction Agent, or any agent, designee agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees, for the benefit of the Lessor, to take all action necessary or desirable for the performance and satisfaction of any and all of Lessor's obligations under any construction agreement and to fulfill all of the Site Obligations. In furtherance thereof (and without limiting the generality obligations of the foregoing), Construction Agent is hereby granted the authority on behalf of Lessor toincluding, and shallwithout limitation:
(i) assist in the identification and perform such functions as are necessary or desirable for Lessor to lease its interest in assistance with the Site and construct the Facility acquisition of Properties in accordance with the terms and conditions of the Operative DocumentsParticipation Agreement and the negotiation and entering into of all contracts necessary to purchase the Properties;
(ii) perform (or cause to be performed) all management design and supervisory functions relating to the construction of the Improvements and installation and testing of the related Equipment and performing all engineering, design and supervisory engineering work related to the Site Obligationsconstruction, including installation and testing of the Construction, and perform all the obligations of Lessor under the Project AgreementsImprovements;
(iiiA) negotiate and/or cause to have in place negotiating and entering into all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, arrangements to procure the labor, materials, supplies and equipment necessary to perform construct the Improvements and complete (B) negotiating all contracts or arrangements to procure the Site Obligations, including the Construction Equipment on such terms and conditions as are customary and reasonable in light of local standards and practicespractices and the businesses in which the Lessee is engaged;
(iv) obtain (or cause to be obtained) assisting in obtaining all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under Applicable Lawsapplicable Environmental Laws and occupancy permits, from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance development and construction of the Site ObligationsImprovements on the Land in accordance with the Plans and Specifications;
(v) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction construction, operation and management of the other Site Obligations;Properties; and
(vi) perform (or cause to be performed) performing any other acts necessary in connection with the performance identification and acquisition of the Site Obligations Properties and construction and development of the Improvements in accordance with the Project Materials Plans and all Applicable Laws, Governmental Actions and all Insurance Requirements;
(vii) pay when due and payable or cause to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other ContractorsSpecifications.
(b) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract in the name of Lessor without Lessor's consent, which consent shall not be unreasonably withheld, conditioned or delayed.
(c) Subject to the terms and conditions of this Agreement, the other Operative Documents and the Project Materials, as between the parties hereto, Construction Agent shall have sole management and control over and sole responsibility for the construction means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion construction of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-factImprovements.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreement.
Appears in 1 contract
Sources: Agency Agreement (Tech Data Corp)
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, each of the Agent Certificate Holders and the Lessor Trust hereby expressly authorizes the Construction Agent, or any agent, designee agent or contractor of the Construction Agent, and the Construction Agent agrees, unconditionally agrees for the benefit of Lessorthe Participants, to take all action necessary or desirable for the performance and satisfaction of all of the Site Obligations. In furtherance thereof (and Construction Agent's obligations hereunder, including, without limiting the generality of the foregoing), Construction Agent is hereby granted the authority on behalf of Lessor to, and shalllimitation:
(i) assist in the identification and perform such functions as are necessary or desirable for Lessor to lease its interest in assistance with the Site acquisition of Land and construct the Facility acquisition of the related Improvements in accordance with the terms and conditions of the Operative DocumentsParticipation Agreement;
(ii) perform (or cause to be performed) all management overseeing, directing, supervising and supervisory functions monitoring the development, design, construction and all engineering, design and supervisory work related to equipping of the Site Obligations, including the Construction, and perform all the obligations of Lessor under the Project AgreementsProperty;
(iii) negotiate and/or cause to have in place negotiating and entering into all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, arrangements to procure the labor, materials, supplies and equipment necessary to perform develop the Property and complete the Site Obligations, including the Construction on such terms and conditions as are customary and reasonable in light of local standards and practicesconstruct Improvements;
(iv) obtain (or cause to be obtained) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable Law (including Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance development and construction of the Site ObligationsImprovements on each parcel of Land subject to any Lease Supplement in a timely manner and in accordance with the applicable Plans and Specifications;
(v) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction construction, operation and management of the other Site Obligations;Property; and
(vi) perform (or cause to be performed) performing any other acts necessary in connection with the performance identification and acquisition of the Site Obligations Property and Improvements and the construction and development of Improvements in accordance with the Project Materials applicable Plans and all Applicable Laws, Governmental Actions and all Insurance Requirements;
(vii) pay when due and payable or cause to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other ContractorsSpecifications.
(b) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract which would, directly or indirectly, impose any liability or obligation on any Participant for which such Participant, as the case may be, is not indemnified by the Construction Agent or the Lessee under this Agreement or any of the other Operative Documents. AS BETWEEN THE PARTICIPANTS AND THE OTHER INDEMNITIES, ON THE ONE HAND, AND THE CONSTRUCTION AGENT, ON THE OTHER HAND, THE CONSTRUCTION AGENT SHALL BE RESPONSIBLE FOR THE ACTS AND OMISSIONS OF ITS SUBCONTRACTORS AND OTHER AGENTS.
(c) Subject to the terms and conditions of this Agreement, Agreement and the other Operative Documents and Documents, the Project Materials, as between the parties hereto, Construction Agent shall have sole management and control over and sole responsibility for the construction means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion construction of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-factImprovements.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreement.
Appears in 1 contract
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, Lessor Owner hereby expressly authorizes the Construction Agent, or any agent, designee agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees, for the benefit of LessorOwner, to take all action necessary or desirable for the performance and satisfaction of all of the Site Obligations. In furtherance thereof (and Construction Agent's obligations hereunder, including, without limiting the generality of the foregoing), Construction Agent is hereby granted the authority on behalf of Lessor to, and shalllimitation:
(i) assist in the identification and perform such functions as are necessary assistance with the acquisition of any leasehold interests or desirable for Lessor to lease its interest in the Site and construct the Facility easements required in accordance with the terms and conditions of the Operative DocumentsESA and/or the Ground Lease and/or the Utility Easement Agreement;
(ii) perform (or cause subject to be performed) the provisions of the ESA and this Agreement, all management design and supervisory functions and other services relating to the construction of the Energy Improvements and the Other Customers Facilities and performing all engineering, design and supervisory engineering work related to the Site Obligations, including design and construction of the Construction, Energy Improvements and perform all the obligations of Lessor under the Project AgreementsOther Customers Facilities;
(iii) negotiate and/or cause subject to have in place the provisions of the ESA and this Agreement, negotiating and entering into all contracts or arrangementsarrangements to procure the equipment, materials and facilities necessary so that the Energy Improvements and the Other Customers Facilities will be designed and constructed with the care and skill expected of design professionals and contractors with experience and expertise in each case subject completing the Energy Improvements so that they will be fit for the intended purpose, including, but not limited to the conditions satisfaction of the Steam and Chilled Water Standard set forth in Section 2.4, to procure the labor, materials, supplies and equipment necessary to perform and complete the Site Obligations, including the Construction on such terms and conditions as are customary and reasonable in light of local standards and practicesESA;
(iv) obtain (or cause subject to be obtained) the provisions of the ESA, obtaining all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable Law (including Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, in connection with the performance design, development and construction of the Site ObligationsEnergy Improvements and the Other Customers Facilities in accordance this Agreement, the Ground Lease and the ESA;
(v) maintain (or cause maintaining, and delivering to be maintained), in accordance with Prudent Industry PracticeOwner, all books and records with respect to the Construction design, construction, start-up and testing of the Energy Improvements and the other Site Obligations;Other Customers Facilities; and
(vi) perform (or cause subject to be performed) the provisions of the ESA and this Agreement, performing any other acts and providing all other materials, labor and services necessary in connection with the performance of the Site Obligations in accordance with the Project Materials and all Applicable Laws, Governmental Actions and all Insurance Requirements;
(vii) pay when due and payable or cause to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion development of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement Energy Improvements and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other ContractorsOther Customers Facilities for their intended purpose.
(b) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract, other than the ESA, the Funding Agents' Disbursement and Administration Agreement, the Ground Lease or the Easement Agreements, which would, directly or indirectly, impose any liability or obligation on Owner without Owner's prior written consent.
(c) Subject to the terms and conditions of this Agreement, the other Operative Documents ESA and the Project MaterialsFunding Agent's Disbursement and Administration Agreement, as between the parties hereto, Construction Agent shall have sole management and control over the design and sole responsibility for the all construction means, methods, sequences sequences, techniques and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion construction of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-factEnergy Improvements and the Other Customers Facilities.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreement.
Appears in 1 contract
Sources: Construction Agency Agreement (Grand Canal Shops Mall Construction LLC)
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, the Lessor hereby expressly authorizes the Construction Agent, or any agent, designee agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees, for the benefit of the Lessor, to take all action necessary or desirable for the performance and satisfaction of all of the Site Obligations. In furtherance thereof (and Construction Agent's obligations hereunder with respect to the Leased Properties acquired by the Lessor, including, without limiting the generality of the foregoing), Construction Agent is hereby granted the authority on behalf of Lessor to, and shalllimitation:
(i) assist in the identification and perform such functions as are necessary or desirable for Lessor to lease its interest in assistance with the Site and construct the Facility acquisition of Land in accordance with the terms and conditions of the Operative Documents;Master Agreement; 3
(ii) perform (or cause to be performed) all management design and supervisory functions relating to the construction of the Buildings and performing all engineering, design and supervisory engineering work related to the Site Obligations, including construction of the Construction, and perform all the obligations of Lessor under the Project AgreementsBuildings;
(iii) negotiate and/or cause to have in place negotiating and entering into all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, arrangements to procure the labor, materials, supplies equipment and equipment services necessary to perform and complete construct the Site Obligations, including the Construction Buildings on such terms and conditions as are customary and reasonable in light of local standards and practices;
(iv) obtain (or cause to be obtained) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable Law (including Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance development and construction of the Site ObligationsBuildings on the Land in accordance with the Plans and Specifications;
(v) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction construction, operation and management of the other Site Obligations;Leased Properties; and
(vi) perform (or cause to be performed) performing any other acts necessary in connection with the performance identification and acquisition of the Site Obligations Land and construction and development of the Buildings in accordance with the Project Materials Plans and all Applicable Laws, Governmental Actions and all Insurance Requirements;
(vii) pay when due and payable or cause to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other ContractorsSpecifications.
