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, 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 obligations of the Construction Agent including, without limitation: (i) the identification and assistance with the acquisition of Properties in accordance with the terms and conditions of the Participation Agreement; (ii) all design and supervisory functions relating to the construction of the Improvements and performing all engineering work related to the construction, installation and testing of the Improvements; (iii) negotiating and entering into all contracts necessary to construct the Improvements, on such terms and conditions as are customary and reasonable in light of local standards and practices and the businesses in which the Lessee is engaged; (iv) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Environmental Laws, from all Governmental Authorities in connection with the development and construction of the Improvements on the Land in accordance with the Plans and Specifications; (v) maintaining all books and records with respect to the construction, operation and management of the Properties, including the allocation of the Advances among the Properties so as to maintain an accurate record of each Project Cost; and (vi) performing any other acts necessary in connection with the identification and acquisition of the Properties and construction and development of the Improvements in accordance with the Plans and Specifications. (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 Construction Agent shall have sole management and control over the construction means, methods, sequences and procedures with respect to the construction of the Improvements.
Appears in 1 contract
Sources: Construction Agency Agreement (Quality Food Centers Inc)
Scope of Authority. (a) The Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, the Lessor hereby expressly authorizes agrees with the Construction Agent, or any agent or contractor of the Construction Agent, Constructor and the Construction Agent Constructor unconditionally agrees, for the benefit of the Lessor, agrees 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 Constructor’s obligations of the Construction Agent hereunder, including, without limitation:
(i) the identification and assistance with the acquisition of Properties in accordance with the terms and conditions of the Participation Agreement;
(ii) all design and supervisory functions relating to and necessary for the construction of the New Improvements and performing all engineering work related to (Fremont 3E) on the constructionSite, installation and testing of the Improvementsas applicable;
(iiiii) negotiating and entering into all contracts or arrangements to procure the labor, materials, equipment and supplies necessary to construct the Improvements, New Improvements (Fremont 3E) on such terms and conditions as are customary and reasonable in light of local standards and practices and the businesses in which the Lessee is engagedpractices;
(iviii) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Applicable Laws (including Environmental Laws), from all Governmental Authorities in connection with the development and construction of the New Improvements on the Land (Fremont 3E) in all material respects in accordance with the Plans and Specifications;
(viv) maintaining all books and records with respect to the construction, operation and management of the Properties, including Site and the allocation of the Advances among the Properties so as to maintain an accurate record of each Project Cost; andNew Improvements (Fremont 3E):
(viv) performing any other acts necessary in connection with the identification and acquisition of the Properties and construction and development of the New Improvements (Fremont 3E) in all material respects in accordance with the Plans and Specifications, Applicable Laws and all Insurance Requirements including, without limitation, applicable zoning ordinances;
(vi) paying (subject to the Participation Agreement), in accordance with the Participation Agreement, all Construction Costs to be paid during the Construction Period;
(vii) enforcing, as and when commercially reasonable, performance by each party to each Construction Document of its respective obligations, warranties and other design, construction and other obligations with respect to the design, engineering, construction and completion of the New Improvements (Fremont 3E) and pursuing remedies with respect to the breach of those obligations; and
(viii) to the extent permitted under the Operative Documents, using the proceeds of any property insurance maintained with respect to the New Improvements (Fremont 3E) to complete construction of or rebuild any portion of the 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 any agent or contractor of the Constructor shall not have the authority to take any of the above-described actions without the prior written consent of the Lessor.
(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 AgreementAgreement and the other Operative Documents, the Construction Agent Constructor shall have sole management management, control and control responsibility over and the 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 and payment for labor, personnel and services with respect to the construction of the ImprovementsNew 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 and that the Constructor will bear all responsibility for injuries and mishaps to third parties and their property on the Site.
(c) All fees and expenses of the Lessee under any Operative Document which are of the type included in the Construction Budget shall be paid or reimbursed through Advances as provided in the Participation Agreement.
Appears in 1 contract
Scope of Authority. (a) The 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 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 Construction Agent's obligations of the Construction Agent hereunder, including, without limitation:
(i) the identification and assistance with the acquisition of Properties in accordance with the terms and conditions of the Participation Agreement;
(ii) performing all design and supervisory functions relating to the construction of the Improvements and performing all engineering work related to the construction, installation and testing of the ImprovementsConstruction;
(iiiii) negotiating and entering into all contracts or arrangements to procure the equipment necessary to construct the Improvements, Subject Improvements on such terms and conditions as are customary and reasonable in light of local standards and practices and the businesses in which the Lessee is engagedpractices;
(iviii) obtaining all necessary Material permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Applicable Law (including Environmental Laws), from all Governmental Authorities in connection with the development Construction and construction granting on behalf of the Improvements Lessor 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 in accordance with on which the Plans and SpecificationsSubject Improvements are located;
(viv) maintaining all books and records with respect to the construction, operation and management of the Properties, including the allocation of the Advances among the Properties so as to maintain an accurate record of each Project CostConstruction; and
(viv) performing any other acts necessary in connection with the identification and acquisition of the Properties and construction and development of the Subject Improvements in accordance with the Plans and Specifications.
(b) Subject to the terms hereof, the Construction Agent may execute any of its duties under this Agreement by or through agents, contractors, employees or attorneys-in-fact.
(c) Subject to the terms and conditions of this Agreement and the other 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 and for which liability or obligation the Lessor is not indemnified.
(c) Subject to the terms and conditions of this Agreement, indemnified by the Construction Agent shall have sole management and control over or the construction means, methods, sequences and procedures with respect to the construction Lessee under this Agreement or any of the Improvementsother Operative Documents.
Appears in 1 contract
Scope of Authority. (a) The Subject to the terms, conditions, restrictions and limitations set forth in the Operative Agreements, the Lessor hereby expressly authorizes the Construction Agent, or any agent or contractor Construction Agency Person acting on behalf of the Construction Agent, and the Construction Agent unconditionally agrees, 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 ’s obligations under any construction agreement and to fulfill all of the obligations of the Construction Agent including, including without limitation:
(i) the identification and assistance with the acquisition in the name of Properties the Lessor of the Property in accordance with the terms and conditions of the Participation Agreement;
(ii) all design and supervisory functions relating to the development, acquisition, installation, construction and testing of the Improvements related Improvements, Equipment and other components of the Property and performing all engineering work related to the construction, installation and testing of the Improvementsthereto;
(iii) negotiating (A) negotiating, entering into, performing and entering into enforcing all contracts and arrangements to acquire or ground lease the Property and to procure the equipment necessary to construct the Property and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct, repair, renovate, replace 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 Construction Agent is engaged;
(iv) 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 Law (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development development, acquisition, installation, construction and construction testing of the Improvements on Improvements, the Land Equipment and the other components of the Property in accordance with the Plans and SpecificationsConstruction Documents;
(v) maintaining all books and records with respect to the Property and the construction, operation and management of the Properties, including the allocation of the Advances among the Properties so as to maintain an accurate record of each Project Cost; andthereof;
(vi) performing any other acts necessary in connection with the identification and acquisition or ground leasing of the Properties 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 Construction Documents;
(vii) 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 Plans 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 or causing to be paid when due (subject to reimbursement as provided for under this Agreement and Specificationssubject to the terms and 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 Property Costs (including costs associated with the Construction Agent’s actions as provided in Section 2.4(a)(x), pursuant to and subject to the 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, further, that the Construction Agent shall pay directly any Property Costs either (x) during the continuance of an Agency Agreement Event of Default 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, however, that the Construction Agent may be reimbursed for Property Costs paid by it prior to the occurrence of the events described in clauses (x) and (y) to the extent permitted under Section 5.17 of the Participation Agreement). The Construction Agent 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 Construction Agent or its designees with respect to such permitted contest will be a Claim subject to indemnification under Section 11 of the Participation Agreement;
(ix) enforcing or causing the enforcement in all material respects of performance by each party to each Construction Document of its respective obligations, warranties and other design, construction and other obligations with respect to the design, engineering, construction and completion of the 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
(x) using the proceeds of any insurance maintained with respect to the Improvements to complete construction of or rebuild any portion of 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 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 the Construction Period and is hereby incorporated herein by reference, mutatis mutandis.
