CONTRACTOR'S CONSENT AND AGREEMENT
The undersigned is the Contractor under the Agreement between Owner and Contractor dated __________________ (the “Agreement”) which is one of the Construction and Operating Documents referred to in that certain Assignment of Contractor's Agreement dated ________________ by _________________________ (“Assignor”) for the benefit of _______________________ (“Assignee”), a copy of which has been received by the undersigned (the “Assignment”). The undersigned certifies that the Agreement is in full force and effect and that neither the undersigned nor the Assignor is in default thereunder, nor do circumstances exist which, with notice, or the passage of time, or both, would constitute a default by either party thereunder.
The undersigned hereby consents to the Assignment and agrees that, upon receipt of notice from Assignee, or its successors or assigns, that an Event of Default has occurred under the Assignment, it shall perform all of its obligations, covenants, conditions and agreements under the Agreement for the benefit of Assignee and its successors and assigns, so long as (a) Assignee performs the duties and obligations of the Assignor under the Agreement from and after the date of such notice, and (b) Assignee shall remit to the undersigned all amounts due and owing the undersigned as of the date of such Event of Default (which amounts were to have been disbursed as of the date of such Event of Default, in accordance with the terms and provisions of the “Loan Agreement” (as defined in the Assignment) but for the existence of said Event of Default), and which were not disbursed to Assignor by Assignee, provided such disbursement was to have been used for the purpose of paying such amounts to the undersigned. The undersigned acknowledges that the Assignment shall not, in the absence of such notice from Assignee, or its successors or assigns, be deemed to impose any liability or obligation under Assignee, or its successors or assigns. Without limiting the foregoing, the undersigned acknowledges that Section 2.E of the foregoing Assignment gives the Assignee the right to terminate the Agreement on the terms specified in such Section 2.E.
The undersigned shall not assert against Assignee, its successors or assigns, any set-off, defense (except for defenses which relate to changes in the plans and specifications which constitute “Permitted Change Orders”), counterclaims or deduction which it had against Assignor whether arising out of the Agreement or otherwise. Without limiting the foregoing, the undersigned shall not withhold performance for Assignee as a result of any breach of any agreement or any default thereunder of Assignor. In addition, the undersigned agrees that the bankruptcy or insolvency of the Assignor shall not be a default under the Agreement provided that the undersigned continues to be paid pursuant to the terms of the Agreement. The undersigned agrees that no modifications in the Agreement or the plans and specifications in connection with the subject matter of the Agreement shall be made without Assignee's consent, which consent shall not be unreasonably withheld. In addition, no line item in the Project Budget, as defined in the Loan Agreement, shall be changed by more than two percent (2%) without Lender's prior written approval.
For purposes of the Assignment, all notices, demands or documents which are required or permitted to be given or served upon the undersigned shall be deemed to have been properly given if hand delivered or, if mailed by United States registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
The undersigned also agrees as follows: (a) that in the event of a breach by Assignor of any of the terms and conditions of the Agreement, the undersigned shall give Assignee written notice, in the manner as set forth in paragraph 4 of the Assignment, of such breach and the opportunity to remedy or cure such breach within sixty (60) days after the expiration of any cure period given to Assignor under the Agreement, except that the undersigned agrees that no default shall be deemed to have occurred if curing such default cannot by its nature be accomplished in such sixty (60) day period so long as Assignee shall have commenced curing the same within such sixty (60) day period and thereafter shall diligently and continuously prosecute the same to completion, (b) that it will obtain and maintain all insurance required to be carried by it under the Agreement (including, without limitation, liability ,insurance) and shall name Assignee as an additional insured thereon (until such time as Assignee gives the undersigned written notice that either: (i) the Assignment has been released and Assignee has been paid in full, or (ii) Assignee has elected to terminate the Agreement as set forth above), and (c) that any and all insurance proceeds payable under any policies (including, without limitation, the property insurance) shall be payable to Assignee and in no event will Assignee be deemed a fiduciary with respect to such proceeds; provided, however, the foregoing shall not restrict the undersigned from collecting under its liability insurance policies to the extent of its interest therein.
The provisions set forth in this Consent shall be binding upon the undersigned and its successors and assigns and shall inure to the benefit of Assignee and its respective successors and assigns.