Exhibit 10.19
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CONSTRUCTION AGENCY AGREEMENT
dated as of November 7, 2001
among
GENOME STATUTORY TRUST 2001A
as Lessor
HUMAN GENOME SCIENCES, INC.
as Construction Agent
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CONSTRUCTION AGENCY AGREEMENT (HGSI)
CONSTRUCTION AGENCY AGREEMENT
Construction Agency Agreement, dated as of November 7, 2001 (this
"Agreement"), between Genome Statutory Trust 2001A, (the "Lessor"), and Human
Genome Sciences, Inc., a Delaware corporation ("HGSI"), as Construction Agent.
W I T N E S S E T H:
- - - - - - - - - -
A. Lessor and Construction Agent are parties to that certain
Participation Agreement (as hereafter defined) pursuant to which Construction
Agent, as a Lessee, has agreed to lease from Lessor, and Lessor has agreed to
lease to such Lessee, Lessor's interest in the Properties pursuant to the Lease.
X. Xxxxxx, such Lessee and Construction Agent are parties to that
certain Participation Agreement of even date herewith (as amended, supplemented
or otherwise modified, "Participation Agreement"), among HGSI, as Lessee and
Construction Agent, Traville LLC, as Ground Lessor, Lessor, Xxxxx Fargo Bank
Northwest, N.A., as Trustee, BancBoston Leasing Investments Inc. and First Union
National Bank, as Investors, EagleFunding Capital Corporation, as Lender, Fleet
Securities, Inc., as Administrator, Fleet National Bank and First Union National
Bank, as Liquidity Providers, Fleet National Bank, as Fleet National Bank
Collateral Agent, First Union National Bank, as First Union Collateral Agent and
Fleet National Bank, as Administrative Agent and Liquidity Agent.
C. Subject to the terms and conditions hereof, (i) Lessor desires
to appoint Construction Agent as its sole and exclusive agent for the
construction of the Traville Improvements on the Traville Site in accordance
with the Approved Traville Construction Budget, Approved Traville Construction
Schedule and Approved Traville Plans and Specifications (each as described more
fully in Exhibit A hereto and as each of the foregoing may be modified from time
to time in accordance with this Agreement)(collectively, the "Traville
Construction Materials") pursuant to this Agreement, and (ii) Construction Agent
desires, for the benefit of Lessor, to cause the Traville Improvements to be
constructed in accordance with the Traville Construction Materials and in each
case in accordance with the terms set forth herein and in the Participation
Agreement.
D. Subject to the terms and conditions hereof, the satisfaction or
waiver of the conditions set forth in Section 4.3 of the Participation
Agreement, and the delivery of the Manufacturing Facility Supplement (i) Lessor
desires to appoint Construction Agent as its sole and exclusive agent for the
construction of the Manufacturing Facility Improvements on the Manufacturing
Facility Site in accordance with the Approved Manufacturing Construction Budget,
Approved Manufacturing Construction Schedule and Approved Manufacturing Plans
and Specifications (each as will be described more fully in Exhibit A to the
Manufacturing Facility Supplement and as each of the foregoing may be modified
from time to time in accordance with this Agreement)(collectively, the
"Manufacturing Construction Materials") and pursuant to this Agreement, and (ii)
Construction Agent desires, for the benefit of Lessor, to cause the
Manufacturing Facility Improvements to be constructed in accordance with the
Manufacturing Construction Materials and in each case in accordance with the
terms set forth herein and in the Lease.
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CONSTRUCTION AGENCY AGREEMENT (HGSI)
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
covenant and agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions; Interpretation; Amendment and Restatement.
Capitalized terms used but not otherwise defined in this Agreement shall have
the meanings set forth in Appendix A to the Participation Agreement, and the
rules of interpretation set forth therein shall apply to this Agreement.
ARTICLE II
APPOINTMENT OF CONSTRUCTION AGENT
2.1 Appointment and Acceptance.
Pursuant to and subject to the terms and conditions set forth herein and
in the Participation Agreement and the other Operative Documents, Lessor hereby
irrevocably designates and appoints Construction Agent as its exclusive agent
for (i) the purchase of the Manufacturing Facility Site, (ii) the construction
of the Traville Improvements on the Traville Site in accordance with the
Approved Traville Plans and Specifications, and (iii) subject to the
satisfaction or waiver of the conditions set forth in Section 4.3 of the
Participation Agreement and the delivery of the Manufacturing Facility
Supplement, the construction of the Manufacturing Improvements in accordance
with the Approved Manufacturing Plans and Specifications, and Construction Agent
by entering into this Agreement accepts such designation and appointment.
2.2 Term. This Agreement shall commence on the Documentation Date
and shall terminate with respect to a Property upon the first to occur of:
(a) Substantial Completion of such Property and the
performance of all other material obligations of Construction Agent
hereunder with respect thereto; and
(b) payment by Lessee or Lessor's receipt through other
provisions of the Operative Documents of the aggregate Lease Balance, or
the applicable Lease Balance for such Property, and all other amounts
owing under the Operative Documents (including Article V of the Lease,
incorporated herein by reference), and termination of the Commitments in
accordance with the Participation Agreement; and
(c) termination of this Agreement by Lessor pursuant to
Article V.
2.3 Supplement to this Agreement. On the Manufacturing Facility Site
Purchase Date, Lessor and Construction Agent shall execute and deliver a
supplement to this Agreement in the form set forth on Exhibit B hereto (the
"Manufacturing Facility Supplement"), appropriately completed, pursuant to which
Lessor and Construction Agent shall, among other things, each acknowledge and
agree that the construction and development of the Manufacturing Facility on the
Manufacturing Facility Site will be governed by the terms of this Agreement.
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CONSTRUCTION AGENCY AGREEMENT (HGSI)
Following the execution and delivery of the Manufacturing Facility Supplement as
provided above and the satisfaction or waiver of all of the conditions set forth
in Section 4.3 of the Participation Agreement, such Manufacturing Facility
Supplement, and Exhibit A to the Manufacturing Facility Supplement attached
thereto, shall constitute a part of this Agreement.
