Common use of Construction Management Agreement Clause in Contracts

Construction Management Agreement. (i) Borrower shall cause Construction Manager to manage Capital Expenditures Work and Tenant Improvement Work in accordance with the Construction Management Agreement and this Agreement. Borrower shall (A) diligently perform and observe, in each case in all material respects, all of the terms, covenants and conditions of the Construction Management Agreement on the part of Borrower to be performed and observed, (B) promptly notify Administrative Agent of any notice to Borrower of any material default by Borrower in the performance or observance of any of the terms, covenants or conditions of the Construction Management Agreement on the part of Borrower to be performed and observed, (C) promptly following receipt of Administrative Agent’s written request, deliver to Administrative Agent a copy of each financial statement, business plan, capital expenditures plan, report and estimate received by it pursuant to the terms of the Construction Management Agreement, (D) promptly enforce the performance and observance in all material respects of all of the covenants required to be performed and observed by Construction Manager under the Construction Management Agreement and (E) in the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of the Construction Management Agreement with respect to the performance of Capital Expenditures Work and Tenant Improvement Work, the terms of this Agreement shall control and Borrower shall cause Construction Manager to comply in all material respects with the terms and conditions of this Agreement. If Borrower or Construction Manager shall default in the performance or observance of any term, covenant or condition of the Construction Management Agreement on the part of Borrower to be performed or observed (beyond the expiration of any applicable grace, notice and cure periods), then, without limiting Administrative Agent’s other rights or remedies under this Agreement or the other Loan Documents, and without waiving or releasing Borrower from any of its Obligations hereunder or under the Construction Management Agreement, as applicable, Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act as may be appropriate to cause all the terms, covenants and conditions of the Construction Management Agreement on the part of Borrower to be performed or observed. Borrower hereby agrees to pay to Administrative Agent promptly following demand, all such sums so paid and expended by Administrative Agent in connection therewith, together with interest thereon at the Default Rate from the day on which Borrower receives such demand until paid. All sums so paid and expended by Administrative Agent and the interest thereon shall be secured by the legal operation and effect of the Mortgage. (ii) Borrower shall not replace Construction Manager, surrender, terminate, cancel, modify, renew or extend the Construction Management Agreement, or enter into any other agreement relating to the Construction Management Agreement or operation of the Property with Construction Manager or any other Person, or consent to the assignment by the Construction Manager of its interest under the Construction Management Agreement, or waive or release any of its rights and remedies under the Construction Management Agreement, in each case without the express consent of Administrative Agent, which shall be granted or withheld in Administrative Agent’s sole and absolute discretion. (iii) Administrative Agent shall have the right to require Borrower to replace the Construction Manager with a Person which is not an Affiliate of Borrower and approved by Administrative Agent (such approval, other than during the continuance of an Event of Default, not to be unreasonably withheld, conditioned or delayed) upon the occurrence of any one or more of the following events: (i) at any time following the occurrence and during the continuance of an Event of Default, or (ii) if Construction Manager becomes a debtor in a bankruptcy proceeding.

Construction Management Agreement. Borrower shall (i) Borrower shall cause the Construction Manager to manage Capital Expenditures Work the development and Tenant Improvement Work construction of the Project Improvements and perform its duties under and in accordance with the Construction Management Agreement and this Manager’s Agreement. Borrower shall , (Aii) diligently perform and observe, in each case in all material respects, observe all of the terms, covenants and conditions of the Construction Management Manager’s Agreement on the part of Borrower to be performed and observed, (Biii) promptly notify Administrative Agent of any notice to Borrower of any material default by Borrower in the performance or observance of any of the terms, covenants or conditions of under the Construction Management Manager’s Agreement on the part of Borrower to be performed and observedwhich it is aware, (Civ) promptly following receipt of Administrative Agent’s written request, deliver to Administrative Agent a copy of each financial statement, business plan, capital expenditures plan, report and estimate received by it pursuant to the terms of under the Construction Management Manager’s Agreement, (Dv) promptly enforce the performance and observance in all material respects of all of the covenants required to be performed and observed by the Construction Manager under the Construction Management Agreement and Manager’s Agreement, (Evi) in the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of the Construction Management Agreement with respect to the performance of Capital Expenditures Work and Tenant Improvement Work, the terms of this Agreement shall control and Borrower shall cause Construction Manager to comply ensure that the work to be performed by each Contractor under each Construction Contract is the work called for by the Plans and Specifications (other than de minimis changes to reflect site conditions) and (vii) ensure that all work on the Project Improvements shall be completed in all material respects substantial accordance with the terms Plans and conditions Specifications in a good and workmanlike manner and shall be free of this Agreementany defects. Borrower shall, upon request by Agent, cause Construction Manager to provide Agent and Construction Consultant with reports in regard to the status of construction of the Project Improvements, in such form and detail and in such intervals as may be reasonably requested by Agent. If Borrower or Construction Manager shall default in the performance or observance of any material term, covenant or condition of the Construction Management Manager’s Agreement on the part of Borrower to be performed or observed (beyond the expiration of any applicable grace, notice and cure periods)observed, then, without limiting Administrative Agent’s or Lender’s other rights or remedies under this Agreement or the other Loan Documents, and without waiving or releasing Borrower from any of its Obligations hereunder or under the Construction Management Manager’s Agreement, as applicable, Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act as may be appropriate to cause all the material terms, covenants and conditions of the Construction Management Manager’s Agreement on the part of Borrower to be performed or observed. Borrower hereby agrees to pay to Administrative Agent promptly following demand, all such sums so paid and expended by Administrative Agent in connection therewith, together with interest thereon at the Default Rate from the day on which Borrower receives such demand until paid. All sums so paid and expended by Administrative Agent and the interest thereon shall be secured by the legal operation and effect of the Mortgage. (ii) Borrower shall not replace Construction Manager, surrender, terminate, cancel, modify, renew or extend the Construction Management Agreement, or enter into any other agreement relating to the Construction Management Agreement or operation of the Property with Construction Manager or any other Person, or consent to the assignment by the Construction Manager of its interest under the Construction Management Agreement, or waive or release any of its rights and remedies under the Construction Management Agreement, in each case without the express consent of Administrative Agent, which shall be granted or withheld in Administrative Agent’s sole and absolute discretion. (iii) Administrative Agent shall have the right to require Borrower to replace the Construction Manager with a Person which is not an Affiliate of Borrower and approved by Administrative Agent (such approval, other than during the continuance of an Event of Default, not to be unreasonably withheld, conditioned or delayed) upon the occurrence of any one or more of the following events: (i) at any time following the occurrence and during the continuance of an Event of Default, or (ii) if Construction Manager becomes a debtor in a bankruptcy proceeding.