(b) Neither the Construction Agent nor any of its Affiliates or agents Construction Agency Person shall enter into any contract which would, directly or indirectly, impose consent to any liability or obligation on contract in the name of the Lessor and for which liability without the Lessor’s prior written consent, such consent to be given or obligation 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 not indemnifieddeemed 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 AgreementAgreement 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 construction Property.
(d) As between the Lessor and the Construction Agent, the Construction Agent shall be responsible for all acts or omissions of each Construction Agency Person. The Lessor and the Construction Agent agree that the Construction Agent shall at all times be deemed to be in possession and control of the ImprovementsProperty at all times until such possession and control is relinquished pursuant to the terms of the Operative Agreements.
Appears in 1 contract
Scope of Authority. In connection with the performance of its duties hereunder, Operator shall not, without the prior consent of Project Company (ai) The Lessor hereby expressly authorizes the Construction Agentcreate, or suffer the creation of, any agent Encumbrance on the Facility or contractor any interest in or portion thereof, (ii) take any action which would otherwise cause Project Company to cease to have good and marketable title to the Facility or to the Product being produced by the Facility prior to the sale of such Product, (iii) remove any material part of the Construction AgentFacility from the Site, (iv) subject to the provisions of Section 2(e)(IV)B, Incur costs in the performance of the Services if such Incurrence would cause the aggregate costs Incurred (excluding any Project Company Direct Costs advanced by Operator) during the period covered by the applicable Budget to exceed 125% of the amount set forth in such Budget for the period, or (v) Incur on behalf of Project Company any Substantial Costs; provided, however, that 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 or otherwise with respect to the Facility and the Project. Without limiting the scope of the appointment set forth in Section 2(a) above and this Section 2(b), and subject to the Construction Agent unconditionally agreesterms and conditions hereof, for Project Company hereby engages Operator to provide the benefit following services (including the fulfillment of the Lessor, to take all action necessary or desirable for appointment and the performance and satisfaction of any and all of Lessor's obligations under any construction agreement and to fulfill all of the obligations of set forth in Section 2(a) above, the Construction Agent including, without limitation“Services”) to Project Company:
(i) supply labor and supervise the identification and assistance with the acquisition of Properties in accordance with the terms and conditions of the Participation Workers pursuant to this Agreement;
(ii) all design provide such office space, equipment, facilities and supervisory functions relating to supplies, and the construction services of such secretarial, clerical and other personnel of Operator at its headquarters, as may be required for the reasonable conduct of the Improvements and performing all engineering work related to the construction, installation and testing business of the ImprovementsProject by Operator personnel;
(iii) negotiating handle Feedstock at the Project, process Feedstock through the Facility and entering into all contracts necessary load Product onto the Project’s mode of transportation adjacent to construct the ImprovementsFacility and reposition residual soil and rock from the Process onto the Project site or for sale as top soil, on such terms and conditions as are customary and reasonable in light of local standards and practices and the businesses in which the Lessee is engagedfill or capping material, if appropriate;
(iv) obtaining all necessary permitskeep the Facility and Site improvements in good repair, licenses, consents, approvals condition and other authorizations, including without limitation those required under applicable Environmental Laws, from all Governmental Authorities in connection with the development and construction of the Improvements on the Land working order in accordance with normal industry practice and consistent with the Plans manufacturer’s design and Specificationsspecifications, 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) maintaining 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 books other items necessary to make the Facility operate in accordance with the manufacturer's design and records 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 constructionFacility and the Project, operation 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 PropertiesProject 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 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 allocation 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 Advances among the Properties so as to maintain an accurate record of each Project Costand selling Product; and
(vixvi) performing any other acts necessary in connection with conduct the identification operations and acquisition maintenance of the Properties and construction and development Facility in a manner which will not result in any failure of performance, breach or default by Project Company under any of the Improvements Project Contracts. Except as expressly provided in accordance with the Plans Section 2(b) or Section 6, all costs and Specifications.
(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 Construction Agent shall have sole management and control over the construction means, methods, sequences and procedures expenses with respect to the construction 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 ImprovementsOperator Compensation.
Appears in 1 contract
Sources: Facility Operating and Management Agreement (Geotec, Inc.)
Scope of Authority. (a) The Lessor hereby expressly authorizes the ---------------------- Construction Agent, or any agent or contractor of the Construction AgentAgent to, and the Construction Agent unconditionally agreesshall, for the benefit of the Lessor, to take all action necessary or desirable for the performance construction of the Improvements in accordance with the Plans and satisfaction of any Specifications and all of Lessor's obligations under any construction agreement the Budget and to fulfill all of the obligations of the Construction Agent Agent, including, without limitation:
(i) the identification right to approve payment of all invoices for services and assistance with materials related to the acquisition of Properties in accordance with the terms development, design, construction and conditions equipping of the Improvements, and to submit Requisitions under the SPC Loan Agreement and the Participation AgreementAgreement 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) all design and supervisory functions relating to the construction of the Improvements and performing all engineering work related to the construction, installation and testing construction of the Improvements;
(iii) negotiating and entering into all contracts or arrangements for the construction of the Improvements, development of infrastructure relating thereto, and the procurement of the equipment necessary to construct the Improvements, Improvements on such terms and conditions as are customary and reasonable in light of local standards and practices and the businesses in which the Lessee is engagedpractices;
(iv) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Environmental Laws, from all Governmental Authorities in connection with the development and construction of the Improvements on the Land substantially in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the construction, operation and management of the Properties, including the allocation of the Advances among the Properties so as to maintain an accurate record of each Project Cost; andProperty;
(vi) 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;
(vii) performing those actions permitted to be performed 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 identification and acquisition of the Properties and construction and development of the Improvements in accordance with the Plans and Specifications;
(x) submitting Requisitions to the Administrative Agent under the Participation Agreement and receiving the proceeds of Advances; and
(xi) maintaining the insurance required pursuant to Section 6 hereof.
