exv10w2



 



Exhibit 10.2


AMENDED AND RESTATED

PARTICIPATION AGREEMENT

AND APPENDIX A



Dated as of June 30, 2003



among



HUMAN GENOME SCIENCES, INC., as the Construction Agent and as the Lessee,



WACHOVIA DEVELOPMENT CORPORATION,

as the Borrower and as the Lessor,



VARIABLE FUNDING CAPITAL CORPORATION,

as a Credit Lender,



VARIABLE FUNDING CAPITAL CORPORATION,

as a Mortgage Lender,



THE VARIOUS BANKS AND OTHER LENDING INSTITUTIONS WHICH ARE PARTIES

HERETO FROM TIME TO TIME, as the Investors,



WACHOVIA SECURITIES, LLC,

as the Deal Agent,



and



WACHOVIA BANK, NATIONAL ASSOCIATION,

as the Agent for the Primary Financing Parties and,

respecting the Security Documents, as the Agent for the Secured Parties



 






 




TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 	 	  	 	

	SECTION 1.	 	THE FINANCING	 	 	2	 
	SECTION 2.	 	[RESERVED]	 	 	2	 
	SECTION 3.	 	SUMMARY OF TRANSACTIONS	 	 	3	 
	 	 	
3.1.
	 	Operative Agreements
	 	 	3	 
	 	 	
3.2.
	 	Property Purchase
	 	 	3	 
	 	 	
3.3.
	 	Construction of Improvements; Commencement of Basic Rent
	 	 	3	 
	 	 	
3.4.
	 	Funding of Loans by the Lenders
	 	 	3	 
	SECTION 4.	 	THE CLOSING	 	 	4	 
	 	 	
4.1.
	 	Closing Date
	 	 	4	 
	 	 	
4.2.
	 	Closing Date; Construction Advances
	 	 	4	 
	SECTION 5.	 	FUNDING OF ADVANCES; CONDITIONS PRECEDENT; REPORTING
REQUIREMENTS ON COMPLETION DATE; THE LESSEE’S DELIVERY OF
NOTICES; RESTRICTIONS ON LIENS	 	 	4	 
	 	 	
5.1.
	 	General
	 	 	4	 
	 	 	
5.2.
	 	Procedures for Funding
	 	 	5	 
	 	 	
5.3.
	 	Conditions Precedent for the Lessee, the Agent and the
Primary Financing Parties Relating to the Closing Date
	 	 	6	 
	 	 	
5.4.
	 	Conditions Precedent for the Lessee, the Agent and the Primary Financing
Parties Relating to the Advance of Funds after the Closing Date
	 	 	11	 
	 	 	
5.5.
	 	Additional Reporting and Delivery Requirements on Completion Date
	 	 	13	 
	 	 	
5.6.
	 	The Construction Agent Delivery of Construction Budget Modifications
	 	 	14	 
	 	 	
5.7.
	 	Restrictions on Liens
	 	 	14	 
	 	 	
5.8.
	 	[Reserved]
	 	 	15	 
	 	 	
5.9.
	 	[Reserved]
	 	 	15	 
	 	 	
5.10.
	 	Payments
	 	 	15	 
	 	 	
5.11.
	 	Liquid Collateral
	 	 	15	 
	 	 	
5.12.
	 	Unilateral Right to Increase the Lessor Commitments and the Lender Commitments
	 	 	17	 
	 	 	
5.13.
	 	Lessee’s Right to Request Assignment of Mortgage Notes
	 	 	17	 
	 	 	
5.14.
	 	Lease Commencement Upon Completion
	 	 	17	 
	 	 	
5.15.
	 	Funding of Punch List Liquid Collateral Account for Punch List Items
	 	 	17	 
	 	 	
5.16.
	 	Overdue Amounts
	 	 	18	 
	 	 	
5.17.
	 	Cap on Construction Advance for Construction Agent Reimbursement
	 	 	18	 
	SECTION 5A.	 	LESSOR ADVANCE	 	 	19	 
	 	 	
5A.1.
	 	Procedure for Lessor Advance
	 	 	19	 
	 	 	
5A.2.
	 	Lessor Yield
	 	 	19	 
	 	 	
5A.3.
	 	Scheduled Return of Lessor Advance
	 	 	20	 
	 	 	
5A.4.
	 	Early Return of Lessor Advance
	 	 	20	 
	 	 	
5A.5.
	 	Conversion and Continuation Options
	 	 	21	 
	 	 	
5A.6.
	 	Computation of Lessor Yield
	 	 	22	 



i






 




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 	 	  	 	

	SECTION 6.	 	REPRESENTATIONS AND WARRANTIES	 	 	22	 
	 	 	
6.1.
	 	Representations and Warranties of the Borrower
	 	 	22	 
	 	 	
6.2.
	 	Representations and Warranties of the Lessee
	 	 	25	 
	SECTION 7.	 	PAYMENT OF CERTAIN EXPENSES	 	 	32	 
	 	 	
7.1.
	 	Transaction Expenses
	 	 	32	 
	 	 	
7.2.
	 	No Broker, etc.
	 	 	32	 
	 	 	
7.3.
	 	Certain Fees and Expenses
	 	 	33	 
	 	 	
7.4.
	 	Unused Fee
	 	 	33	 
	 	 	
7.5.
	 	Administrative Fee
	 	 	33	 
	 	 	
7.6.
	 	Structuring Fee
	 	 	34	 
	 	 	
7.7.
	 	Liquidity Fee
	 	 	34	 
	 	 	
7.8.
	 	Program Fee
	 	 	34	 
	SECTION 8.	 	OTHER COVENANTS AND AGREEMENTS	 	 	35	 
	 	 	
8.1.
	 	Cooperation with the Construction Agent or the Lessee
	 	 	35	 
	 	 	
8.2.
	 	Covenants of the Lessor
	 	 	35	 
	 	 	
8.3.
	 	The Lessee Covenants, Consent and Acknowledgment
	 	 	37	 
	 	 	
8.3A
	 	Additional Covenants of the Lessee
	 	 	43	 
	 	 	
8.4.
	 	Sharing of Certain Payments
	 	 	50	 
	 	 	
8.5.
	 	Grant of Easements, etc.
	 	 	50	 
	 	 	
8.6.
	 	Appointment of the Agent by the Primary Financing Parties
	 	 	50	 
	 	 	
8.7.
	 	Payments
	 	 	55	 
	 	 	
8.8.
	 	Release of the Property, etc.
	 	 	59	 
	 	 	
8.9.
	 	Limitation of Lessor’s Obligations
	 	 	59	 
	 	 	
8.10.
	 	No Representations or Warranties as to the Property or Operative Agreements
	 	 	60	 
	 	 	
8.11.
	 	Reliance; Advice of Counsel
	 	 	61	 
	 	 	
8.12
	 	[Reserved]
	 	 	61	 
	 	 	
8.13.
	 	[Reserved]
	 	 	61	 
	 	 	
8.14.
	 	Non-Disturbance
	 	 	61	 
	 	 	
8.15.
	 	Payment of Appraiser Expenses
	 	 	61	 
	 	 	
8.16.
	 	Bankruptcy Petition Against the Conduit
	 	 	62	 
	SECTION 9.	 	RIGHTS UNDER THE CREDIT AGREEMENTS	 	 	62	 
	SECTION 10.	 	TRANSFER OF INTEREST	 	 	63	 
	 	 	
10.1.
	 	Restrictions on Transfer
	 	 	63	 
	 	 	
10.2.
	 	Effect of Transfer
	 	 	65	 
	 	 	
10.3.
	 	Permitted Refinancing of Loans
	 	 	65	 
	SECTION 11.	 	INDEMNIFICATION	 	 	66	 
	 	 	
11.1.
	 	General Indemnity
	 	 	66	 
	 	 	
11.2.
	 	General Tax Indemnity
	 	 	69	 
	 	 	
11.3.
	 	Increased Costs, Loan Adequacy; Illegality, etc.
	 	 	74	 
	 	 	
11.4.
	 	Funding/Contribution Indemnity
	 	 	76	 
	 	 	
11.5.
	 	EXPRESS INDEMNIFICATION FOR ORDINARY NEGLIGENCE, STRICT LIABILITY, ETC.
	 	 	76	 
	 	 	
11.6.
	 	Additional Provisions Regarding Environmental Indemnification
	 	 	77	 
	 	 	
11.7.
	 	Indemnity Prior to Completion Date
	 	 	77	 



ii






 




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 	 	  	 	

	SECTION 12.	 	MISCELLANEOUS	 	 	78	 
	 	 	
12.1.
	 	Survival of Agreements
	 	 	78	 
	 	 	
12.2.
	 	Notices
	 	 	78	 
	 	 	
12.3.
	 	Counterparts
	 	 	80	 
	 	 	
12.4.
	 	Terminations, Amendments, Waivers, Etc.
	 	 	80	 
	 	 	
12.5.
	 	Headings, etc.
	 	 	83	 
	 	 	
12.6.
	 	Parties in Interest
	 	 	83	 
	 	 	
12.7.
	 	GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL; VENUE
	 	 	83	 
	 	 	
12.8.
	 	Severability
	 	 	84	 
	 	 	
12.9.
	 	Liability Limited
	 	 	84	 
	 	 	
12.10.
	 	Rights of the Lessee
	 	 	85	 
	 	 	
12.11.
	 	Further Assurances
	 	 	86	 
	 	 	
12.12.
	 	Calculations under Operative Agreements
	 	 	86	 
	 	 	
12.13.
	 	Confidentiality
	 	 	86	 
	 	 	
12.14.
	 	Financial Reporting/Tax Characterization
	 	 	88	 
	 	 	
12.15.
	 	Deal Agent
	 	 	88	 
	 	 	
12.16.
	 	Recourse Against Certain Parties
	 	 	88	 
	 	 	
12.17.
	 	Parties in Interest
	 	 	89	 
	 	 	
12.18.
	 	Hedging Agreements are not Collateral
	 	 	89	 
	 	 	
12.19.
	 	Replacement of the Intermediary
	 	 	89	 
	 	 	
12.20.
	 	Amendment and Restatement
	 	 	90	 
	List of Operative Agreements	 	 	11	 
	Authority Documents of Represented Parties	 	 	13	 



iii






 




	 	 	 	 	 
	EXHIBITS	 	 	 	 
	 	 	 	 	 
	A	 	
-
	 	Form of Requisition - Sections 4.2, 5.2, 5.3 and 5.4
	 	 	 	 	 
	B	 	
-
	 	Form of Local
Counsel Legal Opinion - Section 5.3(j)
	 	 	 	 	 
	C	 	
-
	 	Form of Officer’s Certificate for Lessee - Section 5.3(y)
	 	 	 	 	 
	D	 	
-
	 	Form of Secretary’s Certificate for Lessee - Section 5.3(z)
	 	 	 	 	 
	E	 	
-
	 	Form of Officer’s Certificate for Lessor - Section 5.3(bb)
	 	 	 	 	 
	F	 	
-
	 	Form of
Secretary’s Certificate for Lessor - Section 5.3(cc)
	 	 	 	 	 
	G	 	
-
	 	Form of Legal
Opinion for Lessor - Section 5.3(dd)
	 	 	 	 	 
	H	 	
-
	 	Form of Legal
Opinion for Lessee - Section 5.3(ee)
	 	 	 	 	 
	I	 	
-
	 	Form of Officer’s Certificate for Lessee - Section 5.5
	 	 	 	 	 
	J	 	
-
	 	Description of Material Litigation - Section 6.2(d)
	 	 	 	 	 
	K	 	
-
	 	Form of
Officer’s Certificate for Agent - Section 5.11(e)
	 	 	 	 	 
	L	 	
-
	 	Form of Monthly
Report - Section 8.3A(b)(i)
	 	 	 	 	 
	M	 	
-
	 	Form of Compliance Certificate for Lessee - Section 8.3A(u)(iii)
	 	 	 	 	 
	SCHEDULES	 	 
	 	 	 	 	 
	I	 	
-
	 	Material Construction Documents
	 	 	 	 	 
	II	 	
-
	 	Synthetic Lease Obligations



APPENDIX A - Rules of Usage and Definitions




iv










 



AMENDED AND RESTATED PARTICIPATION AGREEMENT



          THIS AMENDED AND RESTATED PARTICIPATION AGREEMENT, dated as of June 30,
2003 (as amended, modified, extended, supplemented and/or restated from time to
time, this “Agreement”) is by and among HUMAN GENOME SCIENCES, INC., a Delaware
corporation (the “Lessee” or the “Construction Agent”); WACHOVIA DEVELOPMENT
CORPORATION, a North Carolina corporation (the “Borrower” or the “Lessor”);
VARIABLE FUNDING CAPITAL CORPORATION, a Delaware corporation (the “Conduit”),
as a holder of a Credit Note; the Conduit, as a holder of a Mortgage Note; the
various banks and other financial institutions which are parties hereto from
time to time as investors (individually, an “Investor” and collectively, the
“Investors”; each of the Conduit and the Investors, as a holder of a Credit
Note, individually, a “Credit Lender” and collectively, the “Credit Lenders”;
each of the Conduit and the Investors, as a holder of a Mortgage Note,
individually, a “Mortgage Lender” and collectively, the “Mortgage Lenders”;
each Credit Lender, each Mortgage Lender and the Lessor may be referred to,
individually, as a “Primary Financing Party” and collectively, as the “Primary
Financing Parties”); WACHOVIA SECURITIES, LLC, a Delaware limited liability
company, as the deal agent (the “Deal Agent”); and WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association, as the agent for the Primary
Financing Parties and, respecting the Security Documents, as the agent for the
Secured Parties (in such capacity, the “Agent”). Capitalized terms used but
not otherwise defined in this Agreement shall have the meanings set forth in
Appendix A hereto. All terms which are defined in this Agreement are subject
to the rules of usage of such terms set forth in Appendix A hereto.



RECITALS



          WHEREAS, the Lessee, Traville LLC, the Trust, Wells Fargo Bank Northwest,
National Association, BancBoston Leasing Investments Inc., Wachovia Bank,
National Association (as successor in interest to First Union National Bank),
EagleFunding Capital Corporation, Fleet Securities, Inc., and Fleet National
Bank were parties to that certain Participation Agreement dated as of November
7, 2001 (as amended, modified, extended, supplemented and/or restated from time
to time, the “Original Participation Agreement”);



          WHEREAS, pursuant to the Master Transfer Agreement, among other things,
(a) the Lessor has obtained (i) the right, title and interest of the Trust in
the Property and under the Original Participation Agreement and the associated
transaction documents with regard to the Property (including without limitation
a ground leasehold interest in real estate comprising a part of the Property
pursuant to the Ground Lease and titled ownership in the Equipment and
Improvements comprising a part of the Property) and (ii) an assignment of the
right, title and interest of the investors under the Original Participation
Agreement and the associated transaction documents with regard to the Property
and (b) the Lenders have obtained an assignment of the right, title and
interest of the lenders under the Original Participation Agreement and the
associated transaction documents with regard to the Property;




 






 





          WHEREAS, the parties hereto wish to amend and restate the Original
Participation Agreement as it relates to the Property pursuant to the terms of
this Agreement.



          In consideration of the mutual agreements herein contained and other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:



SECTION 1. THE FINANCING.



          Subject to the terms and conditions of this Agreement and the other
Operative Agreements and in reliance on the representations and warranties of
each of the parties hereto contained herein or made pursuant hereto, the
Primary Financing Parties have agreed to make Lessor Advances in an aggregate
amount up to the Lessor Commitment (in the case of the Lessor), Credit Loans in
an aggregate amount up to the Credit Loan Commitment (in the case of the Credit
Lenders) and Mortgage Loans in an aggregate amount up to the Mortgage Loan
Commitment (in the case of the Mortgage Lenders) in order for the Lessor to
acquire the Property (including without limitation a ground lease interest
therein), and to construct certain Improvements in accordance with the Agency
Agreement and the terms and provisions hereof and for the other purposes
described herein, all in connection with the amendment and restatement of the
Original Participation Agreement and the associated transaction documents.



          Notwithstanding the foregoing, pursuant to the Master Transfer Agreement,
(a) the Lessor has obtained (i) a ground leasehold interest in the Property
from the Trust and (ii) an assignment of interest in the investor-provided
amounts from the investors under the Original Participation Agreement and the
associated transaction documents previously extended with regarded to the
Property, (b) the amounts paid by the Lessor to obtain the interests referenced
in the foregoing subsection (a) are hereby acknowledged and agreed by all
parties to this Agreement to constitute for purposes of the Operative
Agreements Lessor Advances and a portion of the Property Cost, (c) the Lenders
have obtained an assignment of interest in the loans from the lenders under the
Original Participation Agreement and the associated transaction documents
(including without limitation the promissory notes issued in connection
therewith) previously extended with regard to the Property and (d) the amounts
paid by the Lenders to obtain the interests referenced in the foregoing
subsection (c) are hereby acknowledged and agreed by all parties to this
Agreement to constitute for purposes of the Operative Agreements Loans and a
portion of the Property Cost.



          The parties hereto hereby amend and restate the Original Participation
Agreement as it relates to the Property pursuant to the terms of this
Agreement.



SECTION 2. [RESERVED].



2






 





SECTION 3. SUMMARY OF TRANSACTIONS.



          3.1. Operative Agreements.



          On the Closing Date, each of the respective parties hereto and thereto
shall execute and deliver the Master Transfer Agreement, this Agreement, the
Lease, the Agency Agreement, the Credit Agreements, the Notes, the Security
Agreement, the Mortgage Instrument and such other documents, instruments,
certificates and opinions of counsel as agreed to by the parties hereto.



          3.2. Property Purchase.



          On the Closing Date and subject to the terms and conditions of the
Operative Agreements (a) the Lessor will make a Lessor Advance, (b) the Lenders
will (i) obtain an assignment of the right, title and interest of the lenders
under the Original Participation Agreement and associated transaction documents
with regard to the Property (including without limitation the promissory notes
issued in connection therewith) and (ii) make Loans and (c) the Lessor will
acquire the Property (including without limitation a ground lease interest
therein in accordance with the Master Transfer Agreement and the other
Operative Agreements) and such Lessor Advance and Loans shall be used to pay
other Project Costs, as applicable. In addition, the Lessor and the Lessee
will grant the Agent Liens on the Property and the other Collateral by
execution of the required Security Documents.



          3.3. Construction of Improvements; Commencement of Basic Rent.



          Construction Advances will be made with respect to particular Improvements
to be constructed on the Property and with respect to ongoing Work regarding
the Equipment and Improvements, in each case, pursuant to the terms and
conditions of the Operative Agreements. The Construction Agent will act as a
construction agent on behalf of the Lessor respecting the Work regarding the
Equipment and Improvements and the expenditures of the Construction Advances
related to the foregoing. The Construction Agent shall promptly notify the
Lessor upon Completion of the Work regarding the Improvements and the Lessee
shall commence to pay Basic Rent as of the Commencement Date.



          3.4. Funding of Loans by the Lenders.



          At any time that the funding of a Loan is required pursuant to the
Operative Agreements, the Conduit may elect to fund or not to fund such Loan
subject to the terms of the Credit Agreements; provided, if the Conduit elects
not to (or, for whatever reason, does not) fund such Loan, then the Investors
shall fund their ratable share of such Loan based on their Lender Commitments;
provided, further, in no event shall any Investor be obligated to fund any such
Loan if (a) the Conduit is then subject to a Bankruptcy Event at such time or
(b) the funding of such Loan would require such Investor to exceed its
applicable Lender Commitment.



3






 





SECTION 4. THE CLOSING.



          4.1. Closing Date.



          All documents and instruments required to be delivered on the Closing Date
shall be delivered at the offices of Moore & Van Allen PLLC, Charlotte, North
Carolina, or at such other location as may be determined by the Lessor, the
Agent and the Lessee.



          4.2. Closing Date; Construction Advances.



          The Construction Agent shall deliver to the Agent a requisition (a
“Requisition”), in the form attached hereto as EXHIBIT A or in such other form
as is satisfactory to the Agent, in its reasonable discretion, in connection
with (a) the Transaction Expenses payable, pursuant to Section 7.1(a), by the
Lessor on the Closing Date and (b) each Construction Advance pursuant to
Section 5.4.



SECTION 5. FUNDING OF ADVANCES; CONDITIONS PRECEDENT; REPORTING

REQUIREMENTS ON COMPLETION DATE; THE LESSEE’S DELIVERY OF

NOTICES; RESTRICTIONS ON LIENS.



          5.1. General.



          (a) To the extent funds have been made available by the Lenders to the
Lessor pursuant to Section 5 and by the Lessor pursuant to Sections 5 and 5A,
the Lessor will use such funds from time to time in accordance with the terms
and conditions of this Agreement and the other Operative Agreements for the
following purposes (costs expended for the following purposes pursuant to
subsections (i), (ii) or (iii) of this Section 5.1(a) are herein referred to as
the “Project Costs”) (i) at the direction of the Construction Agent to acquire
the Property (including without limitation a ground lease interest therein) in
accordance with the terms of the Master Transfer Agreement and the other
Operative Agreements, (ii) to make Advances to the Construction Agent to permit
the acquisition, testing, engineering, installation, development, construction,
modification, design, and renovation, as applicable, of the Property (or
components thereof) in accordance with the terms of the Agency Agreement and
the other Operative Agreements, and (iii) to permit the funding of Capitalized
Costs.



          (b) On any Payment Date with respect to the Property during the period
prior to the Commencement Date (but subject to Section 5.17), the Lessor and
the Lenders shall fund the Lessor Yield and the Interest due and payable on
such date without regard to whether a Requisition therefor is delivered;
provided, the Agent shall notify in a timely manner the Lessor and the Lenders
of their respective amounts to be advanced; provided, further, neither the
Lessor nor any Lender shall have any obligation to fund any Lessor Advance or
Loan to the extent that at any time such funding would cause (i) regarding the
Lessor, the Lessor Advance to exceed the Available Lessor Commitment and (ii)
regarding any Lender, the Loan of such Lender to exceed, in the case of the
Conduit, the Available Lender Commitments, or in the case of the Investors,
such Investor’s Available Lender Commitment.




4






 





          5.2. Procedures for Funding.




		
	 	     (a) The Construction Agent shall designate the date for Advances in
accordance with the Operative Agreements; provided, there shall be no
more than two (2) Advances in any calendar month. The Loans extended on
the Closing Date plus the amounts advanced on the Closing Date by the
Lenders in connection with their acquisition of assignment interests
pursuant to the Master Transfer Agreement as referenced in Section 1
shall be for an aggregate amount of $5,000,000 or more. Except with
respect to any Capitalized Costs relating to any Hedging Agreement, the
Loans extended on any other date shall be for an aggregate amount of
$500,000 or more. Not less than (i) three (3) Business Days prior to the
Closing Date (which shall also be the date the Lessor acquires the
Property (including without limitation a ground lease interest therein))
and (ii) three (3) Business Days prior to the date on which any
Construction Advance is to be made, the Construction Agent shall deliver
to the Agent, with respect to the Closing Date and each Construction
Advance, as applicable, a Requisition as described in Section 4.2 hereof
in a form reasonably acceptable to the Agent.
	 
	 	     (b) Each Requisition shall: (i) be irrevocable, (ii) request funds
in an amount not in excess of the total aggregate of the Available Credit
Lender Commitments, plus the Available Mortgage Lender Commitments, plus
the Available Lessor Commitments and (iii) request that the Lenders make
Loans and that the Lessor make Lessor Advances for the payment of
Transaction Expenses or other Project Costs (in the case of a
Construction Advance) that have previously been incurred or are to be
incurred on the date of such Advance to the extent such were not subject
to a prior Requisition, in each case as specified in the Requisition.
	 
	 	     (c) Subject to the satisfaction of the conditions precedent set
forth in Section 5.3 or 5.4, as applicable, (i) on the Closing Date and
each date on which a Construction Advance is to be made, as applicable,
the Conduit may (if the Conduit declines, the other Lenders, subject to
Section 3.4, shall) make Loans up to the Credit Loan Commitments and
Mortgage Loan Commitments in the case of the Conduit, or, in the case of
the Investors, their respective Credit Loan Commitments and Mortgage Loan
Commitments, and the Lessor shall make a Lessor Advance up to its Lessor
Commitment such that eighty-two percent (82%) of the Requested Funds are
funded by Credit Loans, twelve percent (12%) of the Requested Funds are
funded by Mortgage Loans and six percent (6%) of the Requested Funds are
funded by Lessor Advances, and (ii) the total amount of Credit Loans,
Mortgage Loans and Lessor Advances on such date shall (x) be used by the
Lessor to pay Project Costs including Transaction Expenses or (y) be
advanced by the Lessor on the date of such Advance to the Construction
Agent to pay Project Costs.
	 
	 	     (d) [Reserved].
	 
	 	     (e) All Operative Agreements which are to be delivered to the Agent
or the Primary Financing Parties shall be delivered to the Agent, on
behalf of the Agent or the



5






 







		
	 	Primary Financing Parties, and such items (except for Notes and chattel
paper originals, with respect to which in each case there shall be only
one original) shall be delivered with originals sufficient for the Agent
and each Primary Financing Party. The Agent shall then deliver such
Operative Agreements to each Primary Financing Party. All other items
which are to be delivered to the Agent or the Primary Financing Parties
shall be delivered to the Agent, on behalf of the Agent or the Primary
Financing Parties, or directly to such party as required by the Operative
Agreements, with originals sufficient for the intended recipients. To
the extent any other items delivered to the Agent are requested in
writing from time to time by any Primary Financing Party or are required
to be delivered by the Agent pursuant to Section 8.6(g), the Agent shall
provide a copy of such item to the party requesting it or to the parties
entitled thereto, as applicable.
	 
	 	     (f) Notwithstanding the completion of any closing or funding under
this Agreement pursuant to Sections 5.3 or 5.4, each condition precedent
in connection with any such closing or funding may be subsequently
enforced by the Agent as a covenant obligation of the Lessee (unless
expressly waived by the Agent).




	 	  5.3.	 	Conditions Precedent for the Lessee, the Agent and the
Primary Financing Parties Relating to the Closing Date.



      The obligations on the Closing Date of the Lessee, the Agent and the
Primary Financing Parties to enter into the transactions contemplated by this
Agreement, including without limitation the obligation to execute and deliver
the applicable Operative Agreements to which each is a party on the Closing
Date and, in the case of the Credit Lenders, to make Credit Loans, in the case
of Mortgage Lenders, to make Mortgage Loans, and, in the case of the Lessor, to
make Lessor Advances, in order to pay Transaction Expenses are subject to the
satisfaction or waiver of the following conditions precedent on or prior to the
Closing Date (to the extent such conditions precedent require the delivery of
any agreement, certificate, instrument, memorandum, legal or other opinion,
appraisal, commitment, title insurance commitment, lien report or any other
document of any kind or type, such shall be in form and substance satisfactory
to the Agent and the Primary Financing Parties, in their reasonable discretion;
notwithstanding the foregoing, the obligations of a party shall not be subject
to any conditions contained in this Section 5.3 which are required to be
performed by such party):




		
	 	     (a) the correctness in all material respects of the representations
and warranties of the parties to this Agreement contained herein, in each
of the other Operative Agreements and each certificate delivered pursuant
to any Operative Agreement;
	 
	 	     (b) the performance by the parties to this Agreement of their
respective agreements contained herein and in the other Operative
Agreements to be performed by them on or prior to such date;
	 
	 	     (c) the Agent and the Primary Financing Parties shall have received
fully executed counterpart copies of the Requisition, appropriately
completed;



6






 







		
	 	     (d) title to the Property shall conform to the representations and
warranties set forth in Section 6.2(l) hereof;
	 
	 	     (e) the effective date for the Master Transfer Agreement shall have
occurred and the Construction Agent shall have delivered to the Agent (i)
a good standing certificate for the Construction Agent in the state where
the Property is located, (ii) the Ground Lease and the HVAC Easement, and
(iii) a copy of any other documentation reasonably requested by the Agent
which evidences the acquisition or transfer of any interest in the
Property to any Financing Party;
	 
	 	     (f) there shall not have occurred and be continuing any Default or
Event of Default and no Default or Event of Default will have occurred
between the date of delivery of the Requisition and disbursement of the
Advance or after giving effect to any such Advance;
	 
	 	     (g) the Construction Agent shall have delivered to the Agent
separate title insurance commitments for the Lessor and for the Lenders
to issue policies respecting the Property, with such endorsements as the
Agent deem reasonably necessary, in favor of the Lessor and the Agent
from a title insurance company reasonably acceptable to the Agent, but
only with such title exceptions thereto as are reasonably satisfactory to
the Agent;
	 
	 	     (h) the Construction Agent shall have delivered to the Agent an
environmental site assessment respecting the Property prepared by an
independent recognized professional reasonably acceptable to the Agent
and evidencing no pre-existing environmental condition with respect to
which there is more than a remote risk of loss;
	 
	 	     (i) the Construction Agent shall have delivered to the Agent a
survey (with a flood hazard certification) respecting the Property
prepared by (i) an independent recognized professional reasonably
acceptable to the Agent and (ii) in a manner and including such
information as is reasonably required by the Agent;
	 
	 	     (j) the Construction Agent shall have caused to be delivered to the
Agent a legal opinion in the form attached hereto as EXHIBIT B or in such
other form as is reasonably acceptable to the Agent with respect to local
law real property issues respecting the state in which the Property is
located addressed to the Financing Parties, from counsel located in the
state where the Property is located, prepared by counsel reasonably
acceptable to the Agent;
	 
	 	     (k) the Agent shall be reasonably satisfied that the acquisition,
ground leasing and/or holding of the Property and the execution of the
Mortgage Instrument and the other Security Documents (as applicable) will
not adversely affect the rights of the Agent or the Financing Parties
under or with respect to the Operative Agreements;



7






 







		
	 	     (l) the Construction Agent shall have delivered to the Agent
invoices for, or other reasonably satisfactory evidence of, the various
Transaction Expenses referenced in Section 7 of this Agreement, as
appropriate;
	 
	 	     (m) the Construction Agent shall have caused to be delivered to the
Agent the Mortgage Instrument (in such form as is reasonably acceptable
to the Agent, with revisions as necessary to conform to applicable state
law) and Primary Financing Party Financing Statements respecting the
Property, all fully executed and in recordable form;
	 
	 	     (n) with respect to the Advance made on the Closing Date and the
amounts paid by the Primary Financing Parties for the interests obtained
by such parties pursuant to the Master Transfer Agreement on the Closing
Date as described in Section 1, the sum of the Available Credit Lender
Commitment, plus the Available Mortgage Lender Commitment plus the
Available Lessor Commitment will be sufficient to pay all such amounts;
	 
	 	     (o) the Lessee shall have delivered to the Agent with respect to the
Property a Lease Supplement and a memorandum (or short form lease)
regarding the Lease and such Lease Supplement (such memorandum or short
form lease to be in the form attached to the Lease as EXHIBIT B or in
such other form as is acceptable to the Agent, with modifications as
necessary to conform to applicable state law, and in form suitable for
recording);
	 
	 	     (p) the Lessee shall have deposited good and immediately available
funds, in Permitted Investments, into the Liquid Collateral Account in a
sufficient amount so that after giving effect to the requested Advance on
the Closing Date the Lessee is in compliance with Section 5.11;
	 
	 	     (q) the Construction Agent shall have delivered to the Agent a
Construction Budget and a Construction Schedule for the Property (each to
be in form and substance reasonably satisfactory to the Agent) evidencing
that (i) the cost of Completion shall not exceed the Available Commitment
and (ii) Completion shall occur on or prior to the Construction Period
Termination Date;
	 
	 	     (r) the Construction Agent shall have provided evidence to the Agent
of insurance as provided in the Agency Agreement;
	 
	 	     (s) the Construction Agent shall have caused an Appraisal regarding
the Property to be provided to the Agent from an appraiser reasonably
satisfactory to the Agent;
	 
	 	     (t) the Construction Agent shall cause (i) Uniform Commercial Code
lien searches, tax lien searches and judgment lien searches regarding the
Lessor and the Lessee to be conducted (and copies thereof to be delivered
to the Agent) in such jurisdictions as determined by the Agent by a
nationally recognized search company reasonably acceptable to the Agent
and (ii) the liens referenced in such lien searches



8






 







		
	 	which are objectionable to the Agent to be either removed or otherwise
handled in a manner reasonably satisfactory to the Agent;
	 
	 	     (u) all taxes, fees and other charges in connection with the
execution, delivery, recording, filing and registration of the Operative
Agreements and/or documents related thereto shall have been paid or
provisions for such payment shall have been made to the reasonable
satisfaction of the Agent;
	 
	 	     (v) [Reserved];
	 
	 	     (w) each of the Operative Agreements to be entered into on such date
shall have been duly authorized, executed and delivered by the parties
thereto, and shall be in full force and effect, and the Agent shall have
received a fully executed copy of each such Operative Agreement;
	 
	 	     (x) since the date of the most recent audited consolidated financial
statements of the Lessee which have been provided to the Agent, there
shall not have occurred any event, condition or state of facts which
shall have or could reasonably be expected to have a Material Adverse
Effect, other than as specifically contemplated by the Operative
Agreements;
	 
	 	     (y) the Agent shall have received an Officer’s Certificate, dated as
of the Closing Date, of the Lessee in the form attached hereto as EXHIBIT
C or in such other form as is reasonably acceptable to the Agent stating
that (i) each and every representation and warranty of the Lessee
contained in the Operative Agreements to which it is a party is true and
correct in all material respects on and as of the Closing Date; (ii) no
Lease Default or Lease Event of Default has occurred and is continuing
under any Operative Agreement; (iii) each Operative Agreement to which
the Lessee is a party is in full force and effect with respect to it
except as the same may be limited by applicable bankruptcy, insolvency,
fraudulent transfer or conveyance, reorganization, moratorium or other
similar laws relating to or affecting creditors’ or lessors’ rights
generally and general principles of equity; and (iv) the Lessee has duly
performed and complied with all covenants, agreements and conditions
contained herein or in any Operative Agreement required to be performed
or complied with by it on or prior to the Closing Date;
	 
	 	     (z) the Agent shall have received (i) a certificate of the Secretary
or an Assistant Secretary of the Lessee, dated as of the Closing Date, in
the form attached hereto as EXHIBIT D or in such other form as is
reasonably acceptable to the Agent attaching and certifying as to (A) the
resolutions of the Board of Directors of the Lessee duly authorizing the
execution, delivery and performance by the Lessee of each of the
Operative Agreements to which it is or will be a party, (B) the articles
of incorporation of the Lessee certified as of a recent date by the
Secretary of State of its state of incorporation and its by-laws and (C)
the incumbency and signature of persons authorized to execute and deliver
on behalf of the Lessee the Operative Agreements to which it is or will
be a party and (ii) a good standing certificate (or local equivalent)
from



9






 







		
	 	the respective states where the Lessee is incorporated, where the
principal place of business of the Lessee is located and where the
Property is located as to its good standing in each such state;
	 
	 	     (aa) the Agent shall have received a copy of the then current
investment guidelines of the Lessee duly authorized and adopted by the
Lessee and such shall be certified by a Responsible Officer of the Lessee
as true and correct;
	 
	 	     (bb) the Agent shall have received an Officer’s Certificate of the
Lessor dated as of the Closing Date in the form attached hereto as
EXHIBIT E or in such other form as is reasonably acceptable to the Agent,
stating that (i) each and every representation and warranty of the Lessor
contained in the Operative Agreements to which it is a party is true and
correct in all material respects on and as of the Closing Date, (ii) no
Default or Event of Default attributable solely to Lessor has occurred
and is continuing under any Operative Agreement, (iii) each Operative
Agreement to which the Lessor is a party is in full force and effect with
respect to it except as the same may be limited by applicable bankruptcy,
insolvency, fraudulent transfer or conveyance, reorganization, moratorium
or other similar laws relating to or affecting creditors’ or lessors’
rights generally and general principles of equity and (iv) the Lessor has
duly performed and complied with all covenants, agreements and conditions
contained herein or in any Operative Agreement required to be performed
or complied with by it on or prior to the Closing Date;
	 
	 	     (cc) the Agent shall have received (i) a certificate of the
Secretary or an Assistant Secretary of the Lessor in the form attached
hereto as EXHIBIT F or in such other form as is reasonably acceptable to
the Agent, attaching and certifying as to (A) the signing resolutions
duly authorizing the execution, delivery and performance by the Lessor of
each of the Operative Agreements to which it is or will be a party, (B)
its articles of incorporation and its by-laws, and (C) the incumbency and
signature of persons authorized to execute and deliver on its behalf the
Operative Agreements to which it is a party and (ii) a good standing
certificate (or local equivalent) from the respective states where the
Lessor is incorporated and where the principal place of business of the
Lessor is located as to its good standing in each such state;
	 
	 	     (dd) counsel for the Lessor reasonably acceptable to the Agent shall
have issued to the Agent its opinion in the form attached hereto as
EXHIBIT G or in such other form as is reasonably acceptable to the Agent,
addressed to the Lessee and the Financing Parties;
	 
	 	     (ee) the Lessee shall have caused to be delivered to the Agent a
legal opinion in the form attached hereto as EXHIBIT H or in such other
form as is reasonably acceptable to the Agent, addressed to the Financing
Parties, from counsel reasonably acceptable to the Agent;
	 
	 	     (ff) no Casualty and no Condemnation respecting the Property shall
have occurred and be continuing and no action shall be pending or
threatened by a Governmental Authority to initiate a Condemnation with
respect to the Property;



10






 







		
	 	     (gg) the Lessee shall have caused the HVAC Easement and a lease
memorandum (or short form lease) to be delivered to the Agent for the
Ground Lease applicable to the Property and, if requested by the Agent, a
landlord waiver and a mortgagee waiver regarding the Ground Lease (in
each case, in such form as is reasonably acceptable to the Agent);
	 
	 	     (hh) the Lessee shall have caused counsel (reasonably acceptable to
the Agent) for the ground lessor of the Property subject to the Ground
Lease and regarding the HVAC Easement to have issued to the Agent, its
opinion (in form and substance reasonably satisfactory to the Agent),
addressed to the Primary Financing Parties and the Agent;
	 
	 	     (ii) as of the Closing Date only, the Agent shall have received (i)
tax lien searches and judgment lien searches regarding the Lessee and the
Lessor to be conducted (and copies thereof to be delivered to the Agent)
in such jurisdictions as determined by the Agent by a nationally
recognized search company acceptable to the Agent and (ii) the liens
referenced in such lien searches which are reasonably objectionable to
the Agent to be either removed or otherwise handled in a manner
reasonably satisfactory to the Agent;
	 
	 	     (jj) no law or regulation shall prohibit, and no order, judgment or
decree of any federal, state or local court or governmental body, agency
or instrumentality shall prohibit or enjoin, the making of any Loan or
Lessor Advance in accordance with the provisions of the Operative
Agreements;
	 
	 	     (kk) the Lessor and the Lessee shall be in compliance with all
applicable Laws; and
	 
	 	     (ll) the Lessee shall have delivered, or shall have caused to be
delivered, any and all additional documents, certificates or other items
as reasonably requested by the Conduit or the Deal Agent.




