Scope of Authority. (a) The Lessor hereby expressly authorizes the Construction Agent, or any agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees for the benefit of the Lessor, subject to Section 2.4(b), to take all action necessary or desirable for the performance and satisfaction of any and all of the Lessor's obligations under any construction agreement 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 development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property and performing all engineering work related thereto; (A) negotiating, entering into, performing and enforcing all contracts and arrangements to acquire the Properties and to procure the equipment necessary to construct the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engaged; (iv) obtaining all necessary permits, licenses, consents, approvals, entitlements and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Law (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, construction and testing of the Improvements, the Equipment and the other components of the Properties substantially in accordance with the Plans and Specifications; (v) maintaining all books and records with respect to the Properties and the construction, operation and management thereof; (vi) performing any other acts necessary in connection with the identification and acquisition of the Properties and the development, acquisition, installation, construction and testing of the related Improvements, Equipment and
Appears in 2 contracts
Samples: Construction Agency Agreement (Veritas Software Corp /De/), Agency Agreement (Veritas Software Corp /De/)
Scope of Authority. (a) The Lessor hereby expressly authorizes the Construction Agent, or any agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees for the benefit of the Lessor, subject to Section 2.4(b), to take all action necessary or desirable for the performance and satisfaction of any and all of the Lessor's obligations under any construction agreement 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 development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property and performing all engineering work related thereto;
(A) negotiating, entering into, performing and enforcing all contracts and arrangements to acquire or ground lease the Properties and to procure the equipment necessary to construct the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engaged;
(iv) obtaining all necessary permits, licenses, consents, approvals, entitlements and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Law (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, construction and testing of the Improvements, the Equipment and the other components of the Properties substantially in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the Properties and the construction, operation and management thereof;; and
(vi) performing any other acts necessary in connection with the identification and acquisition or ground leasing of the Properties and the development, acquisition, installation, construction and testing of the related Improvements, Equipment andand all other additional components of the Properties in accordance with the Plans and Specifications.
(b) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract or consent to any contract in the name of the Lessor without the Lessor's prior written consent, such consent to be given or withheld in the exercise of the Lessor's reasonable discretion; 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.
(c) Subject to the terms and conditions of this Agreement and the other Operative Agreements, the Construction Agent shall have sole management and control over the installation, construction and testing means, methods, sequences and procedures with respect to the Properties.
Appears in 2 contracts
Samples: Agency Agreement (Dollar Tree Stores Inc), Agency Agreement (Centennial Healthcare Corp)
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, or any agent agent, designee or contractor 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 obligations under any construction agreement Site Obligations. In furtherance thereof (and to fulfill all without limiting the generality of the obligations of the foregoing), Construction Agent including without limitationis hereby granted the authority on behalf of Lessor to, and shall:
(i) assist in and perform such functions as are necessary or desirable for Lessor to lease its interest in the identification Site and assistance with construct 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 work related to the developmentSite Obligations, acquisitionincluding the Construction, installation, construction and testing perform all the obligations of Lessor under the related Improvements, Equipment and other components of the applicable Property and performing all engineering work related theretoProject Agreements;
(Aiii) negotiating, entering into, performing and enforcing negotiate and/or cause to have in place all contracts and arrangements or arrangements, in each case subject to acquire the Properties and conditions set forth in Section 2.4, to procure the labor, materials, supplies and equipment necessary to construct perform and complete the Properties and (B) negotiatingSite Obligations, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test including the Improvements, the Equipment and the other components of the Properties Construction on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engagedpractices;
(iv) obtaining obtain (or cause to be obtained) all necessary permits, licenses, consents, approvals, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Law (including without limitation Environmental Applicable Laws), from all Governmental Authorities Authorities, and grant any easements, licenses, rights of way or other title exceptions required by any utility supplier or Governmental Authority necessary, in connection with the development, acquisition, installation, construction and testing performance of the Improvements, the Equipment and the other components of the Properties substantially 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 Properties Construction and the construction, operation and management thereofother 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 Site Obligations in accordance with the Project Materials and all Applicable Laws, Governmental Actions and all Insurance Requirements;
(vii) pay when due and payable or cause to be paid when due and payable (subject to reimbursement or direct payment by Lessor or the developmentAdministrative Agent through Advances or directly as provided for under this Agreement and subject to the terms and applicable conditions relating to Advances as set forth in the Participation Agreement) all Project Costs to be paid during the Commitment Period (including costs associated with Construction Agent’s actions as provided in Section 2.5(a)(ix) below or which are due and payable under any Project Agreement, acquisitionin each case pursuant to and subject to the Project Budget); provided, installationin no event, shall Construction Agent have the authority to pay or incur any Project Cost (1) which may be used to remedy any Force Majeure Losses unless such Project Costs have been consented to in writing by Lessor and (2) during the existence of any Default or Event of Default under Sections 5.1(e), 5.1(k)(2) or 5.1(l)(2); provided further, Construction Agent shall have no authority to incur Project Costs under the Core and Shell Construction Agreement in excess of $80,000,000 until Construction Agent has satisfied the requirements of Section 2.9 of this Agreement;
(viii) cause each Major Project Agreement to remain in full force and effect and enforce (in a commercially reasonable manner) performance by each party to each Major Project Agreement of their respective obligations and warranties under such Major Project Agreements with respect to the Site Obligations (including the design, engineering, construction and testing Completion of the related ImprovementsFacility) and subject to Section 3.1(c) hereof, Equipment pursue (in a commercially reasonable manner) remedies with respect to the breach of those obligations;
(ix) subject to Section 3.2 and Schedule 2.6(b), use the proceeds of any property or casualty insurance maintained with respect to the Facility (1) to complete construction of or to rebuild any portion of the Facility with respect to a Casualty or Condemnation and (2) to fund, during such construction or rebuilding, all Yield and Fees accruing to the extent contingency reserves in the Project Budget are not available for such purpose; and
(x) respond to any requests for information, approvals or other matters required in connection with each General Construction Agreement and the other Project Agreements so as to permit the timely and proper performance thereof by the General Contractor and the other Contractors.
(b) Subject to the terms and conditions of this Agreement, the other Operative Documents and the Project Materials, as between the parties hereto, Construction Agent shall have management and control over and sole responsibility for the means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-fact.
(c) All fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Participation Agreement.
Appears in 2 contracts
Samples: Construction Agency Agreement, Construction Agency Agreement (Norfolk Southern Corp)
Scope of Authority. (a) The Lessor hereby expressly authorizes the Construction Agent, or any agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees for the benefit of the Lessor, subject to Section 2.4(b), to take all commercially reasonable action necessary or desirable for the performance and satisfaction of any and all of the Lessor's obligations under any construction agreement Construction Contract 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 development, acquisition, procurement, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property and performing all engineering work related thereto;
(iii) (A) negotiating, entering into, performing and enforcing all contracts and arrangements to acquire the Properties and to procure the equipment necessary to construct the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engaged;
(iv) obtaining all necessary permits, licenses, consents, approvals, entitlements and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Law (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, construction and testing of the Improvements, the Equipment and the other components of the Properties substantially in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the Properties and the construction, operation and management thereof;; and
(vi) performing any other acts necessary in connection with the identification and acquisition of the Properties and the development, acquisition, installation, construction and testing of the related Improvements, Equipment andand all other additional components of the Properties in accordance with the Plans and Specifications.
(b) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract or consent to any contract in the name of the Lessor without the Lessor's prior written consent, such consent to be given or withheld in the exercise of the Lessor's reasonable discretion; 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.