2.4 Construction Materials; Construction Documents.
(a) Traville Facility
(i) Construction Agent shall develop, define, refine
and detail proposed budgets, construction schedules and Traville
Plans and Specifications for the Traville Facility. Construction
Agent shall cause each such proposal to provide for compliance
and conformance with generally accepted construction practices,
Applicable Law, Insurance Requirements, Environmental
Requirements and Section 2.6(a) and shall cause each such
proposal to have a reasonable likelihood that it can be
completed as intended on time and within budget. In addition,
the budget for the Traville Facility shall not exceed Two
Hundred and Twenty-Five Million Dollars ($225,000,000), except
as otherwise provided in clause (ii) below. Construction Agent
shall cause such proposal to be provided to the Construction
Consultant for review and approval. Upon the approval of any
such proposal by the Construction Consultant of such proposed
construction budget, construction schedule or plans and
specifications for the Traville Facility, such proposed
construction budget, construction schedule or plans and
specifications shall become, as applicable, the approved
construction budget (as amended or modified from time to time in
accordance with the Terms of this Agreement, the "Approved
Traville Construction Budget"), the approved construction
schedule (as amended or modified from time to time in accordance
with the Terms of this Agreement, the "Approved Traville
Construction Schedule") and the approved plans and
specifications (as amended or modified from time to time in
accordance with the terms of this Agreement, the "Approved
Traville Plans and Specifications") for the Traville Facility.
Failure of the Construction Consultant to respond within sixty
(60) days of receipt in writing of any such proposal will be
deemed rejection thereof, however, if the Construction
Consultant requests additional information or clarifications,
such sixty (60) day period will commence from the date when all
such requests have been satisfied. If the Construction
Consultant shall reject or not expressly approve any such
proposal, then Construction Agent shall consult with the
Construction Consultant, revise such proposal and resubmit it,
repeating such process until all Traville Construction Materials
are approved or deemed to be approved.
(ii) During the Construction Period, Construction
Agent may enter into any changes, supplements, amendments or
revisions ("change orders") to the Traville Construction
Materials so long as the change order could not reasonably have
any adverse effect on the as-built value, utility, residual
value at the end of the Lease Term or useful life of the
Traville Facility or extend Substantial Completion of the
Property beyond the Outside Completion Date (such a change order
that results in an adverse affect described above with respect
to either
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CONSTRUCTION AGENCY AGREEMENT (HGSI)
Property, a "Material Change Order"), and the costs attributable
to such change order, together with the costs of all other
change orders in respect of the Traville Facility, do not result
in a net increase in the Approved Traville Construction Budget
unless and only to the extent that the Approved Manufacturing
Construction Budget has been decreased by a like amount.
(b) Manufacturing Facility
(i) Construction Agent shall develop, define, refine
and detail proposed budgets, construction schedules and
Manufacturing Plans and Specifications for the Manufacturing
Facility. Construction Agent shall cause each such proposal to
provide for compliance and conformance with generally accepted
construction practices, Applicable Law, Insurance Requirements,
Environmental Requirements and Section 2.6(a) and shall cause
each such proposal to have a reasonable likelihood that it can
be completed as intended on time and within budget. In addition,
the budget for the Manufacturing Facility shall not exceed Two
Hundred and Twenty-Five Million Dollars ($225,000,000), except
as otherwise provided in clause (ii) below. Construction Agent
shall cause such proposal to be provided to the Construction
Consultant for review and approval. Upon the approval of any
such proposal by the Construction Consultant of such proposed
construction budget, construction schedule or plans and
specifications for the Manufacturing Facility, such proposed
construction budget, (as amended or modified from time to time
in accordance with the terms of this Agreement, the "Approved
Manufacturing Construction Budget"), the approved construction
schedule (as amended or modified from time to time in accordance
with the Terms of this Agreement, the "Approved Manufacturing
Construction Schedule") and the approved plans and
specifications (as amended or modified from time to time in
accordance with the Terms of this Agreement, the "Approved
Manufacturing Plans and Specifications") for the Manufacturing
Facility. Failure of the Construction Consultant to respond
within sixty (60) days of receipt in writing of any such
proposal will be deemed rejection thereof, however, if the
Construction Consultant requests additional information or
clarifications, such sixty (60) day period will commence from
the date when all such requests have been satisfied. If the
Construction Consultant shall reject or not expressly approve
any such proposal, then Construction Agent shall consult with
the Construction Consultant, revise such proposal and resubmit
it, repeating such process until all Manufacturing Construction
Materials are approved or deemed to be approved.
(ii) During the Construction Period, Construction
Agent may enter into change orders to the Manufacturing
Construction Materials so long as the costs attributable to such
change order, together with the costs of all other change orders
in respect of the Manufacturing Facility, do not result in a net
increase in the Approved Manufacturing Budget unless and only to
the extent that the Approved Traville Construction Budget has
been decreased by a like amount; provided that Material Change
Orders must comply with clause (iii) below.
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CONSTRUCTION AGENCY AGREEMENT (HGSI)
(iii) Prior to making any Material Change Order with
respect to either Property, Construction Agent shall submit a
proposal outlining any such proposed change order to the
Construction Consultant for approval. The approval process for
Material Change Orders shall allow the Construction Consultant
twenty (20) days to review any submission and to accept or
reject such submission (or request additional information in
respect thereof) with a failure to respond after twenty (20)
days being deemed acceptance thereof.
(c) Subject to each of the terms and conditions in this
Agreement, Construction Agent may execute any of its duties under this
Agreement by or through agents, developers, consultants, advisors,
contractors, employees or attorneys-in-fact (other than the Construction
Consultant), and Construction Agent with respect to each Property shall
enter into such agreements with architects and contractors as
Construction Agent deems necessary or desirable for the completion of
the Construction pursuant hereto (as such documents may be amended,
supplemented or otherwise modified except as prohibited hereby, the
"Construction Documents").
(d) Certifications. Any amendment to either the Traville
Construction Materials or the Manufacturing Construction Materials for
which Construction Agent does not seek the approval of Lessor shall be
deemed a certification by Construction Agent that such amendment
complies with the foregoing requirement.
2.5 Assignment Under Construction. Construction Agent hereby
collaterally assigns all Material Construction Documents and all the proceeds
(including liquidated damages, insurance proceeds and warranty payments), if
any, payable to Construction Agent or its affiliates under the Construction
Documents to Lessor to secure Construction Agent's obligation under this
Agreement and the Operative Documents. Construction Agent hereby agrees to file
applicable UCC-1 financing statements in respect of the foregoing.