	 	  5.4.	 	 Conditions Precedent for the Lessee, the Agent and the
Primary Financing Parties Relating to the Advance of Funds after the
Closing Date.



       The obligations of the Lenders to make Loans and the Lessor to make Lessor
Advances in connection with all requests for Advances for Project Costs
subsequent to the acquisition of the Property, including without limitation a
ground lease interest therein (and to pay the Transaction Expenses in
connection therewith) are subject to the satisfaction or waiver of the
following conditions precedent (to the extent such conditions precedent require
the delivery of any agreement, certificate, instrument, memorandum, legal or
other opinion, appraisal, commitment, title insurance commitment, lien report
or any other document of any kind or type, such shall be in form and substance
satisfactory to the Agent, in its reasonable discretion; notwithstanding the
foregoing, the obligations of a party shall not be subject to any conditions
contained in this Section 5.4 which are required to be performed by such
party):




11






 





		
	 	     (a) the correctness in all material respects on such date of the
representations and warranties of the parties to this Agreement contained
herein, in each of the other Operative Agreements and in each certificate
delivered pursuant to any Operative Agreement, except to the extent any
such representation or warranty relates to an earlier date, in which case
such representation or warranty shall have been true and correct in all
material respects as of such earlier date;
	 
	 	     (b) the performance by the parties to this Agreement of their
respective obligations contained in the Operative Agreements in all
material respects to be performed on or prior to such date;
	 
	 	     (c) the Agent shall have received a fully executed counterpart of
the Requisition, appropriately completed;
	 
	 	     (d) based upon the Construction Budget which shall satisfy the
requirements of this Agreement, the sum of the Available Lender
Commitments plus the Available Lessor Commitments will be sufficient to
complete the Improvements and, after giving effect to such Loan or Lessor
Advance, the Available Lender Commitments and Available Lessor
Commitments shall not be exceeded;
	 
	 	     (e) there shall not have occurred and be continuing any Default or
Event of Default and no Default or Event of Default will have occurred as
a result of and after giving effect to the Construction Advance requested
by the applicable Requisition;
	 
	 	     (f) the title insurance policies delivered in connection with the
requirements of Section 5.3(g) shall provide for (or shall be endorsed to
provide for) insurance in an amount at least equal to the maximum total
Property Cost indicated by the Construction Budget referred to in
subparagraph (d) above (exclusive of the cost of budget items not
constituting real property) and the insurance required pursuant to the
Agency Agreement shall be in full force and effect;
	 
	 	     (g) the Construction Agent shall have provided the Agent with access
to and a right to copy the Construction Documents;
	 
	 	     (h) (i) the Construction Agent shall have delivered to the Agent
reasonably satisfactory evidence of the Transaction Expenses referenced
in Section 7.1(b) that are to be paid with the Advances and (ii) all
Transaction Expenses then due and owing shall have been paid;
	 
	 	     (i) the Construction Agent shall have delivered, or caused to be
delivered, to the Agent, documents reasonably requested by the Agent in
order to perfect the interest of the Lessor, in each case with regard to
any Equipment or other components of the Property then being acquired
with the proceeds of the Loans and the Lessor Advances;
	 
	 	     (j) all taxes, fees and other charges in connection with the
execution, delivery, recording, filing and registration of the Operative
Agreements shall have been



12






 






		
	 	paid or provisions for such payment shall have been made to the
reasonable satisfaction of the Agent;
	 
	 	     (k) since the date of the most recent audited consolidated financial
statements of the Lessee which have been provided to the Agent, there
shall not have occurred any event, condition or state of facts which
shall have or could reasonably be expected to have a Material Adverse
Effect, other than as specifically contemplated by the Operative
Agreements;
	 
	 	     (l) in the opinion of the Agent and its counsel, the transactions
contemplated by the Operative Agreements do not and will not subject the
Financing Parties or the Agent to any adverse regulatory prohibitions,
constraints, penalties or fines;
	 
	 	     (m) the Lessee shall have deposited good and immediately available
funds, in Permitted Investments, into the Liquid Collateral Account in a
sufficient amount so that after giving effect to the requested Advance
the Lessee is in compliance with Section 5.11;
	 
	 	     (n) no law or regulation shall prohibit, and no order, judgment or
decree of any federal, state or local court or governmental body, agency
or instrumentality shall prohibit or enjoin, the making of any Loan or
Lessor Advance in accordance with the provisions of the Operative
Agreements;
	 
	 	     (o) the Lessor and the Lessee shall be in compliance with all
applicable laws; and
	 
	 	     (p) the Lessee shall have delivered, or shall have caused to be
delivered, any and all additional documents, certificates or other items
as reasonably requested by the Conduit or the Deal Agent.



          5.5. Additional Reporting and Delivery Requirements on Completion
Date.



          Within thirty (30) days after the Completion Date for the Property (but in
no event later than the Completion Date for the Property), the Construction
Agent shall deliver to the Agent an Officer’s Certificate in the form attached
hereto as EXHIBIT I or in such other form as is reasonably acceptable to the
Agent specifying (a) the Completion Date for the Property, (b) that the
Property is capable of operation in a commercially reasonable manner as a
Permitted Facility, (c) the aggregate Property Cost, and (d) that all
representations and warranties of the Construction Agent and Lessee in each of
the Operative Agreements and each certificate delivered pursuant thereto are
true and correct in all material respects as of the Completion Date. The Agent
shall have the right to contest the information contained in such Officer’s
Certificate. Furthermore, on or prior to the Completion Date for the Property,
the Construction Agent shall deliver or cause to be delivered to the Agent
(unless previously delivered to the Agent) the following, each of which shall
be in form and substance acceptable to the Agent, in its reasonable discretion:
(v) a title insurance endorsement regarding the title insurance policy
delivered in connection with the requirements of Section 5.3(g), but only to
the extent such



13






 





endorsement is necessary to provide for insurance in an amount at least equal
to the maximum total Property Cost (divided between such policy in favor of the
Lenders and the Lessor based on the percentages for Advances as set forth in
Section 5.2(c)) and, if endorsed, the endorsement shall not include a title
change or exception reasonably objectionable to the Agent; (w) an ALTA survey
for the Property as built, (x) insurance certificates respecting the Property
as required hereunder and under the Lease and (y) if reasonably requested by
the Agent, amendments to the Primary Financing Party Financing Statements
executed by the appropriate parties. In addition, on the Completion Date, the
Construction Agent covenants and agrees that the recording fees, documentary
stamp taxes or similar amounts required to be paid in connection with the
Mortgage Instrument shall have been paid in an amount required by applicable
law.



          5.6. The Construction Agent Delivery of Construction Budget
Modifications.




		
	 	     (a) The Construction Agent covenants and agrees to deliver to the
Agent by the fifteenth (15th) day of each month (and if such day is not a
Business Day, then by the next occurring Business Day) notification of
any modification to the Construction Budget regarding the Property if
such modification increases the cost to construct the Property over the
Construction Budget as of the Closing Date; provided no Construction
Budget may be increased unless (a) the title insurance policies
referenced in Section 5.3(g) are also modified or endorsed, if necessary,
to provide for insurance in an amount that satisfies the requirements of
Section 5.4(f) and (b) after giving effect to any such amendment, the
Construction Budget remains in compliance with the requirements of
Section 5.4(d).
	 
	 	     (b) In the event any such modification to the Construction Budget
regarding the Property that is not caused by any acts or failure to act
of the Construction Agent increases the cost to construct the Property by
such amount as would cause the Available Lender Commitments plus the
Available Lessor Commitments to be insufficient to complete the
Improvements, at the request of the Construction Agent, the Agent shall
use all reasonable efforts to find lenders, financial institutions or
other institutional investors willing to fund such additional amounts.



          5.7. Restrictions on Liens.



          On the Closing Date, the Construction Agent shall cause the Property to be
free and clear of all Liens except those referenced in Sections 6.2(r)(i) and
6.2(r)(ii), such other Liens that are expressly set forth as title exceptions
on the title commitment or policy issued under Section 5.3(g) with respect to
the Property, Liens for Taxes that are not yet due and payable and such other
Liens that have been expressly approved or agreed to by the Agent. On the date
the Property is either sold to a third party (other than the Lessee or any
Affiliate or designee of the Lessee) in accordance with the terms of the
Operative Agreements or, pursuant to Section 22.1(a) of the Lease Agreement,
retained by the Lessor, the Lessee shall cause the Property to be free and
clear of all Liens (other than Lessor Liens, such other Liens that are
expressly set forth as title exceptions on the title commitment or policy
issued under Section 5.3(g) with respect to the Property, Liens for Taxes that
are not yet due and payable and such other Liens that have been expressly
approved or agreed to by the Agent).



14






 




          5.8. [Reserved].



          5.9. [Reserved]



          5.10. Payments.



          All payments of Rent, and other amounts payable to any Financing Party to
be made by the Construction Agent or the Lessee under this Agreement or any
other Operative Agreements (excluding Excepted Payments which shall be paid
directly to the party to whom such payments are owed) shall be made to the
Agent at the office designated by the Agent from time to time by written notice
as provided herein in Dollars and in immediately available funds, without
setoff, deduction, or counterclaim. Subject to the definition of “Interest
Period” in Appendix A attached hereto, whenever any payment under this
Agreement or any other Operative Agreements shall be stated to be due on a day
that is not a Business Day, such payment may be made on the next succeeding
Business Day, and such extension of time in such case shall be included in the
computation of Interest and fees payable pursuant to the Operative Agreements,
as applicable and as the case may be.



          5.11. Liquid Collateral.




		
	 	     (a) On the Closing Date, the Lessee shall pledge to the Agent, for
the benefit of the Secured Parties, as security for the Obligations of
the Lessee, by delivery to the Intermediary for depositing into the
Liquid Collateral Account, Liquid Collateral in an amount such that (i)
the Adjusted Market Value, in the case of Properly Margined Liquid
Collateral or (ii) the Fair Market Sales Value, in the case of
Non-Properly Margined Liquid Collateral (with respect to the foregoing
subsections (i) and (ii) in which the Agent, for the benefit of the
Secured Parties, has a first priority perfected security interest) shall
be greater than or equal to the Required Liquid Collateral Amount.
	 
	 	     (b) The Lessee shall cause all Pledged Securities in the Liquid
Collateral Account and the Punch List Liquid Collateral Account at all
times to satisfy the requirements for Liquid Collateral. Unless the
Operative Agreements otherwise require that the obligations of the Lessee
under the Operative Agreements be secured with Properly Margined Liquid
Collateral, the Lessee shall have the right to secure its obligations
under the Operative Agreements with either Properly Margined Liquid
Collateral or Non-Properly Margined Liquid Collateral. The Lessee may
change its election of Properly Margined Liquid Collateral or
Non-Properly Margined Liquid Collateral by written notice delivered to
the Agent within the first fifteen (15) days of each March, June,
September and December, and any such change in its election will be
effective as of the first Business Day of the next following month.
	 
	 	     (c) (i) (A) Prior to the date of Final Completion, the Lessee shall
at all times ensure that and (B) the Agent shall have the right at any
time, and from time to time upon delivery to the Lessee of a demand given
by telephone or fax (and confirmed in writing) (an “Additional Collateral
Demand”), to require the Lessee to transfer



15






 






		
	 	additional Permitted Investments (the “Additional Liquid
Collateral”) to the Liquid Collateral Account by the Additional
Collateral Delivery Date to ensure that (1) the Adjusted Market Value, in
the case of Properly Margined Liquid Collateral, or (2) the Fair Market
Sales Value, in the case of Non-Properly Margined Liquid Collateral (with
respect to the foregoing subsections (1) and (2) in which the Agent, for
the benefit of the Secured Parties, has a first priority perfected
security interest) shall be greater than or equal to the Required Liquid
Collateral Amount; provided, that after taking into account a transfer of
Pledged Securities the Liquid Collateral Account shall satisfy and at all
times thereafter satisfy the Concentration Limits. Additionally, upon
each release of Liquid Collateral from the Punch List Liquid Collateral
Account as described in Section 5.15, the Lessee shall be obligated
immediately to deposit additional Liquid Collateral into the Liquid
Collateral Account so that sufficient Liquid Collateral is at all times
prior to the date of Final Completion on deposit in the Liquid Collateral
Account to satisfy the requirements described in this Section 5.11(c)(i)
(regardless of whether any Additional Collateral Demand has been made).




		
	 	     (ii) Without limiting Section 5.11(c)(i) above the Lessee
shall transfer such Additional Liquid Collateral to the Liquid
Collateral Account by the Additional Collateral Delivery Date to
ensure that (A) the Adjusted Market Value, in the case of Properly
Margined Liquid Collateral, or (B) the Fair Market Sales Value, in
the case of Non-Properly Margined Liquid Collateral (with respect
to the foregoing subsections (A) and (B) in which the Agent, for
the benefit of the Secured Parties, has a first priority perfected
security interest) shall be greater than or equal to the applicable
Required Liquid Collateral Amount.




		
	 	     (d) Pursuant to the Liquid Collateral Agreements, the Agent shall
have the right to direct the reinvestment of any Pledged Securities
credited to the Liquid Collateral Account upon the maturity of such
Pledged Securities or prior thereto into one or more Permitted
Investments constituting Liquid Collateral.
	 
	 	     (e) The parties hereto acknowledge and agree that (i) any Permitted
Investments transferred to the Liquid Collateral Account pursuant to
Sections 5.11(a), 5.11(c) or 5.11(d) or otherwise shall be deemed Pledged
Securities for the purposes of this Agreement, (ii) on any transfer date,
the Agent shall instruct the Lessee and the Intermediary to take or cause
to be taken, and the Lessee and the Intermediary shall take or cause to
be taken, at the Lessee’s sole cost and expense, such action as is
necessary to create in the Lessor a valid perfected first priority
security interest on such date in such Pledged Securities, and (iii) on
any transfer date, the Agent shall instruct the Lessee, the Lessor and
the Intermediary to take or cause to be taken, and the Lessee, the Lessor
and the Intermediary shall take or cause to be taken, at the Lessee’s
sole cost and expense, such action as is necessary to create in the Agent
a valid perfected first priority security interest on such date in the
Lessor’s right, title and interest in, to and under such Pledged
Securities. Without limiting the foregoing, the Agent is hereby
authorized to complete Exhibit K hereto upon acquisition of such Pledged
Securities and deposit of same into the Liquid Collateral Account.



16






 






		
	 	     (f) To the extent no Lease Default or Lease Event of Default shall
have occurred and be continuing and to the extent the Liquid Collateral
in the Liquid Collateral Account has an Adjusted Market Value (in the
case of Properly Margined Liquid Collateral) or a Fair Market Sales Value
(in the case of Non-Properly Margined Liquid Collateral) in excess of the
Required Liquid Collateral Amount, the Lessee may request the Agent to
cause some or all of such excess Liquid Collateral to be released from
the Liquid Collateral Account and the lien of the Security Documents. In
such case, the Agent shall instruct the Intermediary to release such
specified excess Liquid Collateral to the Lessee or pursuant to the
instruction of the Lessee.



          5.12. Unilateral Right to Increase the Lessor Commitments and the Lender Commitments.



          At the request of the Lessee or the Construction Agent and in connection
with a Requisition, (a) after an increase in the Lessor Commitments has been
approved in accordance with Section 12.4, the Lessor, in its sole discretion,
may unilaterally elect to increase its Lessor Commitment and (b) after an
increase in the Lender Commitments has been approved in accordance with Section
12.4, each Investor, in its sole discretion, may unilaterally elect to increase
its Lender Commitment.



          5.13. Lessee’s Right to Request Assignment of Mortgage Notes.



          On a one time basis after the Closing Date, the Lessee may request the
Lenders (and if so requested, the Lenders shall use all reasonable efforts to
comply) to assign some or all of (a) their then current Mortgage Loans, (b) in
the case of the Investors, their then current Mortgage Loan Commitments and (c)
(subject to this Section 5.13) associated right, title and interest as a
Mortgage Lender pursuant to the Operative Agreements to one or more
institutional investors identified by the Lessee. Such arrangement shall be
accomplished in accordance with Section 10 of this Agreement. In connection
with such assignment, the assignee and/or the Lessee (as determined between
such parties) shall pay the Lenders all principal, Interest, fees and all other
amounts then due and owing pursuant to the Operative Agreements in regard to
the interest of the Lenders then being assigned, and the Lenders
(notwithstanding such assignment) shall retain their rights and benefits
pursuant to the Operative Agreements as Indemnified Persons regarding matters
arising on or prior to the effective date of such assignment.



          5.14. Lease Commencement Upon Completion.



          Unless the Agency Agreement has been terminated as a result of an Agency
Event of Default, the parties hereto acknowledge and agree that upon the
occurrence of Completion, the Property shall automatically, without further act
or notice by any Person, become subject to, and shall be leased by Lessor to
Lessee under, the Lease.



          5.15. Funding of Punch List Liquid Collateral Account for Punch
List Items.



          Prior to the submission by the Construction Agent of the Officer’s
Certificate referenced in Section 5.5 regarding Completion of the Property, the
Construction Agent shall submit a




17










 



Requisition for a Construction Advance to cover all anticipated punch list
items necessary for Final Completion of the Property. To the extent the
conditions precedent set forth in Section 5.4 are satisfied or waived and prior
to the termination of the Lender Commitments and the Lessor Commitments for the
Property, the above-described Construction Advance shall be funded in
accordance with the terms of the Operative Agreements into the Punch List
Liquid Collateral Account, converted into Liquid Collateral and shall be
subject to the Lien of the Punch List Liquid Collateral Agreements.


     Thereafter, the Construction Agent shall request funding for punch list
items regarding the Property pursuant to a request for funding in form and
substance reasonably satisfactory to the Agent describing the punch list items
and the amounts payable therefor. Upon satisfaction of the conditions
precedent set forth in Section 5.4 with regard to each such request for
funding, the Agent shall request the Intermediary to release Liquid Collateral
as identified by the Construction Agent from the Punch List Liquid Collateral
Account to fund such request for funding; provided, the amount of Liquid
Collateral to be so released shall not exceed the aggregate amount of Liquid
Collateral so deposited and retained in the Punch List Liquid Collateral
Account pursuant to this Section 5.15). Upon each such release of Liquid
Collateral from the Punch List Liquid Collateral Account, the Lessee shall be
obligated immediately to replenish the Liquid Collateral Account with Liquid
Collateral so that sufficient Liquid Collateral is at all times on deposit in
the Liquid Collateral Account to satisfy the requirements described in Section
5.11(c)(i) (regardless of whether any Additional Collateral Demand has been
made).


     All amounts deposited in the Punch List Liquid Collateral Account pursuant
to this Section 5.15 from time to time shall constitute Advances for purposes
of determining the Property Cost from the date of such Advance by the Lenders
and the Lessor for deposit into the Punch List Liquid Collateral Account.


     5.16
 Overdue Amounts.


     Unless otherwise expressly stated pursuant to any Operative Agreement, all
amounts not paid when due and owing pursuant to any Operative Agreement shall
bear Interest at the Overdue Rate from and including the due date for such
amount to but excluding the date such amount is actually paid.


     5.17  Cap on Construction Advance for Construction Agent
Reimbursement.


     So long as no Full Recourse Event of Default is continuing and provided
the conditions precedent set forth in Sections 5.4(c), 5.4(f), 5.4(g),
5.4(h)(ii) and 5.4(m) are satisfied (even if any or all of the other conditions
precedent under Section 5.4 are not satisfied at that time), the Lessor and the
Lenders shall make their respective Advances (subject to the Advance Cap) for
each Construction Advance in accordance with the applicable Requisition (in
order to reimburse the Construction Agent for amounts previously paid by the
Construction Agent which are eligible for reimbursement by Advances but have
not been so reimbursed) up to an aggregate amount for all such Construction
Advances not to exceed $10,000,000 (the “Advance Cap”).


18






 


SECTION 5A. LESSOR ADVANCE.



      5A.1.  Procedure for Lessor
Advance.




		
	 	     (a) Upon receipt from the Construction Agent by the Agent of a
Requisition pursuant to Section 4.2, and subject to the terms and
conditions of this Agreement, the Lessor shall make an Advance under the
Lessor Commitment equal to six percent (6%) of the amount requested in
such Requisition on the Closing Date or on the date for any Construction
Advance. The Lessor Advance shall be based on the Eurodollar Rate or the
ABR, as designated by the Construction Agent in the Requisition.




		
	 	     (b) To the extent that the Borrower shall have elected to terminate
or reduce the amount of the Lender Commitments pursuant to Section 2.5(a)
of a Credit Agreement, a pro rata election shall be deemed to have been
made with respect to the Lender Commitment pursuant to Section 2.5(a) of
the other Credit Agreement and with respect to the Lessor Commitments.
On any date on which the Lender Commitments shall be reduced to zero (0)
as a result of a Credit Agreement Event of Default (except for any Credit
Agreement Event of Default which relates solely to the Lessor and does
not relate to the Lessee, the Property or any other matter), the Lessor
Commitments shall automatically be reduced to zero (0), and the Lessee
shall prepay the Lessor Advances in full, together with accrued but
unpaid Lessor Yield thereon and all other amounts owing to the Lessor
under the Operative Agreements.



      5A.2.  Lessor Yield.




		
	 	     (a) The Lessor Advance shall bear yield calculated at the rate of
Lessor Yield applicable from time to time. The Lessee shall pay as Basic
Rent to the Agent for distribution to the Lessor the Lessor Yield in
arrears on each Payment Date or as otherwise provided herein or in
Section 8.7 of this Agreement.




		
	 	     (b) If all or a portion of Lessor Yield shall not be received by the
Lessor (or the Agent on behalf of the Lessor) when due (whether at the
stated maturity, by acceleration or otherwise) for any reason other than
the failure of the Lessor to fund a Lessor Advance in regard to the
payment of such Lessor Yield at a time when the conditions precedent
under the Operative Agreements have been satisfied in connection with
such funding, such overdue amount shall, without limiting the rights of
the Lessor hereunder or under any other Operative Agreement, bear
interest at the Lessor Overdue Rate, in each case from the date of
nonpayment until paid (whether after or before judgment) and shall be
paid upon demand. Upon the occurrence and during the continuation of any
Event of Default, Lessor Yield shall be calculated at the Lessor Overdue
Rate.



19






 





      5A.3.  Scheduled Return of Lessor Advance.




	 	 	The outstanding amount of the Lessor Advance shall be due in full on the
Expiration Date. On the Expiration Date, subject to the terms of this
Agreement and subject to the rights of the Lessee in connection with its
election of the Sale Option in accordance with the Operative Agreements
(including without limitation relating to the Maximum Residual Guarantee
Amount), the Lessor (or the Agent on behalf of the Lessor) shall receive
from the Lessee as Basic Rent under the Lease the outstanding amount of
the Lessor Advance then due, together with all accrued but unpaid Lessor
Yield and all other amounts due to Lessor under the Operative Agreements.



      5A.4.  Early Return of Lessor Advance.




		
	 	     (a) Subject to Sections 11.2(e), 11.3 and 11.4 of this Agreement,
the Lessor Advance may at any time and from time to time be prepaid by
the Lessee as a payment of Supplemental Rent, in whole or in part,
without premium or penalty, upon at least three (3) Business Days’
irrevocable notice to the Agent, on behalf of the Lessor, specifying the
date and amount of prepayment of the Lessor Advance. Upon receipt of
such notice, the Agent shall promptly notify the Lessor thereof. If such
notice is given, the amount specified in such notice shall be due and
payable on the date specified therein. Amounts prepaid shall not be
re-advanced.
	 
	 	     (b) If on any date the Agent or the Lessor shall receive any payment
in respect of (i) any Casualty, Condemnation or Environmental Violation
pursuant to Sections 15.1(a), 15.1(g) or 15.2 or Article XVI of the Lease
(excluding any payments in respect thereof which are payable to Lessee in
accordance with the Lease), or (ii) the Termination Value of the Property
in connection with the delivery of a Termination Notice pursuant to
Article XVI of the Lease, or (iii) the Termination Value of the Property
or such other applicable amount in connection with the exercise of a
Purchase Option under Article XX of the Lease or the exercise of the
option of the Lessor to transfer the Property to the Lessee pursuant to
Section 20.3 of the Lease, then in each case, the Agent or the Lessor
shall receive such payment to be distributed in accordance with Section
8.7(b) of this Agreement.
	 
	 	     (c) Each prepayment of the Lessor Advances pursuant to Section
5A.4(a) shall be allocated to reduce the Property Cost based on the then
current Property Cost immediately before giving effect to such
prepayment. Each prepayment of the Lessor Advances pursuant to Section
5A.4(b) shall be allocated to reduce the Property Cost immediately before
giving effect to such prepayment.
	 
	 	     (d) Each prepayment of the Lessor Advances (including without
limitation pursuant to Sections 5A.4(a), 5A.4(b) or 5A.4(c)) shall be
made on a Scheduled Interest Payment Date.



20






 




		
		5A.5.  Conversion and Continuation Options.

	 	 
	 	     (a) Subject to Section 5A.5(c), the Lessee may elect from time to
time to convert Eurodollar Lessor Advances to ABR Lessor Advances by
giving the Lessor at least three (3) Business Days’ prior irrevocable
notice of such election, provided, that any such conversion may only be
made on the last day of an Interest Period with respect thereto, and
provided, further, to the extent an Event of Default has occurred and is
continuing on the last day of any such Interest Period, the applicable
Eurodollar Lessor Advances shall automatically be converted to ABR Lessor
Advances. Subject to Section 5A.5(c), the Lessee may elect from time to
time to convert ABR Lessor Advances to Eurodollar Lessor Advances by
giving the Lessor at least three (3) Business Days’ prior irrevocable
notice of such election. All or any part of outstanding Lessor Advance
may be converted as provided herein, provided, that (i) no ABR Lessor
Advance may be converted into a Eurodollar Lessor Advance after the date
that is one (1) month prior to the Expiration Date and (ii) such notice
of conversion regarding any Eurodollar Lessor Advance shall contain an
acknowledgment of the Lessee (subject to Section 5A.5(c)) of the
requirements set forth in the definition of the term “Interest Period”
including without limitation subparagraphs (A) through (D) thereof. The
provisions of this Section 5A.5 are subject to Section 8.3(bb) of this
Agreement.
	 
	 	     (b) Subject to the restrictions of Sections 5A.1 and 8.3(bb) of this
Agreement, any Eurodollar Lessor Advance may be continued as such upon
the expiration of the then current Interest Period with respect thereto
by the Lessee (subject to Section 5A.5(c)) giving irrevocable notice to
the Lessor, in accordance with the applicable notice provision for the
conversion of ABR Lessor Advances to Eurodollar Lessor Advances set forth
herein, provided, that no Eurodollar Lessor Advance may be continued as
such after the date that is one (1) month prior to the Expiration Date,
provided, further, no Eurodollar Lessor Advance may be continued as such
if an Event of Default has occurred and is continuing as of the last day
of the Interest Period for such Eurodollar Lessor Advance, and
provided, further, that if the Lessee (subject to Section 5A.5(c)) shall fail to
give any required notice as described above or otherwise herein, or if
such continuation is not permitted pursuant to the preceding proviso,
such Eurodollar Lessor Advance shall automatically be converted to an ABR
Lessor Advance on the last day of such then expiring Interest Period.
	 
	 	     (c) The rights of the Lessee in this Section 5A.5 are subject to
there being no Lease Default or Lease Event of Default that has occurred
and is continuing at the time any such right is to be exercised. To the
extent any Lease Default or Lease Event of Default has occurred and is
continuing (and unless Lessor otherwise agrees in writing), any
outstanding Eurodollar Lessor Advance will be converted into an ABR
Lessor Advance at the end of the applicable Interest Period, and any ABR
Lessor Advance will be continued as such. The rights of the Lessee shall
be restored upon the cure or waiver of any such Lease Default or Lease
Event of Default in accordance with the Operative Agreements.



21






 





		
		5A.6.  Computation of Lessor
Yield.

	 	 
	 	     (a) Lessor Yield shall be calculated on the basis of a year of three
hundred sixty (360) days for the actual days elapsed. Any change in the
Lessor Yield resulting from a change in the Eurodollar Reserve
Requirement shall become effective as of the opening of business on the
day on which such change becomes effective.
	 
	 	     (b) Pursuant to Section 12.12 of this Agreement, the calculation of
Lessor Yield under this Section 5A.6 shall be made by the Agent. Each
determination of Lessor Yield by the Agent shall be conclusive and
binding absent demonstrable error.
	 
	 	     (c) If the Eurodollar Rate cannot be determined by the Agent in the
manner specified in the definition of the term “Eurodollar
Rate”, then
commencing on the Payment Date next occurring and continuing until such
time as the Eurodollar Rate can be determined by the Agent in the manner
specified in the definition of such term, the outstanding Lessor Advance
shall bear a yield at the ABR.



SECTION 6. REPRESENTATIONS AND WARRANTIES.



     6.1.  Representations and Warranties of the Borrower.



     The Borrower represents and warrants to each of the other parties hereto
that as of the Closing Date and the date of each Advance (except to the extent
that any such representation or warranty relates to an earlier date, including
without limitation representation and warranty in Section 6.1(r)):



		
	 	     (a) It is a corporation duly organized and validly existing and in
good standing under the laws of the State of North Carolina and has the
power and authority to enter into and perform its obligations under each
of the Operative Agreements to which it is or will be a party and each
other agreement, instrument and document to be executed and delivered by
it on or before the Closing Date in connection with or as contemplated by
each such Operative Agreement to which the Borrower is or will be a
party, and is a multi-purpose, Wholly-Owned Entity of Wachovia
Corporation;




		
	 	     (b) The execution, delivery and performance of each Operative
Agreement to which it is or will be a party has been duly authorized by
all necessary action on its part and neither the execution and delivery
thereof, nor the consummation of the transactions contemplated thereby,
nor compliance by it with any of the terms and provisions thereof (i)
does or will require any approval or consent of any trustee or holders of
any of its indebtedness or obligations or any other consent or approval
that has not previously been obtained, (ii) does or will contravene any
Legal Requirement, (iii) does or will contravene or result in any breach
of or constitute any default under, or result in the creation of any Lien
upon any of its property under, (A) its charter or by-laws, or (B) any
indenture, mortgage, chattel mortgage, deed of trust, conditional sales
contract, bank loan or credit agreement or other agreement or instrument
to which it is a party or by which it



22






 





		
	 	or its properties may be bound or affected, which contravention, breach,
default or Lien under clause (B) could reasonably be expected to
materially and adversely affect its ability to perform its obligations
under the Operative Agreements to which it is a party or would question
the validity or enforceability of any of the Operative Agreements to
which it is or will become a party or (iv) does or will require any
Governmental Action by any Governmental Authority;
	 
	 	     (c) Each Operative Agreement to which the Borrower is or will be a
party have been, or on or before the Closing Date or the date of Advance
will be, duly executed and delivered by the Borrower, and each Operative
Agreement to which the Borrower is a party constitutes, or upon execution
and delivery will constitute, a legal, valid and binding obligation
enforceable against the Borrower in accordance with the terms thereof;
	 
	 	     (d) There is no action or proceeding pending or, to its knowledge,
threatened to which it is or will be a party before any Governmental
Authority that, if adversely determined, would materially and adversely
affect its ability to perform its obligations under the Operative
Agreements to which it is a party or would question the validity or
enforceability of any of the Operative Agreements to which it is or will
become a party;
	 
	 	     (e) The Borrower has not assigned or transferred any of its right,
title or interest in or under the Lease, the Agency Agreement or its
interest in the Property or any portion thereof, except in accordance
with the Operative Agreements;
	 
	 	     (f) No Default or Event of Default under the Operative Agreements
attributable to it has occurred and is continuing;
	 
	 	     (g) Except as otherwise contemplated in the Operative Agreements,
the proceeds of the Advances shall not be applied by the Borrower for any
purpose other than the acquisition, installation and testing of the
Equipment, the repair, replacement, renovation and/or construction of
Improvements and the payment of Capitalized Costs, in each case which
accrue prior to the Commencement Date with respect to the Property;
provided, the amounts advanced by the Primary Financing Parties in
connection with their obtaining of the various interests pursuant to the
Master Transfer Agreement as referenced in Section 1 shall be deemed to
be permitted Advances for all purposes of the Operative Agreements;
	 
	 	     (h) Neither the Borrower nor any Person authorized by the Borrower
to act on its behalf has offered or sold any interest in the Borrower’s
Interest or the Notes, or in any similar security relating to the
Property, or in any security the offering of which for the purposes of
the Securities Act would be deemed to be part of the same offering as the
offering of the aforementioned securities to, or solicited any offer to
acquire any of the same from, any Person other than, in the case of the
Notes, the Agent, the Lenders and other accredited investors (as such
term is defined in the Securities Act), and neither the Borrower nor any
Person authorized by the Borrower to act on its behalf will take any
action which would subject, as a direct result of such action alone, the
issuance or sale of



23






 





		
	 	any interest in the Borrower’s Interest or the Notes to the provisions of
Section 5 of the Securities Act or require the qualification of any
Operative Agreement under the Trust Indenture Act of 1939, as amended;
	 
	 	     (i) The location of the Borrower for purposes of the UCC is North
Carolina. The Borrower’s principal place of business, chief executive
office and office where the documents, accounts and records relating to
the transactions contemplated by this Agreement and each other Operative
Agreement are kept are located at One Wachovia Center, 301 South College
Street, Charlotte, Mecklenburg County, North Carolina 28288;
	 
	 	     (j) The Borrower is not engaged principally in, and does not have as
one of its important activities, the business of extending credit for the
purpose of purchasing or carrying any margin stock (within the meaning of
Regulation U), and no part of the proceeds of the Loans or the Lessor
Advances will be used by it to purchase or carry any margin stock or to
extend credit to others for the purpose of purchasing or carrying any
such margin stock or for any purpose that violates, or is inconsistent
with, the provisions of Regulations T, U, or X;
	 
	 	     (k) The Borrower is not an “investment company” or a company
controlled by an “investment company” within the meaning of the
Investment Company Act;
	 
	 	     (l) The Property is free and clear of all Lessor Liens attributable
to the Lessor;
	 
	 	     (m) [Reserved];
	 
	 	     (n) The Borrower’s true legal name as registered in the jurisdiction
of its organization is Wachovia Development Corporation and its Federal
Employer Identification Number is 56-1610288. The Borrower does not use,
or transact any business under, any trade name other than its legal name;
	 
	 	     (o) The Borrower has filed all tax returns and all other material
reports that are required under applicable Law to be filed by it and has
paid all taxes or other charges of any Governmental Authority due
pursuant to such returns or other reports, except for any taxes or other
charges that are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves have been set aside on the
books and records of the Borrower;
	 
	 	     (p) No Governmental Action by any Governmental Authority or other
authorization, registration, consent, approval, waiver, notice or other
action by, to or of any other Person pursuant to any Legal Requirement or
any contract, indenture, instrument or agreement or for any other reason
is required to authorize or is required in connection with (i) the
execution, delivery or performance by the Borrower of any Operative
Agreement to which the Borrower is a party or (ii) the legality,
validity, binding effect or enforceability against the Borrower of any
Operative Agreement to which the Borrower is a party, in each case,
except those which have been obtained and



24






 







		
	 	are in full force and effect or those which the failure to obtain
could not reasonably be expected to have a Material Adverse Effect;
	 
	 	     (q) The Borrower is not in default with respect to any judgment,
order, writ, injunction, decree or decision of any Governmental Authority
which default could reasonably be expected to have a material adverse
effect on its ability to satisfy its obligations pursuant to the
Operative Agreements. The Borrower is complying in all material respects
with all Laws applicable to it, unless a violation of any such law could
not reasonably be expected to have a material adverse effect on its
ability to satisfy its obligations pursuant to the Operative Agreements;
and
	 
	 	     (r) As of the Closing Date only, the fair value of the business and
assets of the Borrower (including without limitation contingent,
unmatured, and unliquidated claims arising out of all rights of
indemnity, contribution, reimbursement, or any similar right) will be in
excess of the amount that will be required to pay its liabilities
(including without limitation contingent, subordinated, unmatured, and
unliquidated liabilities on existing debts, as such liabilities may
become absolute and matured), in each case after giving effect to the
transactions contemplated by this Agreement and the use of proceeds
therefrom.