(c) Subject to the terms and conditions of this Agreement and the other Operative Agreements, the Construction Agent shall have sole management and control over the installation, construction and testing means, methods, sequences and procedures with respect to the Properties.
Appears in 2 contracts
Samples: Agency Agreement (Sabre Holdings Corp), Agency Agreement (Sabre Holdings Corp)
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 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 LessorConstruction Agent's obligations under any construction agreement and to fulfill all of the obligations of the Construction Agent including hereunder, including, without limitation:
(i) performing all design and supervisory functions and all engineering work related to the identification and assistance with the acquisition of Properties in accordance with the terms and conditions of the Participation AgreementConstruction;
(ii) all design negotiating and supervisory functions relating to the development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property and performing all engineering work related thereto;
(A) negotiating, entering into, performing and enforcing into all contracts and or arrangements to acquire the Properties and to procure the equipment necessary to construct the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties Subject Improvements on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engagedpractices;
(iviii) obtaining all necessary Material permits, licenses, consents, approvals, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Applicable Law (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, construction Construction and testing granting on behalf of the Improvements, Lessor such easements as are necessary or appropriate to effect the Equipment and Construction or that otherwise would not have an adverse effect on the other components value of the Properties substantially in accordance with Subject Improvements or the Plans and SpecificationsLand on which the Subject Improvements are located;
(viv) maintaining all books and records with respect to the Properties and the construction, operation and management thereof;Construction; and
(viv) performing any other acts necessary in connection with the identification construction and acquisition development of the Properties 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 developmentother Operative Documents, acquisitionthe Construction Agent shall have sole management and control over the construction means, installationmethods, construction sequences and testing procedures with respect to the Construction.
(d) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract which would, directly or indirectly, impose any material liability or obligation on the Lessor for which the Lessor is not indemnified by the Construction Agent or the Lessee under this Agreement or any of the related Improvements, Equipment andother Operative Documents.
Appears in 1 contract
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 agrees for the benefit of the Lessorshall, subject to Section 2.4(b), to take all action necessary or desirable for the performance and satisfaction of any and all construction of the Lessor's obligations under any construction agreement Improvements in accordance with the Plans and Specifications and the Budget and to fulfill all of the obligations of the Construction Agent including 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 development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property Improvements and performing all engineering work related theretoto the construction of the Improvements;
(Aiii) negotiating, negotiating and entering into, performing and enforcing into all contracts or arrangements for the construction of the Improvements, development of infrastructure relating thereto, and arrangements to acquire the Properties and to procure procurement of the equipment necessary to construct the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties Improvements on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engagedpractices;
(iv) obtaining all necessary permits, licenses, consents, approvals, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Law (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, development and construction and testing of the Improvements, the Equipment and the other components of the Properties Improvements substantially in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the Properties and the construction, operation and management thereofof the Property;
(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 construction and acquisition development of the Properties 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, without the written consent of the Lessor, enter into any contract which would, directly or indirectly, impose any liability or obligation on the Lessor, any Bank or the Administrative Agent beyond the liability or obligations permitted under the Operative Agreements, and each such contract shall be non- recourse to Lessor, the Banks and the development, acquisition, installation, construction and testing of the related Improvements, Equipment andAdministrative Agent in accordance with Section 30.6
Appears in 1 contract
Samples: Agency Agreement (Immunex Corp /De/)
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 agrees agree, for the benefit of the Lessor, subject to Section 2.4(b), to take all action necessary or (as determined by Construction Agents) desirable for the performance and satisfaction of any and all of Construction Agents' obligations hereunder with respect to the Lessor's obligations under any construction agreement and to fulfill all of the obligations of the Construction Agent including without limitationProperties, including:
(i) performing or causing the identification performance of all design and assistance with supervisory functions and all engineering work related to the acquisition of Properties in accordance with Construction and the terms retention and conditions supervision of the Participation AgreementGeneral Contractor (if Construction Agents elect to retain a General Contractor);
(ii) negotiating and entering into, or causing the negotiation and execution and delivery of, all design contracts or arrangements to procure the labor, materials, supplies and supervisory functions relating equipment necessary or (as determined by the Construction Agents) desirable to construct the development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property and performing all engineering work related thereto;
(A) negotiating, entering into, performing and enforcing all contracts and arrangements to acquire the Properties and to procure the equipment necessary to construct the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engaged;
(iviii) obtaining or causing to be obtained all necessary permits, licenses, consents, approvals, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Law Applicable Laws (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, construction and testing acquisition of the Improvements, the Equipment Sites and the other components Construction of the Properties substantially in accordance with the Plans and SpecificationsImprovements thereon;
(viv) maintaining or causing to be maintained all books and records with respect to the Properties Construction and the construction, operation and management thereofof the Properties;
(v) performing or causing the performance of any other acts necessary or desirable (as reasonably determined by 4 8 Construction Agents) in connection with the construction and development of the Improvements in accordance in all material respects with the Construction Materials, any Applicable Laws and all Insurance Requirements; provided, however, that the foregoing shall not limit Construction Agents' right to engage in Permitted Contests;
(vi) performing 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 acts necessary in connection 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 the identification and acquisition respect to such Permitted Contest will be a Claim subject to indemnification under Article IX of the Properties 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 the development, acquisition, installationother design, construction and testing other obligations with respect to the design, engineering, construction and completion of the related ImprovementsImprovements on the applicable Site or pursuing remedies with respect to the breach of those obligations, Equipment 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 Construction Agents nor any of their Affiliates or agents shall enter into any contract which would impose any
Appears in 1 contract
Samples: Construction Agency Agreement (Goldman Sachs Group 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 the Construction Agent, or any agent or contractor 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 LessorConstruction Agent's obligations under any construction agreement and to fulfill all of the obligations of the Construction Agent including hereunder, including, without limitation:
(i) performing all design and supervisory functions and all engineering work related to the identification and assistance with the acquisition of Properties in accordance with the terms and conditions of the Participation AgreementConstruction;
(ii) all design negotiating and supervisory functions relating to the development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property and performing all engineering work related thereto;
(A) negotiating, entering into, performing and enforcing into all contracts and or arrangements to acquire the Properties and to procure the equipment necessary to construct the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties Subject Improvements on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engagedpractices;
(iviii) obtaining all necessary Material permits, licenses, consents, approvals, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Applicable Law (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, construction Construction and testing granting on behalf of the Improvements, Lessor such easements as are necessary or appropriate to effect the Equipment and Construction or that otherwise would not have an adverse effect on the other components value of the Properties substantially in accordance with Subject Improvements or the Plans and SpecificationsLand on which the Subject Improvements are located;
(viv) maintaining all books and records with respect to the Properties and the construction, operation and management thereof;Construction; and
(viv) performing any other acts necessary in connection with the identification construction and acquisition development of the Properties 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 developmentother Operative Documents, acquisitionthe Construction Agent shall have sole management and control over the construction means, installationmethods, construction sequences and testing procedures with respect to the Construction.
(d) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract which would, directly or indirectly, impose any material liability or obligation on the Lessor without the express written consent of the related Improvements, Equipment andLessor.