2.6 Scope of Authority.
(a) Subject to the terms, conditions, restrictions and
limitations set forth in the Operative Documents, Lessor hereby
expressly authorizes Construction Agent (or any 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 terms of this Agreement), and Construction
Agent unconditionally agrees, for the benefit of Lessor, to take all
action necessary or (as determined by Construction Agent) desirable for
the performance and satisfaction of all of Construction Agent's
obligations hereunder with respect to the Properties, including:
(i) the identification and the acquisition, in the
name of 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 and all engineering work
related to the Construction and the retention and supervision of
the General Contractor;
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CONSTRUCTION AGENCY AGREEMENT (HGSI)
(iii) negotiating and entering into, or causing the
negotiation and execution and delivery of, all contracts or
arrangements to procure the labor, materials, supplies and
equipment necessary or (as determined by Construction Agent)
desirable to construct the Improvements;
(iv) obtaining or causing to be obtained all
necessary permits, licenses, consents, approvals and other
authorizations, including those required under Applicable Laws
(including Environmental Laws), from all Governmental
Authorities in connection with the acquisition of the Sites and
the Construction of the Improvements thereon;
(v) maintaining or causing to be maintained all
books and records with respect to the Construction and the
operation and management of 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 construction and
development of the 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 foregoing 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, as
applicable, or 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 other obligations with
respect to the design, engineering, construction and completion
of the Improvements on the applicable Site or pursuing remedies
with respect to the breach of those obligations, 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
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CONSTRUCTION AGENCY AGREEMENT (HGSI)
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.
2.7 Covenants of Construction Agent. Construction Agent shall with
respect to the Land:
(a) following the commencement of Construction, cause the
Construction to proceed diligently and without material interruption
(subject to Force Majeure Events) in accordance in all material respects
with the applicable Construction Materials and Insurance Requirements
and all Applicable Laws;
(b) take or cause to be taken commercially reasonable and
practical steps to minimize liabilities of Lessor or any Agent or
Participant, delays, increased costs and the disruption of the
construction process arising from Force Majeure Events, Casualties and
Condemnations;
(c) subject to Section 3.2(b), cause Substantial Completion
for a Property to occur on or prior to the applicable Outside Completion
Date for such Property;
(d) cause all Liens (including Liens or claims for materials
supplied or labor or services performed in connection with the
construction of the Improvements), other than Permitted Liens, to be
removed or discharged; provided, however, that the foregoing shall not
limit Construction Agent's right to engage in Permitted Contests;
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CONSTRUCTION AGENCY AGREEMENT (HGSI)
(e) at all times during Construction, cause title to all
Improvements on or within the Land (including any personal property
which Construction Agent acquires with Advances whether or not such
personal property so acquired has become a permanent part of such
Improvements) to be and remain vested in Lessor free of all Liens, other
than Permitted Liens and Lessor Liens, and cause to be on file
(including financing statements and fixture filings) with the applicable
filing office all necessary documents under Article 9 of the UCC to
perfect Lessor's and Administrative Agent's interest in such personalty
free of all Liens other than Permitted Liens and Lessor Liens unless and
only for such period of time as Construction Agent is prevented from
doing the same as the result of the failure of Lessor to sign and return
any reasonable documentation prepared by Construction Agent in
performance of this Section;
(f) with respect to each Property, at all times prior to the
Lease Commencement Date for such Property, maintain, for the benefit of
Lessor, the insurance described in Schedule 2.7(f) with respect to such
Property. In addition, Construction Agent shall from time to time, but
in intervals of not less than twelve (12) months nor more than fifteen
(15) months, (i) undertake all actions and due diligence as reasonably
necessary to determine whether the insurance coverage required to be
maintained hereunder is in compliance with the requirements thereunder,
including any increases in coverage required as a result of any change
in any Applicable Laws, and (ii) if Construction Agent determines that
such insurance coverage does not meet such requirements, promptly take
all actions and steps necessary to cause such coverage to comply with
such requirements and shall notify Lessor and Administrative Agent of
the steps being taken by Construction Agent or on their behalf; and
(g) Construction Agent shall not incur nor allow the
incurrence of any Property Costs, individually or in the aggregate, (A)
in excess of the sum of the Aggregate Available Commitments and Other
Available Amounts as of the date of determination thereof or (B) that
would or could reasonably be expected to cause the applicable
Construction Budget not to be In Balance.
2.8 Title to the Improvements. Title to the Improvements (including,
all materials or equipment incorporated therein or paid for out of Advances)
shall automatically, without further act of Construction Agent, vest in Lessor.
ARTICLE III
THE IMPROVEMENTS
3.1 Amendments; Modifications. [Intentionally Omitted.]
3.2 Casualty, Condemnation, Liquidated Damages and Force Majeure
Events.
(a) Subject to Section 3.2(b), if at any time prior to
Substantial Completion of a Property there occurs a Casualty,
Condemnation or Force Majeure Event or liquidated damages are paid under
the Construction Documents, then, in accordance with the procedures for
making Advances in the Operative Documents, Lessor shall make (x) so
long as no Construction Agency Event of Default or Bankruptcy Default
shall have
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CONSTRUCTION AGENCY AGREEMENT (HGSI)
occurred and be continuing, insurance proceeds and/or condemnation
awards and/or liquidated damages with respect thereto available for
Improvement Costs and (y) Advances for Improvement Costs and
Construction Agent shall (i) promptly and diligently complete the
Construction in accordance with the Traville Construction Materials and
the Manufacturing Construction Materials, as applicable, and with the
terms hereof and (ii) cause Substantial Completion for each Property to
occur on or prior to the applicable Outside Completion Date for such
Property.
(b) If Construction Agent reasonably determines that a Force
Majeure Event will cause Substantial Completion for either Property to
occur later than the applicable Outside Completion Date for such
Property, Construction Agent may request that the applicable Outside
Completion Date for such Property be extended by Lessor for the period
(not to exceed one hundred and twenty (120) days following the original
Outside Completion Date for such Property) reasonably necessary to
achieve Substantial Completion for such Property in light of such Force
Majeure Event. Any such request shall be in writing delivered to Lessor
and Administrative Agent and shall contain a certification by
Construction Agent (1) describing the facts and circumstances giving
rise to such Force Majeure Event, the expected duration of such Force
Majeure Event and the date Construction Agent reasonably believes
Substantial Completion for the applicable Property will be achieved, (2)
that the remaining Aggregate Available Commitments, together with
insurance proceeds paid and Other Available Amounts, if any, with
respect to such Force Majeure Event which Construction Agent agrees to
pay with respect to amounts accruing during the period of such
extension, are adequate to achieve Substantial Completion for such
Property within such extension period in accordance with the Traville
Construction Materials or the Manufacturing Construction Materials, as
applicable (excluding all Construction Period Accrued Interest,
Construction Period Accrued Yield and Construction Period Fees
applicable to such Property accruing during such extension period) and
(3) that the occurrence of such Force Majeure Event and the Construction
to occur following such date will not materially affect the appraised
value set forth in the applicable As-Built Appraisal delivered with
respect to such Site pursuant to Section 4.1(s) or 4.3(q), as
applicable, of the Participation Agreement. Construction Agent shall
also supply to Lessor and Administrative Agent such other information as
each such Person may reasonably request. The consent of Lessor under
this Section shall not be withheld or delayed if the determination is
made that the request meets the requirements set forth herein in all
material respects.
