Common use of Conditions Precedent to Commencement of Construction Clause in Contracts

Conditions Precedent to Commencement of Construction. Developer’s obligations under this Agreement are subject to the fulfillment or waiver by the applicable Party of each of the following conditions precedent: (a) Developer shall have obtained financing on terms acceptable to Developer in its sole discretion. For the purposes of this subparagraph, financing may include debt financing, equity financing, tax equity financing, loan and credit agreements, notes, bonds, indentures, security agreements, lease financing agreements, mortgages, interest rate exchanges, or swap agreements, and any other documents relating to the development, bridge construction or the permanent financing for the construction and operation of the PV System; (b) Developer shall have obtained all permits, licenses and other approvals required by Applicable Legal Requirements and from the Distribution Company for construction and installation of the PV System, and agree to follow the requirements of Section 5.3, below (Governmental Permits); (c) Developer shall have determined that no features of the Premises will substantially impair the installation and operation of the PV System, and that the Premises has sufficient space to accommodate the installation, operation and maintenance of the PV System along with the operation and maintenance of existing facilities; (d) Developer shall have determined that it is feasible to make related improvements as necessary on the Premises to install, operate, and interconnect the PV System to existing infrastructure, it being acknowledged by both Parties that neither Party shall be under any obligation to pay for any required upgrades, but that this condition may be satisfied if either Party agrees to implement any necessary upgrades at its own cost, or if the Parties agree to share the costs of such upgrades; (e) Distribution Company shall not require any material changes in plans and/or specifications to the PV System or its interconnection that require additional costs or fees, in excess of $10,000 in the aggregate, or such greater amount as Developer and Host may agree or such greater amount as Developer and Host may agree (including agreement as to allocation of costs) pursuant to Section 8.1; (f) The Interconnection Agreement, in form and substance satisfactory to Developer and Host, in each of its reasonable discretion, is finalized and executed within one- hundred eighty (180) days of Developer’s submission of the interconnection application, as such deadline may be extended pursuant to Section 8.1; (g) Developer shall have determined to its satisfaction that the PV System is eligible to receive the investment tax credit of thirty percent (30%) of eligible costs pursuant to Section 48 of the Internal Revenue Code; (h) Developer shall have received a Statement of Qualification (as defined in 225 CMR 20.02) under the SMART Program; (i) Host, in its regulatory capacity as a Governmental Authority, and Developer shall have reached agreement on the liability of Developer for ad valorem property taxes, if any are to be assessed; and (j) Host shall have approved the final design of the PV System and its integration into the Host’s Property, in accordance with Section 5.4 hereof. Either Party may waive any condition precedent applicable to it as set forth in this Section 5.2. Without limitation of Section 8.1(a), either Party may terminate this Agreement as the result of the non-fulfillment or failure of any of the above-referenced conditions precedent applicable to it and shall give the other Party written notice of the notifying Party’s intent to terminate this Agreement due to non-fulfillment or failure of any such foregoing conditions, and shall include in such notice a detailed description of the efforts undertaken by the notifying Party to satisfy such condition or conditions (which efforts need only be Commercially Reasonable) and the reasons why such condition or conditions have not been satisfied. In the event either Party terminates this Agreement pursuant to this Section 5.2, the Parties shall have no further obligations hereunder except those which survive expiration or termination of this Agreement.