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 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 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 related Improvements, Equipment and other components of the applicable Property and performing all engineering work related thereto;
(iii) (A) negotiating, entering into, performing and enforcing all contracts and arrangements to acquire or ground lease the Properties Property and to procure the equipment necessary to construct the Properties Property and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct construct, repair, renovate, replace and test the Improvements, the Equipment and the other components of the Properties 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, entitlements and other authorizations, including without limitation all of the foregoing required for the Properties 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, acquisition, installation, construction and testing of the Improvements, the Equipment and the other components of the Properties substantially Property in accordance with the Plans and SpecificationsConstruction Documents;
(v) maintaining all books and records with respect to the Properties Property and the construction, operation and management thereof;
(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 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 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 subject 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 Construction Agency Person shall enter into any contract or consent to any contract in the name of the Lessor without the Lessor’s prior written consent, such consent to be given or withheld in the exercise of the Lessor’s reasonable discretion (acting at the direction of the Agent); provided, however, that (i) no such contract will increase the obligations of the Lessor beyond the obligations of the Lessor as are expressly set forth in the Operative Agreements and (ii) each such contract shall be expressly non-recourse to the Lessor on terms and conditions that are reasonably acceptable to the Lessor, (iii) each such contract shall expressly acknowledge that the Lessor shall not have any liability, as principal for the acts of the Construction Agent under such contracts or for the acts of any other Construction Agency Person, (iv) each such contract shall contain an express waiver of the other party’s rights to assert any Lien or Claim against the Lessor arising out of any such purported agency relationship, and (v) each such contract shall otherwise be on terms and conditions that are reasonably acceptable to the Lessor. It is deemed to be reasonable for the Lessor to withhold its consent to any contract which fails to comply, in the Lessor’s judgment, with any of clauses (i) through (v) of this subparagraph (b).
(c) Subject to the terms and conditions of this Agreement and the other Operative Agreements, the Construction Agent shall have sole management and control over the installation, construction and testing means, methods, sequences and procedures with respect to the Property.
(d) 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 Property 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 agrees, for the benefit of the Agent 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 LessorConstruction Agent's obligations under any construction agreement and to fulfill all of the obligations of the Construction Agent including without limitationhereunder, including:
(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 development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property and performing all engineering work related theretoto the Construction and serving as the general contractor;
(Aiii) negotiating, negotiating and entering into, performing and enforcing into all contracts and or arrangements to acquire the Properties and to procure the labor, materials, supplies and equipment necessary to construct the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties Premises on such terms and conditions as are customary and reasonable in light of local and national 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, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Law Applicable Laws (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, construction and testing of the Improvements, the Equipment and the other components of the Properties substantially in accordance with the Plans and SpecificationsConstruction;
(v) maintaining all books and records with respect to the Properties Construction and the construction, operation and management thereofof the Premises;
(vi) performing any other acts necessary in connection with the identification construction and acquisition development of the Properties 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 developmentApproved Construction Budget, acquisitionor causing to be paid when due in accordance with the Participation Agreement, installationall 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 testing other obligations with respect to the design, engineering, construction and completion of the related ImprovementsFinanced Improvements or pursuing remedies with respect to the breach of those obligations; and
(ix) subject to Article XIV of the Lease, Equipment andusing 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 the Agent Lessor is not fully indemnified by the Construction Agent or the Lessee under this Agreement or any of the other Operative Documents or for which insurance has not been procured.
(c) Subject to the terms and conditions of this Agreement 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; 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 Lessee under any Operative Document which are included in the Approved Construction Budget shall be paid or reimbursed through Advances.
Appears in 1 contract
Samples: Construction Agency Agreement (Adc Telecommunications Inc)
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 agrees for terms and conditions hereof, Project Company hereby engages Operator to provide the benefit following services (including the fulfillment of the Lessor, subject to Section 2.4(b), to take all action necessary or desirable for appointment and the performance and satisfaction of any and all of the 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 developmentservices of such secretarial, acquisitionclerical and other personnel of Operator at its headquarters, installation, construction and testing as may be required for the reasonable conduct of the related Improvements, Equipment and other components business of the applicable Property and performing all engineering work related theretoProject by Operator personnel;
(Aiii) negotiatinghandle Feedstock at the Project, entering intoprocess Feedstock through the Facility and load Product onto the Project’s mode of transportation adjacent to the Facility and reposition residual soil and rock from the Process onto the Project site or for sale as top soil, performing and enforcing all contracts and arrangements to acquire the Properties and to procure the equipment necessary to construct the Properties and (B) negotiatingfill or capping material, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engagedif appropriate;
(iv) obtaining all necessary permitskeep the Facility and Site improvements in good repair, licenses, consents, approvals, entitlements condition and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Law (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, construction and testing of the Improvements, the Equipment and the other components of the Properties substantially 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 all books supply and records with respect maintain tools, spare parts (at Project Company’s expense), and other items to the Properties and the construction, operation and management thereofsustain normal Facility operation;
(vi) performing any maintain the Facility under a preventive maintenance program by qualified personnel who possess a working knowledge of the mechanical operation of the Facility including electrical systems, motors, drives, controls, accessories, lubricants and all other acts items necessary to make the Facility operate in connection accordance with the identification manufacturer's design and acquisition specifications;
(vii) furnish any and all operating supplies (including consumables), labor, tools, materials to keep Facility in good repair, condition and working order in accordance with normal industry practice and consistent with the manufacturer’s design and specifications,
(viii) institute procedures, and file reports and applications, under applicable federal, state or local statute or ordinance with respect to the Facility and the Project, excluding federal, state or local Tax Returns;
(ix) establish and maintain appropriate accounting and management information systems and internal controls for the Project relating to the Services hereunder and maintain in good order the books of account, ledgers, and records of Project Company and shall perform all day-to-day accounting functions of the Properties Project necessary for the conduct of its business including matters related to paying and receiving, billing, reserve estimates, payroll and assistance with Tax Return preparation, contract coordination and administration of employee benefit plans;
(x) take appropriate steps for the development, acquisition, installation, construction security and testing safety of the related ImprovementsFacility 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, Equipment 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 expense and for the benefit of Project Company, such accountants, attorneys, banks, transfer agents, custodians, underwriters, engineers, insurance companies and other Persons as may from time to time reasonably be necessary to manage the business operations of Project Company;
(xv) cooperate with Project Company in such respects as Project Company reasonably requests in the resolution of any disputes which Project Company has with any Person other than Operator regarding the Site, the Facility or the operation of the Project and selling Product; and
(xvi) conduct the operations and maintenance of the Facility in a manner which will not result in any failure of performance, breach or default by Project Company under any of the Project Contracts. Except as expressly provided in Section 2(b) or Section 6, all costs and expenses with respect to the Services will first be Incurred and paid by Operator. The portion of these costs and expenses that constitute Permitted Actual Costs will then be paid to Operator by Project Company as part of the Operator Compensation.
Appears in 1 contract
Samples: Facility Operating and Management Agreement (Geotec, Inc.)
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 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 the 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 including Agent, 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, acquisition, installation, development and construction and testing of the related Improvements, Equipment and other components of the applicable Property Improvements and performing all engineering work related thereto;
(ii) (A) negotiating, entering into, performing and enforcing all contracts and arrangements to acquire the Properties and to procure the equipment and materials necessary to construct the Properties and Improvements, (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, develop and construct and test the Improvements, the Equipment and the other components of the Properties 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, entitlements and other authorizations, including without limitation all of the foregoing required for the Properties Improvements and the use and occupancy thereof and those required under applicable Law Legal Requirements (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, construction use and testing occupancy of the Improvements, the Equipment and the other components of the Properties substantially Improvements in accordance with the Plans and Specifications, this Agreement and the Lease;
(viv) maintaining all books and records with respect to the Properties Improvements and the construction, operation and management thereof;; and
(v) paying when due the Construction Costs from the funds disbursed to Construction Agent in accordance with Section 4.1 hereof; and
(vi) performing any other acts and paying such amounts (including Cost Overruns) necessary in connection order to develop and construct the Improvements in accordance with the identification Plans and acquisition Specifications on or before the Outside Scheduled Completion Date.