     6.2.  Representations and Warranties of the Lessee.



     The Lessee represents and warrants to each of the other parties hereto
that as of the Closing Date and the date of each Advance (except to the extent
that any such representation or warranty relates to an earlier date):



		
	 	     (a) The Lessee and each Subsidiary of the Lessee is duly organized
or formed and validly existing in good standing under the laws of the
jurisdiction of its incorporation or formation, is qualified to do
business and is in good standing in each jurisdiction in which the nature
of its business makes such qualification necessary, and has all requisite
corporate power and authority to own its properties and to carry on its
business as now conducted, except in the case of Subsidiaries where the
failure to be so organized, formed, validly existing or qualified, or to
be in such good standing or to have such power and authority, or to own
such properties, or to carry on such business, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect;




		
	 	(b) (i) The Lessee has the power and authority to enter into and
perform its obligations under the Operative Agreements to which it
is a party or will be a party and has the corporate power and
authority to act in its various capacities under the Operative
Agreements;
	 
	 	     (ii) The execution and delivery by the Lessee of this
Agreement and the other applicable Operative Agreements to which
the Lessee is a party as of such date and the performance by the
Lessee of its obligations under this Agreement and the other
applicable Operative Agreements to which the Lessee is a party are



25






 







		
	 	within the corporate powers of the Lessee, have been duly
authorized by all necessary corporate action on the part of the
Lessee (including without limitation any necessary shareholder
action), have been duly executed and delivered, have received all
necessary governmental approval, and do not and will not (A)
violate any Legal Requirement which is binding on the Lessee, (B)
contravene or conflict with, or result in a breach of, any
provision of the articles of incorporation, by-laws or other
organizational documents of the Lessee or of any agreement,
indenture, instrument or other document which is binding on the
Lessee or (C) result in, or require, the creation or imposition of
any Lien (other than pursuant to the terms of the Operative
Agreements) on any asset of the Lessee;




		
	 	     (c) This Agreement and the other applicable Operative Agreements to
which the Lessee is a party, executed prior to or as of such date by the
Lessee, constitute the legal, valid and binding obligation of the Lessee,
enforceable against the Lessee, in accordance with their terms except as
the same may be limited by applicable bankruptcy, insolvency, fraudulent
transfer or conveyance, reorganization, moratorium or other similar laws
relating to or affecting creditors’ or lessors’ rights generally and
general principles of equity;




		
	 	     (d) Except
as set forth on EXHIBIT J, there are no actions, suits or
proceedings pending or, to Lessee’s knowledge, threatened against the
Lessee or any of its Subsidiaries in any court or before any Governmental
Authority (nor shall any order, judgment or decree have been issued or,
to the knowledge of the Lessee, proposed to be issued by any Governmental
Authority against the Lessee to set aside, restrain, enjoin or prevent
the full performance of any Operative Agreement or any transaction
contemplated thereby) that (i) concern the Property or Lessee’s interest
therein, (ii) question the validity or enforceability of any Operative
Agreement to which the Lessee is a party or the overall transaction
described in the Operative Agreements to which the Lessee is a party or
(iii) have or could reasonably be expected to have a Material Adverse
Effect;




		
	 	     (e) No Governmental Action by any Governmental Authority or other
authorization, registration, consent, approval, waiver, notice or other
action by, to or of any other Person pursuant to any Legal Requirement or
any contract, indenture, instrument or agreement or for any other reason
is required to authorize or is required in connection with (i) the
execution, delivery or performance by the Lessee of any Operative
Agreement to which the Lessee is a party, (ii) the legality, validity,
binding effect or enforceability against the Lessee of any Operative
Agreement to which the Lessee is a party, (iii) the acquisition,
ownership, construction, completion, occupancy, operation, leasing or
subleasing by the Lessee of the Property or (iv) the Construction Agent’s
request for any Advance, in each case, except those which have been
obtained and are in full force and effect or those which the failure to
obtain could not reasonably be expected to have a Material Adverse
Effect;




		
	 	     (f) Upon the execution and delivery of the Lease Supplement to the
Lease, (i) the Lessee will have unconditionally accepted the Property
subject to the Lease



26






 







		
	 	Supplement, and (ii) no offset will exist with respect to any Rent or
other sums payable under the Lease;




		
	 	     (g) The Lessee is not in default in any respect under any contract,
lease, loan agreement, indenture, mortgage, security agreement or other
agreement or obligation to which it is a party or by which any of its
properties is bound which default could have a Material Adverse Effect;
	 
	 	     (h) All information with respect to Lessee or any of its Affiliates
heretofore or contemporaneously herewith furnished in writing by Lessee
(or any of its Affiliates) to the Agent or any Primary Financing Party
for purposes of or in connection with any Operative Agreement and the
transactions contemplated hereby is true and accurate in every material
respect on the date as of which such information is dated or certified,
and such information, taken as a whole, does not omit to state any
material fact necessary to make such information, taken as a whole, not
misleading;
	 
	 	     (i) The location of the Lessee for purposes of the UCC is Delaware.
The principal place of business, chief executive office and office of the
Lessee where the documents, accounts and records relating to the
transactions contemplated by this Agreement and each other Operative
Agreement are kept are located at 9410 Key West Avenue, Rockville,
Maryland 20850;
	 
	 	     (j) The representations and warranties of the Lessee set forth in
any of the Operative Agreements are true and correct. There exists no
Default or Event of Default under any of the Operative Agreements
attributable to it which is continuing and which has not been cured
within any cure period expressly granted under the terms of the
applicable Operative Agreement or otherwise waived in accordance with the
applicable Operative Agreement;
	 
	 	     (k) The Property being financed consists of Land, existing
Improvements thereon and Equipment which Improvements will be completed
in accordance with the terms of the Operative Agreements;
	 
	 	     (l) The Lessor has good and marketable title to and fee simple
ownership of the Improvements and the Equipment, a valid, enforceable
interest pursuant to the Appurtenant Rights and a valid ground leasehold
interest in the Land enforceable against the Ground Lessor in accordance
with the Ground Lease, subject regarding each of the foregoing only to
(i) such Liens referenced in Sections 5.3(g), 6.2(r)(i) and 6.2(r)(ii) on
the Closing Date and (ii) subject to Section 5.7, Permitted Liens and
Lessor Liens after the Closing Date;
	 
	 	     (m) No portion of the Property is located in an area identified as a
special flood hazard area by the Federal Emergency Management Agency or
other applicable agency, or if the Property is located in an area
identified as a special flood hazard area by the Federal Emergency
Management Agency or other applicable agency, then flood insurance has
been obtained for the Property in accordance with the Agency Agreement



27






 







		
	 	and the Lease and in accordance with the National Flood Insurance Act of
1968, as amended;
	 
	 	     (n) The Property, the Plans and Specifications and the use and
operation of the Property by the Lessee shall at all times comply with
(i) all Legal Requirements (including without limitation all zoning and
land use laws and Environmental Laws), except to the extent that failure
to comply therewith, individually or in the aggregate, shall not and
could not reasonably be expected to have a Material Adverse Effect and
(ii) all Insurance Requirements (unless the failure to comply will not
result in a denial of coverage under any insurance policy required
pursuant to the Operative Agreements);
	 
	 	     (o) All utility services and facilities necessary for the
construction and operation of the Improvements and the installation and
operation of Equipment (including without limitation gas, electrical,
water and sewage services and facilities) are available at the applicable
Land and will be contracted or installed prior to the Completion Date;
	 
	 	     (p) Regarding the Property, all consents, licenses, permits,
authorizations, assignments and building permits required by any
applicable Legal Requirement or pursuant to the terms of any contract,
indenture, instrument or agreement have been obtained and are in full
force and effect, except to the extent that the failure to so obtain,
individually or in the aggregate, shall not and could not reasonably be
expected to have a Material Adverse Effect;
	 
	 	     (q) None of the Improvements encroach in any manner onto any
adjoining land (except as permitted by express written easements, which
have been approved by the Agent such approval not to be unreasonably
withheld). Upon completion of the Improvements for the Property in
accordance with the Plans and Specifications thereof, such Improvements
will be within any building restriction lines and will not encroach in
any manner onto any adjoining land (except as permitted by express
written easements, which have been approved by the Agent in the exercise
of its reasonable discretion);




		
	 	     (r) (i) The Security Documents create, as security for the
Obligations, valid and enforceable security interests in, and Liens on,
all of the Collateral, in favor of the Agent, for the benefit of the
Secured Parties and such security interests and Liens are subject to no
other Liens other than Liens that are expressly set forth as title
exceptions on the title commitment issued in accordance with Section
5.3(g) with respect to the Property and after the Closing Date (subject
to Section 5.7) Permitted Liens and Lessor Liens; and




		
	 	     (ii) The Lease Agreement creates, as security for the
obligations of the Lessee under the Lease Agreement, valid and
enforceable, perfected security interests in, and Liens on, the
Property leased thereunder, in favor of the Lessor, and such
security interests and Liens are subject to no other Liens other
than Liens that are expressly set forth as title exceptions on the
title commitment



28






 







		
	 	issued in accordance with Section 5.3(g) with respect to the
Property and the Closing Date (subject to Section 5.7), Permitted
Liens and Lessor Liens;




		
	 	     (s) (i) Neither Lessee nor any Subsidiary of Lessee is engaged
principally, or as one of its more important activities, in the business
of extending credit for the purposes of buying or carrying Margin Stock
(as defined in Regulation U); and




		
	 	     (ii) No part of the proceeds of any Advance will be used,
whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose that entails a
violation of, or that is inconsistent with, the provisions of the
Regulations of the Board including Regulation T, U or X;




		
	 	     (t) The Lessee shall at all times cause the Lessor to have good and
marketable title to and fee simple ownership of the Improvements and the
Equipment, a valid, enforceable interest pursuant to the Appurtenant
Rights and a valid ground leasehold interest in the Land enforceable
against the Ground Lessor in accordance with the Ground Lease subject
regarding each of the foregoing only to (i) such Liens referenced in
Sections 5.3(g), 6.2(r)(i) and 6.2(r)(ii) on the Closing Date and (ii)
subject to Section 5.7, Permitted Liens and Lessor Liens after the
Closing Date;
	 
	 	     (u) The issuance, sale and delivery of the Notes and the interests
in the Operative Agreements under the circumstances contemplated hereby
do not require the registration or qualification of such Notes or
interests under the Securities Act, any state securities laws, or the
Trust Indenture Act of 1939. Neither Lessee nor anyone authorized to act
on the Lessee’s behalf has, directly or indirectly, solicited any offers
to acquire, offered or sold: (i) any interest in the Notes, the Property,
the Lease or the Operative Agreements in violation of Section 5 of the
Securities Act or any state securities laws, or (ii) any interest in any
security or lease the offering of which, for purposes of the Securities
Act or any state securities laws, would be deemed to be part of the same
offering as the offering of the aforementioned interests. Neither the
Lessee nor anyone authorized to act on its behalf was involved in (y)
offering or soliciting offers for the Notes (or any similar securities)
or (z) selling Notes (or any similar securities) to any Person other than
an “accredited investor” (as such term is defined in the Securities Act);
	 
	 	     (v) The Property is located in Montgomery County, Maryland. No
notices, complaints or orders of violation or non-compliance or liability
have been issued to the Lessee or, to the best of its knowledge,
threatened by any Person with respect to the Property or the present or
intended future use thereof, except for such violations and instances of
non-compliance as could not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect, and the Lessee is not
aware of any circumstances which could give rise to the issuance of any
such notices, complaints or orders;
	 
	 	     (w) To the best knowledge of the Lessee, the Property has been
acquired at a price that is not in excess of fair market value;



29






 







		
	 	     (x) The consolidated balance sheet and income statement of the
Lessee and its Consolidated Subsidiaries as of March 31, 2003, together
with related consolidated statements of operations and retained earnings
and of cash flows as of March 31, 2003, fairly present in all material
respects the consolidated financial condition of the Lessee and its
Consolidated Subsidiaries as at such dates and the consolidated results
of the operations of the Lessee and its Consolidated Subsidiaries for the
period ended on such dates, all in accordance with GAAP, subject with
respect to the March 31, 2003 financial statements, to changes resulting
from audit and normal year end audit adjustments;
	 
	 	     (y) Neither the Lessee nor any of its Subsidiaries is in default
with respect to any judgment, order, writ, injunction, decree or decision
of any Governmental Authority which default could reasonably be expected
to have a Material Adverse Effect. Each of the Lessee and its
Subsidiaries is complying in all material respects with all Laws
applicable to it, a violation of which could reasonably be expected to
have a Material Adverse Effect;
	 
	 	     (z) Each of the Lessee and its Subsidiaries has filed or caused to
be filed all tax returns required to be filed and has paid, or has made
adequate provision for the payment of, all taxes shown to be due and
payable on said returns or in any assessments made against it, except (a)
any Taxes that are being contested in good faith by appropriate
proceedings and for which the Lessee or such Subsidiary, as applicable,
has set aside on its books adequate reserves or (b) to the extent that
the failure to do so could not reasonably be expected to result in a
Material Adverse Effect;
	 
	 	     (aa) The Lessee is not subject to any statute or regulation which
prohibits the incurrence of indebtedness under this Agreement or the
other Operative Agreements;
	 
	 	     (bb) (i) As of the Closing Date only, there has been no material
adverse change in the consolidated assets, liabilities, operations,
business or conditions (financial or otherwise) of the Lessee and its
Consolidated Subsidiaries taken as a whole from that set forth in the
financial statements referenced in Section 6.2(x) and (ii) as of the date
of each Advance after the Closing Date, there has been no change in the
assets, liabilities, operations, business or conditions (financial or
otherwise) of the Lessee which could reasonably be expected to result in
a Material Adverse Effect;
	 
	 	     (cc) The execution and delivery of the Operative Agreements will not
involve any transaction that is subject to the prohibitions of Section
406 of ERISA or in connection with which a tax could be imposed pursuant
to Section 4975(c)(1)(A)-(D) of the Code;
	 
	 	     (dd) The Lessee’s true legal name as registered in the jurisdiction
of its organization is “Human Genome Sciences, Inc.,” and its
organizational identification number assigned by the State of Delaware is
2302223 (Del). Lessee does not use, or transact any business under, any
trade name other than its legal name;



30






 







		
	 	     (ee) As of the Completion Date only, the Property shall be improved
substantially in accordance with the applicable Plans and Specifications
(including all construction finish outs and modifications to the
Property) in a good and workmanlike manner and shall be operational;
	 
	 	     (ff) Neither a Reportable Event nor an “accumulated funding
deficiency” (within the meaning of Section 412 of the Code or Section 302
of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any
Plan, and each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code, except to the extent that
any such occurrence or failure to comply would not reasonably be expected
to have a Material Adverse Effect. No termination of a Single Employer
Plan has occurred resulting in any liability that has remained
underfunded, and no Lien in favor of the PBGC or a Plan has arisen,
during such five-year period which could reasonably be expected to have a
Material Adverse Effect. The present value of all accrued benefits under
each Single Employer Plan (based on those assumptions used to fund such
Plans) did not, as of the last annual valuation date prior to the date on
which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits by an amount
which, as determined in accordance with GAAP, could reasonably be
expected to have a Material Adverse Effect. Neither the Lessee nor any
ERISA Affiliate is currently subject to any liability for a complete or
partial withdrawal from a Multiemployer Plan which could reasonably be
expected to have a Material Adverse Effect;
	 
	 	     (gg) Each of the Lessee and its Subsidiaries has good and marketable
fee simple title to all of its respective real estate assets, or if any
real property is leased by the Lessee or a Subsidiary of the Lessee
(excluding the Property), it has a valid leasehold interest enforceable
against the ground lessor of such real property in accordance with the
terms of such lease;
	 
	 	     (hh) The fair saleable value of the Lessee’s assets, measured on a
going concern basis, exceeds all probable liabilities, including those to
be incurred pursuant to the Operative Agreements. The Lessee (i) does
not have unreasonably small capital in relation to the business in which
it is or proposes to be engaged and has not (ii) incurred, and does not
believe that it will incur after giving effect to the transactions
contemplated by the Operative Agreements, debts beyond its ability to pay
such debts as they become due; and
	 
	 	     (ii) There are no collective bargaining agreements or Multiemployer
Plans covering the employees of the Lessee or any of its Subsidiaries as
of the Closing Date and none of the Lessee or any of its Subsidiaries (i)
have suffered any strikes, walkouts, work stoppages or other material
labor difficulty within the last five years or (ii) have knowledge of any
potential or pending strike, walkout or work stoppage.



31






 






SECTION 7. PAYMENT OF CERTAIN EXPENSES.



          7.1.  Transaction Expenses.




		
	 	     (a) The Lessor agrees on the Closing Date to pay, or cause to be
paid, all Transaction Expenses arising from the Closing, including
without limitation all reasonable fees, expenses and disbursements of the
Agent, the Deal Agent, the Lessor, the Lenders and their respective
counsel in connection with the transactions contemplated by the Operative
Agreements and incurred in connection with the Closing, all fees, taxes
and expenses for the recording, registration and filing of documents and
all other reasonable fees, expenses and disbursements incurred in
connection with the Closing; provided, however, the Lessor shall only be
obligated to pay such amounts from the proceeds of Loans and Lessor
Advances. The Lessee agrees to timely pay all amounts referred to in
this Section 7.1(a) to the extent the Lessor is not required to pay such
amounts.
	 
	 	     (b) For the period prior to the Commencement Date and during the
Commitment Period, the Lessor agrees on the date of any Construction
Advance and on the Completion Date to pay, or cause to be paid, all
Transaction Expenses (subject to the following) including without
limitation all reasonable fees, expenses and disbursements of counsel for
the Agent, the Deal Agent, the Lessor, and the Lenders, in connection
with the transactions contemplated by the Operative Agreements and billed
in connection with such Advance or the Completion Date, all amounts
described in Section 7.1(a) of this Agreement which have not been
previously paid, the reasonable out-of-pocket expenses of the Lessor, all
fees, expenses and disbursements incurred with respect to the various
items referenced in Sections 5.3, 5.4 and/or 5.5 (including without
limitation any premiums for title insurance policies and charges for any
updates to such policies) and all other reasonable fees, expenses and
disbursements in connection with such Advance or the Completion Date
including without limitation all expenses relating to and all fees, taxes
and expenses for the recording, registration and filing of documents and
all fees, expenses and costs referenced in Sections 7.3(a), 7.3(b), 7.4,
7.5, 7.6 and 7.7; provided, however, the Lessor shall only be obligated
to pay such amounts described in this Section 7.1(b) from the proceeds of
Loans and Lessor Advances. On the date of any Construction Advance or
the Completion Date, the Lessee agrees to timely pay all amounts referred
to in this Section 7.1(b) to the extent the Lessor is not required to pay
such amounts.
	 
	 	     (c) All fees payable pursuant to the Operative Agreements shall be
calculated on the basis of a year of three hundred sixty (360) days for
the actual days elapsed. All fees payable to the Conduit and the
Liquidity Fees shall accrue on the same basis as the CP Loans.



     7.2.  No Broker, etc.


     Each of the parties hereto represents to the others that it has not
retained or employed any broker, finder or financial adviser (other than
Wachovia Securities which has been retained by


32






 


the Lessee) to act on its behalf in connection with the Operative Agreements or
the transactions contemplated thereby, nor has it authorized any broker, finder
or financial adviser (other than Wachovia Securities which has been retained by
the Lessee) retained or employed by any other Person so to act.


     7.3.  Certain Fees and Expenses.


     From and after the Commencement Date, the Lessee agrees to pay (a) all
reasonable out-of-pocket costs and expenses incurred by the Lessee, the Agent,
the Deal Agent, the Lessor or the Lenders in entering into any future
amendments, modifications, supplements, restatements and/or replacements with
respect to any of the Operative Agreements, whether or not the amendments,
modifications, supplements, restatements and/or replacements are ultimately
entered into, or giving or withholding of waivers or consents hereto or
thereto, which have been requested by the Lessee and (b) all reasonable
out-of-pocket costs and expenses incurred by the Lessee, the Agent, the Lessor
or the Lenders in connection with any transfer or conveyance of the Property to
the Lessee or its designee or any third party pursuant to the terms of the
Operative Agreements, whether or not such transfer or conveyance is ultimately
accomplished. At all times, the Lessee agrees to pay all reasonable
out-of-pocket costs and expenses incurred by the Lessee, the Agent or the
Primary Financing Parties in connection with any exercise of remedies under any
Operative Agreement or any purchase of the Property pursuant to the terms of
the Operative Agreements by the Construction Agent, the Lessee or its designee.


     7.4.  Unused Fee.


     For the period prior to the Commencement Date and during the Commitment
Period, the Lessor agrees to pay, or cause to be paid, to the Agent for the
account of (a) the Investors (provided, the Agent shall promptly forward such
fee to the Investors, based on the relative commitments of the Investors), an
unused fee (the “Lender Unused Fee”) equal to the product of the average daily
Available Lender Commitment of each such Investor during the Commitment Period
multiplied by the Applicable Percentage and (b) the Lessor, an unused fee (the
“Lessor Unused Fee”) equal to the product of the average daily Available Lessor
Commitment of the Lessor during the Commitment Period multiplied by the
Applicable Percentage. Such Unused Fees shall be payable monthly in arrears on
each Unused Fee Payment Date. The Lessor shall only be obligated to pay such
amounts from the proceeds of Loans and Lessor Advances. The Lessee agrees to
pay all amounts referred to in this Section 7.4 to the extent the Lessor is not
required to pay such amounts.


     7.5.  Administrative Fee.


     For the period prior to Commencement Date and during the Commitment
Period, the Lessor shall pay, or cause to be paid, as Transaction Expenses, an
administrative fee to the Agent (for its individual account) on the Closing
Date and each annual anniversary thereof (or if such annual anniversary date is
not a Business Day, then on the next succeeding Business Day) on the terms and
conditions set forth in the engagement letter dated April 24, 2003 (the
“Engagement Letter”) addressed to Mr. Steven C. Mayer, Senior Vice President
and Chief Financial Officer, on behalf of the Lessee, from Mr. Evander S.
Jones, Jr., Vice President, on behalf of Wachovia


33






 


Bank, National Association. The Lessor shall only be obligated to pay such
amounts from the proceeds of Loans and Lessor Advances. The Lessee agrees to
pay all amounts referred to in this Section 7.5 to the extent the Lessor is not
required to pay such amounts. The Lessee further agrees to continue paying
such an administrative fee on the terms described above after the Commencement
Date and after the Commitment Period until the Maturity Date.


     7.6.  Structuring Fee.


     The Lessor agrees, on the Closing Date to pay, or cause to be paid, as
Transaction Expenses, a structuring fee to Wachovia Securities, LLC on the
terms and conditions set forth in the Engagement Letter. The Lessor shall only
be obligated to pay such amounts from the proceeds of Loans and Lessor
Advances. The Lessee agrees to only pay all amounts referred to in this
Section 7.6 to the extent the Lessor is not required to pay such amounts.


     7.7.  Liquidity Fee.


     On each Payment Date prior to the Commencement Date from the date of this
Agreement to the Facility Termination Date (as defined in the Liquidity
Agreement) (as such date may be extended from time to time in accordance with
the Liquidity Agreement) the Lessor shall pay, or cause to paid, as Transaction
Expenses, and the Agent shall in turn pay to the Deal Agent (for prompt payment
to the Investors), in immediately available funds a fee (the
“Liquidity Fee”)
payable in arrears for each Interest Period equal to the sum of the products
for each day of such Interest Period of (a) one divided by 360, (b) the
Applicable Percentage for the Liquidity Fee regarding the Loans and (c) one
hundred and two percent (102%) of the aggregate sum of the Credit Loan
Commitments plus the Mortgage Loan Commitments. The Lessor shall only be
obligated to pay such amounts from the proceeds of Loans and Lessor Advances.
The Lessee agrees to pay all amounts referred to in this Section 7.7 to the
extent the Lessor is not required to pay such amounts. The Lessee further
agrees to continue paying such Liquidity Fees on the terms described above
until (a) the financing pursuant to the Operative Agreements is prepaid in full
or (b) if such financing is not so prepaid, the later of the Maturity Date or
payment of all outstanding amounts pursuant to the Operative Agreements.


     7.8.  Program Fee.


     For the period prior to the Commencement Date and during the Commitment
Period, the Lessor agrees to pay, or cause to be paid, to the Deal Agent for
the account of the Conduit a program fee for each Interest Period relating to
CP Loans equal to the product of (a) one divided by 360, (b) the principal
amount of the outstanding CP Loans on the last day of each such Interest Period
and (c) 0.15% (the “Program Fee”). Such fee shall be payable on the twentieth
(20th) day of each month (unless such day is not a Business Day and in such
case the next occurring Business Day). The Lessor shall only be obligated to
pay such amounts from the proceeds of Loans and Lessor Advances. The Lessee
agrees to pay all amounts referred to in this Section 7.8 to the extent the
Lessor is not required to pay such amounts. The Lessee further agrees to
continue paying such Program Fee on the terms described above until (a) the
financing pursuant to the Operative Agreements is prepaid in full or (b) if
such financing is not so prepaid,


34






 



the later of the Maturity Date or payment of all outstanding amounts pursuant
to the Operative Agreements.


SECTION 8. OTHER COVENANTS AND AGREEMENTS.



     8.1. Cooperation with the Construction Agent or the Lessee.


     The Primary Financing Parties and the Agent shall, at the expense of and
to the extent reasonably requested by the Construction Agent or the Lessee (but
without assuming additional liabilities on account thereof and only to the
extent such is acceptable to the Primary Financing Parties and/or the Agent, as
applicable, in their reasonable discretion), cooperate with the Construction
Agent or the Lessee in connection with the Construction Agent or the Lessee
satisfying its covenant obligations contained in the Operative Agreements
including without limitation at any time and from time to time, promptly and
duly executing and delivering any and all such further instruments, documents
and financing statements (and continuation statements related thereto).


     8.2. Covenants of the Lessor.


     The Lessor hereby agrees that so long as this Agreement is in effect:



		
	 	     (a) The Lessor will not create or permit to exist at any time, and
will, at its own cost and expense, promptly take such action as may be
necessary duly to discharge, or to cause to be discharged, all Lessor
Liens on the Property attributable to it; provided, however, that the
Lessor shall not be required to so discharge any such Lessor Lien while
the same is being contested in good faith by appropriate proceedings
diligently prosecuted so long as such proceedings shall not materially
and adversely affect the rights of the Lessee under the Lease and the
other Operative Agreements or involve any material danger of impairment
of the Liens of the Security Documents or of the sale, forfeiture or loss
of, and shall not interfere with the use or disposition of, the Property
or title thereto or any interest therein or the payment of Rent;




		
	 	     (b) The Lessor shall not (i) commence any case, proceeding or other
action under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, arrangement,
winding-up, liquidation, dissolution, composition or other relief with
respect to it or its debts, or (ii) seek appointment of a receiver,
trustee, custodian or other similar official for all or any substantial
benefit of the creditors of the Lessor; and the Lessor shall not take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in this paragraph;




		
	 	     (c) The Lessor shall give prompt written notice to the Lessee, the
Primary Financing Parties (other than the Lessor) and the Agent if the
Lessor’s location for purposes of the UCC shall cease to be North
Carolina, or if the Lessor’s principal place of business or chief
executive office, or the office where the records concerning the



35






 







		
	 	accounts or contract rights relating to the Property are kept, shall
cease to be located at One Wachovia Center, 301 South College Street,
Charlotte, Mecklenburg County, North Carolina 28288;




		
	 	     (d) The Lessor shall take or refrain from taking such actions and
grant or refrain from granting such approvals with respect to the
Operative Agreements and/or relating to the Property in each case as
directed in writing by the Agent (until such time as the Loans are paid
in full) or, in connection with Section 8.5 hereof, the Lessee;
provided, however, that each of the Agent, the Primary Financing Parties (other
than the Lessor) and the Lessee acknowledges, covenants and agrees that
it will not instruct the Lessor to take any action in violation of the
terms of any Operative Agreement; and




		
	 	     (e) The Lessor shall give the Lessee prompt written notice (a
“Lessor Notice”) following the Lessor’s knowledge, but in any event
promptly upon receipt by it of (x) notice from an acquiring Person as
provided in the related underlying transaction documents that a
disposition of property will occur or (y) an appraisal or other form of
written valuation study, in either case that, in the exercise of the
Lessor’s reasonable judgment, would (regarding the Fair Market Sales
Value of the Property as set forth in the Appraisal delivered pursuant to
Section 5.3(s) or as set forth in any Appraisal requested from time to
time by the Lessee and obtained at the sole cost and expense of the
Lessee), in the case of clause (x) above, cause such Fair Market Sales
Value of the Property to exceed forty-five percent (45%) of (or, in the
case of clause (y) above, provide the Lessor with adequate information to
determine that, such Fair Market Sales Value of the Property exceeds
forty-five percent (45%) of) the fair market value (based on appraisals
or other information in the Lessor’s possession and delivered in
connection with the consummation of such underlying transactions relating
to various properties of the Lessor or received by the Lessor as
described in clause (y) above) of all of the property owned (as
determined in accordance with Lessor’s financial reporting under GAAP) by
the Lessor (the “Forty-five Percent FMV Event”). In the event that a
Lessor Notice is given, the Lessor, upon receipt of a written request
from the Lessee, may, at its option, elect to either (i) obtain
additional assets such that the gross asset value of the Property does
not ever constitute more than fifty percent (50%) of the total assets of
the Lessor, (ii) transfer its interests in all of the Property to another
Affiliate of the Lessor such that the representations set forth in the
Lessor Confirmation Letter remain correct, (iii) obtain, at the Lessee’s
sole cost and expense, additional appraisals on assets owned by the
Lessor, or (iv) obtain, at the Lessee’s sole cost and expense, a SAS
97-type letter reasonably acceptable to the Lessee from the Lessor’s
auditor to certify that the Lessor is a voting interest entity as defined
by FASB Interpretation No. 46 (to be renewed as required). Nothing
relating to the circumstances surrounding or the physical delivery of the
Lessor Notice will in any way inhibit or prohibit the Lessee’s right to
replace the Lessor pursuant to Section 10.1(d). Notwithstanding the
foregoing, in no event will the Lessor be required to disclose or provide
access to any information to the extent that such disclosure or access
would violate any law applicable to the Lessor or its Affiliates,
including without limitation banking regulations applicable to national
banks, or result in a breach of the Lessor’s or any Affiliate’s
confidentiality agreements.



36






 







		
	 	     In addition to the foregoing, if the Lessee determines, in its sole
discretion, that a Forty-Five Percent FMV Event will occur, the Lessor
agrees to use all reasonable commercial efforts to provide the
non-confidential information necessary for the Lessee to make its
accounting assessment under FASB Interpretation No. 46. Notwithstanding
the foregoing, in no event will the Lessor be required to disclose or
provide access to any information to the extent that such disclosure or
access would violate any Law applicable to the Lessor or its Affiliates,
including banking regulations applicable to national banks, or result in
a breach of the Lessor’s or any Affiliate’s confidentiality agreements.
The parties hereto agree that the Lessee and its auditors are the sole
beneficiaries of the matters addressed in this Section 8.2(e).




		
	 	     (f) Upon the Lessee’s prior written request, the Lessor shall
provide to the Lessee at least fifteen (15) days prior to the end of each
calendar quarter and at least forty-five (45) days prior to the end of
each calendar year, a confirmed copy of the Lessor Confirmation Letter.
The parties hereto agree that the Lessee and its auditors are the sole
beneficiaries of the matters addressed in this Section 8.2(f).




		
	 	     (g) At the direction of the Lessee, the Lessor shall undertake to
enter into and maintain one or more Hedging Agreements (on terms and
conditions satisfactory to the Agent) with respect to the financing of
the Property regardless of whether Completion and/or the Commencement
Date shall have occurred with respect to the Property and to terminate
any such Hedging Agreement in accordance with the terms thereof;
provided, (i) the Lessee must consent in writing (in form and substance
satisfactory to the Hedge Provider and the Agent and in such form as may
be relied upon by the Hedge Provider and each Financing Party) to each
such Hedging Agreement and certify in such consent that each such Hedging
Agreement is customary and reasonable, (ii) the Lessee must provide a
copy of each such consent to each Financing Party, (iii) upon the date as
of which the Lessor initially enters into any such Hedging Agreement, no
Default or Event of Default shall have occurred and be continuing and
(iv) each such Hedging Agreement must terminate on or prior to the last
day of the Term.




		
	 	     (h) The Lessor will not finance an amount equal to or greater than
ninety-five percent (95%) of the fair value of the property with
non-recourse debt or targeted equity.



     8.3.  The Lessee Covenants, Consent and Acknowledgment.




		
	 	     (a) The Lessee acknowledges and agrees that the Borrower, pursuant
to the terms and conditions of various Security Documents, shall create
Liens respecting the various collateral described therein in favor of the
Agent. The Lessee hereby irrevocably consents to the creation, perfection
and maintenance of such Liens. The Lessee shall, to the extent reasonably
requested by any of the other parties hereto, cooperate with the other
parties in connection with their covenants herein or in the other
Operative Agreements and shall from time to time duly execute and deliver
any and all such future instruments, documents and financing statements
(and continuation statements related thereto) as any other party hereto
may reasonably request.



37






 







		
	 	     (b) The Lessor hereby instructs the Lessee, and the Lessee hereby
acknowledges and agrees, that until such time as the Loans and the Lessor
Advances are paid in full and the Liens evidenced by the various Security
Documents have been released (i) any and all Rent (excluding Excepted
Payments, which shall be payable to the Person entitled thereto) and any
and all other amounts of any kind or type under any of the Operative
Agreements due and owing or payable to any Person shall instead be paid
directly to the Agent (excluding Excepted Payments, which shall be
payable to the Person entitled thereto) or as the Agent may direct from
time to time for allocation and distribution in accordance with the
procedures set forth in Section 8.7 hereof and (ii) the Lessee shall
cause all notices, certificates, financial statements, communications and
other information, which are delivered, or are required to be delivered,
to the Lessor, to be delivered to the Agent, as the Lessor’s agent.




		
	 	     (c) The Lessee shall not consent to any amendment, supplement or
other modification of the terms or provisions of any Operative Agreement
to which it is a party except in accordance with Section 12.4 of this
Agreement.




		
	 	     (d) The Lessee hereby covenants and agrees that (except for amounts
payable as Basic Rent, payments made in connection with the satisfaction
or removal of Lessor Liens, certain Transaction Expenses funded by
Advances pursuant to the Operative Agreements, principal and Interest due
and owing with regard to the Loans or the Lessor Advances and amounts
expressly excluded from indemnification pursuant to Section 11) any and
all payment obligations owing from time to time under the Operative
Agreements by any Person to the Agent, the Deal Agent, any Hedge
Provider, any Primary Financing Party or any other Person shall (without
further action) be deemed to be Supplemental Rent obligations payable by
the Lessee; provided, however, during the period prior to the Completion
Date, the Construction Agent may submit a Requisition for such
Supplemental Rent obligations and such Supplemental Rent obligations
shall be payable by the Construction Agent with the proceeds of one or
more Advances made in accordance with the provisions of the Operative
Agreements and upon satisfaction or express waiver of the conditions
applicable to such Advance, and such amounts shall be added to the
Property Cost; provided, further, in the event the Construction Agent
shall fail to comply with the requirements set forth in the immediately
preceding proviso or shall fail to submit a Requisition for such
Supplemental Rent obligations, the Construction Agent shall pay such
Supplemental Rent obligation to such Person from its own funds. Without
limitation, such Supplemental Rent obligations of the Lessee shall
include (except to the extent specifically excluded pursuant to the first
sentence of this Section 8.3(d)) the Supplemental Rent obligations
pursuant to this Section 8.3(d), Section 3.3 of the Lease, structuring
fees, administrative fees, participation fees, unused fees, prepayment
penalties, Breakage Costs, indemnities, program fees, liquidity fees,
transaction expenses incurred by the parties hereto in connection with
the transactions contemplated by the Operative Agreements and any and all
payment obligations owing from time to time to any Hedge Provider
pursuant to one or more Hedging Agreements (including without limitation
any and all obligations to pay termination payments thereunder).



38






 







		
	 	     (e) The Lessee hereby covenants and agrees to cause an Appraisal or
reappraisal (in form and substance reasonably satisfactory to the Agent
and from an appraiser selected by the Agent) to be issued respecting the
Property as requested by the Agent from time to time (i) at each and
every time as such shall be required to satisfy any regulatory
requirements imposed on the Agent and/or any Primary Financing Party and
(ii) after the occurrence of an Event of Default that is not a Limited
Recourse Event of Default, the costs and expenses of such Appraisal shall
be deemed to be a Supplemental Rent obligation payable in accordance with
the provisions of Section 8.3(d).




		
	 	     (f) At any time the Lessor or the Agent is entitled under the
Operative Agreements to possession of the Property or any component
thereof, the Lessee hereby covenants and agrees, at its own cost and
expense, to assemble and make the Property or such component, as
applicable, available to the Agent (on behalf of the Lessor).
	 
	 	     (g) The Lessee hereby covenants and agrees that Equipment respecting
the Property shall at no time constitute in excess of ten percent (10%)
of the aggregate Advances respecting the Property funded at such time
under the Operative Agreements.
	 
	 	     (h) The Lessee hereby covenants and agrees that it shall give thirty
(30) days’ prior notice to the Agent if the Lessee’s location for
purposes of the UCC, the Lessee’s principal place of business or chief
executive office, or the office where the records concerning the accounts
or contract rights relating to the Property are kept, shall cease to be
located at the locations set forth in Section 6.2(i) or if it shall
change its name or if it shall use, or transact business under, any
tradename other than its legal name.
	 
	 	     (i) The Lessee hereby covenants and agrees that the rights of the
Lessee under this Agreement and the Lease shall not impair or in any way
diminish the obligations of the Construction Agent and/or the rights of
the Lessor under the Agency Agreement.
	 
	 	     (j) The Lessee shall promptly notify the Agent and each Primary
Financing Party, or cause the Agent and each Primary Financing Party to
be promptly notified, upon a Responsible Officer of such Lessee gaining
knowledge of the occurrence of any Default or Event of Default which is
continuing at such time and describing the same in reasonable detail with
a description of the action the Lessee or any Affiliate has taken or
proposes to take with respect thereto. In any event, such notice shall
be provided to the Agent within ten (10) days of when a Responsible
Officer of the Lessee gains such knowledge.
	 
	 	     (k) Promptly after obtaining any required architectural approvals by
any business park or any other applicable entity with oversight
responsibility for the applicable Improvements, the Lessee shall deliver
to the Agent copies of the same.
	 
	 	     (l) Except as otherwise contemplated by the Operative Agreements,
the Lessee shall not use the proceeds of any Advance for any purpose
other than the acquisition, installation and testing of the Equipment,
the construction of the



39






 







		
	 	Improvements and the payment of Capitalized Costs and other Project
Costs, in each case which accrue prior to the Commencement Date with
respect to the Property; provided, the amounts advanced by the Primary
Financing Parties in connection with their obtaining of the various
interests pursuant to the Master Transfer Agreement as referenced in
Section 1 shall be deemed to be permitted Advances for all purposes of
the Operative Agreements.




		
	 	     (m) The Property, the Plans and Specifications for the Property and
the use and operation of the Property by the Lessee will comply with all
applicable Legal Requirements (including without limitation all
applicable Environmental Laws and building, planning, zoning and fire
codes), except to the extent the failure to comply therewith,
individually or in the aggregate, shall not have and could not reasonably
be expected to have a Material Adverse Effect. Upon completion of the
Improvements for the Property in accordance with the applicable Plans and
Specifications, such Improvements will be within any building restriction
lines and will not encroach in any manner onto any adjoining land (except
as permitted by express written easements, which have been approved by
the Agent).




		
	 	     (n) The Property shall be improved in all material respects in
accordance with the applicable Plans and Specifications.
	 
	 	     (o) The Lessee shall deliver (or cause to be delivered) an annual
certificate evidencing the insurance required to be maintained under the
Agency Agreement or Article XIV of the Lease, as applicable, on the date
such certificate is due thereunder.
	 