(b) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract which would, directly or indirectly, impose any liability or obligation on the Lessor unless such contract expressly contains an acknowledgment by the other party or parties thereto that the obligations of the Lessor are non-recourse, and that the Lessor shall have no personal liability with respect to such obligations. Subject to the foregoing, the Lessor shall execute such documents and take such other actions as the Construction Agent shall reasonably request, at the Construction Agent's expense, to permit the Construction Agent to perform its duties hereunder.
(c) Subject to the terms and conditions of this Agreement, Agreement and the other Operative Documents and Documents, the Project Materials, as between the parties hereto, Construction Agent shall have sole management and control over and sole responsibility for the construction means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion construction of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-factBuildings.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreement.
Appears in 1 contract
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, Lessor hereby expressly authorizes Construction Agent, or any agent, designee or contractor of Construction Agent, and Construction Agent agrees, for the benefit of Lessor, to take all action necessary or desirable for the performance and satisfaction of all of the Site Obligations. In furtherance thereof (and without limiting the generality of the foregoing), Construction Agent is hereby granted the authority on behalf of Lessor to, and shall:
(i) assist in and perform such functions as are necessary or desirable for Lessor to lease its interest in the Site and construct the Facility in accordance with the terms and conditions of the Operative Documents;
(ii) perform (or cause to be performed) all management and supervisory functions and all engineering, design and supervisory work related to the Site Obligations, including the Construction, and perform all the obligations of Lessor under the Project Agreements;
(iii) negotiate and/or cause to have in place all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, to procure the labor, materials, supplies and equipment necessary to perform and complete the Site Obligations, including the Construction on such terms and conditions as are customary and reasonable in light of local standards and practices;
(iv) obtain (or cause to be obtained) all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable Laws, from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, in connection with the performance of its duties hereunder, Operator shall not, without the Site Obligations;
prior consent of Project Company (vi) maintain create, or suffer the creation of, any Encumbrance on the Facility or any interest in or portion thereof, (or ii) take any action which would otherwise cause Project Company to be maintained), in accordance with Prudent Industry Practice, all books cease to have good and records with respect marketable title to the Construction and Facility or to the other Site Obligations;
Product being produced by the Facility prior to the sale of such Product, (viiii) perform remove any material part of the Facility from the Site, (or cause iv) subject to be performed) any other acts necessary the provisions of Section 2(e)(IV)B, Incur costs in connection with the performance of the Site Obligations in accordance with Services if such Incurrence would cause the aggregate costs Incurred (excluding any Project Materials and all Applicable Laws, Governmental Actions and all Insurance Requirements;
(viiCompany Direct Costs advanced by Operator) pay when due and payable or cause during the period covered by the applicable Budget to be paid when due and payable (subject to reimbursement or direct payment by Lessor or exceed 125% of the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as amount set forth in the Participation Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other Contractors.
(b) Subject to the terms and conditions of this Agreement, the other Operative Documents and the Project Materials, as between the parties hereto, Construction Agent shall have management and control over and sole responsibility for the meansperiod, methods, sequences and procedures and the hiring, termination and contracting for and supervision or (v) Incur on behalf of the labor, personnel and services with respect to the performance and completion of the Site ObligationsProject Company any Substantial Costs; provided, however, that Construction Agent may execute this subclause (v) will not apply to any (A) costs that are specifically identified in the applicable Budget that, pursuant to Section 2(e), has been agreed upon by Project Company and Operator (or, if applicable, the Budget that has been finally approved by the qualified independent engineer pursuant to Section 2(e)(iv)); (B) costs of employing, training or insuring the Workers, including costs of benefit plans, workers’ compensation insurance and employee bonus plans; or (C) Project Company Direct Costs. Regardless of whether Operator is permitted to Incur any costs hereunder, Operator may, but shall not under any circumstances be required to, make any actual payment in respect of any Project Company Direct Costs. All transactions entered into by Operator for or on behalf of Project Company hereunder shall at all times be on terms which are commercially reasonable and at arms’ length. Project Company will cooperate with and assist Operator in every reasonable and proper way to permit Operator to carry out its duties under this Agreement by or through agents, contractors, employees or attorneys-in-fact.
(c) All fees and expenses of Construction Agent relating otherwise with respect to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to Project. Without limiting the extent scope of the aggregate Available Commitment appointment set forth in Section 2(a) above and this Section 2(b), and subject to the terms and conditions hereof, Project Company hereby engages Operator to provide the following services (including the fulfillment of the appointment and the performance of the obligations set forth in Section 2(a) above, the “Services”) to Project Company:
(i) supply labor and supervise the Workers pursuant to this Agreement;
(ii) provide such office space, equipment, facilities and supplies, and the services of such secretarial, clerical and other personnel of Operator at its headquarters, as may be required for the reasonable conduct of the business of the Project by Operator personnel;
(iii) handle Feedstock at the Project, process Feedstock through the Facility and load Product onto the Project’s mode of transportation adjacent to the Facility and reposition residual soil and rock from the Process onto the Project site or for sale as top soil, fill or capping material, if appropriate;
(iv) keep the Facility and Site improvements in good repair, condition and working order in accordance with normal industry practice and consistent with the manufacturer’s design and specifications, including replacing any part of the Facility or any Site improvement which needs to be replaced because of damage, deterioration or loss (at Project Company’s expense);
(v) supply and maintain tools, spare parts (at Project Company’s expense), and other items to sustain normal Facility operation;
(vi) maintain the Facility under a preventive maintenance program by qualified personnel who possess a working knowledge of the mechanical operation of the Facility including electrical systems, motors, drives, controls, accessories, lubricants and all other items necessary to make the Facility operate in accordance with the manufacturer's design and specifications;
(vii) furnish any and all operating supplies (including consumables), labor, tools, materials to keep Facility in good repair, condition and working order in accordance with normal industry practice and consistent with the manufacturer’s design and specifications,
(viii) institute procedures, and file reports and applications, under applicable federal, state or local statute or ordinance with respect to the Facility and the Project, excluding federal, state or local Tax Returns;
(ix) establish and maintain appropriate accounting and management information systems and internal controls for the Project relating to the Services hereunder and maintain in good order the books of account, ledgers, and records of Project Company and shall perform all day-to-day accounting functions of the Project necessary for the conduct of its business including matters related to paying and receiving, billing, reserve estimates, payroll and assistance with Tax Return preparation, contract coordination and administration of employee benefit plans;
(x) take appropriate steps for the security and safety of the Facility and all materials belonging to Project Company or Operator;
(xi) obtain and maintain the insurance policies Operator is required to obtain pursuant to this Agreement, and meeting the criteria set forth in the Participation Project Contracts;
(xii) cause samples of Feedstock and Product to be delivered to one or more third parties selected by Project Company for testing to the terms of this Agreement;
(xiii) implement and oversee a safety program for the operation of the Facility at the Site sufficient to facilitate compliance with all Legal Requirements identified in Section 4(a) herein;
(xiv) conduct the operations and maintenance of the Facility in compliance with applicable Legal Requirement, including Environmental Laws and licensing or permitting requirements and, in cooperation with and as directed by Project Company, make such arrangements with and employ and retain, at the expense and for the benefit of Project Company, such accountants, attorneys, banks, transfer agents, custodians, underwriters, engineers, insurance companies and other Persons as may from time to time reasonably be necessary to manage the business operations of Project Company;
(xv) cooperate with Project Company in such respects as Project Company reasonably requests in the resolution of any disputes which Project Company has with any Person other than Operator regarding the Site, the Facility or the operation of the Project and selling Product; and
(xvi) conduct the operations and maintenance of the Facility in a manner which will not result in any failure of performance, breach or default by Project Company under any of the Project Contracts. Except as expressly provided in Section 2(b) or Section 6, all costs and expenses with respect to the Services will first be Incurred and paid by Operator. The portion of these costs and expenses that constitute Permitted Actual Costs will then be paid to Operator by Project Company as part of the Operator Compensation.
Appears in 1 contract
Sources: Facility Operating and Management Agreement (Geotec, Inc.)
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, the Lessor hereby expressly authorizes the Construction Agent, or any agent, designee agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees, for the benefit of the Lessor, to take all action necessary or desirable for the performance and satisfaction of all of the Site Obligations. In furtherance thereof (and Construction Agent's obligations hereunder with respect to the Leased Properties acquired by the Lessor, including, without limiting the generality of the foregoing), Construction Agent is hereby granted the authority on behalf of Lessor to, and shalllimitation:
(i) assist in the identification and perform such functions as are necessary or desirable for Lessor to lease its interest in assistance with the Site and construct the Facility acquisition of Land in accordance with the terms and conditions of the Operative DocumentsMaster Agreement;
(ii) perform (or cause to be performed) all management design and supervisory functions relating to the construction of the Buildings and performing all engineering, design and supervisory engineering work related to the Site Obligations, including construction of the Construction, and perform all the obligations of Lessor under the Project AgreementsBuildings;
(iii) negotiate and/or cause to have in place negotiating and entering into all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, arrangements to procure the labor, materials, supplies equipment and equipment services necessary to perform and complete construct the Site Obligations, including the Construction Buildings on such terms and conditions as are customary and reasonable in light of local standards and practices;
(iv) obtain (or cause to be obtained) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable Law (including Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance development and construction of the Site ObligationsBuildings on the Land in accordance with the Plans and Specifications;
(v) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction construction, operation and management of the other Site Obligations;Leased Properties; and
(vi) perform (or cause to be performed) performing any other acts necessary in connection with the performance identification and acquisition of the Site Obligations Land and construction and development of the Buildings in accordance with the Project Materials Plans and all Applicable Laws, Governmental Actions and all Insurance Requirements;
(vii) pay when due and payable or cause to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other ContractorsSpecifications.