(b) Neither the Construction Agent nor any of its Affiliates or agents shall 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 and for which Lessor, any Bank or the Administrative Agent beyond the liability or obligation obligations permitted under the Lessor is not indemnified.
(c) Subject Operative Agreements, and each such contract shall be non- recourse to the terms and conditions of this AgreementLessor, the Construction Banks and the Administrative Agent shall have sole management and control over the construction means, methods, sequences and procedures in accordance with respect to the construction of the Improvements.Section 30.6
Appears in 1 contract
Sources: Agency Agreement (Immunex Corp /De/)
Scope of Authority. (a) The 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 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 Construction Agent's obligations of the Construction Agent hereunder, including, without limitation:
(i) the identification and assistance with the acquisition of Properties in accordance with the terms and conditions of the Participation Agreement;
(ii) performing all design and supervisory functions relating to the construction of the Improvements and performing all engineering work related to the construction, installation and testing of the ImprovementsConstruction;
(iiiii) negotiating and entering into all contracts or arrangements to procure the equipment necessary to construct the Improvements, Subject Improvements on such terms and conditions as are customary and reasonable in light of local standards and practices and the businesses in which the Lessee is engagedpractices;
(iviii) obtaining all necessary Material permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Applicable Law (including Environmental Laws), from all Governmental Authorities in connection with the development Construction and construction granting on behalf of the Improvements Lessor 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 in accordance with on which the Plans and SpecificationsSubject Improvements are located;
(viv) maintaining all books and records with respect to the construction, operation and management of the Properties, including the allocation of the Advances among the Properties so as to maintain an accurate record of each Project CostConstruction; and
(viv) performing any other acts necessary in connection with the identification and acquisition of the Properties and construction and development of the Subject Improvements in accordance with the Plans and Specifications.
(b) Subject to the terms hereof, the Construction Agent may execute any of its duties under this Agreement by or through agents, contractors, employees or attorneys-in-fact.
(c) Subject to the terms and conditions of this Agreement and the other 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 and for which liability or obligation without the Lessor is not indemnified.
(c) Subject to the terms and conditions of this Agreement, the Construction Agent shall have sole management and control over the construction means, methods, sequences and procedures with respect to the construction express written consent of the ImprovementsLessor.
Appears in 1 contract
Scope of Authority. (ai) The Subject to the terms, conditions, restrictions and limitations set forth herein and in the other Operative Documents, 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, to take all action necessary or desirable for the performance and satisfaction of any and all of LessorConstruction Agent's obligations under any this Paragraph 13 with respect to the construction agreement and to fulfill all of the obligations Additional Improvements and the acquisition and installation of the Construction Agent related Building Equipment, including, without limitation:
(iA) the identification overseeing, directing, supervising and assistance with the acquisition of Properties in accordance with the terms and conditions of the Participation Agreement;
(ii) monitoring all design and supervisory functions relating to the construction of the Additional Improvements and performing acquisition and installation of the related Building Equipment and all engineering work related to the construction, installation and testing construction of the ImprovementsAdditional Improvements and acquisition and installation of the related Building Equipment;
(iiiB) negotiating and entering into all contracts or arrangements to procure the equipment and services necessary to construct the Improvements, Additional Improvements and acquisition and installation of the related Building Equipment on such terms and conditions as are customary and reasonable in light of local standards and practices and the businesses in which the Lessee is engagedpractices;
(ivC) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Law (including Environmental Laws), from all Governmental Authorities in connection with the development and construction of the Additional Improvements on the Land and the acquisition and installation of the related Building Equipment in accordance with the Plans and SpecificationsPlans;
(vD) maintaining all books and records with respect to the construction, operation and management construction of the Properties, including the allocation of the Advances among the Properties so as to maintain an accurate record of each Project CostAdditional Improvements; and
(viE) performing any other acts necessary or appropriate in connection with the identification construction of the Additional Improvements and acquisition and installation of the Properties and construction and development of the Improvements related Building Equipment in accordance with the Plans and SpecificationsPlans.
(bii) 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 for which that Lessor shall have no personal liability or obligation with respect to such obligations. Subject to the foregoing, Lessor is not indemnifiedshall execute such documents and take such other actions as Construction Agent shall reasonably request, at Construction Agent's expense, to permit Construction Agent to perform its duties hereunder.
(ciii) Subject to the terms and conditions of this AgreementLease and the other Operative Documents, the Construction Agent shall have sole management and control over the construction means, methods, sequences and procedures with respect to the construction of the ImprovementsAdditional Improvements and acquisition and installation of the related Building Equipment.
Appears in 1 contract
Scope of Authority. (a) The 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 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 Construction Agent's obligations of hereunder with respect to the Construction Agent Leased Properties acquired or leased by the Lessor upon which a Building is to be constructed, including, without limitation:
(i) the identification overseeing, directing, supervising and assistance with the acquisition of Properties in accordance with the terms and conditions of the Participation Agreement;
(ii) monitoring all design and supervisory functions relating to the construction of the Improvements Buildings and performing all engineering work related to the construction, installation and testing construction of the ImprovementsBuildings;
(iiiii) negotiating and entering into all contracts or arrangements to procure the equipment and services necessary to construct the Improvements, Buildings on such terms and conditions as are customary and reasonable in light of local standards and practices and the businesses in which the Lessee is engagedpractices;
(iviii) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Applicable Law (including Environmental Laws), from all Governmental Authorities in connection with the development of the Land and the construction of the Improvements Buildings on the Land in accordance with the Plans and Specifications;
(viv) maintaining all books and records with respect to the construction, operation and management of the Leased Properties, including the allocation of the Advances among the Properties so as to maintain an accurate record of each Project Cost; and
(viv) performing any other acts necessary or appropriate in connection with the identification and identification, acquisition of the Properties and construction (or leasing) and development of the Improvements Land and construction of the Buildings in accordance with the Plans and Specifications.
(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 unless such contract expressly contains an acknowledgment by the other party or obligation parties thereto that the obligations of the Lessor is not indemnifiedare 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 AgreementAgreement and the other Operative Documents, the Construction Agent shall have sole management and control over the construction means, methods, sequences and procedures with respect to the construction of the ImprovementsBuildings.
Appears in 1 contract
Scope of Authority. (a) The 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 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 Construction Agent's obligations of hereunder with respect to the Construction Agent Leased Properties acquired by the Lessor, including, without limitation:
(i) the identification and assistance with the acquisition of Properties Land in accordance with the terms and conditions of the Participation Master Agreement;; 3
(ii) all design and supervisory functions relating to the construction of the Improvements Buildings and performing all engineering work related to the construction, installation and testing construction of the ImprovementsBuildings;
(iii) negotiating and entering into all contracts or arrangements to procure the equipment and services necessary to construct the Improvements, Buildings on such terms and conditions as are customary and reasonable in light of local standards and practices and the businesses in which the Lessee is engagedpractices;
(iv) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Applicable Law (including Environmental Laws), from all Governmental Authorities in connection with the development and construction of the Improvements Buildings on the Land in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the construction, operation and management of the Leased Properties, including the allocation of the Advances among the Properties so as to maintain an accurate record of each Project Cost; and
(vi) performing any other acts necessary in connection with the identification and acquisition of the Properties Land and construction and development of the Improvements Buildings in accordance with the Plans and Specifications.
