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Title: |
Agency Agreement |
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Entities: |
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Date: |
2001 |
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Size: |
Preview shows 9KB of 67KB total |
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Price: |
$42 |
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ID: |
#284831 |
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AGENCY AGREEMENT, dated as of March 2, 2001 (this "Agreement"), between
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IMMUNEX REAL ESTATE TRUST 2001, a Delaware business trust (the "Lessor"), and
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IMMUNEX CORPORATION, a Washington corporation (the "Construction Agent").
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Preliminary Statement
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A. The Lessor and Lessee are parties to the Lease, pursuant to which
Lessee has agreed to lease the Property from the Lessor.
B. The Lessor and Lessee are also parties to that certain Participation
Agreement, dated as of the date hereof (as amended or otherwise modified from
time to time, the "Participation Agreement"), among Immunex Corporation, Immunex
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Funding Corp., as SPC, Wilmington Trust Company, not in its individual capacity
except as set forth therein, but solely as Trustee, the Lessor, the financial
institutions listed on Schedule II thereto as Investors, the financial
institutions listed on Schedule I thereto as Banks, The Chase Manhattan Bank, as
Administrative Agent, Collateral Agent and Agent Bank.
C. Subject to the terms and conditions hereof, (i) the Lessor desires to
appoint the Construction Agent as its sole and exclusive agent in connection
with the acquisition of the construction of the Improvements in accordance with
the Plans and Specifications and (ii) the Construction Agent desires, for the
benefit of the Lessor, to cause the construction of the Improvements in
accordance with the Plans and Specifications as hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. Capitalized terms used and not defined herein shall have
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the meanings assigned thereto in Annex A to the Participation Agreement; and the
rules of interpretation set forth in Annex A to the Participation Agreement
shall apply to this Agreement.
{PAGE}
SECTION 2. APPOINTMENT OF CONSTRUCTION AGENT
2.1 Appointment and Acceptance. Subject to the terms and conditions hereof
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and of the Participation Agreement and Lease, the Lessor hereby irrevocably
designates and appoints the Construction Agent as its exclusive agent in
connection with construction of the Improvements in accordance with the Plans
and Specifications. The Construction Agent hereby accepts the designation and
appointment as construction agent and agrees to perform such functions and
duties as set forth herein.
2.2 Term. This Agreement shall commence on the date hereof and shall
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terminate with respect to the Property upon the earlier to occur of:
(i) the Completion Date;
(ii) the termination of this Agreement pursuant to Section 5 hereof
and the satisfaction by the Construction Agent of all obligations
hereunder; and
(iii) the exercise by the Construction Agent of the Purchase Option
set forth in Section 20.1 of the Lease;
provided, however, that any termination of this Agreement shall not relieve the
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Construction Agent for liability for breach hereof.
2.3 Scope of Authority. (a) The Lessor hereby expressly authorizes the
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Construction Agent to, and the Construction Agent shall, take all action
necessary or desirable for the construction of the Improvements in accordance
with the Plans and Specifications and the Budget and to fulfill all of the
obligations of the Construction Agent, including, without limitation:
(i) the right to approve payment of all invoices for services and
materials related to the development, design, construction and equipping of
the Improvements, and to submit Requisitions under the SPC Loan Agreement
and the Participation Agreement 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
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incur any expenses in excess of an amount equal to the sum of the SPC Loan
Commitments plus the Investors Contribution Commitment without the express
written consent of the Lessor;
(ii) all design and supervisory functions relating to the
construction of the Improvements and performing all engineering work
related to the construction of the Improvements;
(iii) negotiating and entering into all contracts or arrangements for
the construction of the Improvements, development of infrastructure
relating thereto, and the procurement of the equipment necessary to
construct the Improvements on such terms and conditions as are customary
and reasonable in light of local standards and practices;
-2-
{PAGE}
(iv) obtaining all necessary permits, licenses, consents, approvals
and other authorizations, including those required under applicable
Environmental Laws, from all Governmental Authorities in connection with
the development and construction of the Improvements substantially in
accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the
construction, operation and management of 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
construction and development of the Improvements in accordance with the
Plans and Specifications;
(x) submitting Requisitions to the Administrative Agent under the
Participation Agreement and receiving the proceeds of Advances; and
(xi) maintaining the insurance required pursuant to Section 6
hereof.
(b) Neither the Construction Agent nor any of its Affiliates or agents
shall, 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 Administrative Agent in accordance with
Section 30.6 of the Lease.
(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.
2.4 Delegation of Duties. The Construction Agent may execute any of its
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duties under this Agreement by or through agents, contractors, employees or
attorneys-in-fact and may enter into agreements with architects and contractors
for the purpose of so delegating such duties; provided that no such delegation
shall limit or reduce in any way the Construction Agent's duties and obligations
under this Agreement.
2.5 Covenants of the Construction Agent. The Construction Agent hereby
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covenants and agrees that it will:
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{PAGE}
(a) cause construction of the Improvements to be prosecuted diligently and
continuously in accordance with the Plans and Specifications and in compliance
with all Legal Requirements and Insurance Requirements (except where the failure
to comply with Legal Requirements and Insurance Requirements is not material);
(b) cause the Completion Date to occur on or prior to the Outside
Completion Date, free and clear (by removal or bonding) of Liens (other than
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