(b) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract which would, directly or indirectly, impose any liability or obligation on the Lessor unless such contract expressly contains an acknowledgment by the other party or parties thereto that the obligations of the Lessor are non-recourse, and that the Lessor shall have no personal liability with respect to such obligations. Subject to the foregoing, the Lessor shall execute such documents and take such other actions as the Construction Agent shall reasonably request, at the Construction Agent's expense, to permit the Construction Agent to perform its duties hereunder.
(c) Subject to the terms and conditions of this Agreement, Agreement and the other Operative Documents and Documents, the Project Materials, as between the parties hereto, Construction Agent shall have sole management and control over and sole responsibility for the construction means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion construction of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-factBuildings.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreement.
Appears in 1 contract
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, The Lessor hereby expressly authorizes the Construction Agent, or any agent, designee agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees, for the benefit of the Lessor, to take all action necessary or desirable for the performance and satisfaction of any and all of Lessor's obligations under any construction agreement and to fulfill all of the Site Obligations. In furtherance thereof (and without limiting the generality obligations of the foregoing), Construction Agent is hereby granted the authority on behalf of Lessor toincluding, and shallwithout limitation:
(i) assist in the identification and perform such functions as are necessary or desirable for Lessor to lease its interest in assistance with the Site and construct the Facility acquisition of Properties in accordance with the terms and conditions of the Operative DocumentsParticipation Agreement;
(ii) perform (or cause to be performed) all management design and supervisory functions relating to the construction of the Improvements and performing all engineering, design and supervisory engineering work related to the Site Obligationsconstruction, including installation and testing of the Construction, and perform all the obligations of Lessor under the Project AgreementsImprovements;
(iii) negotiate and/or cause to have in place negotiating and entering into all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, to procure the labor, materials, supplies and equipment necessary to perform and complete construct the Site ObligationsImprovements, including the Construction on such terms and conditions as are customary and reasonable in light of local standards and practicespractices and the businesses in which the Lessee is engaged;
(iv) obtain (or cause to be obtained) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under Applicable applicable Environmental Laws, from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance development and construction of the Site ObligationsImprovements on the Land in accordance with the Plans and Specifications;
(v) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction construction, operation and management of the other Site Obligations;Properties, including the allocation of the Advances among the Properties so as to maintain an accurate record of each Project Cost; and
(vi) perform (or cause to be performed) performing any other acts necessary in connection with the performance identification and acquisition of the Site Obligations Properties and construction and development of the Improvements in accordance with the Project Materials Plans and all Applicable Laws, Governmental Actions and all Insurance Requirements;
(vii) pay when due and payable or cause to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other ContractorsSpecifications.
(b) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract which would, directly or indirectly, impose any liability or obligation on the Lessor and for which liability or obligation the Lessor is not indemnified.
(c) Subject to the terms and conditions of this Agreement, the other Operative Documents and the Project Materials, as between the parties hereto, Construction Agent shall have sole management and control over and sole responsibility for the construction means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion construction of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-factImprovements.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreement.
Appears in 1 contract
Sources: Construction Agency Agreement (Quality Food Centers Inc)
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, the Lessor hereby expressly authorizes Construction Agent, or any agent, designee or contractor of Construction Agent, agrees with the Constructor and Construction Agent agrees, for the benefit of Lessor, Constructor unconditionally agrees to take all action necessary or desirable for the performance and satisfaction of all of the Site Obligations. In furtherance thereof (and Constructor’s obligations hereunder, including, without limiting the generality of the foregoing), Construction Agent is hereby granted the authority on behalf of Lessor to, and shalllimitation:
(i) assist in all design and perform such supervisory functions as are relating to and necessary or desirable for Lessor to lease its interest in the Site and construct the Facility in accordance with the terms and conditions construction of the Operative DocumentsNew Improvements (Fremont 3E) on the Site, as applicable;
(ii) perform (or cause to be performed) all management negotiating and supervisory functions and all engineering, design and supervisory work related to the Site Obligations, including the Construction, and perform all the obligations of Lessor under the Project Agreements;
(iii) negotiate and/or cause to have in place entering into all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, arrangements to procure the labor, materials, equipment and supplies and equipment necessary to perform and complete construct the Site Obligations, including the Construction New Improvements (Fremont 3E) on such terms and conditions as are customary and reasonable in light of local standards and practices;
(iviii) obtain (or cause to be obtained) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable Laws (including Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance development and construction of the Site ObligationsNew Improvements (Fremont 3E) in all material respects in accordance with the Plans and Specifications;
(viv) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction construction, operation and management of the Site and the other Site Obligations;New Improvements (Fremont 3E):
(viv) perform (or cause to be performed) performing any other acts necessary in connection with the performance construction and development of the Site Obligations New Improvements (Fremont 3E) in all material respects in accordance with the Project Materials Plans and all Specifications, Applicable Laws, Governmental Actions Laws and all Insurance RequirementsRequirements including, without limitation, applicable zoning ordinances;
(viivi) pay when due and payable or cause to be paid when due and payable paying (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Agreement) ), in accordance with the Participation Agreement, all Project Construction Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this AgreementPeriod;
(viiivii) cause each Major Project Agreement to remain in full force enforcing, as and effect and enforce (in a when commercially reasonable manner) reasonable, performance by each party to each Major Project Agreement Construction Document of their its respective obligations, warranties and other design, construction and other obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion completion of the FacilityNew Improvements (Fremont 3E) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) pursuing remedies with respect to the breach of those obligations;; and
(ixviii) subject to Section 3.2 and Schedule 2.6(b)the extent permitted under the Operative Documents, use using the proceeds of any property or casualty insurance maintained with respect to the Facility New Improvements (1Fremont 3E) to complete construction of or to rebuild any portion of the Facility New Improvements (Fremont 3E) with respect to an Event of Loss or a Casualty occurring with respect to that portion of the New Improvements (Fremont 3E) and in accordance with Article XIII of the Lease. If a Construction Event of Default has occurred and is continuing, the Constructor or Condemnation and (2) any agent or contractor of the Constructor shall not have the authority to fund, during such construction or rebuilding, all Yield and Fees accruing to take any of the extent contingency reserves in above-described actions without the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and prior written consent of the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other ContractorsLessor.
(b) Subject to the terms and conditions of this Agreement, Agreement and the other Operative Documents Documents, the Constructor shall have sole management, control and responsibility over and the Project Materials, as between the parties hereto, Construction Agent shall have management and control over and sole responsibility liability for the Construction, construction means, methodsmethods (including testing of the New Improvements (Fremont 3E) or any part thereof), sequences and procedures procedures, including testing (running) the New Improvements (Fremont 3E), the use of Hazardous Materials, and the hiring, termination and contracting for and supervision of the and payment for labor, personnel and services with respect to the performance and completion construction of the New Improvements (Fremont 3E). Constructor acknowledges and agrees that, until such time as the Lessor or its designee has taken possession of the New Improvements (Fremont 3E) through the exercise of remedies under the Operative Documents or pursuant to a return of the New Improvements (Fremont 3E) to the Lessor or its designee permitted under the Operative Documents, as between the Lessor and the Constructor, the Constructor will have at all times sole dominion over and control of the New Improvements (Fremont 3E) and the Site Obligations; provided, however, and that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-factthe Constructor will bear all responsibility for injuries and mishaps to third parties and their property on the Site.
(c) All fees and expenses of Construction Agent relating to the Facility and Lessee under any Operative Document which are provided for of the type included in the Project Construction Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth as provided in the Participation Agreement.
Appears in 1 contract
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, Lessor Landlord hereby expressly authorizes Construction Agent, or any agent, designee agent or contractor of Construction Agent, and Construction Agent agrees, unconditionally agrees for the benefit of LessorLandlord, subject to Section 2.4(b), to take all action necessary or desirable for the performance and satisfaction of any and all obligations of Landlord or Construction Agent under any construction agreement or development agreement relating to the Improvements and to fulfill all of the Site Obligations. In furtherance thereof (and obligations of Construction Agent, which obligations shall include, without limiting the generality of the foregoing), Construction Agent is hereby granted the authority on behalf of Lessor to, and shalllimitation:
(i) assist in all design and perform such supervisory functions as are necessary or desirable for Lessor relating to lease its interest in the Site development and construct the Facility in accordance with the terms and conditions construction of the Operative DocumentsImprovements and performing all engineering work related thereto;
(ii) perform (or cause to be performedA) all management negotiating, entering into, performing and supervisory functions and all engineering, design and supervisory work related to the Site Obligations, including the Construction, and perform all the obligations of Lessor under the Project Agreements;
(iii) negotiate and/or cause to have in place enforcing all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, and arrangements to procure the labor, materials, supplies equipment and equipment materials necessary to perform construct the Improvements, (B) negotiating, executing, performing and complete enforcing all contracts and arrangements to develop and construct the Site Obligations, including the Construction Improvements on such terms and conditions as are customary and reasonable in light of local and national standards and practices;practices and (C) negotiating, executing, performing and enforcing agreements granting easements and licenses for utilities and other facilities necessary to construct the Improvements, provided that if the terms of any such easement or license shall continue to be binding on Landlord or burden the Leased Premises after the Final Completion Date, such easement or license shall be subject to Landlord’s approval of the form and substance thereof, not to be unreasonably withheld, conditioned or delayed; DMEAST #39698570 v7 8
(iviii) obtain (or cause to be obtained) obtaining all necessary permits, licenses, consents, approvals approvals, entitlements and other authorizations, including without limitation all of the foregoing required for the Improvements and the use and occupancy thereof and those required under Applicable Legal Requirements (including Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance development, construction use and occupancy of the Site ObligationsImprovements in accordance with the Plans and Specifications, this Agreement and the Lease;
(viv) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction Improvements and the other Site Obligations;construction, operation and management thereof; and
(v) paying when due the Construction Costs from the funds disbursed to Construction Agent in accordance with Section 4.1 hereof; and
(vi) perform (or cause to be performed) performing any other acts and paying such amounts (including Cost Overruns) necessary in connection with order to develop and construct the performance of the Site Obligations Improvements in accordance with the Project Materials Plans and all Applicable Laws, Governmental Actions and all Insurance Requirements;Specifications on or before the Outside Scheduled Completion Date.