(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 unless such contract expressly contains an acknowledgment by the other party or obligation parties thereto that the obligations of the Lessor is not indemnifiedare 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 AgreementAgreement and the other Operative Documents, the Construction Agent shall have sole management and control over the construction means, methods, sequences and procedures with respect to the construction of the ImprovementsBuildings.
Appears in 1 contract
Scope of Authority. (a) The 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 the Construction Agent, or any agent agent, designee 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 obligations Site Obligations. In furtherance thereof (and without limiting the generality of the foregoing), Construction Agent includingis hereby granted the authority on behalf of Lessor to, without limitationand shall:
(i) assist in and perform (or cause to be performed ) such functions as are necessary or desirable for the identification and assistance with construction of the acquisition of Properties Facility in accordance with the terms and conditions of the Participation AgreementOperative Documents;
(ii) perform (or cause to be performed) all management and supervisory functions and all engineering, design and supervisory functions relating to the construction of the Improvements and performing all engineering work related to the constructionSite Obligations, installation including the Construction, and testing perform all the obligations of Lessor under the ImprovementsProject Agreements;
(iii) negotiating negotiate and entering into 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 construct perform and complete the ImprovementsSite Obligations, including the Construction on such terms and conditions as are customary and reasonable in light of local standards and practices practices; provided, however, that the Major Project Agreements for the performance and completion of the businesses Site Obligations shall be in which the Lessee is engagedform and substance reasonably satisfactory to Lessor and Administrative Agent;
(iv) obtaining obtain (or cause to be obtained) all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Environmental Laws, from all Governmental Authorities Actions in connection with the development and construction performance of the Improvements on the Land in accordance with the Plans and SpecificationsSite Obligations;
(v) maintaining maintain (or cause to be maintained), in accordance with Prudent Industry Practice all books and records with respect to the construction, operation Construction and management of the Properties, including the allocation of the Advances among the Properties so as to maintain an accurate record of each Project Cost; andother Site Obligations;
(vi) performing perform (or cause to be performed) any other acts necessary in connection with the identification and acquisition performance of the Properties and construction and development of the Improvements Site Obligations in accordance with the Plans Project Materials and Specificationsall 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 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 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);
(viii) cause each Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Project Agreement of their respective obligations and warranties under such 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 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) 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 construction performance and completion of the ImprovementsSite 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 Transaction Agreement.
Appears in 1 contract
Scope of Authority. (a) The 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 agent, 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 any and all of Lessor's obligations under any construction agreement and to fulfill all of the Construction Agent's obligations hereunder, including: K. performing or causing the performance of the Construction Agent including, without limitation:
(i) the identification and assistance with the acquisition of Properties in accordance with the terms and conditions of the Participation Agreement;
(ii) all design and supervisory functions relating to the construction of the Improvements and performing all engineering work related to the constructionConstruction, installation and testing the retention and supervision of the Improvements;
(iii) General Contractor; L. negotiating and entering into into, or causing the negotiation and execution and delivery of, all contracts or arrangements to procure the labor, materials, supplies and equipment necessary or (as determined by the Construction Agent) desirable to construct the Improvements, Improvements on such terms and conditions as are customary and reasonable in light of local standards and practices state practices; M. granting on behalf of Lessor such easements, licenses, rights-of-way or other rights of ingress and egress as are necessary or appropriate to effect the businesses in which Construction or that otherwise would not have a material adverse effect on the Lessee is engaged;
(iv) 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 all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Applicable Laws (including Environmental Laws), from all Governmental Authorities in connection with the development and construction of the Improvements on the Land in accordance with the Plans and Specifications;
(v) Construction; O. maintaining or causing to be maintained all books and records with respect to the construction, Construction and the operation and management of the Properties, including Facility; P. performing or causing the allocation performance of the Advances among the Properties so as to maintain an accurate record of each Project Cost; and
(vi) performing any other acts necessary or desirable (as reasonably determined by the Construction Agent) in connection with the identification and acquisition of the Properties and construction and development of the Improvements in accordance in all material respects with the Plans Construction Materials, any Applicable Laws, Environmental Laws and Specifications.
(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 Construction Agent shall have sole management and control over the construction means, methods, sequences and procedures with respect to the construction of the Improvements.all Insurance Requirements;
Appears in 1 contract
Sources: Participation Agreement, Lease Agreement and Construction Agency Agreement (Ross Stores Inc)
Scope of Authority. (a) The Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, Lessor hereby expressly authorizes the Construction Agent, Agent (or any agent agent, consultant, advisor, developer, employee, attorney-in-fact or contractor of Construction Agent to which Construction Agent has made a delegation of authority pursuant to the Construction Agentterms of this Agreement), and the Construction Agent unconditionally agrees, for the benefit of the Lessor, to take all action necessary or (as determined by Construction Agent) desirable for the performance and satisfaction of any and all of LessorConstruction Agent's obligations under any construction agreement and hereunder with respect to fulfill all of the obligations of the Construction Agent Properties, including, without limitation:
(i) the identification and assistance with the acquisition acquisition, in the name of Properties Lessor (by purchasing or ground leasing, as applicable) of each Site in accordance with the terms and conditions of the Participation Agreement;
(ii) performing or causing the performance of all design and supervisory functions relating to the construction of the Improvements and performing all engineering work related to the construction, installation Construction and testing the retention and supervision of the ImprovementsGeneral Contractor;
(iii) negotiating and entering into into, or causing the negotiation and execution and delivery of, all contracts or arrangements to procure the labor, materials, supplies and equipment necessary or (as determined by Construction Agent) desirable to construct the Improvements, on such terms and conditions as are customary and reasonable in light of local standards and practices and the businesses in which the Lessee is engaged;
(iv) obtaining or causing to be obtained all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Applicable Laws (including Environmental Laws), from all Governmental Authorities in connection with the development acquisition of the Sites and construction the Construction of the Improvements on the Land in accordance with the Plans and Specificationsthereon;
(v) maintaining or causing to be maintained all books and records with respect to the construction, Construction and the operation and management of the Properties, including the allocation of the Advances among the Properties so as to maintain an accurate record of each Project Cost; and;
(vi) performing or causing the performance of any other acts necessary or desirable (as reasonably determined by Construction Agent) in connection with the identification and acquisition of the Properties and construction and development of the Improvements in accordance in all material respects with the Plans Traville Construction Materials or the Manufacturing Construction Materials, as applicable, any Applicable Laws and Specificationsall Insurance Requirements; provided, however, that the foregoing shall not limit Construction Agent's right to engage in Permitted Contests;
(vii) paying when due or causing to be paid when due (subject to reimbursement as provided for under this Agreement) pursuant to and subject to the Approved Traville Construction Budget or Approved Manufacturing Construction Budget, as applicable, or the Participation Agreement, all Property Costs (including costs associated with Construction Agent's actions as provided in Section 2.6(a)(ix) below, pursuant to and subject to the 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 Permitted Contests. Construction Agent acknowledges that any liability resulting to Administrative Agent, any Participant or any other Indemnitee as a result of or arising from any such negotiation, Permitted Contest, or act or omission of Construction Agent or its designees with respect to such Permitted Contest will be a Claim subject to indemnification under Article IX of the Participation Agreement;
(viii) enforcing or causing the enforcement in all material respects of performance by each party to each Construction Document of its respective obligations, warranties and other design, construction and other obligations with respect to the design, engineering, construction and completion of the 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) using the proceeds of any insurance maintained with respect to the Improvements to complete construction of or rebuild any portion of such Improvements with respect to a Casualty or Condemnation and to fund all Construction Period Accrued Interest accruing during such Construction or rebuild, 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 is hereby incorporated herein by reference, mutatis mutandi.