Notwithstanding the foregoing paragraph, the applicable Outside
Completion Date for such Property shall be automatically extended for the period
(not to exceed a total of sixty (60) days following the original Outside
Completion Date for such Property) necessary to achieve Substantial Completion
for such Property in light of such Force Majeure Event, provided, that (A) the
length of the extension required in light of such Force Majeure Event is certain
(either because the Force Majeure Event has ended or because Construction Agent
has entered into a replacement contract with a definite term (unimpeded by such
Force Majeure Event) to complete the work originally interrupted by the Force
Majeure Event), and (B) Construction Agent delivers to the Administrative Agent
certification (without assumptions or, except as set forth therein,
qualifications) as to and describing the items supporting each of the matters
set forth in
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CONSTRUCTION AGENCY AGREEMENT (HGSI)
clauses (1), (2) and (3) of the foregoing paragraph and stating the length of
the required extension as provided in clause (A) of this paragraph.
ARTICLE IV
PAYMENT OF FUNDS
4.1 Funding of Improvement Costs.
(a) During the course of the Construction of Improvements,
Construction Agent shall request that Lessor advance funds for the
payment or reimbursement of Improvement Costs and Lessor shall comply
with such request to the extent provided for under the Participation
Agreement. Construction Agent and Lessor acknowledge and agree that
Construction Agent's right to request funds and Lessor's obligation to
advance funds for the payment of Improvement Costs are subject in all
respects to the terms of this Agreement, the Participation Agreement and
each of the other Operative Documents.
(b) The proceeds of any funds made available to Lessor under
the Operative Documents to pay Improvement Costs shall be made available
to Construction Agent in accordance with the Advance Request relating
thereto.
(c) Construction Agent may disburse proceeds from an Advance
Request only for payment or its reimbursement of Improvement Costs as
set forth on the Advance Request or otherwise permitted by the Operative
Documents.
(d) Construction Agent and Lessor, each acknowledge that the
Administrative Agent or the Investors may direct Lessor to borrow funds
from the Lenders and the Investors for the payment or reimbursement of
Transaction Costs and other expenditures, all in accordance with the
Participation Agreement and the other Operative Documents.
ARTICLE V
CONSTRUCTION AGENCY EVENTS OF DEFAULT
5.1 Construction Agency Events of Default.
5.1.1 Defined. Any one or more of the following events shall be
a "Construction Agency Event of Default":
(a) Construction Agent applies any Advance for the
purposes other than as set forth in the related Advance Request
or Construction Agent otherwise applies any funds paid by Lessor
to Construction Agent for purposes not permitted hereby or by
any other Operative Document, or there shall exist any other
misapplication of funds relating to any Property, including, but
not limited to fraud, illegal acts or willful misconduct by
Construction Agent or its Affiliates or any Construction Agency
Person or any other Person under the direct or indirect
supervision of Construction Agent related to or in respect of
the transactions contemplated herein or the Operative Documents
or with respect to any Property or Site;
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CONSTRUCTION AGENCY AGREEMENT (HGSI)
(b) Construction Agent shall fail to comply with
Section 2.7(c).
(c) (i) either the Approved Traville Construction
Budget or the Approved Manufacturing Construction Budget shall
not be In Balance and such failure to be In Balance shall
continue after the expiration of the thirty (30) day period
discussed in Section 5.6(b), or (ii) Construction Agent shall
fail to timely make a Balancing Deposit required under Section
5.6(c);
(d) an Insolvency Event with respect to Construction
Agent shall have occurred and be continuing;
(e) HGSI shall default in the due performance and
observance of any of its obligations under Section 6.1(v), (w),
(x), (y) or (aa) of the Participation Agreement or Section
2.5(a)(i) or (ii) of either Liquid Collateral Agreement;
(f) any representation, warranty or statement made
or restated by Construction Agent or Lessee in this Construction
Agency Agreement or in any other Operative Document, or in any
statement or certificate delivered or required to be delivered
pursuant hereto or thereto, shall prove to be untrue in any
material respect on the date as of which made or restated, and
(i) the circumstances rendering such representation or warranty
or statement incorrect shall not be remediable or, (ii) if such
representation or warranty or statement is remediable and
Construction Agent or Lessee is proceeding diligently so to
remedy, shall continue unremedied for thirty (30) days after the
earlier of: (x) the date on which written notice is delivered by
Lessor or Administrative Agent to Construction Agent or Lessee
specifying such circumstances and demanding that they be
remedied and (y) the date on which any Authorized Officer of
Construction Agent or Lessee has actual knowledge of such
incorrectness; provided, however, that if such default is
capable of cure but cannot be cured by payment of money or
cannot be cured by diligent efforts within such thirty (30) day
period but such diligent efforts shall be properly commenced
within the cure period and Construction Agent or Lessee is
diligently pursuing, and shall continue to pursue diligently,
remedy of such failure, the cure period shall be extended for an
additional period of time as may be necessary to cure, not to
exceed an additional one hundred and twenty (120) days and not
to extend beyond the later Outside Completion Date;
(g) except as otherwise permitted under the
Operative Documents, any Lien granted pursuant to any Operative
Document affecting any portion of the Properties shall, in whole
or in material part, cease to be a perfected first priority
security interest (other than Permitted Liens and Lessor Liens)
with respect to any Site for which such Lien is required under
the Operative Documents, other than with respect to an
immaterial portion of any such Site, unless such cessation shall
be the result of the failure of Lessor to sign and return any
reasonable documentation prepared by Construction Agent in
performance of Section 2.7(e) or willful misconduct or gross
negligence of the Administrative Agent or Lessor, provided,
however, that with respect to any Lien which fails to be so
effective or
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CONSTRUCTION AGENCY AGREEMENT (HGSI)
perfected, Construction Agent shall have thirty (30) days from
the earlier of Construction Agent's knowledge of such condition
and receipt of notice thereof from Lessor or Administrative
Agent to cure such failure;
(h) Construction Agent or Lessee shall default in
the due performance or observance by it of any term, covenant,
condition or agreement on its part to be performed or observed
under any Operative Document to which it is a party (not
otherwise specified in this Section 18.1) and such default shall
have continued unremedied for a period of at least thirty (30)
days after receipt of notice by Construction Agent or Lessee
from either Lessor or Administrative Agent; provided, however,
that if such default is capable of cure but cannot be cured by
payment of money or cannot be cured by diligent efforts within
such thirty (30) day period but such diligent efforts shall be
properly commenced within the cure period and Construction Agent