(viib) pay when due and payable Neither Construction Agent nor any of its Affiliates or cause agents shall enter into any contract or consent to any contract in the name of Landlord without Landlord’s prior written consent, which consent shall not be paid when due and payable unreasonably withheld or delayed so long as (subject to reimbursement or direct payment by Lessor or i) such contract will not increase the Administrative Agent through Advances or directly obligations of Landlord beyond the obligations of Landlord as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as are expressly set forth in the Participation AgreementLease or this Agreement and (ii) all Project Costs to be paid during the Commitment Period (including costs associated with each such contract does not impose any liability or obligation on Landlord for which Landlord is not indemnified by Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case Agent pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other Contractors3.3.
(bc) Subject to the terms and conditions of this Agreement, the other Operative Documents Agreement and the Project Materials, as between the parties heretoLease, Construction Agent shall have sole management and control over and sole responsibility for the construction means, methods, sequences and procedures regarding the Improvements. The parties hereto acknowledge that Construction Agent, as tenant under the Lease, shall be in possession and the hiring, termination and contracting for and supervision control of the labor, personnel and services with respect to Leased Premises (including the performance and completion Improvements) during the term of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-fact.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreement.
Appears in 1 contract
Sources: Construction Agency Agreement (Progress Energy Inc)
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, Lessor hereby expressly authorizes Construction Agent, or any agent, designee or contractor of Construction Agent, and Construction Agent agrees, for the benefit of Lessor, unconditionally agrees to take all action necessary or desirable for the performance and satisfaction of all of the Site Obligations. In furtherance thereof (and Construction Agent’s obligations hereunder, including, without limiting the generality of the foregoing), Construction Agent is hereby granted the authority on behalf of Lessor to, and shalllimitation:
(i) assist in all actions relating to and perform such functions as are necessary or desirable for Lessor to the ground lease its interest in of the Site and construct by Owner on or after the Facility in accordance with the terms and conditions of the Operative DocumentsClosing Date;
(ii) perform (or cause to be performed) all management design and supervisory functions relating to and all engineering, design and supervisory work related to necessary for the Site Obligations, including construction of the Construction, and perform all Facility on the obligations of Lessor under the Project AgreementsSite;
(iii) negotiate and/or cause to have in place negotiating and entering into all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, arrangements to procure the labor, materials, equipment and supplies and equipment necessary to perform demolish Building 1 and complete to construct the Site Obligations, including the Construction Facility on such terms and conditions as are customary and reasonable in light of local standards and practices;
(iv) obtain (or cause to be obtained) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable Laws and Regulations (including Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance demolition of Building 1 and the development and construction of the Site ObligationsFacility in accordance with the Plans and Specifications;
(v) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction construction and management of the Site and the other Site ObligationsFacility;
(vi) perform (or cause to be performed) performing any other acts necessary in connection with the performance demolition of Building 1 and the construction and development of the Site Obligations Facility in accordance with the Project Materials Plans and Specifications, Construction Budget, Applicable Laws and Regulations and all Applicable Laws, Governmental Actions and all Construction Period Insurance Requirements;
(vii) pay when due and payable or cause to be paid when due and payable paying (subject to reimbursement or direct payment by Lessor or the Administrative Agent through receipt of Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Agreement) all Project Construction Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this AgreementPeriod;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) enforcing performance by each party to each Major Project Agreement Construction Document of their its respective obligations, warranties and other design, construction and other obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including demolition of Building 1 and the design, engineering, construction and Completion completion of the Facility) Facility and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) pursuing remedies with respect to the breach of those obligations;; and
(ix) subject to Section 3.2 and Schedule 2.6(b)the extent permitted under the Operative Documents, use using the proceeds of any property or casualty insurance maintained in accordance with Section 2.7(d) hereof with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to an Event of Loss, a Casualty or Condemnation occurring with respect to that portion of the Facility and (2) in accordance with Section 3.3 hereof. If a Construction Event of Default has occurred and is continuing, neither Construction Agent nor any agent or contractor of Construction Agent shall have the authority to fund, during such construction or rebuilding, all Yield and Fees accruing to take any of the extent contingency reserves in above-described actions without the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and prior written consent of the other Project Agreements so as to permit Administrative Agent acting at the timely and proper performance thereof by direction of the General Contractor and the other ContractorsRequired Participants.
(b) Subject to the terms and conditions of this Agreement, Agreement and the other Operative Documents Documents, Construction Agent, in its capacity as agent for Owner, shall have sole management, control and responsibility over and the Project Materialsduty to cause, as between the parties heretoConstruction, Construction Agent shall have management and control over and sole responsibility for the construction means, methodsmethods (including testing of the Facility or any part thereof), sequences and procedures procedures, the use of Hazardous Materials and the hiring, termination and contracting for and supervision of the and payment for labor, personnel and services with respect to the performance and completion construction of the Facility. Construction Agent acknowledges and agrees that, until such time as Owner or its designee has taken possession of the Facility through the exercise of remedies under the Operative Documents or pursuant to a return of the Facility to Owner or its designee permitted under the Operative Documents, as between Owner and Construction Agent, Construction Agent will have at all times sole dominion over and control of the Facility and the Site Obligations; provided, however, and that Construction Agent may execute its duties under this Agreement by will bear or through agents, contractors, employees or attorneys-in-factcause General Contractor to bear all responsibility for injuries and mishaps to third parties and their property on the Site.
(c) All fees and expenses of Construction Agent relating to the Facility and Lessee under any Operative Document which are provided for of the type included in the Project Construction Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth as provided in the Participation Agreement.
Appears in 1 contract
Sources: Construction and Development Agreement (Cubic Corp /De/)
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, Lessor hereby expressly authorizes Construction Agent, Agent (or any agent, designee consultant, advisor, developer, employee, attorney-in-fact or contractor of Construction AgentAgent to which Construction Agent has made a delegation of authority pursuant to the terms of this Agreement), and Construction Agent unconditionally agrees, for the benefit of Lessor, to take all action necessary or (as determined by Construction Agent) desirable for the performance and satisfaction of all of Construction Agent's obligations hereunder with respect to the Site Obligations. In furtherance thereof (and without limiting the generality of the foregoing)Properties, Construction Agent is hereby granted the authority on behalf of Lessor to, and shallincluding:
(i) assist in the identification and perform such functions as are necessary or desirable for Lessor to lease its interest the acquisition, in the name of Lessor (by purchasing or ground leasing, as applicable) of each Site and construct the Facility in accordance with the terms and conditions of the Operative DocumentsParticipation Agreement;
(ii) perform (performing or cause to be performed) causing the performance of all management design and supervisory functions and all engineering, design and supervisory engineering work related to the Site Obligations, including Construction and the Construction, retention and perform all supervision of the obligations of Lessor under the Project AgreementsGeneral Contractor;
(iii) negotiate and/or cause to have in place negotiating and entering into, or causing the negotiation and execution and delivery of, all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, arrangements to procure the labor, materials, supplies and equipment necessary or (as determined by Construction Agent) desirable to perform and complete construct the Site Obligations, including the Construction on such terms and conditions as are customary and reasonable in light of local standards and practicesImprovements;
(iv) obtain (obtaining or cause causing to be obtained) obtained all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable Laws (including Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance acquisition of the Site ObligationsSites and the Construction of the Improvements thereon;
(v) maintain (maintaining or cause causing to be maintained), in accordance with Prudent Industry Practice, maintained all books and records with respect to the Construction and the other Site Obligationsoperation and management of the Properties;
(vi) perform (performing or cause to be performed) causing the performance of any other acts necessary or desirable (as reasonably determined by Construction Agent) in connection with the performance construction and development of the Site Obligations Improvements in accordance in all material respects with the Project Traville Construction Materials and all or the Manufacturing Construction Materials, as applicable, any Applicable Laws, Governmental Actions Laws and all Insurance Requirements; provided, however, that the foregoing shall not limit Construction Agent's right to engage in Permitted Contests;
(vii) pay paying when due and payable or cause causing to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement Agreement) pursuant to and subject to the terms and applicable conditions relating to Advances Approved Traville Construction Budget or Approved Manufacturing Construction Budget, as set forth in applicable, or the Participation Agreement) , all Project Property Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s 's actions as provided in Section 2.5(a)(ix2.6(a)(ix) below or which are due and payable under any Project Agreementbelow, in each case pursuant to and subject to the Project Approved Traville Construction Budget or Approved Manufacturing Construction Budget); , as applicable) provided, however, that the foregoing shall not limit Construction Agent's right to engage in no event, shall Permitted Contests. Construction Agent have the authority acknowledges that any liability resulting to pay Administrative Agent, any Participant or incur any Project Cost (1) which may be used to remedy other Indemnitee as a result of or arising from any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence negotiation, Permitted Contest, or act or omission of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority or its designees with respect to incur Project Costs such Permitted Contest will be a Claim subject to indemnification under Article IX of the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Participation Agreement;
(viii) cause each Major Project Agreement to remain enforcing or causing the enforcement in full force and effect and enforce (in a commercially reasonable manner) all material respects of performance by each party to each Major Project Agreement Construction Document of their its respective obligations, warranties and other design, construction and other obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) Improvements on the applicable Site or pursuing remedies with respect to the breach of those obligations;, in each case, as deemed appropriate by Construction Agent in its discretion; and
(ix) subject to Section 3.2 and Schedule 2.6(b), use using the proceeds of any property or casualty insurance maintained with respect to the Facility (1) Improvements to complete construction of or to rebuild any portion of the Facility such Improvements with respect to a Casualty or Condemnation and (2) to fund, fund all Construction Period Accrued Interest accruing during such construction Construction or rebuildingrebuild, all Yield provided that the foregoing shall not affect Construction Agent's right to purchase the Properties in accordance with Article V of the Lease which shall be applicable during the Construction Period and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for informationis hereby incorporated herein by reference, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other Contractorsmutatis mutandi.