(b) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract which would, directly or indirectly, would impose any liability or obligation on Lessor (other than (i) nonrecourse obligations arising out of the Lessor imposition of certain Permitted Liens identified on Schedules 2.6(b)(i) and for which liability or 2.6(b)(ii) hereto and (ii) Lessor's obligation to Construction Agent to provide Advances in accordance with and subject to the Lessor is not indemnifiedterms and conditions of the Operative Documents).
(c) Subject to the terms and conditions of this AgreementAgreement and the other Operative Documents, the Construction Agent shall have sole management and control over 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 construction Construction; provided, however, that this subsection (c) shall not give rise to any rights in any Person other than Lessor, the Participants and the other Indemnitees.
(d) All fees and expenses of Lessee and Construction Agent under any Operative Document which are included in and which may be paid in accordance with the ImprovementsApproved Traville Construction Budget or the Approved Manufacturing Construction Budget, as applicable, shall be paid or reimbursed through Advances.
Appears in 1 contract
Sources: Construction Agency Agreement (Human Genome Sciences Inc)
Scope of Authority. (a) The Lessor hereby expressly authorizes Subject to the Construction Agentterms, or any agent or contractor of conditions, restrictions and limitations set forth in the Construction AgentOperative Documents, and the Construction Agent unconditionally agrees, for the benefit of the Lessor, agrees to take all action necessary or desirable for the performance and satisfaction of any and all of Lessor's Construction Agent’s obligations under any construction agreement and to fulfill all of the obligations of the Construction Agent hereunder, including, without limitation:
(i) all actions relating to and necessary for the identification and assistance with the acquisition of Properties in accordance with the terms and conditions ground lease of the Participation AgreementSite by Owner on or after the Closing Date;
(ii) all design and supervisory functions relating to and necessary for the construction of the Improvements and performing all engineering work related to Facility on the construction, installation and testing of the ImprovementsSite;
(iii) negotiating and entering into all contracts or arrangements to procure the labor, materials, equipment and supplies necessary to demolish Building 1 and to construct the Improvements, Facility on such terms and conditions as are customary and reasonable in light of local standards and practices and the businesses in which the Lessee is engagedpractices;
(iv) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Applicable Laws and Regulations (including Environmental Laws), from all Governmental Authorities in connection with the demolition of Building 1 and the development and construction of the Improvements on the Land Facility in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the construction, operation construction and management of the Properties, including Site and the allocation of the Advances among the Properties so as to maintain an accurate record of each Project Cost; andFacility;
(vi) performing any other acts necessary in connection with the identification demolition of Building 1 and acquisition of the Properties and construction and development of the Improvements Facility in accordance with the Plans and Specifications, Construction Budget, Applicable Laws and Regulations and all Construction Period Insurance Requirements;
(vii) paying (subject to receipt of Advances under the Participation Agreement) all Construction Costs to be paid during the Construction Period;
(viii) enforcing performance by each party to each Construction Document of its respective obligations, warranties and other design, construction and other obligations with respect to the demolition of Building 1 and the design, engineering, construction and completion of the Facility and pursuing remedies with respect to the breach of those obligations; and
(ix) to the extent permitted under the Operative Documents, using the proceeds of any insurance maintained in accordance with Section 2.7(d) hereof with respect to the Facility to complete construction of or 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 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 take any of the above-described actions without the prior written consent of the Administrative Agent acting at the direction of the Required Participants.
(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 AgreementAgreement and the other Operative Documents, the Construction Agent Agent, in its capacity as agent for Owner, shall have sole management management, control and control responsibility over and the duty to cause, the Construction, 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 and payment for labor, personnel and services with respect to the construction of the ImprovementsFacility. 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 and that Construction Agent will bear or cause 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 Lessee under any Operative Document which are of the type included in the Construction Budget shall be paid or reimbursed through Advances as provided in the Participation Agreement.
Appears in 1 contract
Sources: Construction and Development Agreement (Cubic Corp /De/)
Scope of Authority. (a) The 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 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 Construction Agent's obligations of hereunder with respect to the Construction Agent Leased Properties acquired by the Lessor, including, without limitation:
(i) the identification and assistance with the acquisition of Properties Land in accordance with the terms and conditions of the Participation Master Agreement;
(ii) all design and supervisory functions relating to the construction of the Improvements Buildings and performing all engineering work related to the construction, installation and testing construction of the ImprovementsBuildings;
(iii) negotiating and entering into all contracts or arrangements to procure the equipment and services necessary to construct the Improvements, Buildings on such terms and conditions as are customary and reasonable in light of local standards and practices and the businesses in which the Lessee is engagedpractices;
(iv) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Applicable Law (including Environmental Laws), from all Governmental Authorities in connection with the development and construction of the Improvements Buildings on the Land in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the construction, operation and management of the Leased Properties, including the allocation of the Advances among the Properties so as to maintain an accurate record of each Project Cost; and
(vi) performing any other acts necessary in connection with the identification and acquisition of the Properties Land and construction and development of the Improvements Buildings in accordance with the Plans and Specifications.
(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 unless such contract expressly contains an acknowledgment by the other party or obligation parties thereto that the obligations of the Lessor is not indemnifiedare 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 AgreementAgreement and the other Operative Documents, the Construction Agent shall have sole management and control over the construction means, methods, sequences and procedures with respect to the construction of the ImprovementsBuildings.