or Lessee is diligently pursuing, and shall continue to pursue
diligently, remedy of such failure, the cure period shall be
extended for an additional period of time as may be necessary to
cure, not to exceed an additional one hundred and twenty (120)
days and not to extend beyond the later Outside Completion Date;
(i) an event described in Section 7.3 of the
Participation Agreement shall have occurred;
(j) the Ground Lease shall terminate by reason of
default by Ground Lessor in its obligations thereunder;
(k) Construction Agent shall fail to maintain
insurance required by Section 2.7(f); Construction Agent or
shall fail to deliver the certification required by Section
6.1(b)(i) of the Participation Agreement and such failure shall
continue for ten (10) days after notice to Construction Agent;
(l) the Facility Maturity Date (as defined in the
Liquidity Agreement), as the same may be modified or extended
from time to time, with respect to any one or more Liquidity
Providers shall have occurred;
(m) one or more judgments or orders for the payment
of money in the aggregate amount in excess of $10,000,000 shall
be rendered against HGSI or any of its Affiliates and such
judgment or order shall continue unsatisfied or unstayed for a
period of sixty (60) days;
(n) An "event of default" shall occur in the payment
when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness of HGSI or any of
its Subsidiaries having a principal amount, individually or in
the aggregate, in excess of $10,000,000, or a default shall
occur in the performance or observance of any obligation or
condition with respect to such Indebtedness;
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CONSTRUCTION AGENCY AGREEMENT (HGSI)
(o) Lessor's rights pursuant to either Liquid
Collateral Agreement to require Lessee to pledge additional
Permitted Investments shall for any reason cease to be a legal,
valid and binding agreement with Lessee; or
(p) the Lien of either Liquid Collateral Agreement
with respect to the Liquid Collateral shall cease to constitute
a first priority perfected security interest (except as a result
of a voluntary release by Administrative Agent of any Liquid
Collateral).
5.1.2 Consequences. Upon the occurrence of a Construction Agency
Event of Default, Lessor may, in addition to the other rights and
remedies provided for in this Article V or under the Deed of Trust,
immediately terminate this Agreement, by giving Construction Agent
written notice of such termination, and upon the giving of such notice,
this Agreement shall terminate and all rights of Construction Agent and
all obligations of Lessor under this Agreement shall cease; provided,
however, that this Agreement shall terminate immediately without notice
upon the occurrence of an Insolvency Event described in Section 5.1.1(d)
or upon the occurrence of the events described in Section 5.1.1(i),
whether or not another Construction Agency Event of Default described in
one or more other clauses of Section 5.1.1 shall have been or thereafter
is declared. Upon any such termination, all rights of Construction Agent
and all obligations of Lessor (after the date of termination and payment
of the amounts referred to below in this Section 5.1.2), shall cease
and:
(i) Lessor may require Construction Agent to (or shall
require Construction Agent to, if a Construction Agency Event of Default
described in Section 5.1.1(d) or 5.1.1(i) has occurred) (subject to
Section 5.4 below) immediately pay to Administrative Agent, on behalf of
Lessor, as and for liquidated damages, an amount equal to:
(a) if a Full Recourse Event of Default has
occurred, (A) the Lease Balance in the event that, as of the
date of the termination of this Agreement, the Lease
Commencement Date shall have not yet occurred with respect to
either Property, (B) the Traville Lease Balance in the event
that, as of the date of the termination of this Agreement, the
Lease Commencement Date shall have already occurred with respect
to the Manufacturing Facility but shall have not yet occurred
with respect to the Traville Facility, or (C) the Manufacturing
Lease Balance in the event that, as of the date of the
termination of this Agreement, the Lease Commencement Date shall
have already occurred with respect to the Traville Facility but
shall have not yet occurred with respect to the Manufacturing
Facility; or
(b) if a Full Recourse Event of Default has not
occurred, (A) the Construction Period Maximum Guaranty Amount in
the event that, as of the date of the termination of this
Agreement, the Lease Commencement Date shall have not yet
occurred with respect to either Property, (B) the Traville
Construction Period Maximum Guaranty Amount in the event that,
as of the date of the termination of this Agreement, the Lease
Commencement Date shall have already occurred with respect to
the Manufacturing Facility but shall have not yet
13
CONSTRUCTION AGENCY AGREEMENT (HGSI)
occurred with respect to the Traville Facility, or (C) the
Manufacturing Construction Period Maximum Guaranty Amount in the
event that, as of the date of the termination of this Agreement,
the Lease Commencement Date shall have already occurred with
respect to the Traville Facility but shall have not yet occurred
with respect to the Manufacturing Facility; and
(c) in addition to any amounts payable pursuant to
Section 5.1.2(i)(a) or (b), Construction Agent shall pay on the
payment date all other Supplemental Rent then due and payable.
(ii) Construction Agent may at its election, within five (5)
Business Days after such termination, exercise the option to purchase
(or in lieu thereof, exercise its rights under Section 8.1.1(b) of the
Participation Agreement) from Lessor (a) both Properties in the event
that, as of the date of the termination of this Agreement, the Lease
Commencement Date shall have not yet occurred with respect to either
Property, (b) only the Traville Facility in the event that, as of the
date of the termination of this Agreement, the Lease Commencement Date
shall have already occurred with respect to the Manufacturing Facility
but shall have not yet occurred with respect to the Traville Facility,
or (c) only the Manufacturing Facility in the event that, as of the date
of the termination of this Agreement, the Lease Commencement Date shall
have already occurred with respect to the Traville Facility but shall
have not yet occurred with respect to the Manufacturing Facility, by
paying immediately upon such exercise an amount equal to the excess of
(x) (1) in the event that Construction Agent exercises its option to
purchase both Properties pursuant to clause (ii)(a) above, the aggregate
Lease Balance, plus, without duplication, any other amounts then due and
owing under the Operative Documents, as of the date of such payment, (2)
in the event that Construction Agent exercises its option to purchase
only the Traville Facility pursuant to clause (ii)(b) above, the
Traville Lease Balance, plus, without duplication, any other amounts
then due and owing with respect to the Traville Facility under the
Operative Documents, as of the date of such payment, or (3) in the event
that Construction Agent exercises its option to purchase only the
Manufacturing Facility pursuant to clause (ii)(c) above, the
Manufacturing Lease Balance, plus, without duplication, any other
amounts then due and owing with respect to the Manufacturing Facility
under the Operative Documents, as of the date of such payment, over (y)
amounts paid by Construction Agent under clause (i) above. Unless
Construction Agent shall have so exercised the purchase option, Lessor
shall cause each Property to be sold in accordance with Section 5.3(a).