(b) Neither 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 consent shall not be unreasonably withheld or 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 Landlord for which Landlord is not indemnified by Construction Agent pursuant to Section 3.3.
(c) Subject to the terms and conditions of this Agreement and the Lease, Construction Agent shall have sole management and control over the construction means, methods, sequences and procedures regarding the Improvements. The parties hereto acknowledge that Construction Agent, as tenant under the Lease, shall be in possession and control of the Properties and Leased Premises (including the development, acquisition, installation, construction and testing Improvements) during the term of the related Improvements, Equipment andthis Agreement.
Appears in 1 contract
Samples: Construction Agency Agreement (Progress Energy 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 the Construction Agent, or any agent or contractor 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 LessorConstruction Agent's obligations under any construction agreement and hereunder with respect to fulfill all of the obligations of Leased Properties acquired by the Construction Agent including 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 development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property Buildings and performing all engineering work related theretoto the construction of the Buildings;
(Aiii) negotiating, negotiating and entering into, performing and enforcing into all contracts and or arrangements to acquire the Properties and to procure the equipment and services necessary to construct the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties Buildings on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engagedpractices;
(iv) obtaining all necessary permits, licenses, consents, approvals, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Applicable Law (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, development and construction and testing of the Improvements, Buildings on the Equipment and the other components of the Properties substantially Land in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the Properties and the construction, operation and management thereof;of the Leased Properties; and
(vi) performing any other acts necessary in connection with the identification and acquisition of the Properties Land and construction and development 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 unless such contract expressly contains an acknowledgment by the other party or parties thereto that the obligations of the Lessor are non-recourse, and that the Lessor shall have no personal liability with respect to such obligations. Subject to the foregoing, the Lessor shall execute such documents and take such other actions as the Construction Agent shall reasonably request, at the Construction Agent's expense, to permit the Construction Agent to perform its duties hereunder.
(c) Subject to the terms and conditions of this Agreement and the developmentother Operative Documents, acquisitionthe Construction Agent shall have sole management and control over the construction means, installationmethods, sequences and procedures with respect to the construction and testing of the related Improvements, Equipment andBuildings.
Appears in 1 contract
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 agrees for the benefit of the Lessorshall, subject to Section 2.4(b), to take all action necessary or desirable for the performance and satisfaction of any and all of the LessorConstruction Agent's obligations under any construction agreement and to fulfill all of the obligations of the Construction Agent including without limitationthis Agreement, including:
(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 development, acquisition, installation, construction and testing of the related Improvements, Equipment Improvements and other components the performance of the applicable Property and performing all engineering work related theretoto the construction of the Improvements;
(Aiii) negotiating, negotiating and entering into, performing and enforcing into all contracts and or arrangements to acquire the Properties and to procure the equipment necessary to construct the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties Improvements on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engagedpractices;
(iv) obtaining all necessary permits, licenses, consents, approvals, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Law (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, development and construction and testing of the Improvements, the Equipment and the other components of the Properties substantially Improvements in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the Properties and the construction, operation and management thereof;of the Properties including maintaining an accurate record of Project Costs; and
(vi) performing any other acts necessary in connection with the identification acquisition and acquisition development of each Property and construction and development of the Properties Improvements thereon in accordance with the Plans and Specifications.
(b) Neither the development, acquisition, installation, Construction Agent nor any of its Affiliates or agents shall enter into any contract relating to the construction and testing of the related ImprovementsImprovements which would, Equipment anddirectly 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 Improvements 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 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 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 LessorConstruction Agent's obligations under any construction agreement and to fulfill all of the obligations of the Construction Agent including without limitationhereunder, including:
(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 development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property and performing all engineering work related theretoto the Construction to be performed in connection with such Property;
(Aiii) negotiating, entering into, performing negotiate and enforcing enter into all contracts and or arrangements to acquire the Properties and to procure the equipment necessary to construct the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements Improvements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties be constructed on such Property on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engagedpractices;
(iv) obtaining obtain or cause to be obtained all necessary permits, licenses, consents, approvals, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Law (including without limitation Environmental Laws)Applicable Law, from all Governmental Authorities in connection with the development, acquisition, installation, construction Construction to be performed in connection with such Property and testing 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 Equipment and the other components value of the Properties substantially in accordance with the Plans and Specificationsany Property;
(v) maintaining maintain all books and records with respect to the Properties and the construction, operation and management thereof;Construction to be 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 the Properties such Property and the development, acquisition, installation, construction and testing development of the related ImprovementsImprovements in accordance with the Plans and Specifications for such Property.
(b) Subject to the terms of this Agreement and the other Operative Documents, Equipment andthe 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 arising out of the Lessee's actions or failures to act for which the Lessor is not indemnified by the Lessee under the Lease or any of the other Operative Documents.
Appears in 1 contract
Samples: Master Construction Agency Agreement (Iron Mountain Inc/Pa)
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 agrees, for the benefit of the Lessor, subject to Section 2.4(b), to take all action necessary or desirable for the performance and satisfaction of any and all of the Lessor's obligations under any construction agreement Site Obligations. In furtherance thereof (and to fulfill all without limiting the generality of the obligations of the foregoing), Construction Agent including without limitationis hereby granted the authority on behalf of Lessor to, and shall:
(i) assist in and perform (or cause to be performed ) such functions as are necessary or desirable for 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 work related to the developmentSite Obligations, acquisitionincluding the Construction, installation, construction and testing perform all the obligations of Lessor under the related Improvements, Equipment and other components of the applicable Property and performing all engineering work related theretoProject Agreements;
(Aiii) negotiating, entering into, performing negotiate and enforcing cause to have in place all contracts and arrangements or arrangements, in each case subject to acquire the Properties and conditions set forth in Section 2.4, to procure the labor, materials, supplies and equipment necessary to construct perform and complete the Properties and (B) negotiatingSite Obligations, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test including the Improvements, the Equipment and the other components of the Properties Construction on such terms and conditions as are customary and reasonable in light of local and national 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, entitlements and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Law (including without limitation Environmental Laws), from all Governmental Authorities Actions in connection with the development, acquisition, installation, construction and testing performance of the Improvements, the Equipment and the other components of the Properties substantially 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 Properties Construction and the construction, operation and management thereofother 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 Site Obligations in accordance with the Project Materials and all Applicable Laws, Governmental Actions and all Insurance Requirements;
(vii) pay when due and payable or cause to be paid when due and payable (subject to reimbursement or direct payment by Lessor or Administrative Agent through Advances or directly as provided for under this Agreement and subject to the developmentterms 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, acquisitionin 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, installationengineering, construction and testing Completion of the related ImprovementsFacility) and subject to Section 3.1(c) hereof, Equipment 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) Subject to the terms and conditions of this Agreement, the other Operative Documents and the Project Materials, as between the parties hereto, Construction Agent shall have management and control over and sole responsibility for the means, methods, sequences and procedures and the hiring, termination and contracting for and supervision of the labor, personnel and services with respect to the performance and completion of the Site Obligations; provided, however, that Construction Agent may execute its duties under this Agreement by or through agents, contractors, employees or attorneys-in-fact; provided further, that Construction Agent shall undertake the activities described in this Section 2.5 solely as the agent for Lessor, and Construction Agent shall have no title in or to the Leased Property.