Construction Management Agreement. (i) Borrower shall cause Mortgage Borrower to cause Construction Manager to manage Capital Expenditures Work and Tenant Improvement Work in accordance with the Construction Management Agreement and this Agreement. Borrower shall cause Mortgage Borrower to (A) diligently perform and observe, in each case in all material respects, all of the terms, covenants and conditions of the Construction Management Agreement on the part of Mortgage Borrower to be performed and observed, (B) promptly notify Administrative Agent of any notice to Borrower or Mortgage Borrower of any material default by Mortgage Borrower in the performance or observance of any of the terms, covenants or conditions of the Construction Management Agreement on the part of Mortgage Borrower to be performed and observed, (C) promptly following receipt of Administrative Agent’s written request, deliver to Administrative Agent a copy of each financial statement, business plan, capital expenditures plan, report and estimate received by it pursuant to the terms of the Construction Management Agreement, (D) promptly enforce the performance and observance in all material respects of all of the covenants required to be performed and observed by Construction Manager under the Construction Management Agreement and (E) in the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of the Construction Management Agreement with respect to the performance of Capital Expenditures Work and Tenant Improvement Work, the terms of this Agreement shall control and Borrower shall cause Mortgage Borrower to cause Construction Manager to comply in all material respects with the terms and conditions of this Agreement. If Mortgage Borrower or Construction Manager shall default in the performance or observance of any term, covenant or condition of the Construction Management Agreement on the part of Mortgage Borrower to be performed or observed (beyond the expiration of any applicable grace, notice and cure periods), then, without limiting Administrative Agent’s other rights or remedies under this Agreement or the other Loan Documents, and without waiving or releasing Borrower from any of its Obligations hereunder or Mortgage Borrower’s Obligations under the Construction Management Agreement, as applicable, Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act as may be appropriate to cause all the terms, covenants and conditions of the Construction Management Agreement on the part of Mortgage Borrower to be performed or observed. Borrower hereby agrees to pay to Administrative Agent promptly following demand, all such sums so paid and expended by Administrative Agent in connection therewith, together with interest thereon at the Default Rate from the day on which Borrower receives such demand until paid. All sums so paid and expended by Administrative Agent and the interest thereon shall be secured by the legal operation and effect of the MortgagePledge Agreement. (ii) Borrower shall not permit Mortgage Borrower to replace Construction Manager, surrender, terminate, cancel, modify, renew or extend the Construction Management Agreement, or enter into any other agreement relating to the Construction Management Agreement or operation of the Property with Construction Manager or any other Person, or consent to the assignment by the Construction Manager of its interest under the Construction Management Agreement, or waive or release any of its rights and remedies under the Construction Management Agreement, in each case without the express consent of Administrative Agent, which shall be granted or withheld in Administrative Agent’s sole and absolute discretion. (iii) Administrative Agent shall have the right to require Borrower to cause Mortgage Borrower to replace the Construction Manager with a Person which is not an Affiliate of Borrower and approved by Administrative Agent (such approval, other than during the continuance of an Event of Default, not to be unreasonably withheld, conditioned or delayed) upon the occurrence of any one or more of the following events: (i) at any time following the occurrence and during the continuance of an Event of Default, or (ii) if Construction Manager becomes a debtor in a bankruptcy proceeding.