Conditions Precedent to Commencement of Construction. Developer’s obligations under The effectiveness of this Agreement and obligations of the Agent and the Banks to fund the Loans are subject to the fulfillment or waiver by condition precedent that the applicable Party of each of the following conditions precedent: (a) Developer Agent shall have obtained financing on terms acceptable to Developer in its sole discretion. For received the purposes of this subparagraph, financing may include debt financing, equity financing, tax equity financing, loan and credit agreements, notes, bonds, indentures, security agreements, lease financing agreements, mortgages, interest rate exchanges, or swap agreements, and any other documents relating to the development, bridge construction or the permanent financing for the construction and operation of the PV System; (b) Developer shall have obtained all permits, licenses and other approvals required by Applicable Legal Requirements and from the Distribution Company for construction and installation of the PV System, and agree to follow the requirements of Section 5.3, below (Governmental Permits); (c) Developer shall have determined that no features of the Premises will substantially impair the installation and operation of the PV System, and that the Premises has sufficient space to accommodate the installation, operation and maintenance of the PV System along with the operation and maintenance of existing facilities; (d) Developer shall have determined that it is feasible to make related improvements as necessary on the Premises to install, operate, and interconnect the PV System to existing infrastructure, it being acknowledged by both Parties that neither Party shall be under any obligation to pay for any required upgrades, but that this condition may be satisfied if either Party agrees to implement any necessary upgrades at its own cost, or if the Parties agree to share the costs of such upgrades; (e) Distribution Company shall not require any material changes in plans and/or specifications to the PV System or its interconnection that require additional costs or fees, in excess of $10,000 in the aggregate, or such greater amount as Developer and Host may agree or such greater amount as Developer and Host may agree (including agreement as to allocation of costs) pursuant to Section 8.1; (f) The Interconnection Agreementfollowing, in form and substance satisfactory to Developer and Host, in each the Agent at least ten (10) Business Days prior to the Commencement of its reasonable discretion, is finalized and executed within one- hundred eighty (180) days of Developer’s submission Construction of the interconnection applicationProject: (a) A certificate of the Borrower representing, warranting and certifying to the Agent that each and all of the representations and warranties contained in this Agreement and the Related Documents are true and correct as of the date thereof and that no Event of Default, and no event which with the giving of notice or the passage of time or both would constitute an Event of Default, has occurred and is continuing as of the date thereof; (b) True and correct copies of the substantially final Plans and Specifications with respect to the Project, certified as accurate in all material respects by the Design/Builder and the Borrower; (c) A collateral assignment of the Plans and Specifications, duly executed by the Borrower, and which assignment shall have been consented to and certified in writing by the Design/Builder; (d) An initial Sworn Construction Statement in the form attached as Exhibit C duly executed and certified as accurate in all material respects by the Borrower showing all costs and expenses incurred or to be incurred in connection with construction of the Project. To the extent such deadline have not been fixed by accepted bids, such construction cost statement may include the Borrower’s reasonable estimate of such costs certified as accurate in all material respects by Borrower and approved by Consulting Engineer and Agent. As to those parts of the Sworn Construction Statement dealing with areas covered by the ECP Contract, the Design/Builder shall certify such parts as accurate in all material respects; (e) The Agent shall have obtained a certificate from the Consulting Engineer that the Plans and Specifications, and the Sworn Construction Statement of the Borrower is true and accurate in all material respects and containing such additional terms as may be extended pursuant acceptable to Section 8.1the Agent and the Banks; (f) True and correct copies of all executed Construction Contracts then in existence relating to the construction of the Project and all machinery, equipment and fixtures to be used in connection with the Projects, including all warranties, payment retentions, fixed-price provisions and guarantees with respect thereto; (g) Developer A collateral assignment of contract for each of the Construction Contracts not previously assigned, duly executed by the Borrower and pursuant to which the Borrower shall have determined assigned to its satisfaction that the PV System is eligible to receive the investment tax credit of thirty percent (30%) of eligible costs pursuant to Section 48 Agent all of the Internal Revenue CodeBorrower’s right, title and interest in and to each such Construction Contract, and which assignment shall have been consented to and certified in writing by the other party(ies) to each such Construction Contract; (h) Developer shall Policies of insurance with respect to the Project and evidence that the premiums for the current policy year have received a Statement of Qualification (been paid and that the Agent and the Banks are named on such policies as defined in 225 CMR 20.02) under the SMART Programadditional named insured parties; (i) Host, in its regulatory capacity as a Governmental Authority, and Developer The Agent shall have reached agreement received evidence that the Borrower has obtained all risk and builder’s risk insurance for the Project and that the Agent and the Banks are named on the liability of Developer for ad valorem property taxes, if any are to be assessed; andsuch policies as additional named insured parties; (j) Host shall have approved the final design True and correct copies of all permits, approvals or authorizations as may be legally required to commence construction of the PV System and its integration into Project; (k) An endorsement to the Host’s Propertytitle insurance policy that the Real Property is not subject to the claims or liens of any contractors, in accordance with Section 5.4 hereof. Either Party may waive any condition precedent applicable to it as set forth in this Section 5.2. Without limitation subcontractors or suppliers which would have priority over the Deed of Section 8.1(a), either Party may terminate this Agreement as the result Trust; (l) A monthly schedule of the non-fulfillment or failure of any anticipated progress on the Project with monthly cost breakdowns, certified as accurate in all material respects by the Borrower and the Consulting Engineer; (m) Delivery by Borrower to escrow of the above-referenced conditions precedent applicable to it and shall give the other Party written notice contributed funds for Commencement of Construction of the notifying Party’s intent to terminate this Agreement due to non-fulfillment or failure of any such foregoing conditions, and shall include in such notice a detailed description of the efforts undertaken by the notifying Party to satisfy such condition or conditions (which efforts need only be Commercially Reasonable) and the reasons why such condition or conditions have not been satisfied. In the event either Party terminates this Agreement pursuant to this Section 5.2, the Parties shall have no further obligations hereunder except those which survive expiration or termination of this AgreementProject.