	 	     (p) Until all of the obligations under the Operative Agreements have
been finally and indefeasibly paid and satisfied in full (other than such
obligations thereunder which expressly survive such payment and
satisfaction in full) and the Lender Commitments and the Lessor
Commitments terminated, the Lessee will:




		
	 	     (i) preserve and maintain its separate legal existence and all
rights, franchises, licenses and privileges necessary to the
conduct of its business, and qualify and remain qualified as a
foreign corporation (or partnership, limited liability company or
other such similar entity, as the case may be) and authorized to do
business in each jurisdiction in which the failure to so qualify
would have a Material Adverse Effect;
	 
	 	     (ii) pay and perform all obligations of the Lessee under the
Operative Agreements and pay and perform (A) all taxes, assessments
and other governmental charges that may be levied or assessed upon
it or any of its property, and (B) all other indebtedness,
obligations and liabilities in accordance with customary trade
practices, which if not paid would have a Material Adverse Effect;
provided, that the Lessee may contest any item described in this
Section 8.3(p)(ii) in good faith so long as adequate reserves are
maintained with respect thereto in accordance with (and to the
extent required by) GAAP;



40






 







		
	 	     (iii) to the extent failure to do so would have a Material
Adverse Effect, observe and remain in compliance with all
applicable Laws and maintain in full force and effect all
Governmental Actions, in each case applicable to the conduct of its
business; keep (or cause to be kept) in full force and effect all
licenses, certifications or accreditations necessary for the
Property to carry on its business; and not permit the termination
of any insurance reimbursement program available to the Property;
and
	 
	 	     (iv) provide to the Agent, promptly, such additional financial
and other information as the Agent, on behalf of any Primary
Financing Party, may from time to time reasonably request and that
is reasonably related to such Primary Financing Party’s credit
analysis of the Lessee as it otherwise relates to the Property.




		
	 	     (q) The Lessee shall perform (or cause to be performed) any and all
obligations of Lessor under, and cause the Lessor to otherwise remain in
full compliance with, the terms and provisions of the Ground Lease and
the Appurtenant Rights; provided, however, the Lessee shall have no
obligation to satisfy any Lessor Liens relating to the property subject
to the Ground Lease or the Appurtenant Rights.
	 
	 	     (r) The Lessee shall prepare and submit to the Agent, on or prior to
the Closing Date, a Construction Budget for the Property (which shall
include a line item for Interest and Lessor Yield and all other
reasonably anticipated Capitalized Costs that will accrue prior to the
Completion Date) such that the sum of the Commitments will at all times
exceed the expected Property Cost.
	 
	 	     (s) The Lessee shall cause the Property to comply with all Insurance
Requirements (unless the failure to comply with such Insurance
Requirements will not result in a denial of coverage under any insurance
policy required to be maintained hereunder or under any other Operative
Agreement) and all standards of Lessee with respect to similar properties
owned by Lessee. The Lessee shall deliver evidence of builder’s risk
insurance in compliance with the requirements set forth in the Agency
Agreement or the Lease, as applicable.
	 
	 	     (t) [Reserved].
	 
	 	     (u) All utility services and facilities necessary for the
construction and operation of the Improvements and the installation and
operation of the Equipment regarding the Property (including without
limitation gas, electrical, water and sewage services and facilities)
shall be available at the Land or shall be constructed prior to the
Completion Date for the Property.
	 
	 	     (v) The acquisition, installation and testing of the Equipment and
construction of the Improvements shall be performed in a good and
workmanlike manner, substantially in accordance with the applicable Plans
and Specifications.



41






 







		
	 	     (w) The Lessee shall not incur or suffer to exist any Lien on the
Property or any other collateral subject to the Security Documents other
than Permitted Liens and Lessor Liens, and the Lessee shall at all times
cause the Liens of the Security Documents to be maintained as valid,
perfected, first-priority Liens (subject only to Permitted Liens and
Lessor Liens).
	 
	 	     (x) The Lessee shall deliver a written notice to the Agent promptly
upon the Lessee’s receiving notice or actual knowledge of a Responsible
Officer of the Lessee of the taking by a Governmental Authority of an
action, which would constitute a Condemnation, receiving notice of a
material violation of any Legal Requirement on or at the Property,
including any Environmental Law, under which liability may be imposed
upon the Agent, any Primary Financing Party or the Lessee, or receiving
notice or actual knowledge of modification of the Property (other than
routine construction progress, fire, life-safety and similar inspections)
required to remove or cure any violation of the Lessor under which
criminal liability may be imposed upon the Agent, any Primary Financing
Party or the Lessee.
	 
	 	     (y) The Lessee shall not, nor shall it permit anyone authorized to
act on its behalf to, take any action which would subject the Property,
the Operative Agreements, Loans, the Lessor Advances, or any security or
lease the offering of which, for purposes of the Securities Act or any
state securities laws, would be deemed to be part of the same offering of
the aforementioned items, to the registration requirements of Section 5
of the Securities Act or any state securities laws.
	 
	 	     (z) The proceeds of Advances and the condemnation proceeds, awards,
compensation and insurance proceeds regarding any Casualty or
Condemnation concerning the Property shall not be spent in connection
with any equipment, apparatus, furnishings, fittings or personal property
of any kind or nature, except for the Equipment.
	 
	 	     (aa) The Lessee shall cause the Interest Period for any and all CP
Loans, Eurodollar Loans and/or Eurodollar Lessor Advances subject to any
Hedging Agreement to be identical to the interest period (or any similar
period) for each such amount in each such Hedging Agreement.
	 
	 	     (bb) With respect to each Loan or portion thereof for which a
Hedging Agreement is in place and unless either Credit Agreement
(including without limitation Sections 2.6, 2.7, 2.8, 2.9 and 2.12 of
either such Credit Agreement) or the Participation Agreement requires the
application of the ABR to a Loan, the Lessee shall cause the interest
rate applicable to the Loan (unless such Loan is a CP Loan) to be the
Eurodollar Rate, not the ABR. With respect to each Lessor Advance or
portion thereof for which a Hedging Agreement is in place and unless this
Agreement (including without limitation pursuant to Sections 5A of this
Agreement) requires the application of the ABR to a Lessor Advance, the
Lessee shall cause the Lessor Yield applicable to the Lessor Advance to
be the Eurodollar Rate, not the ABR.



42






 






     8.3A  Additional Covenants of the Lessee.


     Except as specifically provided below, during the Construction Period and
the Term, if any, the Lessee covenants with each of the other parties hereto as
follows:



		
	 	     (a) [Reserved].
	 
	 	     (b) (i) During the Construction Period, the Construction Agent from
time to time shall deliver to the Lessor and the Agent an Officer’s
Certificate, which Officer’s Certificate shall state whether or not there
exists an Agency Agreement Default or Agency Agreement Event of Default
and whether or not the Site is In Balance, and shall attach a monthly
report in the form of EXHIBIT N hereto. Such Officer’s Certificate and
report shall be delivered together with any Requisition delivered by the
Construction Agent and, if no such Requisition is delivered by the
Construction Agent in any calendar month, then such Officer’s Certificate
and report shall be delivered on the last Business Day of such calendar
month.




		
	 	     (ii) The Construction Agent shall make available to the Agent
and the Construction Consultant for inspection and copying no later
than the fifth (5th) day of each calendar month: (A) copies of all
Material Construction Documents entered into in the preceding
calendar month; (B) copies of all change orders, changes to the
Construction Materials, notices, requests for any increase of any
contract sum payable, or other communication received under or in
connection with any Material Construction Document which either (x)
seeks to materially increase the total consideration payable under
any Material Construction Document, or (y) asserts that the
Construction Agent or any other party to any Material Construction
Document is in material breach or default, or with notice and lapse
of time or both will be in material breach or default under any
Material Construction Document; (C) upon reasonable request by the
Lessor, a list of the names and addresses of the subcontractors
with whom written agreements have been made by the Construction
Agent and (D) such other information as may be reasonably requested
(in light of the Construction Agent’s obligations to provide
information or documents contained herein or in the other Operative
Agreements) by the Lessor regarding the status of (and to the
extent reasonably available to the Construction Agent, the parties
to material agreements relating to) the Construction, compliance of
the parties to the Construction Documents with the terms thereof,
and amounts due and payable under the Construction Documents,
including, without limitation, such information as the Lessor shall
reasonably require to determine that the Construction Budget is In
Balance.
	 
	 	     (iii) The Construction Agent shall make available to the Agent
and the Construction Consultant for inspection and copying (A) on
each anniversary of the Closing Date (unless an Event of Default
has occurred and is continuing in which case as requested) a copy
of each of the then current Plans and Specifications and (B) within
thirty (30) days after Completion of the Property, a copy of the
then current Plans and Specifications.



43






 







		
	 	     (c) The Lessee shall deliver to the Lessor and the Agent promptly
upon the occurrence of a Casualty that may result in a claim in excess of
$1,000,000 an Officer’s Certificate describing in detail those
Improvements that have suffered a Casualty (except to the extent such
Casualty has been described in a previously delivered Officer’s
Certificate) or been the subject of a Condemnation and have not been
replaced in accordance with the Operative Agreements and cannot be
repaired by (i) the Construction Period Termination Date, with regard to
the Property prior to Completion or (ii) the then current end of the
Term, with regard to the Property after Completion.
	 
	 	     (d) Each time the investment guidelines of the Lessee are modified,
the Lessee shall deliver to the Agent (within ten (10) Business Days
after any such modification has been adopted) a copy of the newly
modified investment guidelines of the Lessee duly authorized and adopted
by the Lessee. Such investment guidelines shall be certified by a
Responsible Officer of the Lessee as true and correct.
	 
	 	     (e) Promptly upon the Lessee’s becoming aware of (i) any
investigation of it by any Governmental Authority, (ii) any court or
administrative proceeding involving it, or (iii) any notice, claim or
demand from any Governmental Authority which alleges that any such Person
is in violation of any Law or has failed to comply with any order issued
pursuant to any Federal, state or local statute regulating its operation
and business, which individually or in the aggregate is reasonably likely
to result in a liability of $10,000,000 or more or to have a Material
Adverse Effect, it shall notify the Lessor and the Agent specifying its
nature and the action it is taking with respect thereto.
	 
	 	     (f) Promptly upon occurrence of Completion of the Property, the
Lessee shall deliver written notice thereof to the Lessor and the Agent,
together with true and correct copies of certificates of occupancy issued
with respect to the Property. The failure to deliver a notice of
Completion will not prevent the Property from becoming subject to the
Lease in accordance with Section 5.14.
	 
	 	     (g) The Lessor or any Agent may designate any Person in writing who
is its officer, employee or agent to visit and inspect the Property, and
to the extent reasonable under the circumstances, examine the Lessee’s
books of record and accounts pertaining to the Property all at such
reasonable times as the Lessor or such Agent, as the case may be, may
reasonably request and, upon such request, the Lessee shall make the
Property and such books of record and accounts pertaining to the Property
available to the Lessor or the Agent, as the case may be, for inspection;
provided, that the Lessor and the Agent shall comply, and cause their
respective officers, employees and agents to comply, with the provisions
of Section 12.13. Notwithstanding the foregoing provisions of this
Section 8.3A(g), (i) except in the case of emergency or Lease Event of
Default, in connection with such visits and inspections, the Lessor or
the Agent shall provide reasonable written notice to the Lessee prior to
any such visit or inspection and, absent a Lease Event of Default and
after the Commencement Date, such visits and inspections shall occur not
more often than once per annum, (ii) any such visit and inspection shall
be at the sole risk and expense of the Person so visiting or inspecting
(but without excusing



44






 







		
	 	the Lessee for any liability for any injuries to the extent resulting from the
Lessee’s negligence or willful misconduct where such Person has complied
with clause (iii) hereof) unless a Lease Event of Default has occurred
and is continuing, in which case any such visit and inspection shall be
at the expense of the Lessee (provided that during the Construction
Period the Lessee shall request an Advance, the proceeds of which shall
be used to pay such expenses), (iii) each Person so visiting or
inspecting the Property shall comply with such rules and regulations
regarding the Lessee’s operations, safety and security as the Lessee may
reasonably impose, and (iv) no such Person shall be entitled to inspect
any areas of the Property or records that the Lessee reasonably
characterizes as confidential, proprietary or similarly necessary of
protection from disclosure.
	 
	 	     (h) [Reserved].
	 
	 	     (i) The Lessee shall, as soon as possible and in any event within
ten (10) days after the occurrence of any violation of an Environmental
Law that could reasonably be expected to have a Material Adverse Effect,
provide the Lessor and the Agent with a statement of an authorized
officer setting forth the details of such violation and the action which
the Lessee proposes to take with respect thereto.
	 
	 	     (j) The Lessee shall not, nor shall it permit anyone authorized to
act on its behalf to, take any action which would subject the issuance or
sale of any interest in the Lease, the Lessor Advances, the Loans, the
Notes or any security or lease the offering of which, for purposes of the
Securities Act or any state securities laws, would be deemed to be part
of the same offering as the offering of the aforementioned items, to the
registration requirements of Section 5 of the Securities Act or any state
securities laws.
	 
	 	     (k) The Lessee shall not, nor shall it permit anyone authorized to
act on its behalf to, sell, contract to sell, assign, lease, transfer,
convey or otherwise dispose of the Property or any part thereof in
violation of the Operative Agreements.
	 
	 	     (l) Subject to the Lessee’s rights to conduct a permitted contest in
accordance with the Operative Agreements in respect of the following, the
Lessee shall pay (provided that during the Construction Period the Lessee
shall request an Advance, the proceeds of which shall be used to pay) and
discharge before the same shall become delinquent, (i) all taxes,
assessments and governmental charges or levies imposed upon it or upon
its property, and (ii) all lawful claims that, if unpaid, might by law
become a Lien upon its property, other than Permitted Liens.
	 
	 	     (m) During the Construction Period, the Lessee shall maintain, at
the expense of the Lessor, insurance coverage covering the Property which
meets in all respects the requirements of the Agency Agreement.
	 
	 	     (n) During the continuance of any Lease Event of Default, the Lessee
shall deliver to the Lessor and the Agent an Environmental Audit for the
Property within thirty (30) days of demand therefor.




45










 




		
	 	     (o) Upon demand from the Lessor or the Agent during the continuance
of a Lease Event of Default, the Lessee shall deliver to the Lessor and
the Agent an Appraisal of the Property, prepared by an appraiser
satisfactory to the Lessor and the Agent and in form and substance
reasonably satisfactory to each of them, showing the Fair Market Sales
Value of the fee interest in the Land and the Lessor’s interest in the
Improvements, dated within thirty (30) days of the delivery of such
Appraisal.
	 
	 	     (p) The Lessee will cause the Property to be constructed in its
entirety at and on the Site and will not approve or allow the
construction of the Property or any portion thereof to be constructed at
or on any location other than the Site, except with respect to certain
assets subject to the HVAC Easement which have been specified in writing
to the Financing Parties.
	 
	 	     (q) The Lessee shall not incur, and shall not cause nor permit any
Lessee Person to incur, the Property Costs that, when added to the
aggregate Property Costs then incurred to date, would exceed the
aggregate commitments.
	 
	 	     (r) The Lessee shall not assign or transfer its interest in the
Lease or any other Operative Agreement except in accordance with Article
XXV of the Lease and Section 10.1(a) of this Agreement.
	 
	 	     (s) The Lessee covenants that the Agent has and shall continue to
have a first priority perfected security interest in the Liquid
Collateral Account and the Liquid Collateral credited thereto from time
to time, which Liquid Collateral Account and Liquid Collateral secures
all of the Obligations of the Lessee. At any time the Lessee is required
under the Liquid Collateral Agreements or the other Operative Agreements,
as applicable, to provide additional Liquid Collateral to the Agent, the
Lessee shall pledge such Liquid Collateral to the Agent pursuant to the
Cash Collateral Agreement or such other agreements in form and substance
satisfactory to the Agent providing for a valid and perfected first
priority security interest in favor of the Agent in such Liquid
Collateral, free and clear of all Liens. Any Liquid Collateral that
shall not be in the form of a direct obligation to the Agent shall be
pledged to the Agent pursuant to a pledge and security agreement and a
custody and control agreement, each in form and substance satisfactory to
the Agent, to secure the Obligations of the Lessee. The Lessee shall
maintain such pledged Liquid Collateral free and clear of all Liens other
than Liens in favor of the Agent. Any income received (or loss incurred)
by the Agent with respect to the balance from time to time on deposit in
such Liquid Collateral Account, including any interest or capital gains
on Permitted Investments made with amounts on deposit in such Liquid
Collateral Account, shall remain, or be deposited, in (or be deducted
from) such Liquid Collateral Account, and the Agent shall not be required
to reimburse any such losses or otherwise have any liability therefor
except as otherwise provided in the Liquid Collateral Agreements. All
right, title and interest in and to the cash amounts on deposit in the
Liquid Collateral Account together with any Permitted Investments from
time to time made pursuant to this Section shall constitute part of the
Liquid Collateral and shall be held for the benefit of the Secured
Parties and shall not constitute payment of the Obligations of the Lessee
(or any other obligations to which such funds are provided



46






 







		
	 	hereunder to be applied) until applied thereto as provided herein.
On a monthly basis, the Agent has the right to mark-to-market the Liquid
Collateral in its Liquid Collateral Account and to require the Lessee to
transfer additional Liquid Collateral to the Liquid Collateral Account
pursuant to the Liquid Collateral Agreements and the other Operative
Agreements, as applicable.
	 
	 	     (t) The Lessee shall complete all Final Completion Work in a good
and workmanlike manner in accordance with the Construction Materials, but
in no event later than the last day of the Term.
	 
	 	     (u) The Lessee shall furnish to the Lessor and the Agent:




		
	 	     (i) so long as the Lessee is subject to the reporting
requirements under Section 13 or 15(d) of the Securities Exchange
Act of 1934, (A) within a reasonable amount of time (but not more
than thirty (30) days) after the Lessee is required to file the
same with the SEC or any successor thereto copies of its Annual
Report on Form 10-K, and (B) within thirty (30) days after the
Lessee is required to file the same with the SEC, copies of its
quarterly reports on Form 10-Q and any reports filed on Form 8-K,
if any:
	 
	 	     (ii) at any time when the Lessee is not subject to such
reporting requirements, (A) as soon as available and in any event
within forty-five (45) days after each Fiscal Quarter, the
unaudited consolidated statements of consolidated earnings,
stockholders’ equity and cash flows of the Lessee and its
Consolidated Subsidiaries for such Fiscal Quarter and the related
consolidated balance sheet of the Lessee and its Consolidated
Subsidiaries as at the end of such Fiscal Quarter, setting forth in
each case in comparative form the corresponding figures for the
corresponding periods in the preceding fiscal year (except that, in
the case of such balance sheet, such comparison shall be to the
last day of the prior fiscal year), accompanied by a certificate of
a senior financial officer of the Lessee which certificate shall
state that said financial statements fairly present, in all
material respects, the consolidated financial condition and results
of operations of the Lessee in accordance with generally accepted
accounting principles, consistently applied, as at the end of, and
for, the relevant period (subject to normal year-end audit
adjustments) and (B) as soon as available and in any event within
ninety (90) days after each fiscal year, the audited statements of
consolidated earnings, stockholders’ equity and cash flows of the
Lessee and its Consolidated Subsidiaries for such fiscal year and
the related consolidated balance sheet of the Lessee and its
Consolidated Subsidiaries as at the end of such fiscal year,
setting forth in each case in comparative form the corresponding
figures for the preceding fiscal year, accompanied by an opinion on
such financial statements of independent certified public
accountants of recognized national standing, which opinion shall
state that said financial statements fairly present, in all
material respects, the consolidated financial condition and results
of operations of the Lessee and its Consolidated Subsidiaries as at
the end of, and for, such fiscal year



47






 





		
	 	in accordance with generally accepted accounting principles,
consistently applied, as at the end of, and for, such fiscal year;
	 
	 	     (iii) together with each delivery of financial statements
pursuant to clauses (i) and (ii) above, an Officer’s Certificate,
together with a duly executed Compliance Certificate (in the form
of EXHIBIT M), stating that the signer has made such inquiries as
the signer deems necessary and appropriate in the circumstances and
that such review has not disclosed the existence during the
accounting period covered by such financial statements, and that
the signer does not have actual knowledge of the existence as of
the date of such certificate, of any condition or event which
constitutes a Lease Event of Default or an Agency Agreement Event
of Default or which, after notice or lapse of time or both, would
constitute a Lease Event of Default or an Agency Agreement Event of
Default or, if any such condition or event existed or exists,
specifying the nature and period of the existence thereof and what
action the Lessee has taken or is taking or proposes to take with
respect thereto and including a computation of the financial tests
set forth in Sections 8.3A(v) and (w) and providing an itemization
of the Liquid Collateral Account sufficient to demonstrate
compliance with Section 5.11(c)(1)(A):
	 
	 	     (iv) such additional financial information, reports or
statements as any Financing Party may from time to time reasonably
request.



     Information required to be delivered pursuant to clause (i) of this
Section 8.3A, if not previously delivered through paper copies, shall be deemed
to have been delivered on the date on which the Lessee provides notice to the
Financing Parties that such information has been posted on the Lessee’s website
on the Internet, at sec.gov/edaux/searches.htm or at another website identified
in such notice and accessible by the Financing Parties without a charge:
provided that (x) such notice may be included in any certificate delivered
pursuant to clause (iii) hereof and (y) the Lessee shall deliver paper copies
of the information referred to in clause (i) of this Section 8.3A upon request
of any Financing Party.



		
	 	     (v) The Lessee will not permit its Unrestricted Cash, Cash
Equivalents and Marketable Securities to be less than the greater of (a)
$100,000,000 as at the end of any Fiscal Quarter and (b) the Cash Burn
Amount for the period of four consecutive Fiscal Quarters as at the end
of any Fiscal Quarter.
	 
	 	     (w) The Lessee will not permit the Senior Debt Ratio as of the end
of any Fiscal Quarter to be less than 1.25:1.
	 
	 	     (x) (i) The Lessee will not sell, transfer, or otherwise dispose of
the Ground Lessor, other than to a wholly-owned subsidiary of the Lessee,
and (ii) the Lessee will not permit the Ground Lessor (A) to sell,
transfer or otherwise dispose of the property subject to the Ground Lease
or the Appurtenant Rights or (B) to assign or permit any Lien on its
interest in the Ground Lease or the Appurtenant Rights.



48






 







		
	 	(y) (i) If (A) as of any Cash Collateral Test Date the Unrestricted
Cash, Cash Equivalents and Marketable Securities of the Lessee and
its Consolidated Subsidiaries as of such date is less than the
greater of (i) $200,000,000 and (ii) the Cash Burn Amount for the
period of four consecutive Fiscal Quarters ended on or most
recently prior to such Cash Collateral Test Date, (B) all or
substantially all of the assets of the Lessee or control of its
outstanding shares of capital stock is acquired by a Non-Public
Company, the Lessee shall no later than five (5) Business Days
after such Cash Collateral Test Date, maintain all its Liquid
Collateral on the basis of the Properly Margined Collateral
Coverage and deliver to Agent additional Permitted Investments so
that the Adjusted Market Value of the Liquid Collateral held in the
Liquid Collateral Account of the Agent is not less than the
Required Liquid Collateral Amount with respect to such Liquid
Collateral Account and the Concentration Limits are met.




		
	 	     (ii) From and after any date on which the Unrestricted Cash,
Cash Equivalents and Marketable Securities of the Lessee shall be
equal to or less than $300,000,000, the Lessee shall deliver to the
Lessor and the Agent on the last Business Day of each calendar
month an Officer’s Certificate stating the amount of the Lessee’s
Unrestricted Cash, Cash Equivalents and Marketable Securities as of
such date.




		
	 	     (z) The Lessee will not, and will not permit any Subsidiary to,
engage in any business activity, except the businesses of discovery,
development, manufacture or sale of biotechnology or pharmaceutical
products or services and any businesses reasonably ancillary, incidental,
comparable or related thereto.
	 
	 	     (aa) The Lessee shall not allow at any time the aggregate amount of
Advances received by the Lessee, together with all Interest, Lessor
Yield, fees and Transaction Expenses or any other Capitalized Costs
incurred or accruing with respect thereto, to exceed the aggregate
Commitments.
	 
	 	     (bb) [Reserved].
	 
	 	     (cc) The General Contractor for the Construction of the Property
shall be the Gilbane Building Company or any contractor acceptable to the
Construction Consultant and the Agent.
	 
	 	     (dd) Upon Completion of the Property, the Lessee shall deliver to
the Financing Parties a certification by the Gilbane Building Company in
form and substance satisfactory to each addressee to the effect that the
conditions set forth in Section 8.3A(bb) have been met.
	 
	 	     (ee) The Lessee will keep proper books of records and account in
which full, true and correct entries in conformity with GAAP and all
applicable Law shall be made of all dealings and transactions in relation
to its businesses and activities; and, provided that the Financing
Parties use reasonable efforts to minimize disruption to the business of



49






 







		
	 	the Lessee and its Subsidiaries, permit representatives of the Financing
Parties, from time to time, to visit and inspect its properties and to
inspect, audit and make extracts from its books, records and files,
including without limitation management letters prepared by independent
accountants and to discuss with its principal officers, and its
independent accountants, its business, assets, liabilities, financial
condition, results of operations and business prospects.



     8.4. Sharing of Certain Payments.


     Except for Excepted Payments, the parties hereto acknowledge and agree
that all payments due and owing by the Lessee to the Lessor under the Lease or
any of the other Operative Agreements shall be made by the Lessee directly to
the Agent as more particularly provided in Section 8.3 hereof. The Agent, the
Primary Financing Parties and the Lessee acknowledge the terms of Section 8.7
of this Agreement regarding the allocation of payments and other amounts made
or received from time to time under the Operative Agreements and agree that all
such payments and amounts are to be allocated as provided in Section 8.7 of
this Agreement.


     8.5. Grant of Easements, etc.


     The Agent and the Primary Financing Parties hereby agree that, so long as
no Event of Default shall have occurred and be continuing, and until such time
as the Agent gives instructions to the contrary to the Lessor after the
occurrence and continuance of such Event of Default, the Lessor shall, with the
prior consent of the Agent not to be unreasonably withheld, from time to time
at the request of the Lessee, in connection with the transactions contemplated
by the Agency Agreement, the Lease or the other Operative Agreements, (i) grant
easements and other rights with respect to the Property, (ii) release existing
easements or other rights which are for the benefit of the Property, (iii)
execute and deliver to any Person any instrument appropriate to confirm or
effect such grants or releases and (iv) execute and deliver to any Person such
other documents or materials in connection with the acquisition, development,
construction, testing, demolition or operation of the Property, including
without limitation reciprocal easement agreements, construction contracts,
operating agreements, development agreements, plats, replats or subdivision
documents; provided, that each of the agreements referred to in this Section
8.5 shall be of the type normally executed by the Lessee in the ordinary course
of its business and shall be on commercially reasonable terms so as not to
diminish the value of the Property in any material respect or otherwise have a
Material Adverse Effect.


     8.6. Appointment of the Agent by the Primary Financing Parties.



		
	 	     (a) The Secured Parties acknowledge and agree and direct that the
rights and remedies of the beneficiaries of the Lien of the Security
Documents shall be exercised by the Agent on behalf of the Secured
Parties; provided, in all cases, the Agent shall allocate payments and
other amounts received in accordance with Section 8.7. The Agent is
further appointed to provide notices under the Operative Agreements on
behalf each Primary Financing Party (as determined by the Agent, in its
reasonable discretion), to receive notices under the Operative Agreements
on behalf of each Primary Financing



50






 







		
	 	Party and (subject to Section 8.5) to take such other action under the
Operative Agreements on behalf of the Lessor as the Agent shall determine
in its reasonable discretion from time to time. The Agent hereby accepts
such appointments. Further, the Agent shall be entitled to take such
action on behalf of the Lessor as is delegated to the Agent under any
Operative Agreement (whether express or implied) as may be reasonably
incidental thereto.
	 
	 	     (b) Each Primary Financing Party hereby designates and appoints the
Agent as the agent of such Primary Financing Party under this Agreement
and the other Operative Agreements, and each such Primary Financing Party
authorizes the Agent, in such capacity, to execute the Operative
Agreements as agent for and on behalf of such Primary Financing Party, to
take such action on behalf of such Primary Financing Party under the
provisions of this Agreement and the other Operative Agreements and to
exercise such powers and perform such duties as are expressly delegated
to the Agent by the terms of this Agreement and other Operative
Agreements, together with such other powers as are reasonably incidental
thereto. Subject to the terms of the Operative Agreements, each of the
Primary Financing Parties directs the Agent to exercise such powers, make
such decisions and otherwise perform such duties as are delegated to the
Agent hereunder or thereunder. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Agent shall not have any duties
or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Primary Financing Party, and no implied
covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Operative
Agreement or otherwise exist against the Agent.
	 
	 	     (c) The Agent may execute any of its duties under this Agreement and
the other Operative Agreements by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by
it with reasonable care.
	 
	 	     (d) Neither the Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates shall be (a) liable for any
action lawfully taken or omitted to be taken by it or such Person under
or in connection with this Agreement or any other Operative Agreement
(except for its or such Person’s own gross negligence, willful misconduct
or its or such Person’s failure to use ordinary care in the handling of
funds) or (b) responsible in any manner to any of the Primary Financing
Parties for any recitals, statements, representations or warranties made
by the Borrower or the Lessee or any officer thereof contained in this
Agreement or any other Operative Agreement or in any certificate, report,
statement or other document referred to or provided for in, or received
by the Agent under or in connection with, this Agreement or any other
Operative Agreement or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
Operative Agreement or for any failure of the Borrower or the Lessee to
perform its obligations hereunder or thereunder. The Agent shall not be
under any obligation to any Primary Financing Party to ascertain or to
inquire as to the observance or performance of any of the agreements
contained in, or conditions



51






 







		
	 	of, this Agreement or any other Operative Agreement, or to inspect
the properties, books or records of the Borrower or the Lessee.
	 
	 	     (e) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including without limitation counsel to the Borrower or the Lessee),
independent accountants and other experts selected by the Agent. The
Agent may deem and treat the payee of any Note as the owner thereof and
Wachovia Development Corporation as the Lessor for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have
been filed with the Agent. The Agent shall be fully justified in failing
or refusing to take any action under this Agreement or any other
Operative Agreement unless it shall first receive such advice or
concurrence of the Lessor, the Majority Secured Parties or all the
Primary Financing Parties, as the case may be, as set forth in any
Operative Agreement or it shall first be indemnified to its satisfaction
by the Primary Financing Parties against any and all liability and
expense which may be incurred by it by reason of taking or continuing to
take any such action. The Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other
Operative Agreements, and any action taken or failure to act pursuant
thereto shall be binding upon all the Primary Financing Parties, all
future holders of the Notes and future entities acting as the Lessor.
	 
	 	     (f) The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder (other than the
failure of the Lessee to pay Basic Rent as and when due) unless the Agent
has received written notice from a Primary Financing Party, the Lessee or
the Borrower referring to this Agreement or such other Operative
Agreement, describing such Default or Event of Default and stating that
such notice is a “notice of default”. In the event that the Agent
receives such a notice, the Agent shall give notice thereof to the
Primary Financing Parties and the Lessee. The Agent shall take such
action with respect to such Default or Event of Default as shall be
reasonably directed by the Majority Secured Parties or otherwise as
determined pursuant to intercreditor provisions of any other agreement
among the Primary Financing Parties; provided, that unless and until the
Agent shall have received such directions, the Agent may (but shall not
be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Primary Financing Parties;
provided, further, the foregoing shall not limit the rights of the Lessor
or the Majority Secured Parties or all the Primary Financing Parties, as
the case may be, as described in this Agreement or any other Operative
Agreement.
	 
	 	     (g) Each Primary Financing Party expressly acknowledges that neither
the Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or
warranties to it and that no act by the Agent hereinafter taken,
including without limitation any review of the affairs of the Borrower or
the Lessee, shall be deemed to constitute any representation or warranty
by the Agent to any



52






 

\





		
	 	Primary Financing Party. Each Primary Financing Party represents to
the Agent that it has, independently and without reliance upon the Agent
or any other Primary Financing Party, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and
other condition and creditworthiness of the Borrower and the Lessee and
made its own decision to make its Credit Loans or make its Mortgage Loans
or to make its Lessor Advances and enter into this Agreement. Each
Primary Financing Party also represents that it will, independently and
without reliance upon the Agent or any other Primary Financing Party, and
based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement and the
other Operative Agreements, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower and
the Lessee. The Agent agrees to provide to the Primary Financing Parties
notices, reports and other documents that are customarily provided by the
Agent in its capacity as Agent in transactions similar to the
transactions contemplated hereby and by the other Operative Agreements.
Except for notices, reports and other documents expressly required to be
furnished to the Primary Financing Parties by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Primary
Financing Party with any credit or other information concerning the
business, operations, property, condition (financial or otherwise),
prospects or creditworthiness of the Borrower or the Lessee which may
come into the possession of the Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
	 
	 	     (h) Each of the Lessor and the Investors (based on each such party’s
pro rata share of the aggregate Commitment) agree to indemnify the Agent,
in its capacity as such (to the extent not reimbursed by the Lessee and
without limiting any obligation of the Lessee under and in accordance
with the terms of the Operative Agreements to do so), ratably according
to their respective Commitment Percentages in effect on the date on which
indemnification is sought under this Section (or, if indemnification is
sought after the date upon which the Commitments shall have terminated
and the Notes and Lessor Advances shall have been paid in full, ratably
in accordance with their Commitment Percentages immediately prior to such
date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including
without limitation at any time following the payment of the Notes and the
Lessor Advances) be imposed on, incurred by or asserted against any of
them in any way relating to or arising out of, the Commitments, this
Agreement, any of the other Operative Agreements or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by any of
them under or in connection with any of the foregoing; provided, that no
Primary Financing Party shall be liable for the payment of any portion of
such liabilities, obligations, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from the gross
negligence or willful misconduct of the Agent, or its failure to use
ordinary care in the handling of funds. The agreements in this Section
shall survive the payment of the Notes and the Lessor Advances and all
other amounts payable hereunder.



53






 







		
	 	     (i) The Agent and its Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Borrower or
the Lessee as though the Agent were not the Agent hereunder and under the
other Operative Agreements.
	 
	 	     (j) (i) The Agent may resign at any time as the Agent upon sixty
(60) days’ notice to the Primary Financing Parties, the Borrower and, so
long as no Lease Event of Default shall have occurred and be continuing,
the Lessee. If the Agent shall resign as the Agent under this Agreement,
a successor Agent shall be appointed by the Majority Secured Parties
which successor Agent shall be subject to the approval of, so long as no
Lease Event of Default shall have occurred and be continuing, the Lessee,
such approval not to be unreasonably withheld or delayed. If no
successor Agent is appointed prior to the effective date of the
resignation of the resigning Agent, the Agent may appoint, after
consulting with the Primary Financing Parties and subject to the approval
of, so long as no Lease Event of Default shall have occurred and be
continuing, the Lessee, such approval not to be unreasonably withheld or
delayed, a successor Agent. Any successor Agent, however appointed,
shall be a bank or trust company incorporated and doing business within
the United States of America and having a combined capital and surplus of
at least $200,000,000, if there be such an institution willing, able and
legally qualified to perform the duties of the Agent hereunder upon
reasonable or customary terms. If no successor Agent has accepted
appointment as the Agent by the date which is sixty (60) days following a
retiring Agent’s notice of resignation, the retiring Agent’s notice of
resignation shall nevertheless thereupon become effective and the Primary
Financing Parties shall perform all of the duties of the Agent until such
time, if any, as the Majority Secured Parties appoint a successor Agent,
as provided for above. If no successor Agent shall have been appointed
in accordance with the provisions of this Section 8.6(j)(i) on or before
the effective date of such resignation, the Lessee shall pay Rent to such
Person or Persons and at such location as the parties hereto shall agree
at such time. Upon the effective date of such resignation, only such
successor Agent shall succeed to all the rights, powers and duties of the
retiring Agent and the term “Agent” shall mean such successor agent and
the retiring Agent’s rights, powers and duties in such capacity shall be
terminated. After any retiring Agent resigns hereunder as the Agent, the
provisions of this Section 8.6 shall inure to such retiring Agent’s
benefit as to any actions taken or omitted to be taken by it while it was
the Agent under this Agreement.




		
	 	     (ii) The Agent may be removed (x) by any of the Majority
Secured Parties in the case of fraud, misappropriation of funds or
the commission of illegal acts by the Agent or where the Agent has
failed to perform its obligations hereunder or under any other
Operative Agreement in any material respect, or (y) any time at the
request of any Primary Financing Party, but only with the consent
of the Majority Secured Parties and so long as no Lease Event of
Default shall have occurred and be continuing, the Lessee. Any
such removal shall be effective upon the acceptance of appointment
of a successor Agent in accordance with the provisions of paragraph
(i) of this Section 8.6(j); provided, however, to the extent the
Agent being replaced pursuant to clause (x) of this Section
8.6(j)(ii) is also a



54






 






		
	 	Lender, such Person shall not be permitted to vote in connection with the
appointment or approval of a successor Agent pursuant to paragraph
(i) of this Section 8.6(j).




		
	 	     (k) Other than the exercise of reasonable care to assure the safe
custody of the Collateral while being held by the Agent hereunder or
under any other Operative Agreement, the Agent shall have no duty or
liability to preserve rights pertaining thereto, it being understood and
agreed that the Lessee shall be responsible for preservation of all
rights in the Collateral, and the Agent shall be relieved of all
responsibility for the Collateral upon surrendering it or tendering the
surrender of it to the Lessee. The Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which the Agent accords its own property,
which shall be no less than the treatment employed by a reasonable and
prudent agent in the industry, it being understood that the Agent shall
not have responsibility for taking any necessary steps to preserve rights
against any parties with respect to any of the Collateral.



     8.7. Payments.



		
	 	     (a) The Lessee has agreed in accordance with the terms of this
Agreement to pay to (i) the Agent any and all Rent (excluding Excepted
Payments) and any and all other amounts of any kind or type under any of
the Operative Agreements due and owing or payable by the Lessee to any
party hereto and (ii) each Person as appropriate the Excepted Payments.
Promptly after receipt, the Agent shall apply and allocate, in accordance
with the terms of this Section 8.7, such amounts received from the Lessee
and all other payments, receipts and other consideration of any kind
whatsoever received by the Agent pursuant to the Operative Agreements or
otherwise received by the Agent or any of the Primary Financing Parties
in connection with the Collateral. Ratable distributions among the
Lenders and the Lessor under this Section 8.7 shall be made based on (in
the case of the Lenders) the ratio of the outstanding Loans to the
aggregate Property Cost and (in the case of the Lessor) the ratio of the
outstanding Lessor Advances to the aggregate Property Cost.
	 
	 	     (b) Payments and other amounts received by the Agent from time to
time in accordance with the terms of subparagraph (a) shall be applied
and allocated as follows (subject in all cases to Section 8.7(c)):




		
	 	     (i) Any such payment or amount identified as or deemed to be
Basic Rent shall be applied and allocated by the Agent first,
ratably to the Lenders and the Lessor for application and
allocation to the payment of Interest on the Loans and to the
payment of accrued Lessor Yield with respect to the Lessor Advances
and thereafter the principal of the Loans which is due and payable
on such date and the portion of the Lessor Advances which is due on
such date; and second, if no Lease Default or Lease Event of
Default is in effect, any excess shall be paid to such Person or
Persons as the Lessee may designate; provided, that if a Lease
Default or Lease Event of Default is in effect, such excess (if
any) shall instead be



55






 







		
	 	held by the Agent until the earlier of (I) the first date thereafter on which no Lease
Default or Lease Event of Default shall be in effect (in which case
such payments or returns shall then be made to such other Person or
Persons as the Lessee may designate) and (II) the Maturity Date or
the Expiration Date, as the case may be (or, if earlier, the date
of any Acceleration), in which case such amounts shall be applied
and allocated in the manner contemplated by Section 8.7(b)(iv).
	 