(c) All reasonable fees and expenses of Construction Agent relating to the Facility and which are provided for in the Project Budget shall be paid or reimbursed through Advances to the extent of the aggregate Available Commitment and subject to the terms and conditions set forth in the Transaction Agreement.
Appears in 1 contract
Scope of Authority. (a) The Lessor hereby expressly authorizes the Construction Agent, or any agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees agrees, for the benefit of the Lessor, subject to Section 2.4(b), to take all action necessary or desirable for the performance and satisfaction of any and all of the Lessor's obligations under any construction agreement and to fulfill all of the obligations of the Construction Agent including 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 development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property Improvements and performing all engineering work related theretoto the construction, installation and testing of the Improvements;
(Aiii) negotiating, negotiating and entering into, performing and enforcing into all contracts and arrangements to acquire the Properties and to procure the equipment necessary to construct the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engaged;
(iv) obtaining all necessary permits, licenses, consents, approvals, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Law (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, development and construction and testing of the Improvements, Improvements on the Equipment and the other components of the Properties substantially Land in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the Properties and the construction, operation and management thereof;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 the development, acquisition, installation, construction and testing development of the related 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, Equipment and.
Appears in 1 contract
Samples: 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, 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 Constructor’s obligations under any construction agreement and to fulfill all of the obligations of the Construction Agent including 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 development, acquisition, installation, construction and testing of the related ImprovementsNew Improvements (Fremont 3E) on the Site, Equipment and other components of the applicable Property and performing all engineering work related theretoas applicable;
(Aii) negotiating, negotiating and entering into, performing and enforcing into all contracts and or arrangements to acquire the Properties and to procure the labor, materials, equipment and supplies necessary to construct the Properties and New Improvements (BFremont 3E) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engagedpractices;
(iviii) obtaining all necessary permits, licenses, consents, approvals, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Law Applicable Laws (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, development and construction and testing of the Improvements, the Equipment and the other components of the Properties substantially New Improvements (Fremont 3E) in all material respects in accordance with the Plans and Specifications;
(viv) maintaining all books and records with respect to the Properties and the construction, operation and management thereof;of the Site and the New Improvements (Fremont 3E):
(viv) performing any other acts necessary in connection with the identification construction and acquisition development of the Properties 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 developmentParticipation Agreement), acquisitionin accordance with the Participation Agreement, installationall 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) Subject to the terms and conditions of this Agreement and the other Operative Documents, the Constructor shall have sole management, control and responsibility over and the liability for the Construction, construction means, methods (including testing of the related ImprovementsNew Improvements (Fremont 3E) or any part thereof), Equipment andsequences and 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 New Improvements (Fremont 3E). Constructor acknowledges and agrees that, until such time as the Lessor or its designee has taken possession of the New Improvements (Fremont 3E) through the exercise of remedies under the Operative Documents or pursuant to a return of the New Improvements (Fremont 3E) to the Lessor or its designee permitted under the Operative Documents, as between the Lessor and the Constructor, the Constructor will have at all times sole dominion over and control of the New Improvements (Fremont 3E) and the Site 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, 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 agrees, for the benefit of the Lessor, subject to Section 2.4(b), to take all action necessary or (as determined by Construction Agent) desirable for the performance and satisfaction of any and all of the LessorConstruction Agent's obligations under any construction agreement and hereunder with respect to fulfill all of the obligations of the Construction Agent including without limitationProperties, including:
(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 development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property and performing all engineering work related theretoto the Construction and the retention and supervision of the General Contractor;
(Aiii) negotiating, negotiating and entering into, performing or causing the negotiation and enforcing execution and delivery of, all contracts and or arrangements to acquire the Properties and to procure the labor, materials, supplies and equipment necessary or (as determined by Construction Agent) desirable to construct the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engaged;
(iv) obtaining or causing to be obtained all necessary permits, licenses, consents, approvals, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Law Applicable Laws (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, construction and testing acquisition of the Improvements, the Equipment Sites and the other components Construction of the Properties substantially in accordance with the Plans and SpecificationsImprovements thereon;
(v) maintaining or causing to be maintained all books and records with respect to the Properties Construction and the construction, operation and management thereofof the Properties;
(vi) performing or causing the performance of any other acts necessary or desirable (as reasonably determined by Construction Agent) in connection with the identification construction and acquisition development of the Properties Improvements in accordance in all material respects with the Traville Construction Materials or the Manufacturing Construction Materials, as applicable, any Applicable Laws and all Insurance Requirements; provided, however, that the developmentforegoing 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, acquisitionas applicable, installationor 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 testing other obligations with respect to the design, engineering, construction and completion of the related ImprovementsImprovements on the applicable Site or pursuing remedies with respect to the breach of those obligations, Equipment 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 Construction Agent nor any of its Affiliates or agents shall enter into any contract which would impose any liability or obligation on Lessor (other than (i) nonrecourse obligations arising out of the imposition of certain Permitted Liens identified on Schedules 2.6(b)(i) and 2.6(b)(ii) hereto and (ii) Lessor's obligation to Construction Agent to provide Advances in accordance with and subject to the terms and conditions of the Operative Documents).
(c) Subject to the terms and conditions of this Agreement and the other Operative Documents, 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; 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 Approved Traville Construction Budget or the Approved Manufacturing Construction Budget, as applicable, shall be paid or reimbursed through Advances.
Appears in 1 contract
Samples: Construction Agency Agreement (Human Genome Sciences Inc)
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 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 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 including 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 development, acquisition, installation, construction of the Additional Improvements and testing acquisition and installation of the related Improvements, Building Equipment and other components of the applicable Property and performing all engineering work related theretoto the construction of the Additional Improvements and acquisition and installation of the related Building Equipment;
(AB) negotiating, negotiating and entering into, performing and enforcing into all contracts and or arrangements to acquire the Properties and to procure the equipment and services necessary to construct the Properties Additional Improvements and (B) negotiating, executing, performing acquisition and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components installation of the Properties related Building Equipment on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engagedpractices;
(ivC) obtaining all necessary permits, licenses, consents, approvals, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Law (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, construction and testing of the Improvements, Additional Improvements on the Equipment Land and the other components acquisition and installation of the Properties substantially related Building Equipment in accordance with the Plans and SpecificationsPlans;
(vD) maintaining all books and records with respect to the Properties and construction of the construction, operation and management thereof;Additional Improvements; and
(viE) performing any other acts necessary or appropriate in connection with the identification construction of the Additional Improvements and acquisition of the Properties and the development, acquisition, installation, construction and testing installation of the related ImprovementsBuilding Equipment in accordance with the Plans.
(ii) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract which would, Equipment anddirectly 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 that Lessor shall have no personal liability with respect to such obligations. Subject to the foregoing, Lessor shall 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.