Conditions Precedent to Commencement of Construction. Developer’s obligations under this Agreement are subject to the fulfillment or waiver by the applicable Party of each of the following conditions precedent: (a) Developer shall have obtained financing on terms acceptable to Developer in its sole discretion. For the purposes of this subparagraph, financing may include debt financing, equity financing, tax equity financing, loan and credit agreements, notes, bonds, indentures, security agreements, lease financing agreements, mortgages, interest rate exchanges, or swap agreements, and any other documents relating to the development, bridge construction or the permanent financing for the construction and operation of the PV System; (b) Developer shall have obtained all permits, licenses and other approvals required by Applicable Legal Requirements and from the Distribution Company for construction construction, and installation of the PV System, and agree to follow the requirements of Section 5.3, below (Governmental Permits); (c) Developer shall have determined that no features of the Premises will substantially impair the installation and operation of the PV System, and that the Premises has sufficient space to accommodate the installation, operation and maintenance of the PV System along with the operation and maintenance of existing facilities; (d) Developer shall have determined that it is feasible to make related improvements as necessary on the Premises to install, operate, and interconnect the PV System to existing infrastructure, it being acknowledged by both Parties that neither Party shall be under any obligation to pay for any required upgrades, but that this condition may be satisfied if either Party agrees to implement any necessary upgrades at its own cost, or if the Parties agree to share the costs of such upgrades; (e) Distribution Company shall not require any material changes in plans and/or specifications to the PV System or its interconnection that require additional costs or fees, in excess of $10,000 in the aggregate, or such greater amount as Developer and Host may agree or such greater amount as Developer and Host CVEC may agree (including agreement as to allocation of costs) pursuant to Section 8.13.4(B)(vi) of the PPA; (f) The Interconnection Agreement, in form and substance satisfactory to Developer and HostCVEC, in each of its reasonable discretion, is finalized and executed within one- hundred eighty (180) days of Developer’s submission of the interconnection application, application as such deadline may be extended pursuant to Section 8.13.4(B)(vii) of the PPA; (g) Host and Developer have determined that the PPA shall be in full effect and not have been terminated on account of failure of conditions precedent included therein. (h) Developer shall have determined to its satisfaction that the PV System is eligible to receive the investment tax credit of thirty percent (30%) of eligible costs pursuant to Section 48 of the Internal Revenue Code; (hi) Developer shall have received a Statement of Qualification (as defined in 225 CMR 20.02) under the SMART Program; (ij) Host and Developer have determined that the Inter-Governmental PSA shall be in full effect and not have been terminated on account of failure of conditions precedent included therein; (k) Host, in its regulatory capacity as a Governmental Authority, and Developer shall have reached agreement on the liability of Developer for ad valorem valorum property taxes, if any are to be assessedassessed as described in PPA Section 5.5; and (jl) Host shall have approved the final design of the PV System and its integration into the Host’s Property, in accordance with Section 5.4 hereof. Either Party may waive any condition precedent applicable to it as set forth in this Section 5.2. Without limitation of Section 8.1(a), either Party may terminate this Agreement as the result of the non-fulfillment or failure of any of the above-referenced conditions precedent applicable to it and shall give the other Party written notice of the notifying Party’s intent to terminate this Agreement due to non-fulfillment or failure of any such foregoing conditions, and shall include in such notice a detailed description of the efforts undertaken by the notifying Party to satisfy such condition or conditions (which efforts need only be Commercially Reasonablecommercially reasonable) and the reasons why such condition or conditions have not been satisfied. In the event either Party terminates this Agreement pursuant to this Section 5.2, the Parties shall have no further obligations hereunder except those which survive expiration or termination of this Agreement.