(b) Neither Construction Agent nor any of its Affiliates or agents shall enter into any contract which would impose any liability or obligation on Lessor (other than (i) nonrecourse obligations arising out of the imposition of certain Permitted Liens identified on Schedules 2.6(b)(i) and 2.6(b)(ii) hereto and (ii) Lessor's obligation to Construction Agent to provide Advances in accordance with and subject to the terms and conditions of the Operative Documents).
(c) Subject to the terms and conditions of this Agreement, Agreement and the other Operative Documents and the Project Materials, as between the parties heretoDocuments, Construction Agent shall have sole management and control over and sole responsibility for the construction means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of and payment for the labor, personnel and services with respect to the performance and completion of the Site ObligationsConstruction; provided, however, that Construction Agent may execute its duties under this Agreement by or through agentssubsection (c) shall not give rise to any rights in any Person other than Lessor, contractors, employees or attorneys-in-factthe Participants and the other Indemnitees.
(cd) All fees and expenses of Lessee and Construction Agent relating to the Facility under any Operative Document which are included in and which are provided for may be paid in accordance with the Project Approved Traville Construction Budget or the Approved Manufacturing Construction Budget, as applicable, shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation AgreementAdvances.
Appears in 1 contract
Sources: Construction Agency Agreement (Human Genome Sciences Inc)
Scope of Authority. (ai) Subject to the terms, conditions, restrictions and limitations set forth herein and in the other Operative Documents, Lessor hereby expressly authorizes Construction Agent, or any agent, designee agent or contractor of Construction Agent, and Construction Agent unconditionally agrees, for the benefit of Lessor, to take all action necessary or desirable for the performance and satisfaction of all of Construction Agent's obligations under this Paragraph 13 with respect to the Site Obligations. In furtherance thereof (and without limiting the generality construction of the foregoing)Additional Improvements and the acquisition and installation of the related Building Equipment, Construction Agent is hereby granted the authority on behalf of Lessor toincluding, and shallwithout limitation:
(iA) assist in overseeing, directing, supervising and perform such functions as are necessary or desirable for Lessor to lease its interest in the Site and construct the Facility in accordance with the terms and conditions of the Operative Documents;
(ii) perform (or cause to be performed) monitoring all management design and supervisory functions relating to the construction of the Additional Improvements and acquisition and installation of the related Building Equipment and all engineering, design and supervisory engineering work related to the Site Obligations, including construction of the Construction, Additional Improvements and perform all acquisition and installation of the obligations of Lessor under the Project Agreementsrelated Building Equipment;
(iiiB) negotiate and/or cause to have in place negotiating and entering into all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, arrangements to procure the labor, materials, supplies equipment and equipment services necessary to perform construct the Additional Improvements and complete acquisition and installation of the Site Obligations, including the Construction related Building Equipment on such terms and conditions as are customary and reasonable in light of local standards and practices;
(ivC) obtain (or cause to be obtained) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable Law (including Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance construction of the Site ObligationsAdditional Improvements on the Land and the acquisition and installation of the related Building Equipment in accordance with the Plans;
(vD) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction and construction of the other Site Obligations;Additional Improvements; and
(viE) perform (or cause to be performed) performing any other acts necessary or appropriate in connection with the performance construction of the Site Obligations Additional Improvements and acquisition and installation of the related Building Equipment in accordance with the Project Materials and all Applicable Laws, Governmental Actions and all Insurance Requirements;Plans.
(viiii) pay when due Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract which would, directly or indirectly, impose any liability or obligation on Lessor unless such contract expressly contains an acknowledgment by the other party or parties thereto that the obligations of Lessor are non-recourse, and payable or cause that Lessor shall have no personal liability with respect to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject such obligations. Subject to the terms foregoing, Lessor shall execute such documents and applicable conditions relating to Advances as set forth in the Participation Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s take such other actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority reasonably request, at Construction Agent's expense, to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until permit Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other Contractorsperform its duties hereunder.
(biii) Subject to the terms and conditions of this Agreement, Lease and the other Operative Documents and the Project Materials, as between the parties heretoDocuments, Construction Agent shall have sole management and control over and sole responsibility for the construction means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion construction of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-fact.
(c) All fees Additional Improvements and expenses of Construction Agent relating to the Facility acquisition and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent installation of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreementrelated Building Equipment.
Appears in 1 contract
Scope of Authority. (a) Subject to the terms, conditions, ------------------ restrictions and limitations set forth in the Operative Documents, the Lessor hereby expressly authorizes the Construction Agent, or any agent, designee agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees, for the benefit of the Lessor, to take all action necessary or desirable for the performance and satisfaction of all of the Site Obligations. In furtherance thereof (and Construction Agent's obligations hereunder with respect to the Leased Properties acquired or leased by the Lessor upon which a Building is to be constructed, including, without limiting the generality of the foregoing), Construction Agent is hereby granted the authority on behalf of Lessor to, and shalllimitation:
(i) assist in overseeing, directing, supervising and perform such monitoring all design and supervisory functions as are necessary or desirable for Lessor relating to lease its interest in the Site and construct the Facility in accordance with the terms and conditions construction of the Operative DocumentsBuildings and all engineering work related to the construction of the Buildings;
(ii) perform (or cause to be performed) all management negotiating and supervisory functions and all engineering, design and supervisory work related to the Site Obligations, including the Construction, and perform all the obligations of Lessor under the Project Agreements;
(iii) negotiate and/or cause to have in place entering into all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, arrangements to procure the labor, materials, supplies equipment and equipment services necessary to perform and complete construct the Site Obligations, including the Construction Buildings on such terms and conditions as are customary and reasonable in light of local standards and practices;
(iviii) obtain (or cause to be obtained) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable Law (including Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance development of the Site ObligationsLand and the construction of the Buildings on the Land in accordance with the Plans and Specifications;
(viv) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction construction, operation and management of the other Site Obligations;Leased Properties; and
(viv) perform (or cause to be performed) performing any other acts necessary or appropriate in connection with the performance identification, acquisition (or leasing) and development of the Site Obligations Land and construction of the Buildings in accordance with the Project Materials Plans and all Applicable Laws, Governmental Actions and all Insurance Requirements;
(vii) pay when due and payable or cause to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other ContractorsSpecifications.
(b) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract which would, directly or indirectly, impose any liability or obligation on the Lessor unless such contract expressly contains an acknowledgment by the other party or parties thereto that the obligations of the Lessor are non-recourse, and that the Lessor shall have no personal liability with respect to such obligations. Nothing contained herein shall be construed to require advance waiver of statutory mechanics lien rights, any such waiver, if secured, being pursuant to a separate instrument. Subject to the foregoing, the Lessor shall execute such documents and take such other actions as the Construction Agent shall reasonably request, at the Construction Agent's expense, to permit the Construction Agent to perform its duties hereunder.
(c) Subject to the terms and conditions of this Agreement, Agreement and the other Operative Documents and Documents, the Project Materials, as between the parties hereto, Construction Agent shall have sole management and control over and sole responsibility for the construction means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion construction of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-factBuildings.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreement.
Appears in 1 contract
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, the Lessor hereby expressly authorizes the Construction Agent, or any agent, designee agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees, for the benefit of the Lessor, to take all action necessary or desirable for the performance and satisfaction of all of the Site Obligations. In furtherance thereof (and Construction Agent's obligations hereunder, including, without limiting the generality of the foregoing), Construction Agent is hereby granted the authority on behalf of Lessor to, and shalllimitation:
(i) assist in performing all design and perform such supervisory functions as are necessary or desirable for Lessor and all engineering work related to lease its interest in the Site and construct the Facility in accordance with the terms and conditions of the Operative DocumentsConstruction;
(ii) perform (or cause to be performed) all management negotiating and supervisory functions and all engineering, design and supervisory work related to the Site Obligations, including the Construction, and perform all the obligations of Lessor under the Project Agreements;
(iii) negotiate and/or cause to have in place entering into all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, arrangements to procure the labor, materials, supplies and equipment necessary to perform and complete construct the Site Obligations, including the Construction Subject Improvements on such terms and conditions as are customary and reasonable in light of local standards and practices;
(iviii) obtain (or cause to be obtained) obtaining all necessary Material permits, licenses, consents, approvals and other authorizations, including those required under Applicable Law (including Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance Construction and granting on behalf of the Site ObligationsLessor such easements as are necessary or appropriate to effect the Construction or that otherwise would not have an adverse effect on the value of the Subject Improvements or the Land on which the Subject Improvements are located;
(viv) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction and the other Site Obligations;Construction; and
(viv) perform (or cause to be performed) performing any other acts necessary in connection with the performance construction and development of the Site Obligations Subject Improvements in accordance with the Project Materials Plans and all Applicable Laws, Governmental Actions and all Insurance Requirements;
(vii) pay when due and payable or cause to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other ContractorsSpecifications.
(b) Subject to the terms and conditions of this Agreementhereof, the other Operative Documents and the Project Materials, as between the parties hereto, Construction Agent shall have management and control over and sole responsibility for the means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion of the Site Obligations; provided, however, that Construction Agent may execute any of its duties under this Agreement by or through agents, contractors, employees or attorneys-in-fact.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject Subject to the terms and conditions set forth in of this Agreement and the Participation Agreementother Operative Documents, the Construction Agent shall have sole management and control over the construction means, methods, sequences and procedures with respect to the Construction.