If Construction Agent shall have so exercised the purchase option (and
made all applicable payments in respect thereof), Lessor shall promptly
convey title to the Improvements applicable to the Property or
Properties so purchased to Lessee or their designee in accordance with
Article XV of the Lease assuming for these purposes that said Article of
the Lease were then applicable.
5.2 Survival.
(a) The termination of this Agreement, in whole or in part,
pursuant to Section 5.1 shall in no event relieve Construction Agent of
their liability hereunder which accrued prior to such termination, all
of which shall survive any such termination.
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CONSTRUCTION AGENCY AGREEMENT (HGSI)
(b) Construction Agent's right to purchase one or both of
the Properties within five (5) Business Days following the termination
of this Agreement pursuant to Section 5.1.2 shall survive the
termination of this Agreement until the termination of such five (5)
Business Day period.
5.3 Remedies Cumulative; Waivers. Upon the occurrence and
continuance of a Construction Agency Event of Default, at Lessor's option and
without limiting Lessor in the exercise of any other right or remedy Lessor may
have on account (including, without limitation, any remedies under any other
Operative Document or as set forth in Section 5.1.2), and without any further
demand or notice, but subject to Section 5.4 below and the proviso of the first
sentence of Section 5.1.2 and the second sentence of Section 5.1.2 above, Lessor
may cause the following to occur:
(a) Lessor shall have all the rights and may pursue any of
the remedies hereunder with respect to Construction Period Maximum
Guaranty Amount as are provided to it in the Lease with respect to the
payment of Residual Value Guaranty Amount as if those provisions were
incorporated herein including, Lessor acting as exclusive sales agent
for the Properties. Lessor and Administrative Agent may foreclose the
lien of the Lessee Deed of Trust on all or any portion of the Properties
and other Collateral, including all or any of such Sites and the related
Deed of Trust. In addition, Lessor may exercise its remedies under the
Security Agreement.
(b) Lessor may continue this Agreement in effect for so long
as Lessor shall determine, and Lessor may enforce all of Lessor's rights
and remedies under this Agreement, and require the completion of the
Improvements by Construction Agent as herein described, so long as
Lessor satisfies its obligations under Section 4.1 and provides or
otherwise obtains the funds therefor and advances such funds to
Construction Agent.
(c) Lessor may terminate this Agreement at any time,
notwithstanding a prior election under Section 5.3(b) to cause the
completion of the Improvements with respect thereto directly through
Lessor or one or more successor construction agents.
(d) Lessor may exercise any other right or remedy that may
be available to it under Applicable Laws or in equity, or proceed by
appropriate court action (legal or equitable) to enforce the terms or to
recover damages for the breach hereof.
(e) Subject to the provisions hereof, as a matter of right
and with notice to Construction Agent or anyone claiming under
Construction Agent, and without regard to the then value of the
Collateral or the interest of any Lessee therein, Lessor shall have the
right to apply to any court having jurisdiction to appoint a receiver or
receivers of the Collateral or any portion thereof at Lessee and
Construction Agent's sole cost and expense (subject to Section 5.4
hereof), and Construction Agent hereby irrevocably consents to such
appointment and waive notice of any application therefor. Any such
receiver or receivers shall have all the usual powers and duties of
receivers in like or similar cases and all the powers and duties of
Lessor in case of entry as provided in this Agreement and shall continue
as such and exercise all such powers until the latest to
15
CONSTRUCTION AGENCY AGREEMENT (HGSI)
occur of (i) the date of confirmation of sale of the applicable
Collateral; (ii) the disbursement of all proceeds of such Collateral
collected by such receiver and the payment of all expenses incurred in
connection therewith; or (iii) the termination of such receivership with
the consent of Lessor or pursuant to an order by a court of competent
jurisdiction.
(f) To the extent permitted by, and subject to the mandatory
requirements of, any Applicable Law, each and every right, power and
remedy herein specifically given to Lessor or otherwise in this
Agreement shall be cumulative and, subject to Section 5.4, shall be in
addition to every other right, power and remedy herein specifically
given or now or hereafter existing at law, in equity or by statute, and
each and every right, power and remedy whether specifically herein given
or otherwise existing may be exercised from time to time and as often
and in such order as may be deemed expedient by Lessor, and the exercise
or the beginning of the exercise of any power or remedy shall not be
construed to be a waiver of the right to exercise at the same time or
thereafter any other right, power or remedy. Lessor's consent to any
request made by Construction Agent shall not be deemed to constitute or
preclude the necessity for obtaining Lessor's consent, in the future, to
all similar requests. No express or implied waiver by Lessor of any
Construction Agency Event of Default shall in any way be, or be
construed to be, a waiver of any future or subsequent Construction
Agency Event of Default. To the extent permitted by any Applicable Law,
Construction Agent hereby waives any rights now or hereafter conferred
by statute or otherwise that may require Lessor to sell, lease or
otherwise use the Properties, any Site, the other collateral or any part
thereof in mitigation of Lessor's damages upon the occurrence of a
Construction Agency Event of Default or that may otherwise limit or
modify any of Lessor's rights or remedies under this Article V.
(g) No failure to exercise and no delay in exercising, on
the part of Lessor, any right, remedy, power or privilege under this
Agreement or under the other Operative Documents shall operate as a
waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege under this Agreement preclude any other or
further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges provided
in this Agreement are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
(h) Upon termination of this Agreement as a result of a
Construction Agency Event of Default, Construction Agent shall pay on
behalf of Lessor to the Administrative Agent, for application in
accordance with Article X of the Participation Agreement, in immediately
available funds, the Construction Period Maximum Guaranty Amount.
5.4 Limitation on Recourse Liability of Construction Agent.
(a) Notwithstanding anything set forth herein to the
contrary, the aggregate amount payable by Construction Agent on a
recourse basis under this Article V as the result of the occurrence of a
Construction Agency Event of Default shall be subject to the limitations
on the recourse liability of Construction Agent set forth in Section
11.2 of the Participation Agreement.