	 	     (ii) If on any date the Agent or the Lessor shall receive any
amount in respect of (A) any Casualty or Condemnation pursuant to
Sections 15.1(a) or 15.1(g) of the Lease or any Environmental
Violation pursuant to Section 15.2 of the Lease (excluding any
payments in respect thereof which are payable to the Lessee in
accordance with the Lease), or (B) the Termination Value in
connection with the delivery of a Termination Notice pursuant to
Article XVI of the Lease or (C) the Termination Value in connection
with the exercise of the Purchase Option under Section 20.1 of the
Lease or the exercise of the option of the Lessor to transfer the
Property to the Lessee pursuant to Section 20.3 of the Lease, then
in each case, such amount shall be applied (1) if no Acceleration
has occurred, to prepay the principal balance of the Loans and the
Lessor Advances and the Breakage Costs, if any, on a pro rata
basis, a portion of such amount to be distributed to the Lenders
and the Lessor or (2) if an Acceleration has occurred, to apply and
allocate the proceeds respecting Sections 8.7(b)(ii)(A) through
8.7(b)(ii)(C) in accordance with Section 8.7(b)(iii) hereof.
	 
	 	     (iii) An amount equal to any payment identified as proceeds of
the sale or other disposition (or lease upon the exercise of
remedies) of the Property or any portion thereof, whether pursuant
to Article XXII of the Lease or the exercise of remedies under the
Security Documents or otherwise, the exercise of remedies set forth
in the Lease and any payment in respect of excess wear and tear
pursuant to Section 22.3 of the Lease shall be applied and
allocated by the Agent first, ratably to the payment of the
principal and Interest of the Mortgage Loans then outstanding,
second, to the payment to the Lessor of the outstanding principal
balance of all Lessor Advances plus all outstanding Lessor Yield
with respect to such outstanding Lessor Advances, third, to the
payment to the Hedge Providers of the outstanding termination
payments payable to the Hedge Providers pursuant to the Hedging
Agreements, fourth, ratably to the payment of the principal and
Interest of the Credit Loans then outstanding, fifth, to any and
all other amounts owing under the Operative Agreements to the
Lenders under the Mortgage Loans (including without limitation the
related Breakage Costs), sixth, to any and all other amounts owing
under the Operative Agreements to the Lessor (including without
limitation the related Breakage Costs), seventh, to the payment to
the Hedge Providers of any and all other amounts owing to the Hedge
Providers under the Operative Agreements (including without
limitation Breakage Costs), eighth, to any and all other amounts
owing under the Operative Agreements to the Lenders under the
Credit Loans (including without limitation the related Breakage
Costs), and ninth, to the extent moneys remain after application
and allocation pursuant to clauses first through eighth above, to
the Lessor for application and



56






 







		
	 	allocation to any and all other amounts owing under the Operative Agreements as
the Lessor shall determine; provided, where no Event of Default
shall exist and be continuing and a prepayment is made for any
reason with respect to less than the full amount of the outstanding
principal amount of the Loans and the outstanding Lessor Advances,
the proceeds shall be applied and allocated ratably to the Lenders
and to the Lessor.
	 
	 	     (iv) An amount equal to (A) any such payment identified as a
payment pursuant to Section 22.1(b) of the Lease (or otherwise) of
the Maximum Residual Guarantee Amount (and any such lesser amount
as may be required by Section 22.1(b) of the Lease) in respect of
the Property and (B) any other amount payable upon any exercise of
remedies after the occurrence and continuance of an Event of
Default not covered by Sections 8.7(b)(i) or 8.7(b)(iii) above
(including without limitation any amount received in connection
with an Acceleration which does not represent proceeds from the
sale or liquidation of the Property shall be applied and allocated
by the Agent first, ratably, to the payment of the principal and
Interest balance of Credit Loans then outstanding, second, ratably
to the payment of the principal and Interest balance of the
Mortgage Loans then outstanding, third, ratably to the payment of
the principal balance of all Lessor Advances plus all outstanding
Lessor Yield with respect to such outstanding Lessor Advances,
fourth, to the payment to the Hedge Providers of the outstanding
termination payments payable to the Hedge Providers pursuant to the
Hedging Agreements, fifth, to the payment of any other amounts
owing to the Credit Lenders hereunder or under any of the other
Operative Agreements (including without limitation the related
Breakage Costs), sixth, to the payment of any other amounts owing
to the Mortgage Lenders hereunder or under any of the other
Operative Agreements (including without limitation the related
Breakage Costs), seventh, to the payment of any other amounts owing
to the Lessor hereunder or under any of the other Operative
Agreements (including without limitation the related Breakage
Costs), eighth, to the payment to the Hedge Providers of any and
all other amounts owing to the Hedge Providers under the Operative
Agreements (including without limitation Breakage Costs), and
ninth, to the extent moneys remain after application and allocation
pursuant to clauses first through eighth above, to the Agent for
application and allocation to any other amounts owing under the
Operative Agreements as the Lessor shall determine.
	 
	 	     (v) An amount equal to any such payment identified as
Supplemental Rent shall be applied and allocated by the Agent to
the payment of any amounts then owing to the Agent, the Lenders,
the Lessor, the Hedge Providers and the other parties to the
Operative Agreements (or any of them) (other than any such amounts
payable pursuant to the preceding provisions of this Section
8.7(b)) for which such payment is made in accordance with the
provisions of Operative Agreements; provided, however, that
Supplemental Rent received upon the exercise of remedies after the
occurrence and continuance of an Event of Default in lieu of or in
substitution of the Maximum Residual Guarantee Amount or as a



57






 







		
	 	partial payment thereon shall be applied and allocated as set forth
in Section 8.7(b)(iv).
	 
	 	     (vi) The Agent in its reasonable judgment shall identify the
nature of each payment or amount received by the Agent and apply
and allocate each such amount in the manner specified above.
	 
	 	     (vii) If possession of the Property is delivered to Lessor
pursuant to Section 22.6 of the Lease, then at the end of each
calendar month following the Expiration Date, any amounts received
by the Agent during the calendar month then ended as proceeds from
the sale, rental, or other disposition of the Property and any
insurance proceeds paid in connection with a Casualty or
Condemnation relating to the Property shall be distributed by the
Agent in the following order of priority: first, so much of such
payment or amount as shall be required to reimburse the Agent and
the Lessor for any expenses, fees, indemnities or other losses
incurred by the Agent or the Lessor under the Operative Agreements
relating to, or which the Agent or the Lessor determines is
allocable to, the Property, second, so much of such amount as shall
be required to pay to any Person, including the Agent or the
Lessor, all expenses and other costs and expenses of maintaining,
operating or insuring the Property, third, so much of such amount
as shall be required to pay actual and reasonable costs of selling
the Property during the preceding calendar month, including all
finders’ and brokers’ fees allocable to the Property, fourth, to
the Primary Financing Parties whose Primary Financing Party
Balances were not paid in full as of the Expiration Date an amount
not to exceed the Lease Supplement Balance for the Property (less
the Uninsured Force Majeure Loss for the Property) to pay in full
the Post-Expiration Date Balance of each such Primary Financing
Party, fifth, solely with respect to a sale of the Property prior
to the two year anniversary of the Expiration Date, to the Lessee
any unreimbursed Maximum Residual Guarantee Amount; sixth, to the
Primary Financing Parties whose Primary Financing Party Balances
were not paid in full as of the Expiration Date to pay in full the
remainder of the Post-Expiration Date Balance of each such Primary
Financing Party, and seventh, the balance, if any, shall be
promptly distributed to, or as directed by, the Lessor.




		
	 	     (c) Upon the payment in full of all amounts then due and owing by
the Lessee under the Operative Agreements (but subject to the
distribution and allocation provisions of Section 8.7(b) above), any
moneys remaining with the Agent shall be returned to the Lessee. It is
agreed that, prior to the application and allocation of amounts received
by the Agent and/or the Lessor in the order described in Section 8.7(b)
above or any distribution of money to the Lessee, any such amounts shall
first be applied and allocated to the payment of (i) any and all sums
advanced by the Agent and/or the Lessor in order to preserve the
Collateral or to preserve the Liens thereon, (ii) the expenses of
retaking, holding, preparing for sale or lease, selling or otherwise
disposing or realizing on the Collateral, or of any exercise by the Agent
of its rights under the Security Documents, together with reasonable
attorneys’ fees and expenses and court costs and (iii) any and all other
amounts reasonably owed to the Agent under or in connection with the
transactions



58






 







		
	 	contemplated by the Operative Agreements (including without
limitation any accrued and unpaid administration fees). The Agent shall
not, to its knowledge, duplicate payment of amounts in connection with the
distribution and allocation of amounts pursuant to Sections 8.7(b) and 8.7(c).



     8.8. Release of the Property, etc.


     If the Lessee shall at any time purchase the Property pursuant to the
Lease, or the Construction Agent shall purchase the Property pursuant to the
Agency Agreement, or if the Property shall be sold in accordance with Article
XXII of the Lease, then, upon satisfaction by the Borrower of its obligation to
prepay the Financing and all other amounts owing to the Primary Financing
Parties under the Operative Agreements, the Agent is hereby authorized and
directed to release the Property from the Liens created by the Security
Documents to the extent of its interest therein. In addition, upon the
termination of the Commitments and the payment in full of the Financing and all
other amounts owing by the Borrower and the Lessee hereunder or under any other
Operative Agreement, the Agent is hereby authorized and directed to release the
Property from the Liens created by the Security Documents to the extent of its
interest therein. Following any such release, the Agent shall, at the sole
cost and expense of the Lessee, execute and deliver to the Borrower and the
Lessee such documents as the Borrower or the Lessee shall reasonably request to
evidence such release.


     8.9. Limitation of Lessor’s Obligations.



		
	 	     (a) The Lessor shall not have any duty or obligation to manage,
control, use, make any payment in respect of, register, record, insure,
inspect, sell, dispose of or otherwise deal with the Property or any
other part of the Borrower’s Interest, or to otherwise take or refrain
from taking any action under or in connection with any Operative
Agreement to which the Lessor is a party, except as expressly provided by
the terms of the Operative Agreements or in written instructions from all
the Primary Financing Parties and/or the Majority Secured Parties, as
applicable, received pursuant to Section 8.6; and no implied duties or
obligations shall be read into the Operative Agreements against the
Lessor. The Lessor shall have no duty or obligation to supervise or
monitor the performance of the Construction Agent under the Agency
Agreement, which for all purposes shall be an independent contractor.
The Lessor nevertheless agrees that it will promptly take all action as
may be necessary to discharge any Lessor Liens on any part of the
Property.
	 
	 	     (b) The Lessor agrees that it will not manage, control, use, sell,
dispose of or otherwise deal with the Property or any other part of the
Borrower’s Interest except (a) as required by the terms of the Operative
Agreements, (b) in accordance with the powers granted to, or the
authority conferred upon, it pursuant to the Operative Agreements or (c)
in accordance with the express terms hereof and with written instructions
from all the Primary Financing Parties and/or the Majority Secured
Parties, as applicable, pursuant to Section 8.6.



59






 







		
	 	     (c) Except in accordance with written instructions furnished
pursuant to an applicable provision of the Operative Agreements
(expressly cited in such instructions), and without limitation of the
generality of Section 8.9(a), the Lessor shall not have any
duty to (i) file, record or deposit any Operative Agreement or any other
document, or to maintain any such filing, recording or deposit or to
refile, rerecord or redeposit any such document; (ii) obtain insurance on
the Property or effect or maintain any such insurance, other than to
receive and forward to each Primary Financing Party and the Agent any
notices, policies, certificates or binders furnished to the Lessor
pursuant to the Lease; (iii) maintain the Property; (iv) pay or discharge
any Tax or any Lien owing with respect to or assessed or levied against
any part of the Borrower’s Interest, except as provided in the last
sentence of Section 8.9(a), other than to forward notice of such Tax or
Lien received by the Lessor to each Primary Financing Party and the
Agent; (v) confirm, verify, investigate or inquire into the failure to
receive any reports or financial statements of Lessee or any other
Person; (vi) inspect the Property at any time or ascertain or inquire as
to the performance or observance of any of the covenants of Lessee or any
other Person under any Operative Agreement with respect to the Property;
or (vii) manage, control, use, sell, dispose of or otherwise deal with
the Property or any part thereof or any other part of the Borrower’s
Interest, except as provided in Section 8.9(b).
	 
	 	     (d) The Lessor, in the exercise or administration of its powers
pursuant to the Operative Agreements, may, at the expense and, so long as
no Lease Default or Lease Event of Default shall have occurred and be
continuing, with the consent of Lessee (which amounts may be funded prior
to the Construction Period Termination Date in accordance with the
Operative Agreements) employ agents, attorneys, accountants, and auditors
and enter into agreements with any of them and the Lessor shall not be
liable for the default or misconduct of any such agents, attorneys,
accountants or auditors if such agents, attorneys, accountants or
auditors shall have been selected by it with reasonable care.



      8.10. No Representations or Warranties as to the Property or
Operative Agreements.


      THE LESSOR MAKES (i) NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR
IMPLIED, AS TO THE TITLE, VALUE, USE, CONDITION, DESIGN, OPERATION,
MERCHANTABILITY OR FITNESS FOR USE OF THE PROPERTY (OR ANY PART THEREOF), OR
ANY OTHER REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS OR IMPLIED,
WITH RESPECT TO THE PROPERTY (OR ANY PART THEREOF) AND THE LESSOR SHALL NOT BE
LIABLE FOR ANY LATENT, HIDDEN, OR PATENT DEFECT THEREIN OR THE FAILURE OF THE
PROPERTY, OR ANY PART THEREOF, TO COMPLY WITH ANY LEGAL REQUIREMENT except that
the Lessor hereby represents, warrants and covenants to each Primary Financing
Party and the Lessee that it will comply with the last sentence of Section
8.9(a), and (ii) no representation or warranty as to the validity or
enforceability of any Operative Agreement as against any Person other than the
Lessor or as to the correctness of any statement made by a Person other than
the Lessor contained in any thereof.


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     8.11.
Reliance; Advice of Counsel.


     The Lessor shall not incur any liability to any Person in acting upon any
signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper reasonably
believed by it to be genuine and believed by it in good faith to be signed by
the proper party or parties. The Lessor may accept and rely upon a certified
copy of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the manner of ascertainment of which is not specifically
prescribed herein, the Lessor may for all purposes of the Operative Agreements
rely on an Officer’s Certificate of the relevant party, as to such fact or
matter, and such certificate shall constitute full protection to the Lessor for
any action taken or omitted to be taken by it reasonably in good faith in
reliance thereon. In the administration of the Lessor’s duties, the Lessor may
execute and perform its powers and duties directly or through agents or
attorneys and may consult with counsel, accountants and other skilled Persons
to be selected and employed by it, and the Lessor shall not be liable for
anything done, suffered or omitted reasonably in good faith by it in accordance
with the advice or opinion of any such counsel, accountants or other skilled
Persons and not contrary to the Operative Agreements.


     8.12 [Reserved].


     8.13. [Reserved].


     8.14.
Non-Disturbance.


     In the event of a foreclosure under any Security Document upon the
occurrence of an Event of Default, so long as there shall then exist no Lease
Event of Default, the Primary Financing Parties agree, for themselves and their
respective successors and assigns, that neither the leasehold interest, right
of possession nor use and enjoyment of the Property by Lessee under the Lease
shall be extinguished or terminated by reason of such foreclosure, but rather
the Lease shall continue in full force and effect and the Lease (subject to the
rights of the Lessee pursuant to Section 10.1(d)) shall automatically and
unconditionally become a direct lease between the Primary Financing Parties or
any successor thereto, as lessor as if such Primary Financing Parties or
successor were the Lessor originally named in the Lease, and Lessee. If any
award, compensation or proceeds of insurance are received by or turned over to
the Agent or any Primary Financing Party in accordance with the Lease, in
respect of any Casualty or Condemnation (collectively, as used in this Section
8.14, “proceeds”), and if a Lease Default or Lease Event of Default shall not
have occurred and be continuing, then the Agent and the Primary Financing
Parties shall make available for expenses related to the Restoration of the
Property, all such proceeds it receives pursuant to the terms of the Lease.


     8.15
Payment of Appraiser Expenses.


     Notwithstanding any provision in any Operative Agreement to the contrary,
each of the Lessor and the Investors hereby agrees to pay its ratable share
(based on each such party’s pro


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rata share of the aggregate Commitment) of the fees or expenses of any
appraiser otherwise payable by the Lessor pursuant to Section 22.4 of the
Lease.


     8.16
Bankruptcy Petition Against the Conduit.


     Each of the parties hereto (other than the Conduit) (by accepting the
benefits of this Agreement) hereby agrees that it will not institute against,
or join any other Person in instituting against, the Conduit any Insolvency
Proceeding so long as any Commercial Paper Note issued by the Conduit shall be
outstanding and there shall not have elapsed one year and one day since the
last day on which any such Commercial Paper Note shall have been outstanding.


SECTION 9. RIGHTS UNDER THE CREDIT AGREEMENTS.



     Notwithstanding anything to the contrary contained in the Credit
Agreements, the Agent, the Lenders, the Lessor and the Lessee hereby agree
that, prior to the occurrence and continuation of any Lease Default or Lease
Event of Default, the Lessee shall have the following rights of the Borrower:



		
	 	     (a) the right to receive notices and provide notices and elections
pursuant to Section 2.1(c) of the Credit Agreements;
	 
	 	     (b) the right to provide notices pursuant to Section 2.3(a) of the
Credit Agreements;
	 
	 	     (c) the right to terminate or reduce Lender Commitments pursuant to
Section 2.5(a) of the Credit Agreements;
	 
	 	     (d) the rights of the Borrower in connection with the replacement of
an Investor pursuant to Section 2.7(b) of the Credit Agreements;
	 
	 	     (e) the right to receive notices pursuant to Section 2.8(a) of the
Credit Agreements;
	 
	 	     (f) the right to exercise the conversion and continuation options
pursuant to Section 2.12 of the Credit Agreements;
	 
	 	     (g) the right to approve any successor agent pursuant to Section 8.6
of this Agreement;
	 
	 	     (h) the right to consent to any assignment by an Investor pursuant
to Section 9.8 of the Credit Agreements and the right to the information
to be provided to the Borrower pursuant to Section 9.8 of the Credit
Agreements;
	 
	 	     (i) the right to inspect the Register pursuant to Section 9.9 of the
Credit Agreements; and



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	 	     (j) without limiting the foregoing clauses (a) through (i), and in
addition thereto, the Lessee shall have the right to perform the
obligations of and exercise any other rights of the Borrower under the
Credit Agreements upon not less than twenty (20) Business Days’ prior
written notice from the Lessee to the Agent unless the Agent, on behalf
of the Borrower and in its reasonable discretion, objects to such
exercise within twenty (20) Business Days of receipt of such notice. The
Lessee shall make elections and exercise its rights pursuant to this
Section 9 in a consistent manner with regard to each Credit Agreement.
Failure to do so shall void the particular election or exercise of rights
by the Lessee.



SECTION 10. TRANSFER OF INTEREST.



     10.1.
Restrictions on Transfer.



		
	 	     (a) Any Lender may participate, assign or transfer all or a portion
of its interest hereunder and under the other Operative Agreements in
accordance with Sections 9.7 and 9.8 of the applicable Credit Agreement;
provided, that any Lender that participates, assigns or transfers all or
a portion of its interest hereunder and under the other Operative
Agreements shall deliver to the Agent a copy of each Assignment and
Acceptance (as referenced in Section 9.8 of each Credit Agreement) for
purposes of maintaining the Register and shall also deliver to the Lessee
a copy of such Assignment and Acceptance for the Lessee’s records;
provided, no such Assignment and Acceptance shall be required to be
delivered to the Agent or the Lessee in connection with an assignment,
participation or transfer by any Investor of its interest in or under the
Liquidity Agreement except to the extent an assignment and acceptance is
required thereunder. The Lessor may, subject to the rights of the Lessee
under the Lease and the other Operative Agreements and to the Lien of the
applicable Security Documents, directly or indirectly, assign, convey,
appoint an agent with respect to enforcement of, or otherwise transfer
any of its right, title or interest in or to the Property, the Lease and
the other Operative Agreements (including without limitation any right to
indemnification thereunder), or any other document relating to the
Property or any interest in the Property as provided in the Lease to any
Eligible Lessor; provided, in such case, so long as no Lease Default or
Lease Event of Default shall have occurred and be continuing, the Lessee
shall have the right to require the Lessor (unless such transfer or
conveyance has already occurred, in which case the Lessee shall have the
right to require such transferee) to transfer its interest to an Eligible
Lessor selected by the Lessee, in its sole discretion; provided, further,
the Lessor and/or its assignee shall be responsible for any cost or
expense incurred by the Lessor in connection with any assignment,
conveyance, appointment or transfer by the Lessor pursuant to this
Section 10.1(a). The provisions of the immediately preceding sentence
shall not apply to the obligations of the Lessor to transfer the Property
to the Lessee or a third party purchaser pursuant to Article XXII of the
Lease upon payment for the Property in accordance with the terms and
conditions of the Lease. The Lessee may not assign any of the Operative
Agreements or any of its



63






 







		
	 	rights or obligations thereunder or with respect to the Property in whole
or in part to any Person without the prior written consent of the Agent
and the Primary Financing Parties.
	 
	 	     (b) Notwithstanding anything to the contrary in Section 10.1(a), no
consent shall be required from the Agent, the Lessee or any Primary
Financing Party (but Lessor shall provide one hundred eighty (180) days
(or such shorter period as required by the Legal Requirement giving rise
to the assignment, conveyance, appointment or transfer contemplated by
this Section 10.1(b)) written notice to the Agent and the Lessee) in
connection with any assignment, conveyance, appointment or transfer by
the Lessor required by any Legal Requirement of all or any of its right,
title or interest in or to the Property, the Lease and the other
Operative Agreements (including without limitation any right to
indemnification thereunder), or any other document relating to the
Property or any interest in the Property as provided in the Lease to an
Eligible Lessor; provided, in such case, so long as no Lease Default or
Lease Event of Default shall have occurred and be continuing, the Lessee
shall have the right to require the Lessor (unless such transfer or
conveyance has already occurred, in which case the Lessee shall have the
right to require such transferee) to transfer its interest to an Eligible
Lessor selected by the Lessee, in its sole discretion; provided, further,
the Lessee shall be responsible for any cost or expense incurred by the
Lessor in connection with any assignment, conveyance, appointment or
transfer by the Lessor pursuant to this Section 10.1(b).
	 
	 	     (c) The Lessee agrees to indemnify the Lessor for any loss, claim or
increased costs incurred by the Lessor and quantified to the Lessee in
writing by the Lessor in reasonable detail as a result of any change in
GAAP that adversely affects the Lessor; provided, however, in the case of
such a change in GAAP that adversely affects the Lessor, as long as no
Lease Default or Lease Event of Default shall have occurred and be
continuing, Lessee shall have the right to require the Lessor to transfer
its interest to an Eligible Lessor selected by the Lessee, in its sole
discretion; provided, further, nothing in the preceding proviso shall
limit the obligation of the Lessee to provide the indemnity set forth in
this Section 10.1(c).
	 
	 	     (d) Upon the occurrence and during the continuance of an Event of
Default by the Lessor (unless such Event of Default is a Lease Event of
Default), the Lessee shall have the right to require the Lessor to
transfer its interest in the Property and the Operative Agreements to an
Eligible Lessor selected by the Lessee, in its sole discretion.
	 
	 	     (e) Notwithstanding any provisions to the contrary contained in any
Operative Agreements, the Conduit may at any time assign, or grant a
security interest in or sell a participation interest in, any Loan (or
portion thereof) or Note (or portion thereof) to any Person. The parties
to any such assignment, grant or sale of participation interest, shall
execute and deliver to the Agent, for its acceptance and recording in its
books and records, such agreement or document as may be satisfactory to
such parties and the Deal Agent.
	 
	 	     (f) On or about July 1, 2003, certain businesses of Wachovia
Securities, Inc. (“WSI”) will be transferred, assigned or otherwise
conveyed (the occurrence of such



64






 







		
	 	event, the “Transfer”) to Wachovia Capital Markets, LLC or another
newly formed Affiliate of WSI (“WCM”). For purposes of the Operative
Agreements, each of the parties to this Agreement expressly consents to
the assignment by WSI of all of its rights and obligations under the
Operative Agreements to WCM simultaneous with the Transfer. For purposes
of the Operative Agreements, each of the parties to this Agreement
acknowledges and agrees that upon the occurrence of the Transfer, such
assignment shall be effective without any further action by any of the
parties hereto or any other such Operative Agreement and from and after
the Transfer: (i) WCM shall be a party to each Operative Agreement to
which WSI had been a party and shall have all rights and obligations of
WSI hereunder or thereunder, as the case may be, and (ii) WSI shall cease
to be a party to any such Operative Agreement and shall be released from
its obligations hereunder or thereunder, as the case may be.



     10.2. Effect of Transfer.


     From and after any transfer effected in accordance with this Section 10,
the transferor shall be released, to the extent of such transfer, from its
liability hereunder and under the other documents to which it is a party in
respect of obligations to be performed on or after the date of such transfer;
provided, however, that any transferor (excluding the Conduit in connection
with any such transfer under or pursuant to the Liquidity Agreement) shall
remain liable hereunder and under such other documents to the extent that the
transferee shall not have assumed the obligations of the transferor thereunder.
Upon any transfer by the Lessor or any other Primary Financing Party as above
provided, any such transferee shall assume the obligations of the Lessor or
such Primary Financing Party, as the case may be, and shall be deemed the
“Lessor” and/or a “Primary Financing Party”, as the case may be, for all
purposes of such documents and each reference herein to the transferor shall
thereafter be deemed a reference to such transferee for all purposes, except as
provided in the preceding sentence. Notwithstanding any transfer of all or a
portion of the transferor’s interest as provided in this Section 10, the
transferor shall be entitled to all benefits accrued and all rights vested
prior to such transfer including without limitation rights to indemnification
under any such document.


     10.3. Permitted Refinancing of Loans.


     Notwithstanding any provision to the contrary in any Operative Agreement,
so long as no Lease Default or a Lease Event of Default shall have occurred and
be continuing, the Lessee may request the Agent to facilitate a refinancing of
the Credit Loans and the Mortgage Loans with institutional investors in order
to change the relative amount of Mortgage Loans to Credit Loans; provided, in
any event, any such refinancing must be on terms and conditions that are
reasonably satisfactory to all Financing Parties. Such request to the Agent
shall be made pursuant to a notice from the Lessee to the Agent and the Primary
Financing Parties delivered not less than thirty (30) days prior to the
anticipated closing date for such assignment. Such assignment shall be
accomplished in accordance with the provisions of Section 10.1 of this
Agreement and Section 9.8 of the Credit Agreements. Concurrent with the
effective date of such assignment, one or more amendment documents (in form and
substance satisfactory to the Financing Parties, the Lessee and any such
assignee) regarding the Operative Agreements shall also be executed and


65






 


effective in order to modify the Operative Agreements with regard to the
inclusion of such institutional investors as Lenders.


SECTION 11. INDEMNIFICATION.



     11.1. General Indemnity.



		
	 	        Subject to the limitations set forth in Section 11.7 hereof, whether
or not any of the transactions contemplated hereby shall be consummated,
the Indemnity Provider hereby assumes liability for and agrees to defend,
indemnify and hold harmless each Indemnified Person on an After Tax Basis
from and against any Claims which may be imposed on, incurred by or
asserted against an Indemnified Person by any third party, or otherwise
incurred by any Indemnified Person in connection with one or more Hedging
Agreements including without limitation Claims arising from the
negligence of an Indemnified Person (but not to the extent such Claims
arise from the gross negligence or willful misconduct of such Indemnified
Person, as determined by a court of competent jurisdiction) and Claims
for loss or damage arising out of or as a result of the grant or denial
of equitable relief in any way relating to or arising or alleged to arise
out of the negotiation, execution, delivery, performance or enforcement
of or compliance with this Agreement, the Lease or any other Operative
Agreement or on or with respect to the Property or any component thereof,
the Collateral or any component thereof, or the ownership of any Loan or
Note or the making of any Lessor Advance, including without limitation
Claims in any way relating to or arising or alleged to arise out of (a)
the financing, refinancing, purchase, acceptance, rejection, ownership,
transfer of ownership, design, construction, refurbishment, development,
delivery, non-delivery, redelivery, leasing, subleasing, possession, use,
occupancy, operation, maintenance, repair, modification, transportation,
condition, sale, return, manufacture, ordering, transfer, titling or
re-titling, registration or re-registration, storage, removal,
mortgaging, granting any interest in, acquisition, repossession (whether
by summary proceedings or otherwise), transfer of title to or other
application or disposition of the Property or any part thereof or in the
Collateral or any portion thereof, including without limitation the
acquisition, holding or disposition of any interest in the Property, the
Collateral, lease or agreement comprising a portion of any thereof; (b)
any patent or latent or other defects in the Property or any portion
thereof or in the Collateral or any portion thereof whether or not
discoverable by an Indemnified Person or the Indemnity Provider or any
other Person; (c) a violation of, or penalties arising from any violation
of, Environmental Laws, Environmental Claims or the release of any
substance into the environment or other loss of or damage to any property
or the environment, relating to the Property, the Collateral, the Lease,
the Agency Agreement or the Indemnity Provider; (d) the Operative
Agreements, or any transaction contemplated thereby; (e) any breach by
the Indemnity Provider of any of its representations or warranties under
the Operative Agreements to which the Indemnity Provider is a party or
failure by the Indemnity Provider to perform or observe any covenant or
agreement to be performed by it under any of the Operative Agreements or
the failure of the Indemnity Provider, the Lease, the Property or the
Collateral to comply with applicable Law; (f) the transactions
contemplated hereby or by



66






 







		
	 	any other Operative Agreement, in respect of the application of Parts 4
and 5 of Subtitle B of Title I of ERISA; (g) personal injury, death,
property damage or loss, including without limitation Claims based on
strict or absolute liability in tort or negligence; (h) any Claim not
referenced in subsection (g) based on strict liability in tort or
negligence; (i) any claim for patent, trademark, trade name or copyright
infringement; (j) any fees, expenses and/or other assessments by any
business park or any other applicable entity with oversight
responsibility for the Property; (k) the failure of the Indemnity
Provider to vest and maintain vested in the Agent (on behalf of the
Secured Parties) or to transfer to the Agent (on behalf of the Secured
Parties), a security interest in the Collateral, free and clear of any
Lien whether existing at the time of any borrowing or at any time
thereafter other than Permitted Liens and Lessor Liens; (l) any failure
of the Indemnity Provider to perform its duties or obligations in
accordance with the provisions of the Operative Agreements; (m) the
failure by the Indemnity Provider to pay when due any Taxes for which the
Indemnity Provider is liable, including without limitation, sales, excise
or personal property taxes payable in connection with the Lease; (n) any
repayment by the Agent, the Deal Agent, a Lender, the Lessor, an Affected
Party or a Secured Party of any amount previously distributed hereunder
which amount the Agent, the Deal Agent, a Lender, the Lessor, an Affected
Party or a Secured Party believes in good faith is required to be repaid;
(o) any investigation, litigation or proceeding related to the Operative
Agreements or the use of proceeds of Loans or Lessor Advances or the
ownership of the Notes or the making of an Lessor Advance or in respect
to the Lease; (p) the failure to file, or any delay in filing, financing
statements or other similar instruments or documents under the UCC of any
applicable jurisdiction or other applicable Laws with respect to any
Collateral, whether at the time of any Loan or Lessor Advance or at any
subsequent time; (q) any dispute, claim, offset or defense of the
Indemnity Provider to the payment with respect to any Loan, Lessor
Advance or Note (including without limitation a defense based on a Loan,
a Lessor Advance a Note or any Operative Agreement not being a legal,
valid and binding obligation of the Indemnity Party enforceable against
it in accordance with its terms), or any other claim resulting from the
sale of the merchandise or services related to such Loans, Lessor
Advances, Notes or the Operative Agreements or the furnishing or failure
to furnish such merchandise or services; (r) any inability to obtain any
judgment in, or utilize the court or other adjudication system of, any
state in which the Indemnity Provider may be located as a result of the
Indemnity Provider’s failure to qualify to do business or file any notice
or business activity or similar report; (s) any products liability claim
or personal injury or property damage suit or other similar or related
claim or action of whatever sort arising out of or in connection with the
Collateral or services that are the subject of any Collateral; (t) the
use of the proceeds of any Loan or Lessor Advance in a manner other than
as provided in the Operative Agreements; or (u) the failure of the
Indemnity Provider or any of its respective agents or representatives to
remit to the Lenders, the Lessor, the Agent or the Deal Agent,
collections, rents or payments remitted to the Indemnity Provider or any
agent or representative.



       If a written demand is made against any Indemnified Person or if any
proceeding shall be commenced against such Indemnified Person (including
without limitation a written notice of such proceeding) for any Claim, such
Indemnified Person shall promptly notify the Indemnity


67






 


Provider in writing and shall not take action with respect to such Claim
without the consent of the Indemnity Provider for thirty (30) days after the
receipt of such notice by the Indemnity Provider; provided, however, that in
the case of any such Claim, if action shall be required by law or regulation to
be taken prior to the end of such period of thirty (30) days, such Indemnified
Person shall endeavor to, in such notice to the Indemnity Provider, inform the
Indemnity Provider of such shorter period, and no action shall be taken with
respect to such Claim without the consent of the Indemnity Provider before
seven (7) days before the end of such shorter period unless the Indemnified
Person shall be required by such law or regulation to take action prior to the
end of such seven (7) day period; provided, further, that the failure of such
Indemnified Person to give the notices referred to in this sentence shall not
diminish the Indemnity Provider’s obligation hereunder except to the extent
such failure precludes the Indemnity Provider from contesting all or any part
of such Claim, but only for the portion of the Claim that the Indemnity
Provider is precluded from contesting.


     If, within thirty (30) days of receipt of such notice from the Indemnified
Person (or such shorter period as the Indemnified Person has notified the
Indemnity Provider is required by law or regulation for the Indemnified Person
to respond to such Claim), the Indemnity Provider shall request in writing that
such Indemnified Person respond to such Claim, the Indemnified Person shall, at
the reasonable expense of the Indemnity Provider, in good faith conduct and
control such action (including without limitation by pursuit of appeals)
(provided, however, that (A) if such Claim, in the Indemnity Provider’s
reasonable discretion, can be pursued by the Indemnity Provider on behalf of or
in the name of such Indemnified Person, the Indemnified Person, at the
Indemnity Provider’s request, shall allow the Indemnity Provider to conduct and
control the response to such Claim and (B) in the case of any Claim (and
notwithstanding the provisions of the foregoing subsection (A)), the
Indemnified Person may request in writing that the Indemnity Provider conduct
and control the response to such Claim (with counsel to be selected by the
Indemnity Provider and consented to by such Indemnified Person, such consent
not to be unreasonably withheld or delayed; provided, however, that any
Indemnified Person may retain separate counsel at the expense of the Indemnity
Provider in the event of a potential conflict of interest between such
Indemnified Person and the Indemnity Provider)) by, in the sole discretion of
the Person conducting and controlling the response to such Claim (1) resisting
payment thereof, (2) not paying the same except under protest, if protest is
necessary and proper, (3) if the payment be made, using reasonable efforts to
obtain a refund thereof in appropriate administrative and judicial proceedings,
or (4) taking such other action as is reasonably requested by the Indemnity
Provider from time to time.


     The party controlling the response to any Claim shall consult in good
faith with the non-controlling party and shall keep the non-controlling party
reasonably informed as to the conduct of the response to such Claim; provided,
that all decisions ultimately shall be made in the discretion of the
controlling party. The parties agree that an Indemnified Person may at any time
decline to take further action with respect to the response to such Claim and
may settle such Claim if such Indemnified Person shall waive its rights to any
indemnity from the Indemnity Provider that otherwise would be payable in
respect of such Claim (and any future Claim, the pursuit of which is precluded
by reason of such resolution of such Claim) and shall pay to the Indemnity
Provider any amount previously paid or advanced by the Indemnity Provider
pursuant to this Section 11.1 by way of indemnification or advance for the
payment of an amount


68






 


regarding such Claim, except reasonable expenses therefrom incurred by such
Indemnified Person in connection with the response to such Claim.


     Notwithstanding the foregoing provisions of this Section 11.1, an
Indemnified Person shall not be required to take any action and the Indemnity
Provider shall not be permitted to respond to any Claim in its own name or that
of the Indemnified Person unless (A) the Indemnity Provider shall have agreed
to pay and shall pay to such Indemnified Person on demand and on an After Tax
Basis all reasonable costs, losses and expenses that such Indemnified Person
actually incurs in connection with such Claim, including without limitation all
reasonable legal, accounting and investigatory fees and disbursements and the
Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim
hereunder, (B) the Indemnified Person shall have reasonably determined that the
action to be taken will not result in any material danger of sale, forfeiture
or loss of the Property, or any part thereof or interest therein, will not
interfere with the payment of Rent, and will not result in risk of criminal
liability, (C) if such Claim shall involve the payment of any amount prior to
the resolution of such Claim, the Indemnity Provider shall provide to the
Indemnified Person an interest-free advance in an amount equal to the amount
that the Indemnified Person is required to pay (with no additional net
after-tax cost to such Indemnified Person) prior to the date such payment is
due, (D) in the case of an appeal of an adverse determination of a Claim that
must be pursued in the name of an Indemnified Person (or an Affiliate thereof),
the Indemnity Provider shall have provided to such Indemnified Person an
opinion of independent counsel selected by the Indemnity Provider and
reasonably satisfactory to the Indemnified Person stating that the position
asserted in such appeal will more likely than not prevail and (E) no Event of
Default by the Indemnity Provider shall have occurred and be continuing. In no
event shall an Indemnified Person be required to appeal an adverse judicial
determination to the United States Supreme Court. In addition, an Indemnified
Person shall not be required to contest any Claim in its name (or that of an
Affiliate) if the subject matter thereof shall be of a continuing nature and
shall have previously been decided adversely to the position taken by the
Indemnity Provider by a court of competent jurisdiction pursuant to the contest
provisions of this Section 11.1, unless there shall have been a change in law
(or interpretation thereof) and the Indemnified Person shall have received, at
the Indemnity Provider’s expense, an opinion of independent counsel selected by
the Indemnity Provider and reasonably acceptable to the Indemnified Person
stating that as a result of such change in law (or interpretation thereof), it
is more likely than not that the Indemnified Person will prevail in such
contest. In no event shall the Indemnity Provider be permitted to adjust or
settle any Claim without the consent of the Indemnified Person to the extent
any such adjustment or settlement involves, or is reasonably likely to involve,
any performance by or adverse admission by or with respect to the Indemnified
Person.