(d) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract which would, directly or indirectly, impose any material liability or obligation on the Lessor without the express written consent of the Lessor.
Appears in 1 contract
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, The Lessor hereby expressly authorizes the Construction Agent, or any agent, designee or contractor of Construction AgentAgent to, and the Construction Agent agreesshall, for the benefit of Lessor, to take all action necessary or desirable for the performance and satisfaction of all of the Site Obligations. In furtherance thereof (and without limiting the generality of the foregoing)Construction Agent's obligations under this Agreement, Construction Agent is hereby granted the authority on behalf of Lessor to, and shallincluding:
(i) assist in assistance with the acquisition and perform such functions as are necessary or desirable for Lessor to lease its interest in the Site and construct the Facility development of each Property in accordance with the terms and conditions of the Operative DocumentsParticipation Agreement;
(ii) perform (or cause to be performed) all management design and supervisory functions relating to the construction of the Improvements and the performance of all engineering, design and supervisory engineering work related to the Site Obligations, including construction of the Construction, and perform all the obligations of Lessor under the Project AgreementsImprovements;
(iii) negotiate and/or cause to have in place negotiating and entering into all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, arrangements to procure the labor, materials, supplies and equipment necessary to perform and complete construct the Site Obligations, including the Construction Improvements on such terms and conditions as are customary and reasonable in light of local standards and practices;
(iv) obtain (or cause to be obtained) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable applicable Environmental Laws, from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance development and construction of the Site ObligationsImprovements in accordance with the Plans and Specifications;
(v) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction construction, operation and management of the other Site Obligations;Properties including maintaining an accurate record of Project Costs; and
(vi) perform (or cause to be performed) performing any other acts necessary in connection with the performance acquisition and development of each Property and construction and development of the Site Obligations Improvements thereon in accordance with the Project Materials Plans and all Applicable Laws, Governmental Actions and all Insurance Requirements;
(vii) pay when due and payable or cause to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other ContractorsSpecifications.
(b) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract relating to the construction of the Improvements which would, directly or indirectly, impose any liability or obligation on the Lessor and for which liability or obligation the Lessor is not indemnified. AS BETWEEN THE LESSOR AND THE CONSTRUCTION AGENT, THE CONSTRUCTION AGENT SHALL BE RESPONSIBLE FOR THE ACTS AND OMISSIONS OF ITS CONTRACTORS, SUBCONTRACTORS AND OTHER AGENTS.
(c) Subject to the terms and conditions of this Agreement, the other Operative Documents and the Project Materials, as between the parties hereto, Construction Agent shall have sole management and control over and sole responsibility for the construction means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion construction of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-factImprovements on each Property.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreement.
Appears in 1 contract
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, Lessor hereby expressly authorizes Construction Agent, Agents (or any agent, designee consultant, advisor, developer, employee, attorney-in-fact or contractor of a Construction AgentAgent to which a Construction Agent has made a delegation of authority pursuant to the terms of this Agreement), and Construction Agent agreesAgents unconditionally agree, for the benefit of Lessor, to take all action necessary or (as determined by Construction Agents) desirable for the performance and satisfaction of all of Construction Agents' obligations hereunder with respect to the Site Obligations. In furtherance thereof (and without limiting the generality of the foregoing)Properties, Construction Agent is hereby granted the authority on behalf of Lessor to, and shallincluding:
(i) assist in performing or causing the performance of all design and perform such supervisory functions as are necessary or desirable for Lessor and all engineering work related to lease its interest in the Site Construction and construct the Facility in accordance with the terms retention and conditions supervision of the Operative DocumentsGeneral Contractor (if Construction Agents elect to retain a General Contractor);
(ii) perform (negotiating and entering into, or cause to be performed) all management causing the negotiation and supervisory functions execution and all engineeringdelivery of, design and supervisory work related to the Site Obligations, including the Construction, and perform all the obligations of Lessor under the Project Agreements;
(iii) negotiate and/or cause to have in place all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, arrangements to procure the labor, materials, supplies and equipment necessary to perform and complete the Site Obligations, including or (as determined by the Construction on such terms and conditions as are customary and reasonable in light of local standards and practicesAgents) desirable to construct the Improvements;
(iviii) obtain (obtaining or cause causing to be obtained) obtained all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable Laws (including Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance acquisition of the Site ObligationsSites and the Construction of the Improvements thereon;
(viv) maintain (maintaining or cause causing to be maintained), in accordance with Prudent Industry Practice, maintained all books and records with respect to the Construction and the operation and management of the Properties;
(v) performing or causing the performance of any other Site Obligationsacts necessary or desirable (as reasonably determined by 4 8 Construction Agents) in connection with the construction and development of the Improvements in accordance in all material respects with the Construction Materials, any Applicable Laws and all Insurance Requirements; provided, however, that the foregoing shall not limit Construction Agents' right to engage in Permitted Contests;
(vi) perform (or cause to be performed) any other acts necessary in connection with the performance of the Site Obligations in accordance with the Project Materials and all Applicable Laws, Governmental Actions and all Insurance Requirements;
(vii) pay paying when due and payable or cause causing to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Construction Budget or the Participation Agreement, all Improvement Costs (including costs associated with the Construction Agents' actions as provided in Section 2.5(a)(viii) below, pursuant to and subject to the Construction Budget); ) provided, however, that the foregoing shall not limit Construction Agents' right to engage in no eventPermitted Contests. Construction Agents acknowledge that any liability resulting to Collateral Agent, shall any Participant or any other Indemnitee as a result of or arising from any such negotiation, Permitted Contest, or act or omission of either Construction Agent have or their designees with respect to such Permitted Contest will be a Claim subject to indemnification under Article IX of the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Participation Agreement;
(viiivii) cause each Major Project Agreement to remain enforcing or causing the enforcement in full force and effect and enforce (in a commercially reasonable manner) all material respects of performance by each party to each Major Project Agreement Construction Document of their its respective obligations, warranties and other design, construction and other obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) Improvements on the applicable Site or pursuing remedies with respect to the breach of those obligations;, in each case, as deemed appropriate by Construction Agents in their discretion; and
(ixviii) subject to Section 3.2 and Schedule 2.6(b), use using the proceeds of any property or casualty insurance maintained with respect to the Facility (1) Improvements to complete construction of or to rebuild any portion of the Facility such Improvements with respect to a Casualty or Condemnation and (2) to fund, fund all Construction Period Accrued Interest accruing during such construction Construction or rebuildingrebuild, all Yield provided that the foregoing shall not affect Construction Agents' right to purchase the Properties in accordance with Article V of the Lease which shall be applicable during the Construction Period and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof is hereby incorporated herein by the General Contractor and the other Contractorsreference.
(b) Subject to the terms and conditions Neither Construction Agents nor any of this Agreement, the other Operative Documents and the Project Materials, as between the parties hereto, Construction Agent their Affiliates or agents shall have management and control over and sole responsibility for the means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-fact.
(c) All fees and expenses of Construction Agent relating to the Facility and enter into any contract which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreement.would impose any
Appears in 1 contract
Sources: Construction Agency Agreement (Goldman Sachs Group Inc)
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, The Lessor hereby expressly authorizes the ---------------------- Construction Agent, or any agent, designee or contractor of Construction AgentAgent to, and the Construction Agent agreesshall, for the benefit of Lessor, to take all action necessary or desirable for the performance construction of the Improvements in accordance with the Plans and satisfaction of Specifications and the Budget and to fulfill all of the Site Obligations. In furtherance thereof (and without limiting the generality obligations of the foregoing)Construction Agent, Construction Agent is hereby granted the authority on behalf of Lessor toincluding, and shallwithout limitation:
(i) assist in the right to approve payment of all invoices for services and perform such functions as are necessary or desirable for Lessor materials related to lease its interest in the Site development, design, construction and construct the Facility in accordance with the terms and conditions equipping of the Operative DocumentsImprovements, and to submit Requisitions under the SPC Loan Agreement and the Participation Agreement and to receive the proceeds of Advances under the SPC Loan Agreement and to receive the same directly from the Administrative Agent provided, however, the Construction Agent shall not -------- ------- incur any expenses in excess of an amount equal to the sum of the SPC Loan Commitments plus the Investors Contribution Commitment without the express written consent of the Lessor;
(ii) perform (or cause to be performed) all management design and supervisory functions relating to the construction of the Improvements and performing all engineering, design and supervisory engineering work related to the Site Obligations, including construction of the Construction, and perform all the obligations of Lessor under the Project AgreementsImprovements;
(iii) negotiate and/or cause to have in place negotiating and entering into all contracts or arrangementsarrangements for the construction of the Improvements, in each case subject to development of infrastructure relating thereto, and the conditions set forth in Section 2.4, to procure procurement of the labor, materials, supplies and equipment necessary to perform and complete construct the Site Obligations, including the Construction Improvements on such terms and conditions as are customary and reasonable in light of local standards and practices;
(iv) obtain (or cause to be obtained) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable applicable Environmental Laws, from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance development and construction of the Site ObligationsImprovements substantially in accordance with the Plans and Specifications;
(v) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction construction, operation and management of the other Site ObligationsProperty;
(vi) perform contesting any mechanics' or materialmen's lien and prosecuting all other permitted contest rights of Lessee under Section 13.1 of the Lease during the Construction Period;
(or cause vii) performing those actions permitted to be performedperformed by the Lessee under Section 12.2 of the Lease during the Construction Period;
(viii) bringing or defending any claims or seeking resolution of any disputes arising from the Construction Agent's performance of the foregoing obligations;
(ix) performing any other acts necessary in connection with the performance construction and development of the Site Obligations Improvements in accordance with the Project Materials Plans and all Applicable Laws, Governmental Actions and all Insurance RequirementsSpecifications;
(viix) pay when due and payable or cause submitting Requisitions to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this the Participation Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use receiving the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purposeAdvances; and
(xxi) respond maintaining the insurance required pursuant to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other ContractorsSection 6 hereof.