(iii) Subject to the terms and conditions of this Lease and the other Operative Documents, Construction Agent shall have sole management and control over the construction means, methods, sequences and procedures with respect to the construction of the Additional 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, 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 agrees, for the benefit of the Lessor, subject to Section 2.4(b), 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 the LessorConstruction Agent's obligations under any construction agreement and to fulfill all hereunder, including: K. performing or causing the performance 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 development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property and performing all engineering work related thereto;
(A) negotiatingto the Construction, and the retention and supervision of the General Contractor; L. negotiating and entering into, performing or causing the negotiation and enforcing execution and delivery of, all contracts and or arrangements to acquire the Properties and to procure the labor, materials, supplies and equipment necessary or (as determined by the Construction Agent) desirable to construct the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties Improvements on such terms and conditions as are customary and reasonable in light of local and national standards state practices; M. granting on behalf of Lessor such easements, licenses, rights-of-way or other rights of ingress and practices 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, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Law Applicable Laws (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, construction and testing of the Improvements, the Equipment and the other components of the Properties substantially in accordance with the Plans and Specifications;
(v) Construction; O. maintaining or causing to be maintained all books and records with respect to the Properties Construction and the construction, operation and management thereof;
(vi) of the Facility; P. performing or causing the performance of any other acts necessary or desirable (as reasonably determined by the Construction Agent) in connection with the identification construction and acquisition development of the Properties Improvements in accordance in all material respects with the Construction Materials, any Applicable Laws, Environmental Laws and the development, acquisition, installation, construction and testing of the related Improvements, Equipment andall Insurance Requirements;
Appears in 1 contract
Samples: 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, the Lessor 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 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 LessorConstruction Agent's obligations under any construction agreement and hereunder with respect to fulfill all of the obligations of Leased Properties acquired by the Construction Agent including 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 development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property Buildings and performing all engineering work related theretoto the construction of the Buildings;
(Aiii) negotiating, negotiating and entering into, performing and enforcing into all contracts and or arrangements to acquire the Properties and to procure the equipment and services necessary to construct the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties Buildings on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engagedpractices;
(iv) obtaining all necessary permits, licenses, consents, approvals, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Applicable Law (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, development and construction and testing of the Improvements, Buildings on the Equipment and the other components of the Properties substantially Land in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the Properties and the construction, operation and management thereof;of the Leased Properties; and
(vi) performing any other acts necessary in connection with the identification and acquisition of the Properties Land and construction and development 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 unless such contract expressly contains an acknowledgment by the other party or parties thereto that the obligations of the Lessor are non-recourse, and that the Lessor shall have no personal liability with respect to such obligations. Subject to the foregoing, the Lessor shall execute such documents and take such other actions as the Construction Agent shall reasonably request, at the Construction Agent's expense, to permit the Construction Agent to perform its duties hereunder.
(c) Subject to the terms and conditions of this Agreement and the developmentother Operative Documents, acquisitionthe Construction Agent shall have sole management and control over the construction means, installationmethods, sequences and procedures with respect to the construction and testing of the related Improvements, Equipment andBuildings.
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 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 LessorConstruction Agent's obligations under any construction agreement and hereunder with respect to fulfill all of the obligations of Leased Properties acquired or leased by the Construction Agent including 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 development, acquisition, installation, construction and testing of the related Improvements, Equipment Buildings and other components of the applicable Property and performing all engineering work related theretoto the construction of the Buildings;
(Aii) negotiating, negotiating and entering into, performing and enforcing into all contracts and or arrangements to acquire the Properties and to procure the equipment and services necessary to construct the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties Buildings on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engagedpractices;
(iviii) obtaining all necessary permits, licenses, consents, approvals, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Applicable Law (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, construction and testing development of the Improvements, the Equipment Land and the other components construction of the Properties substantially Buildings on the Land in accordance with the Plans and Specifications;
(viv) maintaining all books and records with respect to the Properties and the construction, operation and management thereof;of the Leased Properties; and
(viv) performing any other acts necessary or appropriate in connection with the identification identification, acquisition (or leasing) and acquisition development of the Properties 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 unless such contract expressly contains an acknowledgment by the other party or parties thereto that the obligations of the Lessor are non-recourse, and that the Lessor shall have no personal liability with respect to such obligations. Nothing contained herein shall be construed to require advance waiver of statutory mechanics lien rights, any such waiver, if secured, being pursuant to a separate instrument. Subject to the foregoing, the Lessor shall execute such documents and take such other actions as the Construction Agent shall reasonably request, at the Construction Agent's expense, to permit the Construction Agent to perform its duties hereunder.
(c) Subject to the terms and conditions of this Agreement and the developmentother Operative Documents, acquisitionthe Construction Agent shall have sole management and control over the construction means, installationmethods, sequences and procedures with respect to the construction and testing of the related Improvements, Equipment andBuildings.
Appears in 1 contract
Scope of Authority. (a) The Lessor hereby expressly authorizes the Construction Agent, or any agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees for the benefit of the Lessor, subject to Section 2.4(b), to take all action necessary or desirable for the performance and satisfaction of any and all of the Lessor's obligations under any construction agreement 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 development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property and performing all engineering work related thereto;
(A) negotiating, entering into, performing and enforcing all contracts and arrangements to acquire or ground lease the Properties and to procure the equipment necessary to construct the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties on such terms and conditions as are customary and reasonable deemed appropriate by the Construction Agent in light of local and national standards and practices and the businesses in which the Lessee is engagedits reasonable, good faith discretion;
(iv) obtaining all necessary permits, licenses, consents, approvals, entitlements and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Law (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, construction and testing of the Improvements, the Equipment and the other components of the Properties substantially in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the Properties and the construction, operation and management thereof;; and
(vi) performing any other acts necessary in connection with the identification and acquisition or ground leasing of the Properties and the development, acquisition, installation, construction and testing of the related Improvements, Equipment andand all other additional components of the Properties in accordance with the Plans and Specifications.
(b) The Construction Agent shall have the right to enter into such contracts and agreements in its own name or through one or more Affiliates as it deems necessary or desirable to perform its obligations hereunder, but neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract or consent to any contract in the name of the Lessor without the Lessor's prior written consent, such consent to be given or withheld in the exercise of the Lessor's reasonable discretion; 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.
(c) Subject to the terms and conditions of this Agreement and the other Operative Agreements, the Construction Agent shall have sole management and control over the installation, construction and testing means, methods, sequences and procedures with respect to the Properties.
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 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 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 related Improvements, Equipment and other components of the applicable Property and performing all engineering work related thereto;
(iii) (A) negotiating, entering into, performing and enforcing all contracts and arrangements to acquire or ground lease the Properties Property and to procure the equipment necessary to construct the Properties Property and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct construct, repair, renovate, replace and test the Improvements, the Equipment and the other components of the Properties 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, entitlements and other authorizations, including without limitation all of the foregoing required for the Properties 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, acquisition, installation, construction and testing of the Improvements, the Equipment and the other components of the Properties substantially Property in accordance with the Plans and SpecificationsConstruction Documents;
(v) maintaining all books and records with respect to the Properties Property and the construction, operation and management thereof;
(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 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 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 subject 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 Construction Agency Person shall enter into any contract or consent to any contract in the name of the Lessor without the Lessor’s prior written consent, such consent to be given or withheld in the exercise of the Lessor’s reasonable discretion (acting at the direction of the Agent); provided, however, that (i) no such contract will increase the obligations of the Lessor beyond the obligations of the Lessor as are expressly set forth in the Operative Agreements and (ii) each such contract shall be expressly non-recourse to the Lessor on terms and conditions that are reasonably acceptable to the Lessor, (iii) each such contract shall expressly acknowledge that the Lessor shall not have any liability, as principal for the acts of the Construction Agent under such contracts or for the acts of any other Construction Agency Person, (iv) each such contract shall contain an express waiver of the other party’s rights to assert any Lien or Claim against the Lessor arising out of any such purported agency relationship, and (v) each such contract shall otherwise be on terms and conditions that are reasonably acceptable to the Lessor. It is deemed to be reasonable for the Lessor to withhold its consent to any contract which fails to comply, in the Lessor’s judgement, with any of clauses (i) through (v) of this subparagraph (b).