Appears in 1 contract
Scope of Authority. (a) The Lessor Owner 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 LessorOwner, 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 Construction Agent's obligations of the Construction Agent hereunder, including, without limitation:
(i) the identification and assistance with the acquisition of Properties any leasehold interests or easements required in accordance with the terms and conditions of the Participation ESA and/or the Ground Lease and/or the Utility Easement Agreement;
(ii) subject to the provisions of the ESA and this Agreement, all design and supervisory functions and other services relating to the construction of the Energy Improvements and the Other Customers Facilities and performing all engineering work related to the construction, installation design and testing construction of the ImprovementsEnergy Improvements and the Other Customers Facilities;
(iii) subject to the provisions of the ESA and this Agreement, negotiating and entering into all contracts or arrangements to procure the equipment, materials and facilities necessary to construct so that the Improvements, on such terms and conditions as are customary and reasonable in light of local standards and practices Energy Improvements and the businesses Other Customers Facilities will be designed and constructed with the care and skill expected of design professionals and contractors with experience and expertise in which completing the Lessee is engagedEnergy Improvements so that they will be fit for the intended purpose, including, but not limited to the satisfaction of the Steam and Chilled Water Standard set forth in the ESA;
(iv) subject to the provisions of the ESA, obtaining all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Applicable Law (including Environmental Laws), from all required by any Governmental Authorities Authority in connection with the design, development and construction of the Energy Improvements on and the Land Other Customers Facilities in accordance with this Agreement, the Plans Ground Lease and Specificationsthe ESA;
(v) maintaining maintaining, and delivering to Owner, all books and records with respect to the design, construction, operation start-up and management testing of the Properties, including Energy Improvements and the allocation of the Advances among the Properties so as to maintain an accurate record of each Project CostOther Customers Facilities; and
(vi) subject to 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 identification and acquisition of the Properties and design, construction and development of the Energy Improvements in accordance with and the Plans and SpecificationsOther Customers Facilities for their intended purpose.
(b) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract 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 the Lessor and for which liability or obligation the Lessor is not indemnifiedOwner without Owner's prior written consent.
(c) Subject to the terms and conditions of this Agreement, the ESA and the Funding Agent's Disbursement and Administration Agreement, the Construction Agent shall have sole management and control over the design and all construction means, methods, sequences sequences, techniques and procedures with respect to the construction of the ImprovementsEnergy Improvements and the Other Customers Facilities.
Appears in 1 contract
Sources: Construction Agency Agreement (Grand Canal Shops Mall Construction LLC)
Scope of Authority. (a) The Lessor hereby expressly authorizes the Construction Agent, or any agent or contractor of the Construction AgentAgent to, and the Construction Agent unconditionally agreesshall, for the benefit of the Lessor, to take all action necessary or desirable for the performance and satisfaction of any and all of Lessorthe Construction Agent's obligations under any construction agreement and to fulfill all of the obligations of the Construction Agent this Agreement, including, without limitation:
(i) the identification and assistance with the acquisition and development of Properties each Property in accordance with the terms and conditions of the Participation Agreement;
(ii) all design and supervisory functions relating to the construction of the Improvements and performing the performance of all engineering work related to the construction, installation and testing construction of the Improvements;
(iii) negotiating and entering into all contracts or arrangements to procure the equipment necessary to construct the Improvements, Improvements on such terms and conditions as are customary and reasonable in light of local standards and practices and the businesses in which the Lessee is engagedpractices;
(iv) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Environmental Laws, from all Governmental Authorities in connection with the development and construction of the Improvements on the Land in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the construction, operation and management of the Properties, Properties including the allocation of the Advances among the Properties so as to maintain maintaining an accurate record of each Project CostCosts; and
(vi) performing any other acts necessary in connection with the identification acquisition and acquisition development of the Properties each Property and construction and development of the Improvements thereon in accordance with the Plans and Specifications.
(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 Construction Agent shall have sole management and control over the construction means, methods, sequences and procedures with respect to the construction of the ImprovementsImprovements on each Property.
Appears in 1 contract
Scope of Authority. (a) The Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents, Lessor hereby expressly authorizes the Construction Agent, Agents (or any agent agent, consultant, advisor, developer, employee, attorney-in-fact or contractor of a Construction Agent to which a Construction Agent has made a delegation of authority pursuant to the Construction Agentterms of this Agreement), and the Construction Agent Agents unconditionally agreesagree, for the benefit of the Lessor, to take all action necessary or (as determined by Construction Agents) desirable for the performance and satisfaction of any and all of Lessor's Construction Agents' obligations under any construction agreement and hereunder with respect to fulfill all of the obligations of the Construction Agent Properties, including, without limitation:
(i) performing or causing the identification and assistance with the acquisition performance of Properties in accordance with the terms and conditions of the Participation Agreement;
(ii) all design and supervisory functions relating to the construction of the Improvements and performing all engineering work related to the constructionConstruction and the retention and supervision of the General Contractor (if Construction Agents elect to retain a General Contractor);
(ii) negotiating and entering into, installation or causing the negotiation and testing of execution and delivery of, all contracts or arrangements to procure the labor, materials, supplies and equipment necessary or (as determined by the Construction Agents) desirable to construct the Improvements;
(iii) negotiating and entering into all contracts necessary obtaining or causing to construct the Improvements, on such terms and conditions as are customary and reasonable in light of local standards and practices and the businesses in which the Lessee is engaged;
(iv) obtaining be obtained all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Applicable Laws (including Environmental Laws), from all Governmental Authorities in connection with the development acquisition of the Sites and construction the Construction of the Improvements on the Land in accordance with the Plans and Specificationsthereon;
(viv) maintaining or causing to be maintained all books and records with respect to the construction, Construction and the operation and management of the Properties, including the allocation of the Advances among the Properties so as to maintain an accurate record of each Project Cost; and;
(viv) performing or causing the performance of any other acts necessary or desirable (as reasonably determined by 4 8 Construction Agents) in connection with the identification and acquisition of the Properties and construction and development of the Improvements in accordance in all material respects with the Plans Construction Materials, any Applicable Laws and Specificationsall Insurance Requirements; provided, however, that the foregoing shall not limit Construction Agents' right to engage in Permitted Contests;
(vi) paying when due or causing to be paid when due (subject to reimbursement as provided for under this Agreement) pursuant to and subject to the 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 Permitted Contests. Construction Agents acknowledge that any liability resulting to Collateral Agent, 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 or their designees with respect to such Permitted Contest will be a Claim subject to indemnification under Article IX of the Participation Agreement;
(vii) enforcing or causing the enforcement in all material respects of performance by each party to each Construction Document of its respective obligations, warranties and other design, construction and other obligations with respect to the design, engineering, construction and completion of the 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
(viii) using the proceeds of any insurance maintained with respect to the Improvements to complete construction of or rebuild any portion of such Improvements with respect to a Casualty or Condemnation and to fund all Construction Period Accrued Interest accruing during such Construction or rebuild, 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 is hereby incorporated herein by reference.