Conditions Precedent to Commencement of Construction. Developer’s obligations under this Agreement are subject Prior to the fulfillment or waiver by the applicable Party Commencement of each of Construction, the following conditions precedent:precedent shall have been satisfied (collectively, the “Construction Commencement Conditions”): (a) Developer shall have obtained financing on terms acceptable delivered to Developer in its sole discretion. For the purposes of this subparagraphCity, financing may include debt financing, equity financing, tax equity financing, loan and credit agreements, notes, bonds, indentures, security agreements, lease financing agreements, mortgages, interest rate exchangesreceived the City Manager’s confirmation or Approval (as applicable), or swap agreementsdeemed confirmation or Approval (as applicable), and any other documents relating to the development, bridge construction or the permanent financing for the construction and operation of the PV System;Approved Plans in accordance with Article II. (b) Developer shall have obtained entered into, and delivered to the City a duly executed copy of, the General Construction Contract (and all permits, licenses then existing change orders thereto) with a General Contractor Approved by the City Manager pursuant to Section 2.9(b) and other approvals required by Applicable Legal Requirements and from the Distribution Company reflecting a guaranteed maximum price for construction and installation completion of the PV System, and agree to follow Improvements that does not exceed the requirements of Section 5.3, below (Governmental Permits)Budgeted Improvement Costs; (c) Developer shall have determined that no features of delivered to the Premises will substantially impair City a budget reflecting the installation and operation of the PV System, and that the Premises has sufficient space to accommodate the installation, operation and maintenance of the PV System along with the operation and maintenance of existing facilitiesBudgeted Improvement Costs; (d) Developer shall have determined that it is feasible delivered to make related improvements as necessary on City written evidence reasonably satisfactory to the Premises City of the existence and availability of (A) Liquid Assets to installfund the Equity Commitment, operate(B) the Mezzanine Loan Commitment, if any, (C) the Construction Loan Commitment, and interconnect (D) Deposits, all of which together demonstrate that the PV System to existing infrastructure, it being acknowledged by both Parties that neither Party shall be under any obligation to pay for any required upgrades, but that this condition may be satisfied if either Party agrees to implement any necessary upgrades at its own cost, or if the Parties agree to share the costs of such upgradesProject is In Balance; (e) Distribution Company Developer shall not require any material changes in plans and/or specifications have obtained, and shall have delivered to City a copy of, all Governmental Approvals, including the PV System or its interconnection that require additional costs or feesBuilding Permit and Project Approvals, in excess necessary for the Commencement of $10,000 in Construction and for the aggregate, or such greater amount as Developer and Host may agree or such greater amount as Developer and Host may agree (including agreement as to allocation demolition of costs) pursuant to Section 8.1all Existing Improvements; (f) The Interconnection Agreement, Developer shall have presented evidence reasonably acceptable to the City that all insurance coverages required under this Agreement are in form and substance satisfactory to Developer and Host, in each of its reasonable discretion, is finalized and executed within one- hundred eighty (180) days of Developer’s submission of the interconnection application, as such deadline may be extended pursuant to Section 8.1place; (g) Developer shall have determined provided to its satisfaction the City reasonable evidence that the PV System is eligible to receive the investment tax credit of thirty percent (30%) of eligible costs pursuant to Section 48 closing of the Internal Revenue CodeConstruction Loan has occurred; (h) the representations and warranties made by the Developer shall have received a Statement in this Agreement pursuant to Sections 4.2(a) and 5.2 remain true and correct in all material respects on and as of Qualification (as defined in 225 CMR 20.02) under the SMART Programdate of Commencement of Construction; (i) Host, in its regulatory capacity as a Governmental Authority, and Developer shall have reached agreement on