16
CONSTRUCTION AGENCY AGREEMENT (HGSI)
(b) Lessor's exercise of any remedy provided hereunder or
otherwise available at law or equity, including any demand for
reimbursements of amounts expended by or on behalf of Lessor to cure any
Construction Agency Event of Default shall not impair or otherwise
reduce Construction Agent's obligation to pay the Construction Period
Maximum Guaranty Amount and the timely application of such amount to the
outstanding principal amount and accrued interest thereon under the Loan
Agreement in accordance with the Participation Agreement.
5.5 Lessor's Right to Cure Construction Agent's Defaults. Lessor,
without waiving or releasing any obligation or Construction Agency Event of
Default, may (but shall be under no obligation to) remedy any Construction
Agency Event of Default, and in furtherance of such right, Lessor may make
Advance Requests, execute Construction Documents and otherwise exercise all
rights and perform all duties of Construction Agent hereunder and Lessee under
the Participation Agreement with respect to the Construction. All reasonable out
of pocket costs and expenses so incurred (including reasonable fees and expenses
of counsel), together with interest thereon at the Overdue Rate from the date on
which such sums or expenses are paid by Lessor, shall (subject to Section 5.4
above) be funded and paid by Lessor through Advances.
5.6 Determination of Whether Budget is "In Balance".
(a) If Administrative Agent determines that either the
Approved Traville Construction Budget or the Approved Manufacturing
Construction Budget may not be In Balance, Administrative Agent shall
give notice to such effect to Construction Agent, together with a
reasonably detailed explanation of the basis for Administrative Agent's
determination and to the extent available calculations upon which
Administrative Agent or the Construction Consultant has based its
determination. Within ten (10) days following Construction Agent's
receipt of such notice, Construction Agent shall deliver a certification
to Administrative Agent that either (i) the Approved Traville
Construction Budget or the Approved Manufacturing Construction Budget,
as applicable, is not In Balance and describing the steps Construction
Agent is taking to remedy such condition, if any, or (ii) the Approved
Traville Construction Budget or the Approved Manufacturing Construction
Budget, as applicable, is In Balance and stating sufficient detail to
describe why Construction Agent believes the Approved Traville
Construction Budget or the Approved Manufacturing Construction Budget,
as applicable, is In Balance.
(b) If after receipt by Administrative Agent of a
certification from Construction Agent pursuant to Section 5.6(a)(ii)
above that the Approved Traville Construction Budget or the Approved
Manufacturing Construction Budget, as applicable, is In Balance,
Administrative Agent still disagrees with such certification,
Construction Agent and Administrative Agent shall, for a period of
thirty (30) days following Administrative Agent's receipt of such
certification, consult with each other and use their reasonable efforts
to resolve such dispute as to whether the applicable Construction Budget
is In Balance.
(c) Upon the occurrence of either (i) Construction Agent's
delivery of certification pursuant to Section 5.6(a)(i) above that the
Approved Traville Construction Budget or the Approved Manufacturing
Construction Budget, as applicable, is not In
17
CONSTRUCTION AGENCY AGREEMENT (HGSI)
Balance, or (ii) the thirty (30) day consultation period referred to in
Section 5.6(b) above shall expire and any Agent shall continue to
disagree with Construction Agent's assertion that the Approved Traville
Construction Budget or the Approved Manufacturing Construction Budget,
as applicable, is In Balance, Lessor shall have the option, exercisable
in its sole discretion upon notice to Construction Agent, to require
Construction Agent to deposit (a "Balancing Deposit) with Lessor within
five (5) Business Days an amount equal to the lesser of (x) the amount
which if paid to Construction Agent would, together with any Available
Commitments and Other Available Proceeds, be sufficient to make the
Approved Traville Construction Budget or the Approved Manufacturing
Construction Budget, as applicable, In Balance and (y) the Construction
Period Maximum Guaranty Amount.
(d) In the event that Construction Agent is required to make
a Balancing Deposit pursuant to Section 5.6(c) above, such Balancing
Deposit shall evidence a portion of the Construction Period Maximum
Guaranty Amount and any amounts withdrawn from the Balancing Deposit to
fund Property Costs shall reduce dollar for dollar the Construction
Period Maximum Guaranty Amount.
5.7 Limitations on Construction Agent's Liability. In any action or
proceeding involving any state law, any federal bankruptcy, insolvency or
reorganization law, or any other law affecting the rights of creditors
generally, if the obligations of Construction Agent under the Operative
Documents would otherwise be held or determined to be voidable, invalid or
unenforceable as a fraudulent transfer or otherwise as a result or on account of
the amount of its liability under the Operative Documents, then, notwithstanding
any other provision hereof to the contrary, the amount of such liability shall,
without any further action by Construction Agent or any other Person, be
automatically limited and reduced to the highest amount which is valid and
enforceable.
ARTICLE VI
NO CONSTRUCTION AGENCY FEE
Construction Agent shall not be entitled to, and Lessor shall have no
obligation to pay, any agency fee or other fee or compensation, and no such
Person shall not be entitled to, and Lessor shall have no obligation to make or
pay, any reimbursement therefor. It being understood that this Agreement is
being entered into as consideration for and as an inducement to Lessor and the
Participants entering into the Lease and the other Operative Documents.
ARTICLE VII
MISCELLANEOUS
7.1 Notices. All notices, consents, directions, approvals,
instructions, requests, demands and other communications required or permitted
by the terms hereof to be given to any Person shall be given in writing in the
manner provided in, shall be sent to the respective addresses set forth in, and
the effectiveness thereof shall be governed by the provisions of, Section 12.3
of the Participation Agreement.
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CONSTRUCTION AGENCY AGREEMENT (HGSI)
7.2 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of Lessor, Construction Agent and, to the extent permitted
by the Operative Documents, their respective successors and assigns; provided,
however, that except as permitted by Sections 2.6 and 2.7 or to an entity owned
(directly or indirectly) by Construction Agent (and in either case, Construction
Agent shall remain primarily liable), Construction Agent shall not assign any of
its rights nor delegate any of its duties or obligations under this Agreement
without the prior written consent of the Administrative Agent (at the written
directions of the Directing Party) and Lessor.