(b) Neither the Construction Agent Agents nor any of its their Affiliates or agents shall enter into any contract which would, directly or indirectly, would 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 Construction Agent shall have sole management and control over the construction means, methods, sequences and procedures with respect to the construction of the Improvements.any
Appears in 1 contract
Sources: Construction Agency Agreement (Goldman Sachs Group Inc)
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, 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 obligations of the Construction Agent including, without limitation:
(i) the identification and assistance with the acquisition of Properties in accordance with the terms and conditions of the Participation AgreementAgreement and the negotiation and entering into of all contracts necessary to purchase the Properties;
(ii) all design and supervisory functions relating to the construction of the Improvements and installation and testing of the related Equipment and performing all engineering work related to the construction, installation and testing of the Improvements;
(iiiA) negotiating and entering into all contracts or arrangements to procure the equipment necessary to construct the Improvements, Improvements and (B) negotiating all contracts or arrangements to procure the Equipment on such terms and conditions as are customary and reasonable in light of local standards and practices and the businesses in which the Lessee is engaged;
(iv) assisting in obtaining all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Environmental LawsLaws and occupancy permits, from all Governmental Authorities in connection with the development and construction of the Improvements on the Land in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the construction, operation and management of the Properties, including the allocation of the Advances among the Properties so as to maintain an accurate record of each Project Cost; and
(vi) performing any other acts necessary in connection with the identification and acquisition of the Properties and construction and development of the Improvements in accordance with the Plans and Specifications.
(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 wouldconsent shall not be unreasonably withheld, directly conditioned or indirectly, impose any liability or obligation on the Lessor and for which liability or obligation the Lessor is not indemnifieddelayed.
(c) Subject to the terms and conditions of this Agreement, the Construction Agent shall have sole management and control over the construction means, methods, sequences and procedures with respect to the construction of the Improvements.
Appears in 1 contract
Sources: Agency Agreement (Tech Data Corp)
Scope of Authority. (a) The Lessor Landlord hereby expressly authorizes the Construction Agent, or any agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees, agrees for the benefit of the 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 Lessor's obligations Landlord or Construction Agent under any construction agreement or development agreement relating to the Improvements and to fulfill all of the obligations of the Construction Agent includingAgent, which obligations shall include, without limitation:
(i) the identification and assistance with the acquisition of Properties in accordance with the terms and conditions of the Participation Agreement;
(ii) all design and supervisory functions relating to the development and construction of the Improvements and performing all engineering work related to the construction, installation and testing of the Improvementsthereto;
(iiiii) negotiating (A) negotiating, entering into, performing and entering into enforcing all contracts and arrangements to procure the equipment and materials necessary to construct the Improvements, (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop and construct the Improvements on such terms and conditions as are customary and reasonable in light of local and national standards and practices and (C) negotiating, executing, performing and enforcing agreements granting easements and licenses for utilities and other facilities necessary to construct the businesses in which Improvements, provided that if the Lessee is engaged;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) 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 in connection with the development development, construction use and construction occupancy of the Improvements on the Land in accordance with the Plans and Specifications, this Agreement and the Lease;
(viv) maintaining all books and records with respect to the Improvements and the construction, operation and management of thereof; and
(v) paying when due the Properties, including Construction Costs from the allocation of the Advances among the Properties so as funds disbursed to maintain an accurate record of each Project CostConstruction Agent in accordance with Section 4.1 hereof; and
(vi) performing any other acts and paying such amounts (including Cost Overruns) necessary in connection with the identification order to develop and acquisition of the Properties and construction and development of construct the Improvements in accordance with the Plans and SpecificationsSpecifications on or before the Outside Scheduled Completion Date.
(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 Landlord without Landlord’s prior written consent, which would, directly consent shall not be unreasonably withheld or indirectly, delayed so long as (i) such contract will not increase the obligations of Landlord beyond the obligations of Landlord as are expressly set forth in the Lease or this Agreement and (ii) each such contract does not impose any liability or obligation on the Lessor and Landlord for which liability or obligation the Lessor Landlord is not indemnifiedindemnified by Construction Agent pursuant to Section 3.3.
(c) Subject to the terms and conditions of this AgreementAgreement and the Lease, the Construction Agent shall have sole management and control over the construction means, methods, sequences and procedures with respect to regarding the construction Improvements. The parties hereto acknowledge that Construction Agent, as tenant under the Lease, shall be in possession and control of the Leased Premises (including the Improvements) during the term of this Agreement.
Appears in 1 contract
Sources: Construction Agency Agreement (Progress Energy Inc)
Scope of Authority. (a) The Subject to the terms, conditions, restrictions and limitations set forth in the Operative Agreements, the Lessor hereby expressly authorizes the Construction Agent, or any agent or contractor Construction Agency Person acting on behalf of the Construction Agent, and the Construction Agent unconditionally agrees, 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 ’s obligations under any construction agreement and to fulfill all of the obligations of the Construction Agent including, including without limitation:
(i) the identification and assistance with the acquisition in the name of Properties the Lessor of the Property in accordance with the terms and conditions of the Participation Agreement;
(ii) all design and supervisory functions relating to the development, acquisition, installation, construction and testing of the Improvements related Improvements, Equipment and other components of the Property and performing all engineering work related to the construction, installation and testing of the Improvementsthereto;
(iii) negotiating (A) negotiating, entering into, performing and entering into enforcing all contracts and arrangements to acquire or ground lease the Property and to procure the equipment necessary to construct the Property and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct, repair, renovate, replace 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 Construction Agent is engaged;
(iv) 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 Law (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development development, acquisition, installation, construction and construction testing of the Improvements on Improvements, the Land Equipment and the other components of the Property in accordance with the Plans and SpecificationsConstruction Documents;
(v) maintaining all books and records with respect to the Property and the construction, operation and management of the Properties, including the allocation of the Advances among the Properties so as to maintain an accurate record of each Project Cost; andthereof;
(vi) performing any other acts necessary in connection with the identification and acquisition or ground leasing of the Properties 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 Construction Documents;
(vii) 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 Plans 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 or causing to be paid when due (subject to reimbursement as provided for under this Agreement and Specificationssubject to the terms and 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 Property Costs (including costs associated with the Construction Agent’s actions as provided in Section 2.4(a)(x), pursuant to and subject to the 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, further, that the Construction Agent shall pay directly any Property Costs either (x) during the continuance of an Agency Agreement Event of Default 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, however, that the Construction Agent may be reimbursed for Property Costs paid by it prior to the occurrence of the events described in clauses (x) and (y) to the extent permitted under Section 5.17 of the Participation Agreement). The Construction Agent 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 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 the Participation Agreement;
(ix) enforcing or causing the enforcement in all material respects of performance by each party to each Construction Document of its respective obligations, warranties and other design, construction and other obligations with respect to the design, engineering, construction and completion of the 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
(x) using the proceeds of any insurance maintained with respect to the Improvements to complete construction of or rebuild any portion of 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 (to the extent 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 Lease which shall be applicable during the Construction Period and is hereby incorporated herein by reference, mutatis mutandis.
(b) Neither the Construction Agent nor any of its Affiliates or agents Construction Agency Person shall enter into any contract which would, directly or indirectly, impose consent to any liability or obligation on contract in the name of the Lessor and for which liability without the Lessor’s prior written consent, such consent to be given or obligation 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 not indemnifieddeemed 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 AgreementAgreement 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 construction Property.
(d) As between the Lessor and the Construction Agent, the Construction Agent shall be responsible for all acts or omissions of each Construction Agency Person. The Lessor and the Construction Agent agree that the Construction Agent shall at all times be deemed to be in possession and control of the ImprovementsProperty at all times until such possession and control is relinquished pursuant to the terms of the Operative Agreements.