obtained any and all required Governmental Approvals with respect to maintenance of traffic for the liability staging of Developer for ad valorem property taxes, if any are to be assessed; andthe Work during the construction period; (j) Host Developer shall have approved obtained any and all required Governmental Approvals with respect to a parking and transportation plan for the final design off-site parking and transportation. (k) Developer shall have delivered to the City reasonably satisfactory evidence of the PV System (a) termination or expiration of all subleases of the Existing Improvements and its integration into unconditional releases of the Host’s PropertyCity from any and all Claims of all sublessees arising from or in connection with any such subleases that are terminated prior to their expiration date, or (b) amendment to all unterminated or unexpired subleases evidencing the applicable sublessees’ agreement to vacate the Existing Improvements prior to Commencement of Construction through Completion of Construction of the Project; provided, however, in the event any sublease of the Existing Improvements has not expired or been so terminated or amended or unconditional releases are not obtained on or before Commencement of Construction, then Developer may nonetheless Commence Construction in accordance with Section 5.4 hereof. Either Party may waive any condition precedent applicable and subject to it as set forth in this Section 5.2. Without limitation the terms of Section 8.1(a), either Party may terminate this Agreement as the result of the non-fulfillment or failure of any of the above-referenced conditions precedent applicable to it provided that, in such event, Developer, and by its joinder hereto, Existing Marina Lessee and Marina Lessee, hereby do and shall give indemnify, defend and hold the other Party written notice of City and the notifying Party’s intent to terminate this Agreement due to non-fulfillment City Parties harmless from and against any and all Claims arising from or failure in connection with any such unexpired, unterminated or unamended sublease, and promptly following the early termination of any such foregoing conditionssublease, Developer shall deliver to the City reasonably satisfactory evidence of such termination and Developer shall include in such notice a detailed description use good faith efforts to obtain an unconditional release of the efforts undertaken by City from any and all Claims of such sublessee at the notifying Party time that Developer, Xxxxxx Xxxxxx and/or Existing Xxxxxx Xxxxxx receives a release of such Person from such Claims (for avoidance of doubt, the failure of Developer to satisfy obtain such condition unconditional release of the City shall not be a default under this Agreement). Xxxxxx Xxxxxx and Existing Marina Lessee each hereby joins in and consents to this Agreement for purposes of acknowledging and confirming its agreement to the terms of this Section 2.11(k). (l) No Lawsuit or conditions (which efforts need only Marina Lawsuit shall be Commercially Reasonable) pending and the reasons why such condition Marina Lease shall not have been terminated, voided or conditions otherwise made ineffective after the effectiveness or commencement thereof. (m) Commercial Retail Developer shall have not delivered to Marina Lessee Commercial Retail Developer’s counterpart of the Master Sublease and Commercial Retail Developer and Residential Developer each shall have delivered to Marina Lessee and the City Commercial Retail Developer’s and Residential Developer’s counterparts of the Alternate Easement Agreement. (n) Residential Developer and the City shall have closed on the purchase and sale of the Residential Parcel in accordance with the Purchase and Sale Agreement and Residential Developer shall have delivered to the City the unpaid balance of the Purchase Price and the City Note shall have been paid in full in cash. Subject to payment in full in cash of the City Note, the City will deliver a satisfaction of the City Mortgage, which Residential Developer will record in the public records of Miami-Dade County, Florida at its sole cost and expense. (o) Developer shall have paid the City in full in cash for any and all Building Permit Liquidated Damages due hereunder. (p) Developer shall have delivered written notice to the City certifying that all Construction Commencement Conditions have been satisfied. In the event either Party terminates this Agreement pursuant to this Section 5.2, the Parties shall have no further obligations hereunder except those which survive expiration or termination of this Agreement.