(b) Subject Neither the Construction Agent nor any of its Affiliates or agents shall, without the written consent of the Lessor, enter into any contract which would, directly or indirectly, impose any liability or obligation on the Lessor, any Bank or the Administrative Agent beyond the liability or obligations permitted under the Operative Agreements, and each such contract shall be non- recourse to the terms and conditions of this AgreementLessor, the other Operative Documents Banks and the Project Materials, as between the parties hereto, Construction Administrative Agent shall have management and control over and sole responsibility for the means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services in accordance with respect to the performance and completion of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-fact.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreement.Section 30.6
Appears in 1 contract
Sources: Agency Agreement (Immunex Corp /De/)
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative DocumentsAgreements, the Lessor hereby expressly authorizes the Construction Agent, or any agent, designee or contractor Construction Agency Person acting on behalf of the Construction Agent, and the Construction Agent agrees, unconditionally agrees for the benefit of the Lessor, subject to Section 2.4(b), to take all action necessary or desirable for the performance and satisfaction of any and all of the Site Obligations. In furtherance thereof (Lessor’s obligations under any construction agreement and without limiting the generality to fulfill all of the foregoing), obligations of the Construction Agent is hereby granted the authority on behalf of Lessor to, and shallincluding without limitation:
(i) assist in the identification and perform such functions as are necessary or desirable for Lessor to lease its interest assistance with the acquisition in the Site and construct name of the Facility Lessor of the Property in accordance with the terms and conditions of the Operative DocumentsParticipation Agreement;
(ii) perform (or cause to be performed) all management design and supervisory functions relating to the development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the Property and performing all engineering, design and supervisory engineering work related to the Site Obligations, including the Construction, and perform all the obligations of Lessor under the Project Agreementsthereto;
(iii) negotiate and/or cause to have in place (A) negotiating, entering into, performing and enforcing all contracts and arrangements to acquire or arrangements, in each case subject to ground lease the conditions set forth in Section 2.4, Property and to procure the labor, materials, supplies and equipment necessary to perform construct the Property and complete (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct, repair, renovate, replace and test the Site ObligationsImprovements, including the Construction Equipment and the other components of the Property on such terms and conditions as are customary and reasonable in light of local and national standards and practicespractices and the businesses in which the Construction Agent is engaged;
(iv) obtain (or cause to be obtained) obtaining all necessary permits, licenses, consents, approvals approvals, entitlements and other authorizations, including without limitation all of the foregoing required for the Property and the use and occupancy thereof and those required under Applicable applicable Law (including without limitation Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance development, acquisition, installation, construction and testing of the Site ObligationsImprovements, the Equipment and the other components of the Property in accordance with the Construction Documents;
(v) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction Property and the other Site Obligationsconstruction, operation and management thereof;
(vi) perform (or cause to be performed) performing any other acts necessary in connection with the performance identification and acquisition or ground leasing of the Site Obligations Property and the development, acquisition, installation, construction, repair, renovation, replacement and testing of the related Improvements, Equipment and all other additional components of the Property in accordance with the Project Materials and all Applicable Laws, Governmental Actions and all Insurance RequirementsConstruction Documents;
(vii) pay performing or causing the performance of any other acts necessary or desirable (as reasonably determined by the Construction Agent) in connection with the construction and development of the Improvements in accordance with all applicable Laws and all Insurance Requirements unless the failure to comply is not reasonably likely to give rise to a Material Adverse Effect; provided, however, that the foregoing shall not limit the Construction Agent’s right to engage in permitted contests in accordance with Section 3.10;
(viii) paying when due and payable or cause causing to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions conditions, if any in the case of such reimbursement, relating to Construction Advances as set forth in the Participation Agreement) pursuant to and subject to the Construction Budget, and the Operative Agreements, all Project Property Costs to be paid during the Commitment Period (including costs associated with the Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement2.4(a)(x), in each case pursuant to and subject to the Project Construction Budget), provided, however, that the foregoing shall not limit the Construction Agent’s right to engage in permitted contests in accordance with Section 3.10; provided, in no eventfurther, shall that the Construction Agent have the authority to shall pay or incur directly any Project Cost Property Costs either (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2x) during the existence continuance of any Default or an Agency Agreement Event of Default under Sections 5.1(e)or (y) while it is unable to satisfy all of the conditions for a Construction Advance set forth in Section 5.4 of the Participation Agreement (it being understood, 5.1(k)(2) or 5.1(l)(2); provided furtherhowever, that the Construction Agent shall have no authority may be reimbursed for Property Costs paid by it prior to incur Project Costs the occurrence of the events described in clauses (x) and (y) to the extent permitted under Section 5.17 of the Core and Shell Construction Agreement in excess of $80,000,000 until Participation Agreement). The Construction Agent has satisfied acknowledges that any liability resulting to any Primary Financing Party or any other Indemnified Person as a result of or arising from any such negotiation, permitted contest, or act or omission of the requirements Construction Agent or its designees with respect to such permitted contest will be a Claim subject to indemnification under Section 11 of Section 2.9 of this the Participation Agreement;
(viiiix) cause each Major Project Agreement to remain enforcing or causing the enforcement in full force and effect and enforce (in a commercially reasonable manner) all material respects of performance by each party to each Major Project Agreement Construction Document of their its respective obligations, warranties and other design, construction and other obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) Improvements on the Land or pursuing remedies with respect to the breach of those obligations;, in each case, as deemed appropriate by the Construction Agent in its discretion; and
(ixx) subject to Section 3.2 and Schedule 2.6(b), use using the proceeds of any property or casualty insurance maintained with respect to the Facility (1) Improvements to complete construction of or to rebuild any portion of the Facility such Improvements with respect to a Casualty or Condemnation and (2) to fundfund all Interest accrued on the Loans and Lessor Yield accrued on the Lessor Advances during the Construction Period or rebuild, provided that the foregoing shall not affect the Construction Agent’s right to purchase the Property in accordance with Article XX of the Lease which shall be applicable during such construction or rebuildingthe Construction Period and is hereby incorporated herein by reference, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other Contractorsmutatis mutandis.
(b) Neither the Construction Agent nor any Construction Agency Person shall enter into any contract or consent to any contract in the name of the Lessor without the Lessor’s prior written consent, such consent to be given or withheld in the exercise of the Lessor’s reasonable discretion (acting at the direction of the Agent); provided, however, that (i) no such contract will increase the obligations of the Lessor beyond the obligations of the Lessor as are expressly set forth in the Operative Agreements and (ii) each such contract shall be expressly non-recourse to the Lessor on terms and conditions that are reasonably acceptable to the Lessor, (iii) each such contract shall expressly acknowledge that the Lessor shall not have any liability, as principal for the acts of the Construction Agent under such contracts or for the acts of any other Construction Agency Person, (iv) each such contract shall contain an express waiver of the other party’s rights to assert any Lien or Claim against the Lessor arising out of any such purported agency relationship, and (v) each such contract shall otherwise be on terms and conditions that are reasonably acceptable to the Lessor. It is deemed to be reasonable for the Lessor to withhold its consent to any contract which fails to comply, in the Lessor’s judgement, with any of clauses (i) through (v) of this subparagraph (b).
(c) Subject to the terms and conditions of this Agreement, Agreement and the other Operative Documents and Agreements, the Project Materials, as between the parties hereto, Construction Agent shall have sole management and control over the installation, construction and sole responsibility for the testing means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-factProperty.
(cd) All fees As between the Lessor and expenses of the Construction Agent, the Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid responsible for all acts or reimbursed through Advances omissions of each Construction Agency Person. The Lessor and the Construction Agent agree that the Construction Agent shall at all times be deemed to the extent be in possession and control of the aggregate Available Commitment Property at all times until such possession and subject control is relinquished pursuant to the terms and conditions set forth in of the Participation AgreementOperative Agreements.
Appears in 1 contract
Scope of Authority. (a) During the term of this Agreement, Lessor shall hold title to the Leased Property. Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, Lessor hereby expressly authorizes Construction Agent, or any agent, designee or contractor of Construction Agent, and Construction Agent agrees, for the benefit of Lessor, to take all action necessary or desirable for the performance and satisfaction of all of the Site Obligations. In furtherance thereof (and without limiting the generality of the foregoing), Construction Agent is hereby granted the authority on behalf of Lessor to, and shall:
(i) assist in and perform (or cause to be performed ) such functions as are necessary or desirable for Lessor to lease its interest in the Site and construct construction of the Facility in accordance with the terms and conditions of the Operative Documents;
(ii) perform (or cause to be performed) all management and supervisory functions and all engineering, design and supervisory work related to the Site Obligations, including the Construction, and perform all the obligations of Lessor under the Project Agreements;
(iii) negotiate and/or and cause to have in place all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, to procure the labor, materials, supplies and equipment necessary to perform and complete the Site Obligations, including the Construction on such terms and conditions as are customary and reasonable in light of local standards and practices; provided, however, that the Major Project Agreements for the performance and completion of the Site Obligations shall be in form and substance reasonably satisfactory to Lessor and Administrative Agent;
(iv) obtain (or cause to be obtained) all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable Laws, from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Actions in connection with the performance of the Site Obligations;
(v) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, Practice all books and records with respect to the Construction and the other Site Obligations;
(vi) perform (or cause to be performed) any other acts necessary in connection with the performance of the Site Obligations in accordance with the Project Materials and all Applicable Laws, Governmental Actions and all Insurance Requirements;
(vii) pay when due and payable or cause to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Transaction Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each the General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other Contractors.
(b) Subject to the terms and conditions of this Agreement, the other Operative Documents and the Project Materials, as between the parties hereto, Construction Agent shall have management and control over and sole responsibility for the means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-fact; provided further, that Construction Agent shall undertake the activities described in this Section 2.5 solely as the agent for Lessor, and Construction Agent shall have no title in or to the Leased Property.