7.3 GOVERNING LAW. THIS AGREEMENT HAS BEEN DELIVERED IN, AND SHALL
IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES TO THE EXTENT
PERMITTED BY APPLICABLE LAW (EXCEPT SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW), EXCEPT AS TO MATTERS RELATING TO THE CREATION OF INTERESTS IN
REAL PROPERTY OR LIENS AND THE EXERCISE OF REMEDIES WITH RESPECT TO THE PORTIONS
OF THE PROPERTIES CONSTITUTING REAL PROPERTY, WHICH SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
7.4 Amendments, etc. In addition to the execution and delivery of
the Manufacturing Facility Supplement in accordance with Section 2.3 hereof,
Lessor and Construction Agent may, from time to time, enter into written
amendments, supplements or modifications hereto, subject to the restrictions set
forth in Section 12.5 of the Participation Agreement.
7.5 Counterparts. This Agreement may be executed on any number of
separate counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
7.6 Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
7.7 Headings and Table of Contents. The headings and table of
contents contained in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
7.8 Exercise of Lessor's Rights. Subject to the Excluded Amounts,
Construction Agent hereby acknowledges and agrees that, subject to and in
accordance with the terms of the Security Agreement dated concurrently herewith
made by Lessor in favor of Administrative Agent, the rights and powers of Lessor
under this Agreement have been assigned to and may be exercised by
Administrative Agent in accordance with Section 12.5 of the Participation
Agreement.
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CONSTRUCTION AGENCY AGREEMENT (HGSI)
7.9 Limited Liability. Construction Agent agrees that Lessor's
obligations and liability under this Agreement are limited pursuant to Section
12.10 of the Participation Agreement. Except for the rights of Lessee to payment
pursuant to the express provisions of Article X of the Participation Agreement,
any rights of Construction Agent against Lessor shall be fully subordinated to
the claims of Lessor against Construction Agent until such claims are
indefeasibly paid in full.
7.10 No Third Party Beneficiaries. Except to the extent provided in
other Operative Documents, no provision in this Agreement shall give rise to any
rights in any Person (except any Person party to an Operative Document), and
there shall be no third party beneficiaries of, and no other Persons shall be
entitled to rely on this Agreement. Any attempt by any other such Person to so
rely shall immediately be void.
7.11 Survival of Agreements. All covenants of Construction Agent
provided for in Section 2.7(e) shall survive the termination of this Agreement.
[END OF PAGE]
[SIGNATURE PAGES FOLLOW]
20
CONSTRUCTION AGENCY AGREEMENT (HGSI)
IN WITNESS WHEREOF, the parties hereto have caused this CONSTRUCTION
AGENCY AGREEMENT to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
GENOME STATUTORY TRUST 2001A,
as Lessor
By /s/ C. XXXXX XXXXXXX
-------------------------------------
Name: C. Xxxxx Xxxxxxx
Title: Vice President
CONSTRUCTION AGENCY AGREEMENT (HGSI)
HUMAN GENOME SCIENCES, INC.
as Construction Agent
By /s/ XXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and CFO
CONSTRUCTION AGENCY AGREEMENT (HGSI)
Schedule 2.6(b)(i)
Traville Certain Permitted Liens
Attached.
CONSTRUCTION AGENCY AGREEMENT (HGSI)
Schedule 2.6(b)(ii)
Manufacturing Facility Certain Permitted Liens
Attached.
CONSTRUCTION AGENCY AGREEMENT (HGSI)
Schedule 2.7(f)
Insurance
Attached.
CONSTRUCTION AGENCY AGREEMENT (HGSI)
Exhibit A
Traville Construction Materials
Attached.
CONSTRUCTION AGENCY AGREEMENT (HGSI)
Exhibit B
Manufacturing Facility Supplement
Attached.
CONSTRUCTION AGENCY AGREEMENT (HGSI)
Exhibit A to Exhibit B
Manufacturing Construction Materials
Attached.
TABLE OF CONTENTS
Section Page
------- ----
ARTICLE I DEFINITIONS..........................................................................2
1.1 Definitions; Interpretation; Amendment and Restatement..................................2
ARTICLE II APPOINTMENT OF CONSTRUCTION AGENT....................................................2
2.1 Appointment and Acceptance..............................................................2
2.2 Term....................................................................................2
2.3 Supplement to this Agreement............................................................2
2.4 Construction Materials; Construction Documents..........................................3
2.5 Assignment Under Construction...........................................................5
2.6 Scope of Authority......................................................................5
2.7 Covenants of Construction Agent.........................................................7
2.8 Title to the Improvements...............................................................8
ARTICLE III THE IMPROVEMENTS.....................................................................8
3.1 Amendments; Modifications...............................................................8
3.2 Casualty, Condemnation, Liquidated Damages and Force Majeure Events.....................8
ARTICLE IV PAYMENT OF FUNDS....................................................................10
4.1 Funding of Improvement Costs...........................................................10
ARTICLE V CONSTRUCTION AGENCY EVENTS OF DEFAULT...............................................10
5.1 Construction Agency Events of Default..................................................10
5.2 Survival...............................................................................14
5.3 Remedies Cumulative; Waivers...........................................................15
5.4 Limitation on Recourse Liability of Construction Agent.................................16
5.5 Lessor's Right to Cure Construction Agent's Defaults...................................17
5.6 Determination of Whether Budget is "In Balance"........................................17
5.7 Limitations on Construction Agent's Liability..........................................18
ARTICLE VI NO CONSTRUCTION AGENCY FEE..........................................................18
ARTICLE VII MISCELLANEOUS.......................................................................18
7.1 Notices................................................................................18
7.2 Successors and Assigns.................................................................19
7.3 GOVERNING LAW..........................................................................19
7.4 Amendments, etc........................................................................19
7.5 Counterparts...........................................................................19
7.6 Severability...........................................................................19
7.7 Headings and Table of Contents.........................................................19
7.8 Exercise of Lessor's Rights............................................................19
7.9 Limited Liability......................................................................20
7.10 No Third Party Beneficiaries...........................................................20
7.11 Survival of Agreements.................................................................20
-i-
TABLE OF CONTENTS
(continued)
Section Page
------- ----
Schedule 2.6(b)(i) - Traville Certain Permitted Liens
Schedule 2.6(b)(ii) - Manufacturing Facility Certain Permitted Liens
Schedule 2.7(f) - Insurance Provisions
EXHIBITS
EXHIBIT A - Traville Construction Materials:
Approved Traville Plans and Specifications
Approved Traville Construction Schedules
Approved Traville Construction Budget
Architect's Certificates
EXHIBIT B - Manufacturing Facility Supplement
EXHIBIT A to EXHIBIT B - Manufacturing Construction Materials
-ii-