     11.2. General Tax Indemnity.



		
	 	         (a) Subject to the limitations set forth in Section 11.7 hereof, the
Indemnity Provider shall pay and assume liability for, and does hereby
agree to indemnify, protect and defend the Property and all Indemnified
Persons, and hold them harmless against, all Impositions on an After Tax
Basis, and all payments pursuant to the Operative Agreements shall be
made free and clear of and without deduction for any and all present and
future Impositions.



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	 	     (b) Notwithstanding anything to the contrary in Section 11.2(a)
hereof, the following shall be excluded from the indemnity required by
Section 11.2(a):




		
	 	     (i) Taxes (other than Taxes that are, or are in the nature of,
sales, use, rental, value added, ad valorem, transfer or property
taxes) that are imposed on a Indemnified Person by the United
States federal government that are based on or measured by the net
income (including without limitation taxes based on capital gains
and minimum taxes) of such Person; provided, that this clause (i)
shall not be interpreted to prevent a payment from being made on an
After Tax Basis if such payment is otherwise required to be so
made;
	 
	 	     (ii) Taxes (other than Taxes that are, or are in the nature
of, sales, use, rental, value added, ad valorem, transfer or
property taxes) that are imposed on any Indemnified Person by any
state or local jurisdiction or taxing authority within any state or
local jurisdiction and that are based upon or measured by the net
income (including without limitation taxes based on capital gains
and minimum taxes) of such Person; provided that such Taxes shall
not be excluded under this subparagraph (ii) to the extent such
Taxes would have been imposed had the location, possession or use
of the Property in, the location or the operation of the Lessee in,
or the Lessee’s making payments under the Operative Agreements
from, the jurisdiction imposing such Taxes been the sole connection
between such Indemnified Person and the jurisdiction imposing such
Taxes; provided, further, that this clause (ii) shall not be
interpreted to prevent a payment from being made on an After Tax
Basis if such payment is otherwise required to be so made;
	 
	 	     (iii) any Tax to the extent it relates to any act, event or
omission that occurs after the termination of the Lease and
redelivery or sale of the Property in accordance with the terms of
the Lease (but not any Tax that relates to such termination,
redelivery or sale and/or to any period prior to such termination,
redelivery or sale);
	 
	 	     (iv) any Taxes which are imposed on an Indemnified Person as a
result of the gross negligence or willful misconduct of such
Indemnified Person itself, as determined by a court of competent
jurisdiction (as opposed to gross negligence or willful misconduct
imputed to such Indemnified Person), but not Taxes imposed as a
result of ordinary negligence of such Indemnified Person; and
	 
	 	     (v) Impositions imposed or assessed by the PBGC on any
Financing Party or on any pension plan (as defined in ERISA Section
3(2)) maintained by any Financing Party.



Notwithstanding the foregoing, the exclusions from the definition of
“Impositions” set forth in clauses (i), (ii) and (iii) shall not apply (but the
other exclusions shall apply) to any Taxes or increase in Taxes imposed on an
Indemnified Person net of any decrease in Taxes realized by


70






 


such Indemnified Person, to the extent that such tax increase or decrease would
not have occurred if on each date of an Advance the Primary Financing Parties
has advanced funds to the Lessee in the form of a loan secured by the Property
in an amount equal to the Acquisition and Construction Advances funded on such
date of an Advance, with debt service equal to the Basic Rent payable on each
Schedule Interest Payment Date and a principal balance at the maturity of such
loan in an amount equal to the then outstanding amount of the Notes at the end
of the term of the Lease.



		
	 	     (c) (i) Subject to the terms of Section 11.2(f) and 11.7, the
Indemnity Provider shall pay or cause to be paid in a timely manner all
Impositions directly to the taxing authorities where feasible and
otherwise to the Indemnified Person, as appropriate, and the Indemnity
Provider shall at its own expense, upon such Indemnified Person’s
reasonable request, furnish to such Indemnified Person copies of official
receipts or other satisfactory proof evidencing such payment.




		
	 	     (ii) In the case of Impositions for which no contest is
conducted pursuant to Section 11.2(f) and which the Indemnity
Provider pays directly to the taxing authorities, the Indemnity
Provider shall pay such Impositions prior to the latest time
permitted by the relevant taxing authority for timely payment. In
the case of Impositions for which the Indemnity Provider reimburses
an Indemnified Person, the Indemnity Provider shall do so within
ten (10) days after receipt by the Indemnity Provider of demand by
such Indemnified Person describing in reasonable detail the nature
of the Imposition and the basis for the demand (including without
limitation the computation of the amount payable), accompanied by
receipts or other reasonable evidence of such demand. In the case
of Impositions for which a contest is conducted pursuant to Section
11.2(f), the Indemnity Provider shall pay such Impositions or
reimburse such Indemnified Person for such Impositions, to the
extent not previously paid or reimbursed pursuant to subsection
(a), prior to the latest time permitted by the relevant taxing
authority for timely payment after conclusion of all contests under
Section 11.2(f).
	 
	 	     (iii) At the Indemnity Provider’s request, the amount of any
indemnification payment by the Indemnity Provider pursuant to
subsection (a) shall be verified and certified by an independent
public accounting firm mutually acceptable to the Indemnity
Provider and the Indemnified Person. The fees and expenses of such
independent public accounting firm shall be paid by the Indemnity
Provider unless such verification shall result in an adjustment in
the Indemnity Provider’s favor of ten percent (10%) or more of the
payment as computed by the Indemnified Person, in which case such
fee shall be paid by the Indemnified Person.




		
	 	     (d) The Indemnity Provider shall be responsible for preparing and
filing any real and personal property or ad valorem tax returns in
respect of the Property. In case any other report or tax return shall be
required to be made with respect to any obligations of the Indemnity
Provider under or arising out of subsection (a) and of which the



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	 	Indemnity Provider has knowledge or should have knowledge, the Indemnity
Provider, at its sole cost and expense, shall notify the relevant
Indemnified Person of such requirement and (except if such Indemnified
Person notifies the Indemnity Provider that such Indemnified Person
intends to prepare and file such report or return) (A) to the extent
required or permitted by and consistent with Legal Requirements, make and
file in the Indemnity Provider’s name such return, statement or report;
and (B) in the case of any other such return, statement or report
required to be made in the name of such Indemnified Person, advise such
Indemnified Person of such fact and prepare such return, statement or
report for filing by such Indemnified Person or, where such return,
statement or report shall be required to reflect items in addition to any
obligations of the Indemnity Provider under or arising out of subsection
(a), provide such Indemnified Person at the Indemnity Provider’s expense
with information sufficient to permit such return, statement or report to
be properly made with respect to any obligations of the Indemnity
Provider under or arising out of subsection (a) no later than fifteen
(15) days prior to the due date thereof. Such Indemnified Person shall,
upon the Indemnity Provider’s request and at the Indemnity Provider’s
expense, provide any data maintained by such Indemnified Person (and not
otherwise available to or within the control of the Indemnity Provider)
with respect to the Property which the Indemnity Provider may reasonably
require to prepare any required tax returns or reports.
	 
	 	     (e) As between the Indemnity Provider on one hand, and each
Financing Party on the other hand, the Indemnity Provider shall be
responsible for, and the Indemnity Provider shall indemnify and hold
harmless each Financing Party (without duplication of any indemnification
required by subsection (a)) on an After Tax Basis against, any obligation
for United States or foreign withholding taxes or similar levies,
imposts, charges, fees, deductions or withholdings (collectively,
“Withholdings”) imposed in respect of the Interest payable on the Notes
or with respect to any other payments under the Operative Agreements (all
such payments being referred to herein as “Exempt Payments” to be made
without deduction, withholding or set off) (and, if any Financing Party
receives a demand for such payment from any taxing authority or a
Withholding is otherwise required with respect to any Exempt Payment, the
Indemnity Provider shall discharge such demand on behalf of such
Financing Party); provided, however, that the obligation of the Indemnity
Provider under this Section 11.2(e) shall not apply to:




		
	 	     (i) Withholdings on any Exempt Payment to any Financing Party
which is a non-U.S. Person unless such Financing Party is, on the
date hereof (or on the date it becomes a Financing Party hereunder)
and on the date of any change in the principal place of business or
the lending office of such Financing Party, entitled to submit a
Form W-8BEN or Form W-8ECI or successor applicable form, certifying
in each case that such party is entitled under Section 1441 or 1442
of the Code or any other applicable provision thereof or under any
applicable tax treaty or convention to receive payments pursuant to
the Operative Agreements without deduction or withholding of United
States federal income tax and is a foreign Person thereby entitled
to an exemption from United States backup withholding taxes (except
where the failure of the exemption results from a change in the
principal place of business of the Lessee); provided,



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	 	however, if a failure of the exemption is due to a change in law after the date
hereof or in the case of a Financing Party that acquires its
interest after the date hereof, a change in law occurring after
such date, then the Indemnity Provider shall be liable for any
withholding resulting therefrom; or
	 
	 	     (ii) Any U.S. Taxes imposed solely by reason of the failure by
a non-U.S. Person to comply with applicable certification,
information, documentation or other reporting requirements
concerning the nationality, residence, identity or connections with
the United States of America of such non-U.S. Person if such
compliance is required by statute or regulation of the United
States of America as a precondition to relief or exemption from
such U.S. Taxes if the Indemnity Provider has provided such
certification, information, documentation or other reporting
requirements to the Financing Party on a timely basis and the
Financing Party is eligible for such relief or exemption.




		
	 	For the purposes of this Section 11.2(e), (A) “U.S. Person” shall mean a
citizen, national or resident of the United States of America, a
corporation, partnership or other entity created or organized in or under
any laws of the United States of America or any State thereof, or any
estate or trust that is subject to Federal income taxation regardless of
the source of its income, (B) “U.S. Taxes” shall mean any present or
future tax, assessment or other charge or levy imposed by or on behalf of
the United States of America or any taxing authority thereof or therein,
(C) “Form W-8BEN” shall mean Form W-8BEN (Certificate of Foreign Status
of Beneficial Owner for United States Withholding) of the Department of
the Treasury of the United States of America and (D) “Form W-8ECI” shall
mean Form W-8ECI (Certificate of Foreign Person’s Claim for Exemption
from Withholding on Income Effectively Connected with the Conduct of a
Trade or Business in the United States) of the Department of the Treasury
of the United States of America (or in relation to either such Form such
successor and related forms as may from time to time be adopted by the
relevant taxing authorities of the United States of America to document a
claim to which such Form relates). Each of the Forms referred to in the
foregoing clauses (C) and (D) shall include such successor and related
forms as may from time to time be adopted by the relevant taxing
authorities of the United States of America to document a claim to which
such Form relates.
	 
	 	     If a Financing Party or an Affiliate with whom such Financing Party
files a consolidated tax return (or equivalent) subsequently receives the
benefit in any country of a tax credit or an allowance resulting from
U.S. Taxes with respect to which it has received a payment of an
additional amount under this Section 11.2(e), such Financing Party will
pay to the Indemnity Provider such part of that benefit as in the opinion
of such Financing Party will leave it (after such payment) in a position
no more and no less favorable than it would have been in if no additional
payment had been required to be paid, provided always that (i) such
Financing Party will be the sole judge of the amount of any such benefit
and of the date on which it is received, (ii) such Financing Party will
have the absolute discretion as to the order and manner in which it
employs or claims tax credits and allowances available to it and (iii)
such Financing Party will not be obliged to disclose to the Borrower any
information regarding its tax affairs or tax computations. A



73






 







		
	 	subsequent loss of such tax credit or allowance with respect to which a
payment is made pursuant to this paragraph to an Indemnity Provider shall
be treated as an Imposition that is indemnifiable under Section 11.2(a)
hereof without regard to the exclusions of Section 11.2(b)(i), (ii), and
(iii) hereof.




		
	 	     Each non-U.S. Person that shall become a Financing Party after the
date hereof shall, upon the effectiveness of the related transfer or
otherwise upon becoming a Financing Party hereunder, be required to
provide all of the forms and statements referenced above or other
evidences of exemption from Withholdings if the Indemnity Provider has
provided such certification, information, documentation or other
reporting requirements to the Financing Party and the Financing Party is
eligible for such relief or exemption.
	 
	 	     (f) If a written Claim is made against any Indemnified Person or if
any proceeding shall be commenced against such Indemnified Person
(including without limitation a written notice of such proceeding), for
any Impositions, the provisions in Section 11.1 relating to notification
and rights to contest shall apply; provided, however, that the Indemnity
Provider shall have the right to conduct and control such contest only if
such contest involves a Tax other than a Tax on net income of the
Indemnified Person that can be pursued independently from any other
proceeding involving a Tax liability of such Indemnified Person and the
Indemnity Provider agrees to pay to such Indemnified Person on demand the
Impositions which are the subject of such claim to the extent the contest
is unsuccessful. The controlling party shall provide the non-controlling
party with a copy of (or appropriate excerpts from) any reports or claims
issued by the relevant auditing agents or taxing authority to the
controlling party thereof, in connection with such claim or the contest
thereof.
	 
	 	     (g) The parties agree that any party to this Agreement (and each
employee, representative, or other agent of such party) may disclose the
tax aspects of the transactions contemplated by this Agreement and the
structural aspects of these transactions as they relate to such tax
aspects without limitation of any kind on such disclosure.



     11.3. Increased Costs, Loan Adequacy; Illegality, etc.



		
	 	     (a) If either (i) the introduction of or any change (including,
without limitation, any change by way of imposition or increase of
reserve requirements) in or in the interpretation of any law, guideline,
rule, directive, request or regulation or (ii) the compliance by a
Financing Party or any Affiliate thereof (each of which, an “Affected
Party”) with any law, regulation, rule, directive, guideline or request
from any central bank or other Governmental Authority (whether or not
having the force of law), including, without limitation, compliance by an
Affected Party with any request or directive regarding loan adequacy or
advance adequacy (A) shall subject an Affected Party to any Tax (except
for Taxes on the overall net income of such Affected Party), duty or
other charge with respect to a Loan, Lessor Advance, or any right to make
Loans or Lessor Advances under the Operative Agreements, or on any
payment made under the



74






 







		
	 	Operative Agreements or (B) shall impose, modify or deem applicable
any reserve requirement (including, without limitation, any reserve
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding any reserve requirement, if any, included in the
determination of the Interest or Lessor Yield), special deposit or
similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Affected Party or (C) shall impose any
other condition affecting a Loan or a Lessor Advance or a Financing
Party’s rights under the Operative Agreements, the result of which is to
increase the cost to any Affected Party or to reduce the amount of any
sum received or receivable by an Affected Party under the Operative
Agreements, then within ten (10) days after demand by such Affected Party
(which demand shall be accompanied by a statement setting forth the basis
for such demand), the Lessee shall pay to such Affected Party such
additional amount or amounts as will compensate such Affected Party for
such additional or increased cost incurred or such reduction suffered.
	 
	 	     (b) If either (i) the introduction of or any change in or in the
interpretation of any law, guideline, rule, regulation, directive or
request or (ii) compliance by any Affected Party with any law, guideline,
rule, regulation, directive or request from any central bank or other
Governmental Authority or agency (whether or not having the force of
law), including without limitation compliance by an Affected Party with
any request or directive regarding loan adequacy or advance adequacy, has
or would have the effect of reducing the rate of return on the Loan or
Lessor Advance of any Affected Party as a consequence of its obligations
under the Operative Agreements or arising in connection therewith to a
level below that which any such Affected Party could have achieved but
for such introduction, change or compliance (taking into consideration
the policies of such Affected Party with respect to loan adequacy or
advance adequacy) by an amount deemed by such Affected Party to be
material, then from time to time, within ten (10) days after demand by
such Affected Party (which demand shall be accompanied by a statement
setting forth the basis for such demand), the Lessee shall pay to such
Affected Party such additional amount or amounts as will compensate such
Affected Party for such reduction. For the avoidance of doubt, any
interpretation of Accounting Research Bulletin No. 51 by the Financial
Accounting Statements Board shall constitute an adoption, change, request
or directive subject to this Section 11.3.
	 
	 	     (c) If as a result of any event or circumstance similar to those
described in clauses (a) or (b) of this section, any Affected Party is
required to compensate a bank or other financial institution providing
liquidity support, credit enhancement or other similar support to such
Affected Party in connection with the Operative Agreements or the funding
or maintenance of Loans thereunder, then on the Payment Date after demand
by such Affected Party, the Lessee shall pay to such Affected Party such
additional amount or amounts as may be necessary to reimburse such
Affected Party for any amounts paid by it.
	 
	 	     (d) In determining any amount provided for in this section, the
Affected Party may use any reasonable averaging and attribution methods.
Any Affected Party making a claim under this section shall submit to the
Lessee a written description as to such



75






 







		
	 	additional or increased cost or reduction and the calculation
thereof, which written description shall be conclusive absent
demonstrable error.
	 
	 	     (e) For purposes of this Section 11.3, Governmental Authority shall
include any accounting board or authority (whether or not part of
government) which is responsible for the establishment or interpretation
of national or international accounting principles in each case whether
foreign or domestic.
	 
	 	     (f) If a Financing Party or the Deal Agent on behalf of the Conduit
shall notify the Agent that a Eurodollar Disruption Event as described in
clause (a) of the definition of “Eurodollar Disruption Event” has
occurred, the Agent shall in turn so notify the Lessee, whereupon all
Loans in respect of which Interest accrues, and all Lessor Advances in
respect of which Lessor Yield accrues, at the Eurodollar Rate shall
immediately be converted into Loans or Lessor Advances, as the case may
be, in respect of which Interest and Lessor Yield, respectively, accrues
at the ABR.



     11.4. Funding/Contribution Indemnity.


     The Lessee agrees to indemnify each Financing Party and to hold each
Financing Party harmless from any and all Breakage Costs. Each Financing Party
agrees to provide the Lessee prompt written notice of any occurrence which
gives rise to Lessee’s indemnification obligations under this Section 11.4.


     11.5. EXPRESS INDEMNIFICATION FOR ORDINARY NEGLIGENCE, STRICT
LIABILITY, ETC.


     WITHOUT LIMITING THE GENERALITY OF THE INDEMNIFICATION PROVISIONS OF ANY
AND ALL OF THE OPERATIVE AGREEMENTS AND TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH PERSON PROVIDING INDEMNIFICATION OF ANOTHER PERSON UNDER ANY
OPERATIVE AGREEMENT HEREBY FURTHER EXPRESSLY RELEASES EACH BENEFICIARY OF ANY
SUCH INDEMNIFICATION FROM ALL CLAIMS FOR LOSS OR DAMAGE, DESCRIBED IN ANY
OPERATIVE AGREEMENT, CAUSED BY ANY ACT OR OMISSION ON THE PART OF ANY SUCH
BENEFICIARY ATTRIBUTABLE TO THE ORDINARY NEGLIGENCE (WHETHER SOLE OR
CONTRIBUTORY) OR STRICT LIABILITY OF ANY SUCH BENEFICIARY, AND INDEMNIFIES,
EXONERATES AND HOLDS EACH SUCH BENEFICIARY FREE AND HARMLESS FROM AND AGAINST
ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS, CLAIMS, LOSSES, COSTS,
LIABILITIES, DAMAGES AND EXPENSES (INCLUDING WITHOUT LIMITATION REASONABLE
ATTORNEY’S FEES AND EXPENSES), DESCRIBED ABOVE, INCURRED BY ANY SUCH
BENEFICIARY (IRRESPECTIVE OF WHETHER ANY SUCH BENEFICIARY IS A PARTY TO THE
ACTION FOR WHICH INDEMNIFICATION UNDER THIS AGREEMENT OR ANY OTHER OPERATIVE
AGREEMENT IS SOUGHT) ATTRIBUTABLE TO THE ORDINARY NEGLIGENCE (WHETHER SOLE OR
CONTRIBUTORY) OR STRICT LIABILITY OF ANY SUCH BENEFICIARY.


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     11.6. Additional Provisions Regarding Environmental Indemnification.


     Without limiting the generality of Section 11.1, each and every
Indemnified Person shall at all times have the rights and benefits, and the
Indemnity Provider shall have the obligations, in each case provided pursuant
to the Operative Agreements with respect to environmental matters, violations
of any Environmental Law, any Environmental Claim or other loss of or damage to
any property or the environment relating to the Property, the Collateral, the
Lease, the Agency Agreement or the Indemnity Provider (including without
limitation the rights and benefits provided pursuant to Section 11.1(c)).


     11.7. Indemnity Prior to Completion Date.


     Notwithstanding the provisions of Sections 11.1, 11.2, 11.3, 11.4, 11.5
and 11.6 and any other indemnity obligations of the Indemnity Provider under
the Operative Agreements, (a) the Lessor shall be the only beneficiary of the
provisions set forth in Sections 11.1, 11.2, 11.3, 11.4, 11.5 and 11.6 and any
other indemnity obligations of the Indemnity Provider under the Operative
Agreements with respect to any Claim arising thereunder solely for the period
prior to the Completion Date related to the Property, and (b) such limited
rights of indemnification referenced in Section 11.7(a) (to the extent relating
to third-party claims) shall be limited to third-party claims caused by or
resulting from the Indemnity Provider’s acts or omissions and/or all other
Persons acting by, through or under the Indemnity Provider (including, without
limitation, contractors, subcontractors and other Persons contracted or
controlled by the Construction Agent). After the Completion Date, each
Indemnified Person shall be a beneficiary of the provisions set forth in
Sections 11.1 through 11.6.


     To the extent the Indemnity Provider is not obligated to indemnify any
Indemnified Person with respect to Claims arising under Sections 11.1, 11.2,
11.3, 11.4, 11.5 or 11.6 and any other indemnity obligations of the Indemnity
Provider under the Operative Agreements prior to the Completion Date, the
Lessor shall provide such indemnities (but only to the extent Loans and Lessor
Advances are made available to the Lessor to pay such amounts) in favor of such
Indemnified Person in accordance with the relevant provisions of Sections 11.1,
11.2, 11.3, 11.4, 11.5 or 11.6 and any other indemnity obligations of the
Indemnity Provider under the Operative Agreements as the case may be. It is
acknowledged and agreed that any amount which the Lessor pays in favor of any
Indemnified Person with Loans and/or Lessor Advances shall be added to the
Property Cost.


     THE INDEMNITY OBLIGATIONS UNDERTAKEN BY THE LESSOR PURSUANT TO THIS
SECTION 11.7 ARE IN ALL RESPECTS SUBJECT TO THE LIMITATIONS ON LIABILITY
REFERENCED IN SECTION 12.9.


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SECTION 12. MISCELLANEOUS.



     12.1. Survival of Agreements.


     The representations, warranties, covenants, indemnities and agreements of
the parties provided for in the Operative Agreements, and the parties’
obligations under any and all thereof, shall survive the execution and delivery
of this Agreement, the transfer of the Property to the Lessor, the acquisition
of the Property (or any of its components), the construction of any
Improvements, the Completion, any disposition of any interest of the Lessor in
the Property, the payment of the Notes and the Lessor Advances and any
disposition thereof and shall be and continue in effect notwithstanding any
investigation made by any party and the fact that any party may waive
compliance with any of the other terms, provisions or conditions of any of the
Operative Agreements. Except as otherwise expressly set forth herein or in
other Operative Agreements, the indemnities of the parties provided for in the
Operative Agreements shall survive the expiration or termination of any thereof
with respect to matters occurring prior to such expiration or termination.


     12.2. Notices.


     All notices required or permitted to be given under any Operative
Agreement shall be in writing. Notices may be served by certified or registered
mail, postage paid with return receipt requested; by private courier, prepaid;
by facsimile or other telecommunication device capable of transmitting or
creating a written record; or personally. Notices sent by mail or courier shall
be deemed delivered when delivered as addressed, or if the addressee refuses
delivery, when presented for delivery notwithstanding such refusal. Notices
delivered by fax shall be deemed delivered when receipt is acknowledged by the
addressee or its office. Personal delivery shall be effective when
accomplished. Unless a party changes its address by giving notice to the other
party as provided herein, notices shall be delivered to the parties at the
following addresses:


     If to the Construction Agent or the Lessee, to such entity at the
following address:



		
	 	Human Genome Sciences, Inc.

9410 Key West Avenue

Rockville, MD 20850

Attention: Steve Mayer

Telephone: 

Fax: 



     with a copy to:



		
	 	Human Genome Sciences, Inc.

9410 Key West Avenue

Rockville, MD 20850

Attention: Jim Davis

Telephone: 

Fax: 



78






 






     If to the Borrower or the Lessor, to such entity at the following address:



		
	 	Wachovia Development Corporation

c/o Wachovia Securities, LLC

One Wachovia Center

301 South College Street

Charlotte, NC 28288

Attention: Gabrielle Braverman

Telephone:

Fax: 



     If to the Deal Agent or the Conduit, to either at the following address:



		
	 	Wachovia Securities, LLC

One Wachovia Center, Mail Code: NC0610

Charlotte, NC 28288

Attention: Conduit Administration

Telephone: 

Fax: 



     with a copy to:



		
	 	Lord Securities Corp.

2 Wall Street, 19th Floor

New York, NY 10005

Attention: Vice President

Telephone: 

Fax: 



     If to the Agent, to it at the following address:



		
	 	Wachovia Bank, National Association

201 South College Street (NC5708)

Charlotte, NC 28288

Attention: Greg Ponder

Telephone: 

Fax: 



79






 






     with a copy to:



		
	 	Wachovia Bank, National Association

1970 Chain Bridge Road

3rd Floor

McLean, VA 22102

Attention: J. Kent Thompson

Telephone: 

Fax: 



     If to any Lender, to it at the address set forth for such Lender in
Schedule 2.1 of the applicable Credit Agreement.


     From time to time any party may designate additional parties and/or
another address for notice purposes by notice to each of the other parties
hereto. Each notice hereunder shall be effective upon receipt or refusal
thereof.


     12.3. Counterparts.


     This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one (1) and
the same instrument.


     12.4. Terminations, Amendments, Waivers, Etc.


     Each of the parties hereto agrees that:



		
	 	     (a) except as expressly provided in subsections (b) and (c) below
and except for the Unanimous Vote Matters, each Operative Agreement may
only be terminated, amended, modified, extended supplemented, restated,
replaced or waived upon the approval in writing by the Borrower, the
Agent, the Majority Secured Parties and the Lessee (to the extent the
Lessee is a party to such Operative Agreement); provided, each
termination, amendment, modification, extension, supplement, restatement,
replacement or waiver regarding any Operative Agreement which adversely
affects the rights of the Lessee shall also require the written consent
of the Lessee (not to be unreasonably withheld or delayed) unless a Lease
Default or Lease Event of Default shall have occurred and be continuing,
provided, further, that each termination, amendment, modification,
extension, supplement, restatement, replacement or waiver regarding any
Operative Agreement shall also require the written consent of each
Financing Party affected thereby (the “Unanimous Vote Matters”), so as to




		
	 	     (i) except for a pro rata reduction in each such Lender
Commitment and a corresponding reduction in the Lessor Commitment
or, regarding the Lender Commitment, as otherwise provided in
Section 2.5 of the Credit Agreements, reduce the Lender Commitments
and/or the Lessor Commitment or extend the scheduled date of
maturity of any Note or any Lessor Advance;



80






 





		
	 	     (ii) extend the scheduled Expiration Date or extend any
payment date of any Note or Lessor Advance;




		
	 	     (iii) reduce the stated rate of Interest payable on any Note
or reduce the stated Lessor Yield payable on any Lessor Advance
(other than as a result of waiving the applicability of any
post-default increase in interest rates or Lessor Yields);




		
	 	     (iv) modify the priority of any Lien in favor of the Agent
under any Security Document;




		
	 	     (v) subordinate any obligation owed to such Lender or the
Lessor;




		
	 	     (vi) extend the expiration date of such Lender’s Lender
Commitment or the Lessor Commitment of the Lessor;




		
	 	     (vii) terminate, amend, supplement, waive, discharge or modify
any provision of this Section 12.4 or reduce the percentages
specified in the definitions of Majority Secured Parties or
Majority Lenders;




		
	 	     (viii) release a material portion of the Collateral (except in
accordance with Section 8.8);




		
	 	     (ix) release the Borrower or the Lessee from its obligations
under any Operative Agreement or otherwise alter any payment
obligations of the Borrower or the Lessee to the Lessor or any
Financing Party under the Operative Agreements; or




		
	 	     (x) terminate, amend, supplement, waive, discharge or modify
any provision of Section 8.6 of this Agreement.




		
	 	     (b) the Mortgage Instrument (and any UCC Financing Statement related
thereto) may only be terminated, amended, modified, extended
supplemented, restated, replaced or waived upon the approval in writing
by the Borrower, the Lessor, (to the extent relating to the Lessee as
opposed to relating to the Borrower) the Lessee and (to the extent
relating to the Lien in favor of the Lenders under the Mortgage
Instrument or UCC Financing Statement) the Majority Lenders.




		
	 	     (c) each termination, amendment, modification, extension,
supplement, restatement, replacement or waiver regarding any Operative
Agreement affecting Sections 4.1, 8.2, 8.3, 9.1, 10.1, 10.2, 11.1, 12.1,
13.1, 13.2, 14.1, 14.2, 14.3, 15.1, 15.2, 15.3, 16.1, 16.2, 18.1, 19.1,
19.2, 20.2, 20.3 (excluding all provisions related to payments in
Sections 20.2 or 20.3), 22.1, 22.4, 22.5, 23.1 or 24.1 of the Lease or
affecting in any way the Collateral or the Property requires the consent
of the Lessor.



81






 




     Any such termination, amendment, supplement, waiver, discharge or
modification approved, executed, adopted or consented to pursuant to this
Section 12.4 shall apply equally to each of the Lenders and the Lessor and
shall be binding upon all the parties to this Agreement. In the case of any
waiver, each party to this Agreement shall be restored to its former position
and rights under the Operative Agreements, and any Default or Event of Default
waived shall be deemed to be cured and not continuing; but no such waiver shall
extend to any subsequent or other Default or Event of Default, or impair any
right consequent thereon.


     If, at a time when the conditions precedent set forth in the Operative
Agreements to any Lessor Advance are, in the reasonable opinion of the Agent,
satisfied, the Lessor shall fail to fulfill its obligations to make such Lessor
Advance, then, for so long as such failure shall continue, the Lessor shall
(unless the Lessee and the Majority Secured Parties, determined as if the
Lessor were not a “Financing Party”, shall otherwise consent in writing) be
deemed for all purposes relating to terminations, amendments, supplements,
waivers, discharges or modifications under the Operative Agreements to have no
Lessor Advances for purposes of performing the computation of Majority Secured
Parties, and shall have no rights under this Section 12.4; provided that any
action taken with respect to a Unanimous Vote Matter shall not be effective as
against the Lessor without the Lessor’s consent.


     If, at a time when the conditions precedent set forth in the Operative
Agreements to any Loan are, in the reasonable opinion of the Agent, satisfied,
any Lender (other than the Conduit) shall fail to fulfill its obligations to
make such Loan, then, for so long as such failure shall continue, such Lender
shall (unless the Lessee and the Majority Secured Parties, determined as if
such Lender were not a “Financing Party”, shall otherwise consent in writing)
be deemed for all purposes relating to terminations, amendments, supplements,
waivers, discharges or modifications under the Operative Agreements to have no
Loans for purposes of performing the computation of Majority Secured Parties,
and shall have no rights under this Section 12.4; provided that any action
taken with respect to a Unanimous Vote Matter shall not be effective as against
such Lender without such Lender’s consent.


     Notwithstanding the foregoing, no termination, amendment, supplement,
waiver or modification of any Operative Agreement shall, without the consent of
each Hedge Provider, (i) terminate, amend, supplement, waive or modify any
provision of the applicable provisions of the Operative Agreements relating to
Hedging Agreements or the calculation of amounts payable in connection
therewith, (ii) extend the scheduled date of maturity of any payment obligation
owing to any Hedge Provider pursuant to the Operative Agreements, extend the
last day of the Term, extend any payment date of any obligation owing to any
Hedge Provider pursuant to the Operative Agreements, reduce any amount payable
to any Hedge Provider pursuant to the Operative Agreements, modify the priority
of any Lien in favor of the Agent under any Security Document, subordinate any
obligation owed to any Hedge Provider, or (iii) terminate, amend, supplement,
waive or modify any provision of this Section 12.4 or (so long as Wachovia is a
Lender or Wachovia Development Corporation is the Lessor) reduce the
percentages specified in the definition of Majority Secured Parties, or (except
in accordance with the Operative Agreements) permit any additional rights of
assignment or transfer by the Lessor of any of its rights and obligations under
any Credit Document or release a material portion of the Collateral (except in
accordance with Section 8.8 and provided, the foregoing shall not impair the
release of


82






 




Liquid Collateral in accordance with the express provisions of the Operative
Agreements) or release the Lessee from its obligations under any Operative
Agreement or otherwise alter any payment obligations of the Lessee to the
Lessor or any Hedge Provider under the Operative Agreements.


     12.5. Headings, etc.


     The Table of Contents and headings of the various Articles and Sections of
this Agreement are for convenience of reference only and shall not modify,
define, expand or limit any of the terms or provisions hereof.



     12.6. Parties in Interest.


     Except as expressly provided herein, none of the provisions of this
Agreement are intended for the benefit of any Person except the parties hereto.



	 	12.7. 	 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL; VENUE.




		
	 	     (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, INTERPRETED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW),
EXCEPT TO THE EXTENT THE LAWS OF THE STATE WHERE THE PROPERTY IS LOCATED
ARE REQUIRED TO APPLY. Any legal action or proceeding with respect to
this Agreement or any other Operative Agreement may be brought in the
courts of the State of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Agreement,
each of the parties to this Agreement hereby irrevocably accepts for
itself and in respect of its property, generally and unconditionally, the
nonexclusive jurisdiction of such courts. Each of the parties to this
Agreement further irrevocably consents to the service of process out of
any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage
prepaid, to it at the address set out for notices pursuant to Section
12.2, such service to become effective upon receipt or rejection. Nothing
herein shall affect the right of any party to serve process in any other
manner permitted by Law.




		
	 	     (b) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY, TO
THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO ANY DISPUTE OR THIS AGREEMENT, ANY
OTHER OPERATIVE AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.




		
	 	     (c) Each of the parties to this Agreement hereby irrevocably waives
any objection which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out of or in
connection with this Agreement or



83






 





		
	 	any other Operative Agreement brought in the courts referred to in
subsection (a) above and hereby further irrevocably waives and agrees not
to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum.



     Subject to the other applicable provisions of the Operative Agreements,
the parties shall have the right to proceed in any court of proper jurisdiction
or by self-help to exercise or prosecute the following remedies, as applicable:
(i) all rights to foreclose against any real or personal property or other
security by exercising a power of sale or under applicable law by judicial
foreclosure including a proceeding to confirm the sale; (ii) all rights of
self-help including peaceful occupation of real property and collection of
rents, set-off and peaceful possession of personal property; and (iii)
obtaining provisional or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of receiver and filing an
involuntary bankruptcy proceedings. Any claim or controversy with regard to any
party’s entitlement to such remedies is a Dispute.


     Each party to this Agreement agrees that it shall not have a remedy of
punitive or exemplary damages against any other party in any Dispute and hereby
waives any right or claim to punitive or exemplary damages it has now or which
may arise in the future in connection with any Dispute.


     12.8. 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.


     12.9. Liability Limited.



		
	 	     (a) [Reserved].




		
	 	     (b) Anything to the contrary contained in this Agreement or in any
other Operative Agreement notwithstanding, no Exculpated Person shall be
personally liable in any respect for any liability or obligation arising
hereunder or in any other Operative Agreement including without
limitation the payment of the principal of, or Interest on, the Notes, or
for monetary damages for the breach of performance of any of the
covenants contained in this Agreement or any of the other Operative
Agreements. The Primary Financing Parties and the Agent agree that, in
the event any remedies under any Operative Agreement are pursued, neither
the Primary Financing Parties nor the Agent shall have any recourse
against any Exculpated Person, for any deficiency, loss or Claim for
monetary damages or otherwise resulting therefrom and recourse shall be
had solely and exclusively against the Borrower’s Interest (excluding
Excepted Payments) and the Lessee (with respect to the Lessee’s
obligations under the Operative Agreements); but nothing contained herein
shall be taken to prevent recourse against or the enforcement of



84






 





		
	 	remedies against the Borrower’s Interest (excluding Excepted Payments) in
respect of any and all liabilities, obligations and undertakings
contained herein and/or in any other Operative Agreement. Notwithstanding
the provisions of this Section, nothing in any Operative Agreement shall:
(i) constitute a waiver, release or discharge of any indebtedness or
obligation evidenced by the Notes arising under any Operative Agreement
or secured by any Operative Agreement, but the same shall continue until
paid or discharged; (ii) relieve any Exculpated Person from liability and
responsibility for (but only to the extent of the damages arising by
reason of): active waste knowingly committed by any Exculpated Person
with respect to the Property, any fraud, gross negligence or willful
misconduct on the part of any Exculpated Person; (iii) relieve any
Exculpated Person from liability and responsibility for (but only to the
extent of the moneys misappropriated, misapplied or not turned over) (A)
except for Excepted Payments, misappropriation or misapplication by the
Lessor (i.e., application in a manner contrary to any of the Operative
Agreements) of any insurance proceeds or condemnation award paid or
delivered to the Lessor by any Person other than the Agent, (B) except
for Excepted Payments, any deposits or any escrows or amounts owed by the
Construction Agent under the Agency Agreement held by the Lessor or (C)
except for Excepted Payments, any rent or other income or funds received
by the Lessor from the Lessee that is not turned over to the Agent; (iv)
affect or in any way limit the Agent’s rights and remedies under any
Operative Agreement with respect to the Rents and rights and powers of
the Agent under the Operative Agreements or to obtain a judgment against
the Lessee’s interest in the Property pursuant to the terms of the
Operative Agreements or the Agent’s rights and powers to obtain a
judgment against the Lessor or the Lessee; or (v) relieve any Exculpated
Person from liability and responsibility (A) with respect to such
Person’s obligations concerning Lessor Liens pursuant to Section 8.2(a)
and the last sentence of Section 8.9(a) hereof or (B) to the extent such
liability or responsibility is attributable to any representation or
warranty of an
y Exculpated Person contained in Section 6.1 hereof that
was false or inaccurate in any material way when made (provided, that no
deficiency judgment or other money judgment shall be enforced against any
Exculpated Person except to the extent of the Lessor’s interest in the
Borrower’s Interest (excluding Excepted Payments) or to the extent the
Lessor may be liable as otherwise contemplated in clauses (ii), (iii) or
(v) of this Section 12.9(b)).