(c) All reasonable fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Transaction Agreement.
Appears in 1 contract
Scope of Authority. (a) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, The Lessor hereby expressly authorizes the Construction Agent, or any agent, designee agent or contractor of the Construction Agent, and the Construction Agent agrees, unconditionally agrees for the benefit of the Lessor, subject to Section 2.4(b), to take all action necessary or desirable for the performance and satisfaction of any and all of the Site Obligations. In furtherance thereof (Lessor's obligations under any construction agreement and without limiting the generality to fulfill all of the foregoing), obligations of the Construction Agent is hereby granted the authority on behalf of Lessor to, and shallincluding without limitation:
(i) assist in the identification and perform such functions as are necessary or desirable for Lessor to lease its interest in assistance with the Site and construct the Facility acquisition of Properties in accordance with the terms and conditions of the Operative DocumentsParticipation Agreement;
(ii) perform (or cause to be performed) all management design and supervisory functions relating to the development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property and performing all engineering, design and supervisory engineering work related to the Site Obligations, including the Construction, and perform all the obligations of Lessor under the Project Agreementsthereto;
(iiiA) negotiate and/or cause to have in place negotiating, entering into, performing and enforcing all contracts and arrangements to acquire or arrangements, in each case subject to ground lease the conditions set forth in Section 2.4, Properties and to procure the labor, materials, supplies and equipment necessary to perform construct the Properties and complete (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Site ObligationsImprovements, including the Construction Equipment and the other components of the Properties on such terms and conditions as are customary and reasonable deemed appropriate by the Construction Agent in light of local standards and practicesits reasonable, good faith discretion;
(iv) obtain (or cause to be obtained) obtaining all necessary permits, licenses, consents, approvals approvals, entitlements and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under Applicable applicable Law (including without limitation Environmental Laws), from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, Authorities in connection with the performance development, acquisition, installation, construction and testing of the Site ObligationsImprovements, the Equipment and the other components of the Properties in accordance with the Plans and Specifications;
(v) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, maintaining all books and records with respect to the Construction Properties and the other Site Obligations;construction, operation and management thereof; and
(vi) perform (or cause to be performed) performing any other acts necessary in connection with the performance identification and acquisition or ground leasing of the Site Obligations Properties and the development, acquisition, installation, construction and testing of the related Improvements, Equipment and all other additional components of the Properties in accordance with the Project Materials Plans and all Applicable Laws, Governmental Actions and all Insurance Requirements;Specifications.
(viib) pay when due The Construction Agent shall have the right to enter into such contracts and payable agreements in its own name or cause through one or more Affiliates as it deems necessary or desirable to perform its obligations hereunder, but neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract or consent to any contract in the name of the Lessor without the Lessor's prior written consent, such consent to be paid when due and payable given or withheld in the exercise of the Lessor's reasonable discretion; provided, however, that (subject to reimbursement or direct payment by i) no such contract will increase the obligations of the Lessor or beyond the Administrative Agent through Advances or directly obligations of the Lessor as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as are expressly set forth in the Participation AgreementOperative Agreements and (ii) all Project Costs to each such contract shall be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, in each case pursuant to and subject expressly non-recourse to the Project Budget); provided, in no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor on terms and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect conditions that are reasonably acceptable to the Site Obligations (including the design, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other ContractorsLessor.
(bc) Subject to the terms and conditions of this Agreement, Agreement and the other Operative Documents and Agreements, the Project Materials, as between the parties hereto, Construction Agent shall have sole management and control over the installation, construction and sole responsibility for the testing means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-factProperties.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreement.
Appears in 1 contract
Scope of Authority. (a) The Lessor hereby expressly authorizes the Construction Agent, or any agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees for the benefit of the Lessor, subject to Section 2.4(b), to take all action necessary or desirable for the performance and satisfaction of any and all of the Lessor’s obligations under any construction agreement, ground lease, purchase and sale contract, option contract or other contract relating to the Work and to fulfill all of the obligations of the Construction Agent including:
(i) the identification and assistance with the vesting of a ground leasehold interest in the Land in accordance with the terms and conditions of the Participation Agreement;
(ii) all due diligence review and analysis, design and supervisory functions relating to the design, development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property and performing all engineering work related thereto;
(iii) negotiating, executing, performing and enforcing all contracts and arrangements to design, develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Property on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engaged;
(iv) obtaining all necessary permits, licenses, consents, approvals, development rights, clearing title and survey exceptions, entitlements and other authorizations, including all of the foregoing required for the Property and the use and occupancy thereof and those required under Applicable Law (including Environmental Laws), from all Governmental Authorities in connection with the design, development, acquisition, installation, construction and testing of the Improvements, the Equipment and the other components of the Property in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the Property and the construction, operation and management thereof; and
(vi) performing any other acts necessary in connection with the identification and vesting of a ground leasehold interest in the Land and the design, development, acquisition, installation, construction and testing of the related Improvements, Equipment and all other additional components of the Property in accordance with the Plans and Specifications.
(b) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract or consent to any contract in the name of the Lessor without the Lessor’s prior written consent, such consent to be given or withheld in the exercise of the Lessor’s commercially reasonable discretion; provided, however, that no such contract will increase the obligations of the Lessor beyond the obligations of the Lessor as are expressly set forth in the Operative Agreements.
(c) Subject to the terms and conditions of this Agreement and the other Operative Agreements, the Construction Agent shall have sole management and control over the installation, construction and testing means, methods, sequences and procedures with respect to the Property.
(d) Subject to the terms, conditions, restrictions and limitations set forth in the Operative DocumentsAgreements, the Lessor hereby expressly authorizes the Construction Agent, or any agent, designee agent or contractor of the Construction Agent, and the Construction Agent agrees, for the benefit of the Lessor, to take all action necessary or desirable for the performance and satisfaction of all obligations in connection with the identification and the design, development, acquisition, installation, construction and testing of the Site ObligationsImprovements, the Equipment and the other components of the Property in accordance with the Plans and Specifications and the Operative Agreements. In furtherance thereof (and without limiting thereof, the generality of the foregoing), Construction Agent is hereby granted the authority on behalf of the Lessor to, and shall:
(i) assist in and perform such functions as are necessary or desirable for Lessor to lease its interest in the Site and construct the Facility in accordance with the terms and conditions of the Operative Documents;
(ii) perform (or cause to be performed) all management and supervisory functions and all engineering, design and supervisory work related to the Site Obligations, including the Construction, and perform all the obligations of Lessor under the Project Agreements;
(iii) negotiate and/or cause to have in place all contracts or arrangements, in each case subject to the conditions set forth in Section 2.4, to procure the labor, materials, supplies and equipment necessary to perform and complete the Site Obligations, including the Construction on such terms and conditions as are customary and reasonable in light of local standards and practices;
(iv) obtain (or cause to be obtained) all necessary permits, licenses, consents, approvals and other authorizations, including those required under Applicable Laws, from all Governmental Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, in connection with the performance of the Site Obligations;
(v) maintain (or cause to be maintained), in accordance with Prudent Industry Practice, all books and records with respect to the Construction and the other Site Obligations;
(vi) perform (or cause to be performed) any other acts necessary in connection with the performance of the Site Obligations in accordance with the Project Materials and all Applicable Laws, Governmental Actions and all Insurance Requirements;
(vii) : pay when due and payable or cause to be paid when due and payable (subject to reimbursement or direct payment by the Lessor or the Administrative Agent through Advances or directly as provided for under this Agreement under, and subject to the terms and applicable conditions relating to Advances as set forth in in, the Participation AgreementOperative Agreements) all Project Property Costs to be paid during the Commitment Period (including costs associated with the Construction Agent’s actions as provided pursuant to and in Section 2.5(a)(ix) below or accordance with the Construction Contracts which are due and payable under any Project AgreementConstruction Contract, in each case pursuant to and subject to the Project BudgetConstruction Documents); provided, in no event, shall the Construction Agent have the authority to pay or incur any Project Property Cost (1i) which may be used to remedy if on the date of such payment or incurrence (A) any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Agency Agreement Default, Lease Default, Agency Agreement Event of Default under Sections 5.1(e)or Lease Event of Default has occurred or (B) any of the conditions set forth in Section 5.4A of the Participation Agreement have not been satisfied as of such date of payment or incurrence or (ii) in an amount in excess of $40,000,000 during any monthly advance period, 5.1(k)(2) in each case, before being reimbursed or 5.1(l)(2)paid directly by Advances; provided provided, further, in the event the last paragraph of Section 5.4 of the Participation Agreement is applicable and the Credit Lenders, the Mortgage Lenders and the Lessor were required to make Advances thereunder regarding a particular Requisition even though the conditions precedent set forth in Section 5.4A were not satisfied or waived in accordance with such Section 5.4A as of the date such Advances were made, then (w) the Construction Agent shall have no further authority to incur Project or pay any Property Costs under from and after the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under date such Major Project Agreements with respect to the Site Obligations (including the designAdvances were made, engineering, construction and Completion of the Facility) and subject to Section 3.1(c) hereof, pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and neither the other Project Agreements so as to permit Lenders nor the timely and proper performance thereof by the General Contractor and the other Contractors.
(b) Subject to the terms and conditions of this Agreement, the other Operative Documents and the Project Materials, as between the parties hereto, Construction Agent Lessor shall have management any obligation to make any additional Advances and control over (y) such occurrence shall constitute a breach of covenant with no cure period and sole responsibility for the means, methods, sequences an immediate Agency Agreement Event of Default and procedures and the hiring, termination and contracting for and supervision Lease Agreement Event of the labor, personnel and services with respect to the performance and completion of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-factDefault shall exist.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreement.
Appears in 1 contract
Sources: Agency Agreement (Nvidia Corp)