(c) Subject to the terms and conditions of this Agreement and the other Operative Agreements, the Construction Agent shall have sole management and control over the installation, construction and testing means, methods, sequences and procedures with respect to the Property.
(d) 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 Property 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 Lessor 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 Lessor, subject to Section 2.4(b), to take all action necessary or desirable for the performance and satisfaction of any and all of the Lessor's obligations under any construction agreement and to fulfill all of the obligations of the Construction Agent including 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 development, acquisition, installation, construction of the Improvements and installation and testing of the related Improvements, Equipment and other components of the applicable Property and performing all engineering work related theretoto the construction, installation and testing of the Improvements;
(A) negotiating, negotiating and entering into, performing and enforcing into all contracts and or arrangements to acquire the Properties and to procure the equipment necessary to construct the Properties Improvements and (B) negotiating, executing, performing and enforcing negotiating all contracts and or arrangements to develop, acquire, install, construct and test the Improvements, procure the Equipment and the other components of the Properties on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engaged;
(iv) assisting in obtaining all necessary permits, licenses, consents, approvals, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Law (including without limitation Environmental Laws)Laws and occupancy permits, from all Governmental Authorities in connection with the development, acquisition, installation, development and construction and testing of the Improvements, Improvements on the Equipment and the other components of the Properties substantially Land in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the Properties and the construction, operation and management thereof;of the Properties; and
(vi) performing any other acts necessary in connection with the identification and acquisition of the Properties and the development, acquisition, installation, construction and testing development of the related 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 consent shall not be unreasonably withheld, conditioned or delayed.
(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, Equipment and.
Appears in 1 contract
Samples: Agency Agreement (Tech Data Corp)
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, 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 Construction Agent’s obligations under any construction agreement and to fulfill all of the obligations of the Construction Agent including 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 development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of Facility on the applicable Property and performing all engineering work related theretoSite;
(Aiii) negotiating, negotiating and entering into, performing and enforcing into all contracts and or arrangements to acquire the Properties and to procure the labor, materials, equipment and supplies necessary to demolish Building 1 and to construct the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties Facility on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engagedpractices;
(iv) obtaining all necessary permits, licenses, consents, approvals, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Law Applicable Laws and Regulations (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, demolition of Building 1 and the development and construction and testing of the Improvements, the Equipment and the other components of the Properties substantially Facility in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the Properties construction and management of the Site and the construction, operation and management thereofFacility;
(vi) performing any other acts necessary in connection with the identification demolition of Building 1 and acquisition the construction and development of the Properties 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 developmentParticipation 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, acquisition, installationwarranties 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) Subject to the terms and conditions of this Agreement and the other Operative Documents, Construction Agent, in its capacity as agent for Owner, shall have sole management, control and responsibility over and the duty to cause, the Construction, construction means, methods (including testing of the related ImprovementsFacility or any part thereof), Equipment andsequences and 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 Facility. Construction Agent acknowledges and agrees that, until such time as Owner or its designee has taken possession of the Facility through the exercise of remedies under the Operative Documents or pursuant to a return of the Facility to Owner or its designee permitted under the Operative Documents, as between Owner and Construction Agent, Construction Agent will have at all times sole dominion over and control of the Facility and the Site 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
Samples: Construction and Development Agreement (Cubic Corp /De/)
Scope of Authority. (a) The Lessor hereby expressly authorizes the Construction Agent, or any agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees for the benefit of the Lessor, subject to Section 2.4(b), to take all action necessary or desirable for the performance and satisfaction of any and all of the Lessor's obligations under any construction agreement and to fulfill all of the obligations of the Construction Agent including without limitation:
(i) the identification and assistance with the acquisition of Properties the Land and all other portions 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 related all Improvements, Equipment and other components of the applicable Property and performing all engineering work related thereto;
(A) negotiating, entering into, performing and enforcing all contracts and arrangements to acquire the Properties Land and all other Property and to procure the equipment necessary to construct the Properties Improvements and all related Property on the Land and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties Property on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engaged;
(iv) obtaining all necessary permits, licenses, consents, approvals, entitlements and other authorizations, including without limitation all of the foregoing required for the Properties 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, acquisition, installation, construction and testing of the any Improvements, the Equipment and the other components of the Properties Property substantially in accordance with the applicable Plans and Specifications;
(v) maintaining all books and records with respect to the Properties Property and the construction, operation and management thereof;
(vi) performing any other acts necessary in connection with the identification and acquisition of the Properties Land and all other portions of the Property and the development, acquisition, installation, construction and testing of the related any Improvements, Equipment and all other additional components of the Property in accordance with the applicable Plans and Specifications;
(vii) the right to submit notices pursuant to Section 2.3 of the Credit Agreement and to receive the proceeds of Advances directly from the Agent;
(viii) the right to contest all mechanics' and materialmens' liens in accordance with the requirements for Permitted Liens; and
(ix) the right to bring or defend any claims or seek resolution of disputes arising from Construction Agent's performance of any of the foregoing actions.
(b) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract or consent to any contract in the name of the Lessor without the Lessor's prior written consent, such consent to be given or withheld in the exercise of the Lessor's reasonable discretion; 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 expressly limit recourse against the Lessor to the assets of the VS Trust 2000-2 and shall otherwise be non-recourse to the Lessor on terms and conditions that are reasonably acceptable to the Lessor.
(c) Subject to the terms and conditions of this Agreement and the other Operative Agreements, the Construction Agent shall have sole management and control over the installation, construction and testing means, methods, sequences and procedures with respect to the Property.
Appears in 1 contract
Samples: Construction Agency Agreement (Veritas Software Corp /De/)
Scope of Authority. (a) The Lessor hereby expressly authorizes the Construction Agent, or any agent or contractor of the Construction Agent, and the Construction Agent unconditionally agrees for the benefit of the Lessor, subject to Section 2.4(b), to take all action necessary or desirable for the performance and satisfaction of any and all of the Lessor's ’s obligations under any construction agreement agreement, ground lease, purchase and sale contract, option contract or other contract relating to the Work and to fulfill all of the obligations of the Construction Agent including without limitationincluding:
(i) the identification and assistance with the acquisition vesting of Properties a ground leasehold interest in the Land in accordance with the terms and conditions of the Participation Agreement;
(ii) all due diligence review and analysis, design and supervisory functions relating to the design, development, acquisition, installation, construction and testing of the related Improvements, Equipment and other components of the applicable Property and performing all engineering work related thereto;
(A) negotiating, entering into, performing and enforcing all contracts and arrangements to acquire the Properties and to procure the equipment necessary to construct the Properties and (Biii) negotiating, executing, performing and enforcing all contracts and arrangements to design, develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties Property on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engaged;
(iv) obtaining all necessary permits, licenses, consents, approvals, development rights, clearing title and survey exceptions, entitlements and other authorizations, including without limitation all of the foregoing required for the Properties Property and the use and occupancy thereof and those required under applicable Applicable Law (including without limitation Environmental Laws), from all Governmental Authorities in connection with the design, development, acquisition, installation, construction and testing of the Improvements, the Equipment and the other components of the Properties substantially Property in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the Properties Property and the construction, operation and management thereof;; and
(vi) performing any other acts necessary in connection with the identification and acquisition vesting of a ground leasehold interest in the Properties Land and the design, development, acquisition, installation, construction and testing of the related Improvements, Equipment andand all other additional components of the Property in accordance with the Plans and Specifications.