     12.10. Rights of the Lessee.


     If at any time all obligations of the Borrower and the Lessee under the
Operative Agreements have in each case been satisfied or discharged in full,
then the Lessee shall be entitled to (a) terminate the Lease and (b) receive
(i) all amounts then held under the Operative Agreements, and all proceeds with
respect to, the Property and (ii) a release of the remaining Collateral. Upon
the termination of the Lease pursuant to the foregoing clause (a), the Lessor
shall transfer to the Lessee or its designee all of its right, title and
interest free and clear of the Lien of the Lease, the Lien of the Security
Documents and all other Operative Agreements and all Lessor Liens in and to the
Property and any amounts or proceeds referred to in the foregoing clause (b)
shall be paid over to the Lessee or its designee.


85






 


     12.11. Further Assurances.


     The parties hereto shall promptly cause to be taken, executed,
acknowledged or delivered, at the sole expense of the Lessee, all such further
acts, conveyances, documents and assurances as the other parties may from time
to time reasonably request in order to carry out and effectuate the intent and
purposes of this Participation Agreement, the other Operative Agreements and
the transactions contemplated hereby and thereby (including without limitation
the preparation, execution and filing of any and all Uniform Commercial Code
financing statements, filing of the Mortgage Instrument and other filings or
registrations which the parties hereto may from time to time request to be
filed or effected). The Lessee, at its own expense and without need of any
prior request from any other party, shall take such action as may be necessary
(including without limitation any action specified in the preceding sentence),
or (if the Lessor shall so request) as so requested, in order to maintain and
protect all security interests provided for hereunder or under any other
Operative Agreement. In addition, in connection with the sale or other
disposition of the Property or any portion thereof, the Lessee agrees to
execute such instruments of conveyance as reasonably required pursuant to the
Operative Agreements in connection therewith.


     12.12. Calculations under Operative Agreements.


     The parties hereto agree that all calculations and numerical
determinations to be made under the Operative Agreements by the Lessor shall be
made by the Agent and that such calculations and determinations shall be
conclusive and binding on the parties hereto in the absence of demonstrable
error.


     12.13. Confidentiality.


     Each Financing Party severally agrees to keep confidential all non-public
information pertaining to the Lessee or any of its Subsidiaries which is
provided to it by the Lessee or any of its Subsidiaries and which an officer of
the Lessee or any of its Subsidiaries has requested in writing be kept
confidential, and shall not intentionally disclose such information to any
Person except:



		
	 	     (a) to the extent such information is public when received by such
Person or becomes public thereafter due to the act or omission of any
party other than such Person;




		
	 	     (b) to the extent such information is lawfully and independently
obtained from a source other than the Lessee or any of its Subsidiaries
and such information from such source is not, to such Person’s knowledge,
subject to an obligation of confidentiality or, if such information is
subject to an obligation of confidentiality, that disclosure of such
information is permitted;




		
	 	     (c) to counsel, auditors or accountants retained by any such Person
or any Affiliates of any such Person (if such Affiliates are permitted to
receive such information pursuant to clause (f) or (g) below), provided
they agree to keep such information confidential as if such Person or
Affiliate were party to this Agreement and to financial



86






 





		
	 	institution regulators, including examiners of any Financing Party or any
Affiliate thereof in the course of examinations of such Persons;




		
	 	     (d) in connection with any litigation or the enforcement or
preservation of the rights of any Financing Party under the Operative
Agreements;




		
	 	     (e) to the extent required by any applicable statute, rule or
regulation or court order (including without limitation, by way of
subpoena) or pursuant to the request of any regulatory or Governmental
Authority having jurisdiction over any such Person; provided,however,
that such Person shall endeavor (if not otherwise prohibited by Law) to
notify the Lessee prior to any disclosure made pursuant to this clause
(e), except that no such Person shall be subject to any liability
whatsoever for any failure to so notify the Lessee;




		
	 	     (f) any Financing Party may disclose such information to another
Financing Party or to any Affiliate of a Financing Party that is a direct
or indirect owner of any Financing Party (provided, in each case that
such Affiliate has agreed to maintain confidentiality as if it were such
Financing Party);




		
	 	     (g) any Financing Party may disclose such information to an
Affiliate of any Financing Party to the extent required in connection
with the transactions contemplated hereby or to the extent such Affiliate
is involved in, or provides advice or assistance to such Person with
respect to, such transactions (provided, in each case that such Affiliate
has agreed to maintain confidentiality as if it were such Financing
Party);




		
	 	     (h) in connection with any proposed or actual assignment or grant of
a participation by any of the Primary Financing Parties of interests in
any Credit Agreement, any Note or the other Operative Agreements to such
other financial institution (who shall in turn agree in writing to
maintain confidentiality as if it were a Primary Financing Party
originally party to this Agreement);




		
	 	     (i) any Financing Party may disclose such information to any Rating
Agency or any organization providing similar services in connection with
the rating of commercial paper obligations (including without limitation
the Commercial Paper Notes) of the Conduit; or




		
	 	     (j) any Financing Party may disclose such information to any
Liquidity Bank.



       Subject to the terms of Sections 12.13(a)-12.13(h), under the terms of any
one or more of which circumstances disclosure shall be permitted, each
Financing Party severally agrees to keep confidential all non-public
information pertaining to the financing structure described in the unrecorded
Operative Agreements. Any Person required to maintain the confidentiality of
information as provided in this Section 12.13 shall be considered to have
complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such information as such
Person would accord to its own confidential information.


87






 



     Notwithstanding anything herein to the contrary, confidential information
shall not include, and the Financing Parties may disclose without limitation of
any kind, any information with respect to the “tax treatment” and “tax
structure” (in each case, within the meaning of Treasury Regulation Section
1.6011-4) of the transactions contemplated hereby and by the other Operative
Agreements and all materials of any kind (including opinions or other tax
analyses) that are provided to such Financing Party relating to such tax
treatment and tax structure; provided that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other information,
this sentence shall only apply to such portions of the document or similar item
that relate to the tax treatment or tax structure of the transactions
contemplated hereby and by the other Operative Agreements.


     12.14. Financial Reporting/Tax Characterization.


     Lessee agrees to obtain advice from its own accountants and tax counsel
regarding the financial reporting treatment and the tax characterization of the
transactions described in the Operative Agreements. The Lessor acknowledges
that the Lessee and its auditors will be relying upon the information provided
pursuant to Sections 8.2(e) and 8.2(f) and the Lessor Confirmation Letters for
purposes of determining consolidation under FASB Interpretation No. 46.


     It is the further intent of the Parties to this Agreement that this
Agreement and the transaction evidenced by the Operative Agreements conform
with and satisfy the requirements of, to the extent applicable, FAS 13, FASB
Interpretation No. 46, Emerging Issues Task Force, 1997\Issue 97-1 and Emerging
Issues Task Force, 1997\Issue 97-10.


     12.15 Deal Agent.


     The Deal Agent shall take all actions for and on behalf of the Conduit
hereunder and under the Operative Agreements as provided in Section 2A of the
Credit Agreements.


     12.16 Recourse Against Certain Parties.


     (a)  No recourse under or with respect to any obligation, covenant or
agreement (including without limitation the payment of any fees or any other
obligations) of any Secured Party as contained in the Operative Agreements or
any other agreement, instrument or document entered into by it pursuant hereto
or in connection herewith shall be had against any administrator of such
Secured Party or any incorporator, affiliate, stockholder, officer, employee or
director of such Secured Party or of any such administrator, as such, by the
enforcement of any assessment or by any legal or equitable proceeding, by
virtue of any statute or otherwise; it being expressly agreed and understood
that the agreements of such Secured Party contained in the Operative Agreements
and all of the other agreements, instruments and documents entered into by it
pursuant thereto or in connection therewith are, in each case, solely the
corporate obligations of such Secured Party, and that no personal liability
whatsoever shall attach to or be incurred by any administrator of such Secured
Party or any incorporator, stockholder, affiliate,


88






 




officer, employee or director of such Secured Party or of any such
administrator, as such, or any other of them, under or by reason of any of the
obligations, covenants or agreements of such Secured Party contained in the
Operative Agreements or in any other such instruments, documents or agreements,
or that are implied therefrom, and that any and all personal liability of every
such administrator of such Secured Party and each incorporator, stockholder,
affiliate, officer, employee or director of such Secured Party or of any such
administrator, or any of them, for breaches by such Secured Party of any such
obligations, covenants or agreements, which liability may arise either at
common law or at equity, by statute or constitution, or otherwise, is hereby
expressly waived as a condition of and in consideration for the execution of
the Operative Agreements. The provisions of this section shall survive the
termination of the Operative Agreements.


     (b)  Notwithstanding anything in the Operative Agreements to the contrary,
the Conduit shall not have any obligation to pay any amount required to be paid
by it hereunder in excess of any amount available to the Conduit after paying
or making provision for the payment of its Commercial Paper Notes. All payment
obligations of the Conduit hereunder are contingent on the availability of
funds in excess of the amounts necessary to pay its Commercial Paper Notes; and
each of the other parties to the Operative Agreements agrees that it will not
have a claim under Section 101(5) of the Bankruptcy Code if and to the extent
that any such payment obligation owed to it by the Conduit exceeds the amount
available to the Conduit to pay such amount after paying or making provision
for the payment of its Commercial Paper Notes.


     12.17 Parties in Interest.


     Except as expressly provided herein, none of the provisions of this
Agreement are intended for the benefit of any Person except the parties hereto;
provided, notwithstanding anything in any Operative Agreement to the contrary,
each Hedge Provider is hereby automatically deemed, without further action, to
be a third party beneficiary of this Agreement and the other Operative
Agreements and to have full right to pursue one or more actions at law or in
equity to protect its rights pursuant to this Agreement and the other Operative
Agreements and (b) to have appointed Wachovia to act as Agent on its behalf
pursuant to Section 8.6 (and Wachovia shall be deemed to have accepted such
appointment).


     12.18 Hedging Agreements are not Collateral.


     Notwithstanding any provision in any Security Document to the contrary,
all parties to this Agreement acknowledge and agree that no right, title or
interest of the Borrower in and to any Hedging Agreement constitutes, or shall
constitute, Collateral.


     12.19 Replacement of the Intermediary.


     Notwithstanding any provision of any Operative Agreement to the contrary,
the Agent in its sole discretion may elect upon the Completion Date to replace
the Intermediary with another Person (which may be Wachovia, an Affiliate of
Wachovia or another Person) for all purposes in connection with the Operative
Agreements (including without limitation with regard to the Liquid Collateral
Agreements and the Punch List Liquid Collateral Agreements). Upon making


89






 




such election, the Agent shall notify the Intermediary and the Lessee, and
all such parties shall cooperate to modify and replace all documentation as
necessary or appropriate in order to accomplish such replacement of the
Intermediary promptly.


     12.20 Amendment and Restatement.


     The parties hereto hereby agree to amend and restate the Original
Participation Agreement (in regards to the Property) pursuant to the terms of
this Agreement.


     12.21 No Novation.


     The Notes and obligations evidenced and governed by this Agreement
regarding Lessor Advances are not intended as a novation, but rather are
intended as an amendment and restatement of the indebtedness and Lessor
advanced amounts issued previously regarding the Property under the
transactions evidence by the Original Participation Agreement and the related
transaction documents. The Lenders and the Lessor acquired their respective
interests in such indebtedness and in such Lessor advanced amounts pursuant to
the Master Transfer Agreement.


[signature pages follow]



90






 


     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.


THE CONSTRUCTION AGENT

AND THE LESSEE:




	 	 	 	 	 
	 	 	HUMAN GENOME SCIENCES, INC.
	 	 	 	 	 	 	 
	 	 	
By:
	 	/s/
	Steven C. Mayer
	 	 	 	

	 	 	
Name:
	 	 	 	Steven C. Mayer
	 	 	
Title:
	 	 	 	Senior Vice President and
	 	 	 	 	 	 	Chief Financial Officer



[signature pages continue]



 






 





THE BORROWER AND THE LESSOR:




	 	 	 	 	 
	 	 	WACHOVIA DEVELOPMENT CORPORATION
	 	 	 	 	 	 	 
	 	 	
By:
	 	/s/
	 Evander S. Jones, Jr.
	 	 	 	

	 	 	
Name:
	 	 	 	Evander S. Jones, Jr.
	 	 	
Title:
	 	 	 	Vice President



[signature pages continue]



 






 





THE CONDUIT, A CREDITOR LENDER

AND A MORTGAGE LENDER:




	 	 	 	 	 	 	 
	 	 	VARIABLE FUNDING CAPITAL CORPORATION
	 	 	 	 	 	 	 
	 	 	
By:
	 	 	 	WACHOVIA SECURITIES, LLC,
	 	 	 	 	 	 	as attorney-in-fact
	 	 	 	 	 	 	 
	 	 	
By:
	 	/s/
	 	Douglas R. Wilson, Sr.
	 	 	 	

	 	 	
Name:
	 	 	Douglas R. Wilson, Sr.
	 	 	
Title:
	 	 	 	Vice President



[signature pages continue]



 






 





THE INVESTORS, THE ADDITIONAL

CREDIT LENDERS AND THE

ADDITIONAL MORTGAGE LENDERS:




	 	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION
	 	 	 	 	 	 	 
	 	 	
By:
	 	 	/s/	 Barbara K. Angel
	 	 	 	

	 	 	
Name:
	 	 	Barbara K. Angel
	 	 	
Title:
	 	 	 	Senior Vice President



[signature pages continue]



 






 





     THE DEAL AGENT:



	 	 	 	 	 	 	 
	 	 	WACHOVIA SECURITIES, LLC
	 	 	 	 	 	 	 
	 	 	
By:
	 	/s/
	 	Evander S. Jones, Jr.
	 	 	 	

	 	 	
Name:
	 	 	Evander S. Jones, Jr.
	 	 	
Title:
	 	 	 	Vice President



 






 



THE AGENT:




	 	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION
	 	 	 	 	 	 	 
	 	 	
By:
	 	/s/
	 	Weston R. Garrett
	 	 	 	

	 	 	
Name:
	 	 	Weston R. Garrett
	 	 	
Title:
	 	 	 	Vice President



[signature pages end]




 










 








Appendix A

Rules of Usage and Definitions







I. Rules of Usage



The following rules of usage shall apply to this Appendix A and the Operative
Agreements (and each appendix, schedule, exhibit and annex to the foregoing)
unless otherwise required by the context or unless otherwise defined therein:


     (a)  Except as otherwise expressly provided, any definitions set forth
herein or in any other document shall be equally applicable to the singular and
plural forms of the terms defined.


     (b)  Except as otherwise expressly provided, references in any document to
articles, sections, paragraphs, clauses, annexes, appendices, schedules or
exhibits are references to articles, sections, paragraphs, clauses, annexes,
appendices, schedules or exhibits in or to such document.


     (c)  The headings, subheadings and table of contents used in any document
are solely for convenience of reference and shall not constitute a part of any
such document nor shall they affect the meaning, construction or effect of any
provision thereof.


     (d)  References to any Person shall include such Person, its successors,
permitted assigns and permitted transferees.


     (e) Except as otherwise expressly provided, reference to any agreement
means such agreement as amended, modified, extended, supplemented and/or
restated from time to time in accordance with the applicable provisions
thereof.


 






 


     (f)  Except as otherwise expressly provided, references to any law includes
any amendment or modification to such law and any rules or regulations issued
thereunder or any law enacted in substitution or replacement therefor.


     (g)  When used in any document, words such as “hereunder”, “hereto”,
“hereof” and “herein” and other words of like import shall, unless the context
clearly indicates to the contrary, refer to the whole of the applicable
document and not to any particular article, section, subsection, paragraph or
clause thereof.


     (h)  References to “including” means including without limiting the
generality of any description preceding such term and for purposes hereof the
rule of ejusdem generis shall not be applicable to limit a general statement,
followed by or referable to an enumeration of specific matters, to matters
similar to those specifically mentioned.


     (i)  Each of the parties to the Operative Agreements and their counsel have
reviewed and revised, or requested revisions to, the Operative Agreements, and
the usual rule of construction that any ambiguities are to be resolved against
the drafting party shall be inapplicable in the construction and interpretation
of the Operative Agreements and any amendments or exhibits thereto.


     (j)  Capitalized terms used in any Operative Agreements which are not
defined in this Appendix A but are defined in another Operative Agreement shall
have the meaning so ascribed to such term in the applicable Operative
Agreement.


     (k)  In computing any period of time for purposes of any Operative
Agreement, the mechanics for counting the number of days set forth in Rule 6 of
the Federal Rules of Civil Procedure shall be observed.


     (l)  For purposes of the Operative Agreements, any reference to the
acquisition of the Property by the Lessor shall be deemed, unless otherwise
expressly stated, to refer to the acquisition of a ground leasehold interest in
the Property by the Lessor pursuant to the Ground Lease and the acquisition of
an interest by the Lessor pursuant to the Appurtenant Rights.


     (m)  For purposes of the Operative Agreements, (i) any reference to a Lease
Default shall be deemed to include a reference to an Agency Agreement Default,
(ii) any reference to an Agency Agreement Default shall be deemed to include a
reference to a Lease Default, (iii) any reference to a Lease Event of Default
shall be deemed to include a reference to an Agency Agreement Event of Default,
and (iv) any reference to an Agency Agreement Event of Default shall be deemed
to include a reference to a Lease Event of Default.


     (n)  For purposes of the Operative Agreements, all references to the
“Lessee” or the “Construction Agent” shall be deemed to refer to Human Genome
Sciences, Inc., a Delaware corporation, in each of its respective capacities
pursuant to the Operative Agreements.


II. Definitions



Appendix A - 2






 





     “ABR” shall mean, for any day but subject to the last sentence of this
definition of “ABR”, a rate per annum equal to the Federal Funds Effective Rate
in effect on such day plus 0.35%. For purposes hereof, “Federal Funds
Effective Rate” shall mean for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the
federal funds rates as quoted by Wachovia and confirmed in Federal Reserve
Board Statistical Release H.15(519) or any successor or substitute publication
selected by Wachovia (or, if such day is not a Business Day, for the next
preceding Business Day), or, if, for any reason, such rate is not available on
any day, the rate determined, in the sole opinion of Wachovia, to be the rate
at which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. Charlotte, North Carolina time.


     “ABR Lessor Advances” shall mean Lessor Advances the rate of interest
applicable to which is based upon the ABR.


     “ABR Loans” shall mean Loans the rate of interest applicable to which is
based upon the ABR.


     “Acceleration” shall have the meaning given to such term in Section 6 of
the applicable Credit Agreement.


     “Accountants” means Ernst & Young LLP (or any successor thereto), or any
other firm of certified public accountants of recognized national standing
selected by the Lessee.


     “Accounts” shall have the meaning given to such term in Section 1 of the
Security Agreement.


     “Accumulated Funding Deficiency” shall have the meaning given to such term
in Section 302 of ERISA.


     “Actual Knowledge” shall mean, with respect to the Lessee or any Affiliate
of the Lessee, the actual knowledge of any of the following Persons: (i) with
respect to facts or occurrences relating to the Property, employees of the
Lessee, any Construction Agency Person or any Affiliate of the Lessee (but only
such employees of the Lessee, any Construction Agency Person or any Affiliate
of the Lessee regularly engaged in supervising the acquisition, construction,
use, maintenance or operation of the Property), and (ii) with respect to facts
or occurrences unrelated to the Property, any Responsible Officer of the
Lessee, any Construction Agency Person or any Affiliate of the Lessee.


     “Additional Collateral Delivery Date” shall mean with respect to each
Additional Collateral Demand, the day on or before the fifth Business Day
following the making of an Additional Collateral Demand or if one or more
Additional Collateral Demands are outstanding and the aggregate amount of the
Pledged Securities required to be transferred to the Liquid Collateral Account
exceeds $5,000,000, then with respect to all outstanding transfers of Pledged
Securities, on the Business Day next following the Business Day when the
aggregate amounts required to be transferred to such Liquid Collateral Account
first exceeds $5,000,000.


Appendix A - 3






 


     “Additional Collateral Demand” shall have the meaning given to such term
in Section 5.11(c)(i) of the Participation Agreement.


     “Additional Liquid Collateral” shall have the meaning given to such term
in Section 5.11(c)(i) of the Participation Agreement.


     “Adjusted Market Value” shall mean with respect to Properly Margined
Liquid Collateral, the sum of the Adjusted Market Value (Item) of each
Permitted Investment constituting Properly Margined Liquid Collateral in
respect of the Liquid Collateral Account on each date such Liquid Collateral is
marked-to-market in accordance with Section 8.3A(s) of the Participation
Agreement.


     “Adjusted Market Value (Item)” shall mean with respect to each Permitted
Investment that constitutes Liquid Collateral on any date that the securities
in the Liquid Collateral Account are marked-to-market, the product of the Fair
Market Sales Value of the Permitted Investment on such date multiplied by the
percentage in the table below under the column marked “Advance Rate to Maintain
Properly Margined Liquid Collateral” opposite the type of investment into which
such Permitted Investment falls.



	 	 	 	 	 
	 	 	Advance Rate to Maintain Properly
	Types of Permitted Investments	 	Margined Liquid Collateral
	
	 	

	U.S. Treasury Obligations	 	 	
90	%
	 	 	 	 	 
	Money Market Funds	 	 	
90	%
	 	 	 	 	 
	Repurchase Obligations	 	 	
90	%
	 	 	 	 	 
	Mortgage Backed Securities	 	 	
80	%
	 	 	 	 	 
	Asset Backed Securities	 	 	
80	%
	 	 	 	 	 
	Negotiable Certificates of Deposit	 	 	
80	%
	 	 	 	 	 
	Commercial Paper rated A-l, P-1 or better	 	 	
80	%
	 	 	 	 	 
	U.S. Agency Obligations	 	 	
80	%
	 	 	 	 	 
	Taxable Municipal Bonds (Moody’s Aaa

down through A3; S & P AAA down

through A-)	 	 	
80	%
	 	 	 	 	 
	Bonds (Moody’s Aaa down through A3; S & P AAA

down through A-)	 	 	
70	%
	 	 	 	 	 
	Bank Obligations	 	 	
80	%
	 	 	 	 	 
	Other Permitted Investments not referenced

above	 	As
determined by the Agent in its sole
discretion
(acting upon
the advice of the
Majority Secured Parties)
 



     “Advance” shall mean a Construction Advance and, in accordance with
Section 1 of the Participation Agreement, shall be deemed to include the
amounts advanced by the Primary Financing Parties to obtain their respective
interests pursuant to the Master Transfer Agreement on the Closing Date.


Appendix A - 4






 


     “Advance Cap” shall have the meaning given to such term in Section 5.17 of
the Participation Agreement.


     “Affected Party” shall have the meaning given to such term in Section
11.3(a) of the Participation Agreement.


     “Affiliate” shall mean, with respect to any Person, any Person or group
acting in concert in respect of the Person in question that, directly or
indirectly, controls or is controlled by or is under common control with such
Person.


     “After Tax Basis” shall mean, with respect to any payment to be received,
the amount of such payment increased so that, after deduction of the amount of
all taxes required to be paid by the recipient calculated at the then maximum
marginal rates generally applicable to Persons of the same type as the
recipient with respect to the receipt by the recipient of such amounts (less
any tax savings realized as a result of the payment of the indemnified amount),
such increased payment (as so reduced) is equal to the payment otherwise
required to be made.


     “Agency Agreement” shall mean the Amended and Restated Agency Agreement,
dated as of the Closing Date, between the Construction Agent and the Lessor.


     “Agency Agreement Default” shall mean any event or condition which, with
the lapse of time or the giving of notice, or both, would constitute an Agency
Agreement Event of Default.


     “Agency Agreement Event of Default” shall have the meaning given to such
term in Section 5.1 of the Agency Agreement.


     “Agent” shall mean Wachovia Bank, National Association, as agent for the
Primary Financing Parties pursuant to the Participation Agreement or any
successor agent appointed in accordance with the terms of the Participation
Agreement and, respecting the Security Documents, as agent for the Secured
Parties.


     “Allocated Commercial Paper” shall mean commercial paper issued by or on
behalf of the Conduit if the proceeds thereof are used to fund or maintain one
or more CP Loans.


     “Applicable Percentage” shall mean:



	 	 	 	(a) with respect to the Lender Unused Fee and the Lessor Unused
Fee, 0.15% (15 basis points);
	 
	 	 	 	(b) with respect to the Liquidity Fee payable in connection with
the Loans, (i) 0.20% (20 basis points) if all of the Liquid
Collateral in the Liquid Collateral Account subject to the Liquid
Collateral Agreements and the Liquid Collateral in the Punch List
Liquid Collateral Account subject to the Punch List Liquid
Collateral Agreements is Properly Margined Liquid Collateral and
(ii) 0.25% (25 basis points) in all other cases;



Appendix A - 5






 







	 	 	 	(c) with respect to Interest on the Credit Loans which are
Eurodollar Loans or ABR Loans, 0.55% (55 basis points);
	 
	 	 	 	(d) with respect to Interest on the Mortgage Loans which are
Eurodollar Loans or ABR Loans, (i) 0.55% (55 basis points) if all
of the Liquid Collateral in the Liquid Collateral Account subject
to the Liquid Collateral Agreements and the Liquid Collateral in
the Punch List Liquid Collateral Account subject to the Punch List
Liquid Collateral Agreements is Properly Margined Liquid Collateral
and (ii) 1.40% (140 basis points) in all other cases; and
	 
	 	 	 	(e) with respect to Lessor Yield on the Lessor Advances which are
Eurodollar Lessor Advances or ABR Lessor Advances, 2.25% (225 basis
points).



     “Appraisal” shall mean, with respect to the Property, an “as-built”
appraisal to be delivered in connection with the Participation Agreement or in
accordance with the terms of the Lease, in each case prepared by a reputable
appraiser reasonably acceptable to the Agent, which, in the reasonable judgment
of counsel to the Agent, complies with all of the provisions of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989, as amended, the
rules and regulations adopted pursuant thereto, and all other applicable Legal
Requirements.


     “Appraisal Procedure” shall have the meaning given such term in Section
22.4 of the Lease.


     “Approved Bank” shall mean any bank whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at
least P-1 or the equivalent thereof.


     “Approved State” shall mean the State of Maryland.


     “Appurtenant Rights” shall mean (a) all agreements, easements, rights of
way or use, rights of ingress or egress, privileges, appurtenances, tenements,
hereditaments and other rights and benefits at any time belonging or pertaining
to the Land underlying the Improvements or the Improvements, including without
limitation the use of any streets, ways, alleys, vaults or strips of land
adjoining, abutting, adjacent or contiguous to the Land and (including without
limitation the HVAC Easement) and (b) all permits, licenses and rights, whether
or not of record, appurtenant to such Land or the Improvements.


     “Asset Backed Securities” shall mean asset backed securities rated AAA by
S&P and Aaa by Moody’s.


     “Assigned Facility” shall have the meaning given to such term in EXHIBIT B
of the applicable Credit Agreement.


     “Assigned Interest” shall have the meaning given to such term in EXHIBIT B
of the applicable Credit Agreement.


Appendix A - 6






 


     “Assignment” shall have the meaning given to such term in the Cash
Collateral Agreement.


     “Assignment and Acceptance” shall mean an Assignment and Acceptance in the
form attached to the applicable Credit Agreement as EXHIBIT B.


     “Available Commitment” shall mean (a) as to any Credit Lender, the
Available Credit Lender Commitment, (b) as to any Mortgage Lender, the
Available Mortgage Lender Commitment and (c) as to the Lessor, the Available
Lessor Commitment.


     “Available Credit Lender Commitment” shall mean, as to any Credit Lender
at any time, an amount equal to the excess, if any, of (a) in the case of the
Investors, the amount of each such Investor’s Credit Loan Commitment (or, in
the case of the Conduit, the amount of the Credit Loan Commitment) over (b) the
aggregate principal amount of all Credit Loans made by such Credit Lender as of
such date (but without giving effect to any repayments or prepayments of any
Credit Loans under the Credit Loan Agreement).


     “Available Lender Commitment” shall mean (a) as to any Credit Lender, the
Available Credit Lender Commitment and (b) as to any Mortgage Lender, the
Available Mortgage Lender Commitment.


     “Available Lessor Commitment” shall mean, as to the Lessor at any time, an
amount equal to the excess, if any, of (a) the amount of the Lessor Commitment
over (b) the aggregate principal amount of all Lessor Advances made by the
Lessor as of such date (but without giving effect to any repayments or
prepayments of any Lessor Advances under the Participation Agreement).


     “Available Mortgage Lender Commitment” shall mean, as to any Mortgage
Lender at any time, an amount equal to the excess, if any, of (a) in the case
of the Investors, the amount of such Investor’s Mortgage Loan Commitment (or,
in the case of the Conduit, the amount of the Mortgage Loan Commitment) over
(b) the aggregate principal amount of all Mortgage Loans made by such Mortgage
Lender as of such date (but without giving effect to any repayments or
prepayments of any Mortgage Loans under the Mortgage Loan Agreement).


     “Balance Deposit” shall have the meaning given such term in Section 5.5(c)
of the Agency Agreement.


     “Bank Obligations” shall mean bank notes and banker’s acceptances the
obligor of which has an unsecured long-term debt rating of at least A by S&P
and A2 by Moody’s and has a commercial paper rating of at least A-1 by S&P and
P-1 by Moody’s but excluding any such bank notes, banker’s acceptances or any
other indebtedness or equity issued by, or any time deposits with, Wachovia or
any of its Affiliates.


     “Bankruptcy Code” shall mean Title 11 of the U. S. Code entitled
“Bankruptcy,” as now or hereafter in effect or any successor thereto.


Appendix A - 7






 


     “Bankruptcy Event” shall mean, with respect to a specified Person, (a) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in
an involuntary case under any applicable Insolvency Law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial part of
its property, or ordering the winding-up or liquidation of such Person’s
affairs, and such decree or order shall remain unstayed and in effect for a
period of sixty (60) consecutive days; or (b) the commencement by such Person
of a voluntary case under any applicable Insolvency Law now or hereafter in
effect, or the consent by such Person to the entry of an order for relief in an
involuntary case under any such law, or the consent by such Person to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for any
substantial part of its property, or the making by such Person of any general
assignment for the benefit of creditors, or the failure by such Person
generally to pay its debts as such debts become due, or the taking of action by
such Person in furtherance of any of the foregoing.


     “Basic Documents” shall mean the following: the Participation Agreement,
the Agency Agreement, the Credit Agreements, the Notes, the Lease, the Security
Agreement, the Liquid Collateral Agreements and the Punch List Liquid
Collateral Agreements.


     “Basic Rent” shall mean an amount equal to the scheduled Interest on the
Loans and the Lessor Yield due on any Payment Date (but not including (a)
Interest on any Loan or Lessor Yield on any Lessor Advance due prior to the
Commencement Date with respect to the Property or (b) any overdue amounts under
any Credit Agreement or the Participation Agreement) payable in accordance with
the Lease and the Participation Agreement.


     “Basic Term” shall have the meaning given to such term in Section 2.2 of
the Lease.


     “Basic Term Expiration Date” shall have the meaning given to such term in
Section 2.2 of the Lease.


     “Benefitted Lender” shall have the meaning specified in Section 9.10(a) of
the applicable Credit Agreement.


     “Bifurcation Documents” shall mean the various documents identified under
the Master Transfer Agreement.


     “Bill of Sale” shall mean a Bill of Sale regarding Equipment in form and
substance satisfactory to the Agent.


     “Board” shall mean the Board of Governors of the Federal Reserve System of
the United States (or any successor).


Appendix A - 8






 


     “Borrower” shall mean Wachovia Development Corporation, a North Carolina
corporation, and any successor, replacement and/or additional borrower under
the Credit Agreements expressly permitted under the Operative Agreements.


     “Borrower’s Interest” shall mean the Borrower’s rights in, to and under
the Property, the Operative Agreements, any other property contributed on
behalf of the Lessee and any and all other property or assets from time to time
of the Borrower obtained with respect to the Operative Agreements, including,
without limitation, Modifications, and all amounts of Rent, insurance proceeds
and condemnation awards, indemnity or other payments of any kind received by
the Borrower pursuant to the Operative Agreements; provided, “Borrower’s
Interest” shall not include any Lessor Advance or Lessor Yield.


     “Borrowing Date” shall mean any Business Day specified in a notice
delivered pursuant to Section 2.3 of the applicable Credit Agreement as a date
on which the Lessor requests the Lenders to make Loans thereunder.


     “Breakage Costs” shall mean any amount or amounts as shall compensate a
Financing Party for any loss, cost or expense incurred by such Financing Party
(as determined by such Financing Party (or, in the case of the Conduit, by the
Deal Agent on behalf of the Conduit) in such Person’s sole discretion) as a
result of a prepayment on any date other than a Scheduled Interest Payment Date
or the Maturity Date of all or a portion of a Loan, a Note, Interest, a Lessor
Advance or Lessor Yield.


     “Budgeted Total Property Cost” shall mean, at any date of determination
with respect to the Property during the Construction Period, an amount equal to
the aggregate amount which the Construction Agent in good faith expects to be
requisitioned in order to achieve Completion with respect to the Property.


     “Business Day” shall mean a day other than a Saturday, Sunday or other day
on which commercial banks in Maryland, North Carolina or any other states from
which the Agent, any Lender or the Lessor funds the transactions contemplated
by the Operative Agreements or engages in administrative activities with
respect to the transactions under the Operative Agreements are authorized or
required by law to close; provided, however, that when used in connection with
a Eurodollar Loan or Eurodollar Lessor Advance, the term “Business Day” shall
also exclude any day on which banks are not open for dealings in dollar
deposits in the London interbank market.


     “Capital Lease Obligations” of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination
thereof, which obligations are required to be classified and accounted for as
capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in
accordance with GAAP.


     “Capital Stock” shall mean any nonredeemable capital stock of the Lessee
or any of its Subsidiaries or of any other applicable Person, whether common or
preferred.


Appendix A - 9






 


     “Capitalized Costs” shall mean during the Construction Period and to the
extent the applicable conditions precedent pursuant to the Operative Agreements
have been satisfied (a) Interest to the Credit Lenders pursuant to the Credit
Notes, (b) Interest to the Mortgage Lenders pursuant to the Mortgage Notes, (c)
Lessor Yield, (d) Transaction Expenses payable pursuant to Section 7 of the
Participation Agreement by the Lessor, (e) rent payable with respect to the
Ground Lease and scheduled amounts payable with respect to the Appurtenant
Rights, (f) Impositions payable by the Construction Agent pursuant to Section
3.11 of the Agency Agreement, (g) insurance premiums payable by the
Construction Agent pursuant to Section 3.5 of the Agency Agreement and (h) all
amounts payable from time to time regarding any Hedging Agreement including
without limitation all scheduled periodic payments and all termination
payments.


     “Capitalized Lease” shall mean, as applied to any Person, any lease of
property (whether real, personal, tangible, intangible or mixed of such Person)
by such Person as the lessee which would be capitalized on a balance sheet of
such Person prepared in accordance with GAAP.


     “Cash Burn Amount” shall mean for any period, the amount by which the sum
(without duplication) for HGSI and its Subsidiaries on a consolidated basis of
the following amounts is less than $0:



		
	 	     (i)     Consolidated Net Income for such period; plus
	 
	 	     (ii)     the amount which, in the determination of Consolidated Net
Income for such period, has been deducted for depreciation and
amortization (including, without limitation, amortization of goodwill and
other intangibles); plus
	 
	 	     (iii)     the non-cash charges which, in the determination of
Consolidated Net Income for such period, have been deducted in
calculating “purchased in-process research and development expenses”;
plus
	 
	 	     (iv)     the non-cash charges which, in the determination of
Consolidated Net Income for such period, has been deducted as debt
conversion expense or other similar non-cash charges; plus
	 
	 	     (v)     other similar non-cash charges described in clauses (iii) and
(iv),
	 
	 	     all as determined in accordance with GAAP.



     “Cash Collateral Agreement” shall mean the Amended and Restated Assignment
of Liquid Collateral Account dated as of the Closing Date executed by the
Lessee in favor of the Agent, on behalf of the Secured Parties.


     “Cash Collateral Control Agreement” shall mean the Amended and Restated
Control Agreement dated as of the Closing Date among the Agent, on behalf of
the Secured Parties, the Lessee and the Intermediary.


Appendix A - 10






 


     “Cash Collateral Test Date” shall mean the last day of each Fiscal
Quarter; provided, however, that if at the end of any Fiscal Quarter the
aggregate amount of all Unrestricted Cash, Cash Equivalents and Marketable
Securities of HGSI and its Subsidiaries on a consolidated basis is less than
three hundred million dollars ($300,000,000) for the period of four consecutive
Fiscal Quarters then ended, then at all times thereafter, “Cash Collateral Test
Date” shall mean the last day of each calendar month.


     “Cash Equivalents” shall mean (a) Government Obligations having maturities
of not more than one year from the date of acquisition, (b) certificates of
deposit of any commercial bank incorporated under the laws of the United
States, or any state, territory or commonwealth thereof, of recognized standing
having capital and unimpaired surplus in excess of $500,000,000 and whose
short-term commercial paper rating at the time of acquisition is at least A-1
or the equivalent by S&P or at least P-1 or the equivalent by Moody’s (any such
bank, an “Approved Bank”), which certificates of deposit have maturities of not
more than one year from the date of acquisition, (c) repurchase obligations
with a term of not more than thirty-one (31) days for underlying securities of
the types described in clauses (a), (b) and (d) of this definition entered into
with any Approved Bank which (i) is secured by a fully perfected security
interest in any obligation of the type described in any of clauses (a), (b) and
(d), and (ii) has a market value at the time such repurchase agreement is
entered into of not less than one hundred percent (100%) of the repurchase
obligation of such lender (or other commercial banking institution) thereunder,
(d) commercial paper or financial company paper issued by any person
incorporated under the laws of the United States., or any state thereof, and
rated at least A-1 or the equivalent by S&P or at least P-1 or the equivalent
by Moody’s, and in each case maturing not more than nine (9) months from the
date of acquisition and not issued by HGSI or any Affiliate, and (e)
investments in money market funds that are registered under the Investment
Company Act of 1940,which have assets of at least $100,000,000 and at least
ninety-five percent (95%) of whose assets consist of investments or other
obligations of the type described in clauses (a) through (d) above and as to
which withdrawals are permitted at least every thirty (30) days.