Appears in 1 contract
Scope of Authority. (a) The 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 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 any and all of Lessor's obligations under any construction agreement and to fulfill all of the Construction Agent's obligations of the Construction Agent hereunder, including, without limitation:
(i) the identification and assistance with assisting in the acquisition of Properties in accordance with the terms and conditions of the Participation AgreementLand;
(ii) performing all design and supervisory functions relating to the construction of the Improvements and performing all engineering work related to the construction, installation Construction and testing of serving as the Improvementsgeneral contractor;
(iii) negotiating and entering into all contracts or arrangements to procure the labor, materials, supplies and equipment necessary to construct the Improvements, Premises on such terms and conditions as are customary and reasonable in light of local standards and practices 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 businesses in Administrative Agent under which the Lessee is engaged;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) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Applicable Laws (including Environmental Laws), from all Governmental Authorities in connection with the development and construction of the Improvements on the Land in accordance with the Plans and SpecificationsConstruction;
(v) maintaining all books and records with respect to the construction, Construction and the operation and management of the Properties, including the allocation of the Advances among the Properties so as to maintain an accurate record of each Project Cost; andPremises;
(vi) performing any other acts necessary in connection with the identification and acquisition of the Properties and construction and development of the Financed Improvements in accordance with the Approved Plans and Specifications, Applicable Laws, any Requirements of Law and all Insurance Requirements;
(vii) paying when due (subject to reimbursement as provided for under this Agreement) pursuant to and subject to the Approved Construction Budget, or causing to be paid when due in accordance with the Participation Agreement, all Construction Costs to be paid during the Interim Term (including costs associated with the Construction Agent's actions as provided in Section 2.5(a)(viii) below, pursuant to and subject to the Approved Construction Budget);
(viii) enforcing performance by each party to each Construction Document of their respective obligations, warranties and other design, construction and other obligations with respect to the design, engineering, construction and completion of the Financed Improvements or pursuing remedies with respect to the breach of those obligations; and
(ix) subject to Article XIV of the Lease, using the proceeds of any property insurance maintained with respect to the Financed Improvements to complete construction of or rebuild any portion of the Financed Improvements with respect to a Casualty occurring with respect to that portion of the Financed Improvements and to fund all Interest, Yield and Fees accruing during such Construction or rebuilding.
(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 liability or obligation the Agent Lessor is not indemnifiedfully 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 AgreementAgreement and the other Operative Documents, the Construction Agent shall have sole management and control over 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 construction Construction; provided, however, that this subsection (c) shall not give rise to any rights in any Person other than the Agent Lessor, the Participants and the other Indemnitees.
(d) All fees and expenses of the ImprovementsLessee under any Operative Document which are included in the Approved Construction Budget shall be paid or reimbursed through Advances.
Appears in 1 contract
Sources: Construction Agency Agreement (Adc Telecommunications Inc)
Scope of Authority. (a) The Subject to the terms, conditions, restrictions and limitations set forth in the Operative Documents with respect to each Construction Property, 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, 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 Construction Agent's obligations of the Construction Agent hereunder, including, without limitation:
(i) the identification identify and assistance assist with the acquisition of Properties related Improvements in accordance with the terms and conditions of the Participation AgreementLease and the Plans and Specifications for such Property;
(ii) perform or cause to be performed all design and supervisory functions relating to the construction of the Improvements and performing all engineering work related to the construction, installation and testing of the ImprovementsConstruction to be performed in connection with such Property;
(iii) negotiating negotiate and entering enter into all contracts or arrangements to procure the equipment necessary to construct the Improvements, Improvements to be constructed on such Property on such terms and conditions as are customary and reasonable in light of local standards and practices and the businesses in which the Lessee is engagedpractices;
(iv) obtaining obtain or cause to be obtained all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Environmental LawsApplicable Law, from all Governmental Authorities in connection with the development Construction to be performed in connection with such Property and construction grant on behalf of the Improvements Lessor such easements as are necessary or appropriate to effect such Construction or that otherwise would not have an adverse effect on the Land in accordance with the Plans and Specificationsvalue of any Property;
(v) maintaining maintain all books and records with respect to the construction, operation and management of the Properties, including the allocation of the Advances among the Properties so as Construction to maintain an accurate record of each Project Costbe performed in connection with such Property; and
(vi) performing perform all of its obligations under the Construction Documents relating to such Property and any other acts necessary in connection with the identification and acquisition of such Property and the Properties and construction and development of the Improvements in accordance with the Plans and SpecificationsSpecifications for such Property.
(b) Subject to the terms of this Agreement and the other Operative Documents, the Construction Agent may execute any of its duties under this Agreement by or through agents, contractors, subcontractors, employees or attorneys-in-fact.
(c) Subject to the terms and conditions 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 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 arising out of the Lessee's actions or failures to act for which liability or obligation the Lessor is not indemnified.
(c) Subject to indemnified by the terms and conditions of this Agreement, Lessee under the Construction Agent shall have sole management and control over the construction means, methods, sequences and procedures with respect to the construction Lease or any of the Improvementsother Operative Documents.
Appears in 1 contract
Sources: Master Construction Agency Agreement (Iron Mountain Inc/Pa)
Scope of Authority. (a) The 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 or contractor of the Construction Agent, and the Construction Agent unconditionally agrees, agrees for the benefit of the LessorParticipants, 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 Construction Agent's obligations of the Construction Agent hereunder, including, without limitation:
(i) the identification and assistance with the acquisition of Properties Land and the acquisition of the related Improvements in accordance with the terms and conditions of the Participation Agreement;
(ii) all design overseeing, directing, supervising and supervisory functions relating to monitoring the development, design, construction and equipping of the Improvements and performing all engineering work related to the construction, installation and testing of the ImprovementsProperty;
(iii) negotiating and entering into all contracts or arrangements to procure the equipment necessary to develop the Property and construct the Improvements, on such terms and conditions as are customary and reasonable in light of local standards and practices and the businesses in which the Lessee is engaged;
(iv) obtaining all necessary permits, licenses, consents, approvals and other authorizations, including without limitation those required under applicable Applicable Law (including Environmental Laws), from all Governmental Authorities in connection with the development and construction of the Improvements on the each parcel of Land subject to any Lease Supplement in a timely manner and in accordance with the applicable Plans and Specifications;
(v) maintaining all books and records with respect to the construction, operation and management of the Properties, including the allocation of the Advances among the Properties so as to maintain an accurate record of each Project CostProperty; and
(vi) performing any other acts necessary in connection with the identification and acquisition of the Properties Property and Improvements and the construction and development of the Improvements in accordance with the applicable Plans and Specifications.
(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 any Participant for which liability or obligation such Participant, as the Lessor case may be, is not indemnifiedindemnified 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 AgreementAgreement and the other Operative Documents, the Construction Agent shall have sole management and control over the construction means, methods, sequences and procedures with respect to the construction of the Improvements.
Appears in 1 contract