(b) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract or consent to any contract in the name of the Lessor without the Lessor’s prior written consent, such consent to be given or withheld in the exercise of the Lessor’s commercially reasonable discretion; provided, however, that no such contract will increase the obligations of the Lessor beyond the obligations of the Lessor as are expressly set forth in the Operative Agreements.
(c) Subject to the terms and conditions of this Agreement and the other Operative Agreements, the Construction Agent shall have sole management and control over the installation, construction and testing means, methods, sequences and procedures with respect to the Property.
(d) Subject to the terms, conditions, restrictions and limitations set forth in the Operative Agreements, the Lessor hereby expressly authorizes the Construction Agent, or any agent or contractor of the Construction Agent, and the Construction Agent agrees, for the benefit of the Lessor, to take all action necessary or desirable for the performance and satisfaction of all obligations in connection with the identification and the design, development, acquisition, installation, construction and testing of the Improvements, the Equipment and the other components of the Property in accordance with the Plans and Specifications and the Operative Agreements. In furtherance thereof, the Construction Agent is hereby granted the authority on behalf of the Lessor to, and shall: pay when due and payable or cause to be paid when due and payable (subject to reimbursement or direct payment by the Lessor through Advances or directly as provided for under, and subject to the terms and conditions relating to Advances as set forth in, the Operative Agreements) all Property Costs to be paid during the Commitment Period (including costs associated with the Construction Agent’s actions pursuant to and in accordance with the Construction Contracts which are due and payable under any Construction Contract, in each case pursuant to and subject to the Construction Documents); provided, in no event, shall the Construction Agent have the authority to pay or incur any Property Cost (i) if on the date of such payment or incurrence (A) any Agency Agreement Default, Lease Default, Agency Agreement Event of Default or Lease Event of Default has occurred or (B) any of the conditions set forth in Section 5.4A of the Participation Agreement have not been satisfied as of such date of payment or incurrence or (ii) in an amount in excess of $40,000,000 during any monthly advance period, in each case, before being reimbursed or paid directly by Advances; provided, further, in the event the last paragraph of Section 5.4 of the Participation Agreement is applicable and the Credit Lenders, the Mortgage Lenders and the Lessor were required to make Advances thereunder regarding a particular Requisition even though the conditions precedent set forth in Section 5.4A were not satisfied or waived in accordance with such Section 5.4A as of the date such Advances were made, then (w) the Construction Agent shall have no further authority to incur or pay any Property Costs from and after the date such Advances were made, (x) neither the Lenders nor the Lessor shall have any obligation to make any additional Advances and (y) such occurrence shall constitute a breach of covenant with no cure period and an immediate Agency Agreement Event of Default and Lease Agreement Event of Default shall exist.
Appears in 1 contract
Samples: Agency Agreement (Nvidia Corp)
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 agrees, for the benefit of the Lessor, subject to Section 2.4(b)Owner, to take all action necessary or desirable for the performance and satisfaction of any and all of the LessorConstruction Agent's obligations under any construction agreement and to fulfill all of the obligations of the Construction Agent including 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 development, acquisition, installation, construction and testing of the related Improvements, Equipment Energy Improvements and other components of the applicable Property Other Customers Facilities and performing all engineering work related theretoto the design and construction of the Energy Improvements and the Other Customers Facilities;
(Aiii) negotiatingsubject to the provisions of the ESA and this Agreement, negotiating and entering into, performing and enforcing into all contracts and or arrangements to acquire the Properties and to procure the equipment equipment, materials and facilities necessary to construct so that the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment Energy Improvements and the other components Other Customers Facilities will be designed and constructed with the care and skill expected of design professionals and contractors with experience and expertise in completing the Energy Improvements so that they will be fit for the intended purpose, including, but not limited to the satisfaction of the Properties on such terms Steam and conditions as are customary and reasonable Chilled Water Standard set forth in light of local and national standards and practices and the businesses in which the Lessee is engagedESA;
(iv) subject to the provisions of the ESA, obtaining all necessary permits, licenses, consents, approvals, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Applicable Law (including without limitation Environmental Laws), from all required by any Governmental Authorities Authority in connection with the developmentdesign, acquisition, installation, development and construction and testing of the ImprovementsEnergy Improvements and the Other Customers Facilities in accordance this Agreement, the Equipment Ground Lease and the other components of the Properties substantially in accordance with the Plans and SpecificationsESA;
(v) maintaining maintaining, and delivering to Owner, all books and records with respect to the Properties design, construction, start-up and testing of the Energy Improvements and the construction, operation and management thereof;Other 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 the development, acquisition, installationdesign, construction and testing development of the related ImprovementsEnergy Improvements and the Other Customers Facilities for their intended purpose.
(b) Neither the Construction Agent nor any of its Affiliates or agents shall enter into any contract, Equipment andother than the ESA, the Funding Agents' Disbursement and Administration Agreement, the Ground Lease or the Easement Agreements, which would, directly or indirectly, impose any liability or obligation on Owner without Owner's prior written consent.
(c) Subject to the terms and conditions of this Agreement, the 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, techniques and procedures with respect to the construction of the Energy Improvements and the Other Customers Facilities.
Appears in 1 contract
Samples: Construction Agency Agreement (Grand Canal Shops Mall Construction LLC)
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 for the benefit of the Lessor, subject to Section 2.4(b)Participants, to take all action necessary or desirable for the performance and satisfaction of any and all of the LessorConstruction Agent's obligations under any construction agreement and to fulfill all of the obligations of the Construction Agent including 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, acquisition, installationdesign, construction and testing equipping of the related Improvements, Equipment and other components of the applicable Property and performing all engineering work related theretoProperty;
(Aiii) negotiating, negotiating and entering into, performing and enforcing into all contracts and or arrangements to acquire the Properties and to procure the equipment necessary to develop the Property and construct the Properties and (B) negotiating, executing, performing and enforcing all contracts and arrangements to develop, acquire, install, construct and test the Improvements, the Equipment and the other components of the Properties on such terms and conditions as are customary and reasonable in light of local and national standards and practices and the businesses in which the Lessee is engaged;
(iv) obtaining all necessary permits, licenses, consents, approvals, entitlements approvals and other authorizations, including without limitation all of the foregoing required for the Properties and the use and occupancy thereof and those required under applicable Applicable Law (including without limitation Environmental Laws), from all Governmental Authorities in connection with the development, acquisition, installation, development and construction and testing of the Improvements, the Equipment Improvements on each parcel of Land subject to any Lease Supplement in a timely manner and the other components of the Properties substantially in accordance with the applicable Plans and Specifications;
(v) maintaining all books and records with respect to the Properties and the construction, operation and management thereof;of the Property; and
(vi) performing any other acts necessary in connection with the identification and acquisition of the Properties Property and Improvements and the development, acquisition, installation, construction and testing development of 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 any Participant for which such Participant, as the case may be, is not indemnified by the Construction Agent or the Lessee under this Agreement or any of the related other Operative Documents. AS BETWEEN THE PARTICIPANTS AND THE OTHER INDEMNITIES, ON THE ONE HAND, AND THE CONSTRUCTION AGENT, ON THE OTHER HAND, THE CONSTRUCTION AGENT SHALL BE RESPONSIBLE FOR THE ACTS AND OMISSIONS OF ITS SUBCONTRACTORS AND OTHER AGENTS.
(c) Subject to the terms and conditions of this Agreement 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, Equipment and.
Appears in 1 contract