     “Casualty” shall mean any damage or destruction of all or any portion of
the Property as a result of a fire or other casualty.


     “CERCLA” shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq., as amended
by the Superfund Amendments and Reauthorization Act of 1986.


     “Chattel Paper” shall have the meaning given to such term in Section 1 of
the Security Agreement.


     “Claims” shall mean any and all obligations, liabilities, losses, actions,
suits, penalties, claims, demands, costs and expenses (including without
limitation reasonable attorney’s fees and expenses) of any nature whatsoever,
but excluding Impositions and make termination payments and all other amounts
due and payable from time to time pursuant to one or more Hedging Agreements.


Appendix A - 11






 


     “Closing” shall mean the initial closing with regard to the execution,
delivery and effectiveness of certain of the Operative Agreements as of the
Closing Date and the acquisition of the Property by the Lessor as of the
Closing Date.


     “Closing Date” shall mean June 30, 2003.


     “Code” shall mean the Internal Revenue Code of 1986 together with rules
and regulations promulgated thereunder, as amended from time to time, or any
successor statute thereto.


     “Collateral” shall mean all assets of the Lessor, the Construction Agent
and the Lessee, now owned or hereafter acquired, upon which a Lien is purported
to be created by one or more of the Security Documents.


     “Commencement Date” shall mean the date of Completion.


     “Commercial Paper Notes” shall mean, on any day, any short-term promissory
notes issued by the Conduit.


     “Commitment Percentage” shall mean, as to any Primary Financing Party at
any time, the percentage which such Primary Financing Party’s Commitment then
constitutes of the aggregate Commitments (or at any time after the Commitments
shall have expired or terminated, the percentage which the aggregate principal
amount of such Primary Financing Party’s Financing then outstanding constitutes
of the aggregate principal amount of all of the Financing then outstanding).


     “Commitment Period” shall mean the period from and including the Closing
Date to and including the Construction Period Termination Date, or such earlier
date as the Commitments shall terminate as provided in the applicable Credit
Agreement and the Participation Agreement.


     “Commitments” shall mean, (a) as to the Credit Lenders, the Credit Loan
Commitments, (b) as to the Mortgage Lenders, the Mortgage Loan Commitments and
(c) as to the Lessor, the Lessor Commitment.


     “Completion” shall mean, with respect to the Property, such time as the
substantial completion (subject to completion of punch list items) of the
Improvements on the Property has been achieved in accordance with the Plans and
Specifications and a temporary certificate of occupancy has been issued with
respect to the Property by the appropriate governmental entity (except if
non-compliance, individually or in the aggregate, shall not have and could not
reasonably be expected to have a Material Adverse Effect or if compliance with
any of the foregoing is otherwise waived by the Agent upon instruction from the
Secured Parties).


     “Completion Date” shall mean the date on which Completion for the Property
has occurred.


     “Compliance Certificate” shall mean a certificate executed by an
authorized officer of HGSI substantially in the form of EXHIBIT M to the
Participation Agreement.


Appendix A - 12






 


     “Concentration Limits” shall mean



		
	 	     (a)     there are no limits as to U.S. Treasury Obligations or U.S.
Agency Obligations.
	 
	 	     (b)     no Permitted Investment may be transferred to the Liquid
Collateral Account if at the time of transfer and at all times thereafter
the aggregate amount of Liquid Collateral issued by the same issuer or
Issuer Group exceeds or would exceed, after such transfer, five percent
(5%) of the Adjusted Market Value or Fair Market Sales Value, as
applicable, of the Liquid Collateral (including the Permitted Investments
to be transferred) in respect of the Liquid Collateral Account, excepting
U.S. Government Obligations that may constitute Liquid Collateral.
	 
	 	     (c)     no securities issued by a United States bank, other United
States regulated depository institution and United States insurance
company may be transferred to the Liquid Collateral Account if at the
time of transfer and at all times thereafter the aggregate amount of bank
and insurance company securities, including, for example, negotiable
certificates of deposit, commercial paper, bankers acceptances or medium
or long-term securities, exceeds or would exceed, after such transfer,
eighty percent (80%) of the Adjusted Market Value or Fair Market Sales
Value of the Liquid Collateral (including the Permitted Investments to be
transferred) in respect of the Liquid Collateral Account at the time the
additional Liquid Collateral is to be transferred thereto and at all
times thereafter;



provided, that with respect to the Liquid Collateral Account, the Agent and
HGSI agree in writing to other or no “Concentration Limits”.


     “Condemnation” shall mean any taking or sale of the use, access,
occupancy, easement rights or title to the Property or any part thereof, wholly
or partially (temporarily or permanently), by or on account of any actual or
threatened eminent domain proceeding or other taking of action by any Person
having the power of eminent domain, including without limitation an action by a
Governmental Authority to change the grade of, or widen the streets adjacent
to, the Property or alter the pedestrian or vehicular traffic flow to the
Property so as to result in a change in access to the Property, or by or on
account of an eviction by paramount title or any transfer made in lieu of any
such proceeding or action.


     “Conduit” shall mean Variable Funding Capital Corporation, a Delaware
corporation.


     “Consolidated” refers to the Lessee and its Subsidiaries the accounts of
which are consolidated with those of the Lessee for financial reporting
purposes.


     “Consolidated Net Income” shall mean with respect to any specified Person
for any period, the aggregate of the Net Income of such specified Person and
its Subsidiaries for such period on a consolidated basis, determined in
accordance with GAAP, “Net Income” of any Person shall mean the net income
(loss) of such Person, determined in accordance with GAAP.


Appendix A - 13






 


     “Consolidated Subsidiary” shall mean, as to any Person, any Subsidiary of
such Person which under the rules of GAAP consistently applied should have its
financial results consolidated with those of such Person for purposes of
financial accounting statements.


     “Construction” shall mean the construction and installation of all
Improvements contemplated by the Plans and Specifications.


     “Construction Advance” shall mean an advance of funds to pay Project Costs
pursuant to Section 5.4 of the Participation Agreement.


     “Construction Agency Person” shall mean the Construction Agent, the
Lessee, any contractor, subcontractor, adviser, architect, engineer, developer,
employee, attorney-in-fact or agent with respect to the Property and any other
Person that the Construction Agent directly or indirectly supervises, hires or
otherwise permits to engage in any Work with respect to the Property, any
portion thereof or any Improvements thereto, and any Affiliate of any of the
foregoing.


     “Construction Agent” shall mean Human Genome Sciences, Inc., a Delaware
corporation, as the construction agent under the Agency Agreement.


     “Construction Agent Related Event” shall have the meaning given to such
term in Section 3.6(e) of the Agency Agreement.


     “Construction Budget” shall mean the cost being financed pursuant to the
Operative Agreements of acquisition, installation, testing, repairing,
renovating, constructing, equipping and developing the Property and other
Project Costs (including without limitation Capitalized Costs) as determined by
the Construction Agent in its reasonable, good faith judgment.


     “Construction Change” shall mean a revision, amendment or modification to
the Plans and Specifications, the schedule for construction of the Property or
any of the Construction Contracts (including a change order under any
Construction Contract).


     “Construction Commencement Date” shall mean the Closing Date.


     “Construction Consultant” shall mean Inspection And Valuation
International, Inc. appointed by the Lessor or such other Person as may be
selected by the Lessor and reasonably acceptable to the Lessee.


     “Construction Contract” shall mean each of (i) the construction contract
between the Construction Agent and the General Contractor, and (ii) each other
contract entered into between the Construction Agent or the Lessee with a
Contractor for the construction of Improvements or any portion thereof on the
Property, in each case in form and substance reasonably satisfactory to the
Lessor.


Appendix A - 14






 


     “Construction Documents” shall mean each of the Construction Contracts,
the Construction Budget, the Construction Schedule, the Plans and
Specifications, and each Performance Bond.


     “Construction Failure” shall mean any actual failure (or, any such failure
which is reasonably anticipated by the Construction Agent and/or the Agent) to
achieve Completion with respect to the Construction Period Property on or prior
to the Construction Period Termination Date.


     “Construction Materials” shall mean, collectively, the Improvements to be
constructed on the Site in accordance with the Construction Budget, the
Construction Schedule and the Plans and Specifications, each of which must
satisfy the requirements imposed pursuant to the Operative Agreements.


     “Construction Period” shall mean with respect to the Property the period
commencing on the Construction Commencement Date and ending on the Completion
Date.


     “Construction Period Property” shall mean the Property prior to the
Completion Date.


     “Construction Period Required Amounts” shall mean (a) with respect to the
Construction Period Property, all amounts owed by the Construction Agent under
or with respect to any Operative Agreement in connection with any Environmental
Claim, Environmental Violation or other environmental matter related to the
Construction Period Property, including without limitation payments pursuant to
Section 11.6, fines and settlements regarding such environmental matters and
any remediation and cleanup cost required to be paid pursuant to Section 15.2
of the Lease, (b) (i) any loss, cost or damage suffered by, and any other
Claims brought by, any Financing Party as a result of fraud, misapplication of
funds, illegal acts or willful misconduct on the part of any Construction
Agency Person or (ii) any loss, cost or damage suffered by or any Claim by any
Financing Party resulting from the occurrence of any Insolvency Event (each
without regard to any limitation of the Construction Agent’s obligations to
make a payment of the Maximum Amount or any other limitation in connection with
the exercise of remedies upon the occurrence of an Agency Agreement Event of
Default or otherwise) and (c) any indemnity claims pursuant to the Operative
Agreements including without limitation pursuant to Sections 10.1(c) and 11.1
through 11.7 of the Participation Agreement (but subject to and limited by in
all respects the provisions of Section 11.7 of the Participation Agreement).


     “Construction Period Termination Date” shall mean (a) the earlier of (i)
the date that the Commitments have been terminated in their entirety in
accordance with the terms of the applicable Credit Agreement and the
Participation Agreement, or (ii) January 31, 2004 or (b) any such later date as
shall be agreed to by the Majority Secured Parties.


     “Construction Schedule” shall mean the schedule prepared by the
Construction Agent in its reasonable, good faith judgment reflecting, in
reasonable detail, the anticipated progress and timing of the acquisition,
installation, testing, repairing, renovating, constructing, equipping and
developing the Property.


Appendix A - 15






 


     “Contingent Liability” shall mean any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss) the
indebtedness, obligation or any other liability of any other Person (other than
by endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other
Person. The amount of any Person’s obligation under any Contingent Liability
shall (subject to any limitation set forth therein) be deemed to be the
outstanding principal amount of the debt, obligation or other liability
guaranteed thereby.


     “Contractor” shall mean each entity with whom the Construction Agent or
the Lessee contracts to construct any Improvements or any portion thereof on
the Property.


     “Controlled Group” shall mean all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Lessee, are treated as a single
employer under Section 414 of the Code.


     “CP Loans” shall mean Loans the rate of interest applicable to which is
based upon the CP Rate.


     “CP Rate” shall mean for any day during any Interest Period, the per annum
rate equivalent to the weighted average of the per annum rates paid or payable
by the Conduit from time to time as interest on or otherwise (by means of
interest rate hedges or otherwise taking into consideration any incremental
carrying costs associated with short-term promissory notes issued by the
Conduit maturing on dates other than those certain dates on which the Conduit
is to receive funds) in respect of the promissory notes issued by the Conduit
that are allocated, in whole or in part, by the Deal Agent (on behalf of the
Conduit) to fund or maintain a Loan during such period, as determined by the
Deal Agent (on behalf of the Conduit) and reported to the Lessor and the
Lessee, which rates shall reflect and give effect to (i) the commissions of
placement agents and dealers in respect of such promissory notes, to the extent
such commissions are allocated, in whole or in part, to such promissory notes
by the Deal Agent (on behalf of the Conduit) and (ii) other borrowings by the
Conduit, including, without limitation, borrowings to fund small or odd dollar
amounts that are not easily accommodated in the commercial paper market;
provided, however, that if any component of such rate is a discount rate, in
calculating the CP Rate, the Deal Agent shall for such component use the rate
resulting from converting such discount rate to an interest bearing equivalent
rate per annum.


     “Credit Agreement” shall mean the Credit Loan Agreement and/or the
Mortgage Loan Agreement, as applicable.


     “Credit Agreement Default” shall mean any event or condition which, with
the lapse of time or the giving of notice, or both, would constitute a Credit
Agreement Event of Default.


     “Credit Agreement Event of Default” shall mean any Credit Loan Event of
Default and/or any Mortgage Loan Event of Default, as applicable.


Appendix A - 16






 


     “Credit Documents” shall mean the Participation Agreement, the Credit
Agreements, the Notes and the Security Documents.


     “Credit Lender” shall mean the Conduit and each bank or other financial
institution which is from time to time party to any of the Operative Agreements
in its capacity as a “Credit Lender”.


     “Credit Loan” shall mean the loans made pursuant to the Credit Loan
Commitments and, in accordance with Section 1 of the Participation Agreement,
shall be deemed to include the amounts advanced by the Credit Lenders to obtain
their respective interests pursuant to the Master Transfer Agreement on the
Closing Date.


     “Credit Loan Agreement” shall mean the Amended and Restated Credit
Agreement (Credit Loans) dated as of June 30, 2003 among the Borrower, Variable
Funding Capital Corporation, as a Lender thereunder, the several Investors from
time to time party thereto, Wachovia Securities, LLC, as the Deal Agent, and
Wachovia Bank, National Association, as the Agent thereunder.


     “Credit Loan Commitments” shall mean the obligation of the Credit Lenders
to make the Credit Loans to the Lessor in an aggregate principal amount at any
one time outstanding not to exceed the aggregate of the amounts set forth
opposite each Credit Lender’s name on Schedule 2.1 to the Credit Loan
Agreement, as such amount may be increased or reduced from time to time in
accordance with the provisions of the Operative Agreements;
provided, no Credit
Lender shall be obligated to make Credit Loans in excess of such Credit
Lender’s share of the Credit Loan Commitments as set forth adjacent to such
Credit Lender’s name on Schedule 2.1 to the Credit Loan Agreement.


     “Credit Loan Default” shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute a Credit Loan Event of
Default.


     “Credit Loan Event of Default” shall have the meaning given to such term
in Section 6 of the Credit Loan Agreement.


     “Credit Note” shall mean each promissory note issued in favor of a Credit
Lender from time to time pursuant to the Credit Loan Agreement.


     “Deal Agent” shall mean Wachovia Securities, LLC, a Delaware limited
liability company.


     “Debt Rating” shall mean, as of any date of determination thereof and with
respect to any Person, any of the ratings most recently published by any of the
Rating Agencies relating to the unsecured, unsupported senior long-term debt
obligations of such Person.


     “Deed” shall mean a bargain and sale deed regarding the Land and/or
Improvements in form and substance satisfactory to the Agent.


Appendix A - 17






 


     “Deemed Insolvency” shall mean with respect to any Person, such Person (i)
is insolvent pursuant to the Uniform Fraudulent Transfers Act or any similar,
equivalent or replacement thereof, (ii) is engaged in a business or
transaction, or is about to engage in business or a transaction, for which any
property remaining with such Person is an unreasonably small amount of capital
or (iii) intended to incur, or believed that such Person would incur, debt or
other obligations that would be beyond such Person’s ability to pay as such
debts and obligations mature or otherwise become due.


     “Default” shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.


     “Defaulting Investor” shall have the meaning given to such term in Section
2.3(c) of the applicable Credit Agreement.


     “Deficiency Balance” shall have the meaning given to such term in Section
22.1(b) of the Lease.


     “Deposit Accounts” shall have the meaning given to such term in Section 1
of the Security Agreement.


     “Dispute” shall mean any claim or controversy arising out of, or relating
to, the Operative Agreements between or among the parties thereto.


     “Documents” shall have the meaning given to such term in Section 1 of the
Security Agreement.


     “Dollars” and “$” shall mean dollars in lawful currency of the United
States of America.


     “Domestic Subsidiary” shall mean, with respect to any Person, any
Subsidiary of such Person which is incorporated or organized under the laws of
any State of the United States or the District of Columbia.


     “Effective Date” shall have the meaning given to such term in EXHIBIT B of
the applicable Credit Agreement.


     “Election Date” shall have the meaning given to such term in Section 20.1
of the Lease.


     “Election Notice” shall have the meaning given to such term in Section
20.1 of the Lease.


     “Eligible Assignee” shall mean (a) any Person whose short-term ratings are
at least A-1 by S&P and P-1 by Moody’s or whose obligations under the Operative
Agreements are guaranteed by a Person whose short-term ratings are at least A-1
by S&P and P-1 by Moody’s or (b) such other Person satisfactory to the Conduit,
the Agent, the Deal Agent and the Rating Agencies rating any Commercial Paper
Notes issued by the Conduit.


Appendix A - 18






 


     “Eligible Lessor” shall mean a Person with a minimum net worth of at least
$200,000,000.00 and a Debt Rating from a Rating Agency of “A” or higher, or any
Affiliate of such a Person if such Person otherwise agrees to indemnify the
Lenders for any Claim arising solely as a result of a Bankruptcy Event
respecting such Affiliate.


     “Employee Benefit Plan” or “Plan” shall mean an employee benefit plan
(within the meaning of Section 3(3) of ERISA, including without limitation any
Multiemployer Plan), or any “plan” as defined in Section 4975(e)(1) of the Code
and as interpreted by the Internal Revenue Service and the Department of Labor
in rules, regulations, releases or bulletins in effect on the Closing Date.


     “Engagement Letter” shall have the meaning given to such term in Section
7.5 of the Participation Agreement.


     “Environmental Audit” means a Phase One Environmental Site Assessment (the
scope and performance of which meets or exceeds ASTM Standard Practice El527-93
Standard Practice for Environmental Site Assessments: Phase One Environmental
Site Assessment Process (or the most recent version thereof)) of the Property.


     “Environmental Claims” shall mean any investigation, notice, violation,
demand, allegation, action, suit, injunction, judgment, order, consent decree,
penalty, fine, lien, proceeding, or claim (whether administrative, judicial, or
private in nature) relating to or affecting the Property arising (a) pursuant
to, or in connection with, an actual or alleged violation of, any Environmental
Law, (b) in connection with any Hazardous Substance, (c) from any abatement,
removal, remedial, corrective, or other response action in connection with a
Hazardous Substance, Environmental Law, or other order of a Tribunal or (d)
from any actual or alleged damage, injury, threat, or harm to health, safety,
natural resources, or the environment.


     “Environmental Laws” shall mean any Law, permit, consent, approval,
license, award, or other authorization or requirement of any Tribunal relating
to emissions, discharges, releases, threatened releases of any Hazardous
Substance into ambient air, surface water, ground water, publicly owned
treatment works, septic system, or land, or otherwise relating to the handling,
storage, treatment, generation, use, or disposal of Hazardous Substances,
pollution or to the protection of health or the environment, including without
limitation CERCLA, the Resource Conservation and Recovery Act, 42 U.S.C. §
6901, et seq., and state statutes analogous thereto.


     “Environmental Violation” shall mean any activity, occurrence or condition
that violates or threatens (if the threat requires remediation under any
Environmental Law and is not remediated during any grace period allowed under
such Environmental Law) to violate or results in or threatens (if the threat
requires remediation under any Environmental Law and is not remediated during
any grace period allowed under such Environmental Law) to result in
noncompliance with any Environmental Law relating to or affecting the Property.


     “Equipment” shall mean equipment, apparatus, furnishings, fittings and
personal property of every kind and nature whatsoever purchased, leased or
otherwise acquired by the Construction Agent, the Lessee or the Lessor using
the proceeds of Advances whether or not now owned or


Appendix A - 19






 



hereafter acquired, including but without limiting the generality of the
foregoing, all heating, electrical, and mechanical equipment, lighting
fixtures, switchboards, plumbing, ventilation, air conditioning and air-cooling
apparatus, refrigerating, and incinerating equipment, escalators, elevators,
loading and unloading equipment and systems, cleaning systems (including
without limitation window cleaning apparatus), computers, sprinkler systems and
other fire prevention and extinguishing apparatus and materials, security
systems, motors, engines, machinery, pipes, pumps, tanks, conduits, appliances,
fittings and fixtures of every kind and description, but in all events acquired
with the proceeds of the Advances, together with all modifications thereto and
replacement thereof.


     “Equipment Schedule” shall mean (a) each Equipment Schedule attached to
the applicable Requisition and (b) each Equipment Schedule attached to the
Lease Supplement.


     “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as
amended.


     “ERISA Affiliate” shall mean each entity required to be aggregated with
the Lessee pursuant to the requirements of Section 414(b) or (c) of the Code.


     “Eurocurrency Liabilities” shall have the meaning given to such term in
Regulation D of the Board, as in effect from time to time.


     “Eurodollar Disruption Event” shall mean the occurrence of any of the
following: (a) a determination by a Financing Party that it would be contrary
to Law or to the directive of any central bank or other governmental authority
(whether or not having the force of law) to obtain United States dollars in the
London interbank market to make, fund or maintain any Eurodollar Loan or
Eurodollar Lessor Advance, (b) the failure of one or more of the Reference
Banks to furnish timely information for purposes of determining the Eurodollar
Rate, (c) a determination by a Financing Party that the rate at which deposits
of United States dollars are being offered to such Financing Party in the
London interbank market does not accurately reflect the cost to such Financing
Party of making, funding or maintaining any Eurodollar Loan or Eurodollar
Lessor Advance or (d) the inability of a Financing Party to obtain United
States dollars in the London interbank market to make, fund or maintain any
Eurodollar Loan or Eurodollar Lessor Advance.


     “Eurodollar Lessor Advances” shall mean Lessor Advances the rate of
interest applicable to which is based upon the Eurodollar Rate.


     “Eurodollar Loans” shall mean Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.


     “Eurodollar Rate” shall mean for the Interest Period for each Eurodollar
Loan or Eurodollar Lessor Advance comprising part of the same borrowing or
advance (including without limitation conversions, extensions and renewals), a
per annum interest rate equal to a fraction expressed as a percentage (rounded
upward to the nearest one one-hundredth (1/100) of one percent (1%) (a) with
the numerator equal to the LIBOR Rate for such Interest Period and


Appendix A - 20







 


(b)  the denominator equal to one hundred percent (100%) minus the Eurodollar
Reserve Requirement.


     “Eurodollar Reserve Requirement” of any Reference Bank for any period, for
any Eurodollar Loan or Eurodollar Lessor Advance shall mean the percentage
applicable during such period (or, if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such period
during which any such percentage shall be so applicable) under regulations
issued from time to time by the Board (or any successor) for determining the
maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for such Reference Bank
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities having a term of one month.


     “Event of Default” shall mean a Lease Event of Default, an Agency
Agreement Event of Default, a Credit Loan Event of Default, a Mortgage Loan
Event of Default, a Liquid Collateral Agreement Event of Default or a Punch
List Liquid Collateral Agreement Event of Default.


     “Event of Loss” shall mean any Casualty, Condemnation or Environmental
Violation that causes or results in the delivery of a Termination Notice by the
Lessee in accordance with Section 16.1 of the Lease.


     “Excepted Payments” shall mean:



		
	 	          (a)     all indemnity payments (including without limitation indemnity
payments made pursuant to Section 11 of the Participation Agreement),
whether made by adjustment to Basic Rent or otherwise, to which any
Financing Party or any of its Affiliates, agents, officers, directors or
employees is entitled;
	 
	 	          (b)     any amounts (other than Basic Rent or Termination Value) payable
under any Operative Agreement to reimburse any Financing Party or any of
its Affiliates (including without limitation the reasonable expenses of
any Financing Party incurred in connection with any such payment) for
performing or complying with any of the obligations of the Lessee under
and as permitted by any Operative Agreement;
	 
	 	          (c)     any amount payable to any Primary Financing Party by a
transferee permitted under the Operative Agreements as the purchase price
of the Lessor’s interest in the Borrower’s Interest (which amount shall
not include any amounts necessary to pay the principal, interest and
Breakage Costs on the Notes, Lessor Advances or any other amount payable
to the Agent or the Primary Financing Parties) or such Primary Financing
Party’s interest in the transactions contemplated by the Operative
Agreements (or a portion thereof);
	 
	 	          (d)     any insurance proceeds (or payments with respect to risks
self-insured or policy deductibles) under liability policies other than
such proceeds or payments payable to any Financing Party;



Appendix A - 21






 





		
	 	     (e)     any insurance proceeds under policies maintained by the Lessor
or any other Financing Party pursuant to or in accordance with the terms
of the Operative Agreements;
	 
	 	     (f)     Transaction Expenses or other amounts, fees, disbursements or
expenses paid or payable to or for the benefit of the Lessor or any other
Financing Party;
	 
	 	     (g)     any right, title or interest of the Lessor pursuant to any
Hedging Agreement;
	 
	 	     (h)     any payments in respect of interest to the extent attributable
to payments referred to in clauses (a) through (g) above; and
	 
	 	     (i)     any rights of the Financing Parties to demand, collect, sue for
or otherwise receive and enforce payment of any of the foregoing amounts,
provided that such rights shall not include the right to terminate the
Lease.



     “Excess Proceeds” shall mean the excess, if any, of the aggregate of all
awards, compensation or insurance proceeds payable in connection with a
Casualty or Condemnation over the Termination Value paid by the Lessee pursuant
to the Lease with respect to such Casualty or Condemnation.


     “Exculpated Persons” shall mean the Lessor (except with respect to the
representations and warranties and the other obligations of the Lessor pursuant
to the Operative Agreements solely with regard to the provision of Lessor
Advances), the Borrower, and their respective successors, assigns, trustees,
officers, directors, shareholders, partners, employees, agents and Affiliates.


     “Exempt Payments” shall have the meaning specified in Section 11.2(e) of
the Participation Agreement.


     “Expiration Date” shall mean the last day of the Term; provided, in no
event shall the Expiration Date be later than six years and eleven months after
the Closing Date, unless a later date has been expressly agreed to in writing
by each of the Lessee, the Deal Agent, the Agent and the Primary Financing
Parties in accordance with the terms and conditions set forth in Section 2.2 of
the Lease.


     “Extra Budget Costs” shall mean any actual cost (or, any such cost which
is reasonably anticipated by the Construction Agent and/or the Agent) in excess
of the Available Commitments necessary for Completion of the Property (a) in
accordance with the Construction Budget for the Property and (b) on or prior to
the Construction Period Termination Date.


     “Fair Market Sales Value” shall mean (a) with respect to the Property or
any other property, the amount, which in any event, shall not be less than zero
(0), that would be paid in cash in an arms-length transaction between an
informed and willing purchaser and an informed and willing seller, neither of
whom is under any compulsion to purchase or sell, respectively, the


Appendix A - 22






 



Property (or such other property) and (b) with respect to any Liquid
Collateral, the closing bid price of each item of Liquid Collateral on the day
the Liquid Collateral is marked-to-market, plus in the case of Liquid
Collateral issued on a coupon basis, accrued and unpaid interest and yield
thereon until such date, except that with respect to items of Liquid Collateral
that will mature within ninety (90) days of the determination date, the
amortized amount of such item on such date. Fair Market Sales Value of the
Property shall be determined based on the assumption that, except for purposes
of Section 17 of the Lease, the Property is in the condition and state of
repair required under Section 10.1 of the Lease and the Lessee is in compliance
with the other requirements of the Operative Agreements.


     “Federal Funds Effective Rate” shall have the meaning given to such term
in the definition of ABR.


     “Final Completion” shall mean, with respect to the Property, such time as
the acquisition, installation, testing and final completion (subject to
completion of punch list items) of the Improvements on the Property has been
achieved in accordance with the Plans and Specifications, the Agency Agreement
and/or the Lease, and in compliance with all Legal Requirements and Insurance
Requirements and a certificate of occupancy has been issued with respect to the
Property by the appropriate governmental entity (except if non-compliance,
individually or in the aggregate, shall not have and could not reasonably be
expected to have a Material Adverse Effect or if compliance with any of the
foregoing is otherwise waived by the Agent upon instruction from the Secured
Parties).


     “Final Completion Work” shall mean any work that, subsequent to Completion
of the Property, needs to be performed to achieve completion of the
Improvements on the Property in accordance with the Plans and Specifications.


     “Financial Officer” means the chief financial officer, principal
accounting officer, treasurer or controller of the Lessee.


     “Financing” shall mean the financing extended pursuant to the Credit
Agreements and the Participation Agreement and shall include both the Loans and
the Lessor Advances.


     “Financing Parties” shall mean the Hedge Providers, the Deal Agent, the
Agent, and the Primary Financing Parties.


     “FIRPTA” shall mean the Foreign Investors in U.S. Real Property Tax Act of
1980, as amended.


     “Fiscal Quarter” shall mean each of the Lessee’s four fiscal reporting
periods ending, respectively, on March 31, June 30, September 30 and December
31 of each year or such other fiscal quarters as then correspond to HGSI’s
fiscal year.


     “Fixtures” shall mean all fixtures relating to the Improvements, including
without limitation all components thereof, located in or on the Improvements,
together with all replacements, modifications, alterations and additions
thereto.


Appendix A - 23






 


     “Force Majeure Event” shall mean, with respect to Construction, any event
(the existence of which at the construction commencement date was not known, or
would not reasonably have been expected to be discovered through the exercise
of commercially reasonable due diligence, by the Lessee or the Construction
Agent, as applicable, taking into account the contemplated use of the Land and
the Construction) beyond the control of any such Person, including, but not
limited to, general strikes (but not any strike or other job action involving
employees of the Construction Agent or any Construction Agency Person or the
Lessee), acts of God, government activities directly interfering with the work
of construction of the Improvements, any general inability to obtain labor or
materials, civil commotion and enemy action; but excluding in all cases any
event, cause or condition that results from a breach by the Lessee, the
Construction Agent or any Construction Agency Person of its obligations,
representations or warranties under the Operative Agreements or any other
agreements to which it is a party, from any Construction Agency Person’s
financial condition or failure to pay or any event, cause or condition which
could have been avoided or which could be remedied or mitigated through the
exercise of commercially reasonable efforts or the commercially reasonable
expenditure of funds (which expenditure of funds, in the case of such an event,
cause or condition arising on or after the Closing Date, would have been
covered by funds available under the applicable Construction Budget or Other
Available Amounts) or other commercially reasonably action, election or
arrangement which would correct or resolve the impact of such event on the
Construction.


     “Force Majeure Loss” shall mean the actual construction costs, determined
by the insurance company in assessing a claim for such costs under any policy
of insurance, or if such loss is not fully insured in whole or in part under
any policy of insurance, then as determined by a nationally recognized
independent appraiser selected by the Agent, expended to repair and restore
damage caused by a Force Majeure Event with respect to the Property (or portion
thereof) to the condition of the Property immediately prior to such Force
Majeure Event (but excluding all Capitalized Costs and other collateral costs
and carrying costs whenever accrued).


     “Form W-8BEN” shall have the meaning specified in Section 11.2(e) of the
Participation Agreement.


     “Form W-8ECI” shall have the meaning specified in Section 11.2(e) of the
Participation Agreement.


     “Former Tax Affiliate” shall mean, with respect to any corporate Person,
any other Person that had been but is not currently affiliated (within the
meaning of Section 1504(a) of the Code or any similar provision of state or
local law) with such Person, with respect to the period of their affiliation.


     “Forty-five Percent FMV Event” shall have the meaning given to such term
in Section 8.2(e) of the Participation Agreement.


     “Full Recourse Event of Default” shall mean (a) an Agency Agreement Event
of Default arising in whole or in part as a consequence of any fraudulent act
or omission of any Construction Agency Person in connection with the
negotiation, execution, delivery, consummation and/or performance of any
Operative Agreement or any other contractual


Appendix A - 24






 



agreement relating to the Property or the construction or work thereon; (b) an
Agency Agreement Event of Default arising in whole or in part as a consequence
of the misapplication of any Advance or any portion thereof or any other funds
made available to, or on behalf of, Construction Agent or any other
Construction Agency Person under any Operative Agreement; (c) an Agency
Agreement Event of Default arising as a consequence of an Insolvency Event; (d)
any Construction Agency Person shall willfully breach any of its respective
obligations, covenants, representations or warranties under any Operative
Agreement, Construction Document or any other contractual agreement or law
relating to the Property or the construction or work thereon; or (e) any
Construction Agency Person shall commit any illegal act regarding the Property
or otherwise causing any loss, cost or damage to any Financing Party.


     “GAAP” shall mean generally accepted accounting principles, consistently
applied, set forth in the opinions and pronouncements of the accounting
principles board of the American Institute of Certified Public Accountants, and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity (including but not limited to the
SEC) as may be approved by a significant segment of the accounting profession,
that are applicable to the circumstances as of the date of determination.


     “GAAP Eligible Cost” shall mean the Property Cost minus the Structuring
Fee paid pursuant to Section 7.6 of the Participation Agreement, minus Lessor
Yield accrued prior to the Commencement Date, minus the Lessor Unused Fee paid
pursuant to Section 7.4 of the Participation Agreement accrued prior to the
Commencement Date, minus Uninsured Force Majeure Losses.


     “General Contractor” shall mean the general contractor in connection with
the Property selected by the Construction Agent and reasonably acceptable to
Agent.


     “General Intangibles” shall have the meaning given to such term in Section
1 of the Security Agreement.


     “Government Obligations” shall mean readily marketable direct full faith
and credit obligations of the United States of America or obligations
unconditionally guaranteed by the full faith and credit of the United States of
America.


     “Governmental Action” shall mean all permits, authorizations,
registrations, consents, approvals, waivers, exceptions, variances, orders,
judgments, written interpretations, decrees, licenses, exemptions,
publications, filings, notices to and declarations of or with, or required by,
any Governmental Authority, or required by any Legal Requirement, and shall
include, without limitation, all environmental and operating permits and
licenses that are required for the full use, occupancy, zoning and operating of
the Property.


     “Governmental Authority” shall mean any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any body or entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government and any court or arbitrator.


Appendix A - 25






 


     “Ground Lease” shall mean a ground lease respecting the Property in favor
of the Lessor as a ground lessee, on terms and conditions reasonably
satisfactory to the Agent and the Lessor.


     “Ground Lessor” shall mean Traville LLC, a Maryland limited liability
company.


     “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the “primary obligor”) in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation or (d) as an account party in respect of
any letter of credit or letter of guaranty issued to support such Indebtedness
or obligation; provided, that the term Guarantee shall not include endorsements
for collection or deposit in the ordinary course of business.


     “Hard Costs” shall mean all costs and expenses payable for supplies,
materials, labor, general conditions (including bonds, insurance and utilities)
and profit for contractors and subcontractors; fees of a construction manager,
if any; administrative, supervision, travel and overhead costs incurred by the
Construction Agent or construction manager; permit fees; all so-called
“impact”, “tap”, “development” or “traffic generation assessment” fees;
periodic on-site inspections required to be made by the project engineer or
other special consultants; and the cost of payment and performance bonds
required by governmental authorities; in each case with respect to the
Improvements under any Construction Contract.


     “Hazardous Substance” shall mean any of the following: (a) any petroleum
or petroleum product, explosives, radioactive materials, asbestos,
formaldehyde, polychlorinated biphenyls, lead and radon gas; (b) any substance,
material, product, derivative, compound or mixture, mineral, chemical, waste,
gas, medical waste, or pollutant, in each case whether naturally occurring,
man-made or the by-product of any process, that is toxic, harmful or hazardous
to the environment or human health or safety as determined in accordance with
any Environmental Law; or (c) any substance, material, product, derivative,
compound or mixture, mineral, chemical, waste, gas, medical waste or pollutant
that would support the assertion of any claim under any Environmental Law,
whether or not defined as hazardous as such under any Environmental Law.


     “Hedge Provider” shall mean Wachovia, in its capacity as a party to the
various Hedging Agreements.


     “Hedging Agreement” shall mean any interest rate protection agreement
provided by the Hedge Provider or any Subsidiary or Affiliate thereof.


     “HGSI” means Human Genome Sciences, Inc., a Delaware corporation.


Appendix A - 26






 


     “HVAC Easement” shall mean the Declaration of Easements and Covenants
Agreement (HVAC Equipment and HVAC Conduits) dated as of or about the Closing
Date between the Ground Lessor and the Lessor.


     “Impositions” shall mean any and all liabilities, losses, expenses, costs,
charges and Liens of any kind whatsoever for present or future fees, taxes,
levies, imposts, duties, charges, assessments or withholdings of any nature
whatsoever including interest, penalties and additions thereto (collectively,
“Taxes”) including but not limited to (i) real and personal property taxes,
including without limitation personal property taxes on any property covered by
the Lease that is classified by Governmental Authorities as personal property,
and real estate or ad valorem taxes in the nature of property taxes; (ii) sales
taxes, use taxes and other similar taxes (including rent taxes and intangibles
taxes); (iii) excise taxes; (iv) real estate transfer taxes, conveyance taxes,
stamp taxes and documentary recording taxes and fees; (v) taxes that are or are
in the nature of franchise, income, value added, privilege and doing business
taxes, license and registration fees; (vi) assessments on the Property,
including without limitation all assessments for public Improvements or
benefits, whether or not such improvements are commenced or completed within
the Term; and (vii) taxes, Liens, assessments or charges asserted, imposed or
assessed by the PBGC or any governmental authority succeeding to or performing
functions similar to, the PBGC; and all interest, additions to tax and
penalties, which at any time prior to, during or with respect to the Term or in
respect of any period for which the Lessee shall be obligated to pay
Supplemental Rent, may be levied, assessed or imposed by any Governmental
Authority upon or with respect to (a) any Indemnified Person, the Property or
any part thereof or interest therein; (b) the leasing, financing, refinancing,
purchase, acceptance, rejection, demolition, construction, substitution,
subleasing, assignment, control, condition, occupancy, servicing, maintenance,
repair, ownership, possession, activity conducted on or in, delivery, insuring,
use, rental, lease, operation, improvement, sale, transfer of title, return or
other disposition of the Property or any part thereof or interest therein; (c)
the Notes, the Lessor Advances, other indebtedness with respect to the
Property, or any part thereof or interest therein; (d) the rentals, receipts or
earnings arising from the Property or any part thereof or interest therein; (e)
the Operative Agreements, the execution, performance or enforcement thereof, or
any payment made or accrued pursuant thereto; (f) the income or other proceeds
received with respect to the Property or any part thereof or interest therein
upon the sale or disposition thereof; (g) any contract (including the Agency
Agreement) relating to the construction, acquisition or delivery of the
Property or any part thereof or interest therein; (h) the issuance of the Notes
or the Lessor Advances; (i) the Borrower or the Borrower’s Interest; or (j)
otherwise in connection with the transactions contemplated by the Operative
Agreements.


     “Improvements” shall mean, with respect to the construction, repair,
renovations, replacement and/or Modifications on the Land, all buildings,
structures, Fixtures, and other improvements of every kind existing at any time
and from time to time on or under the Land purchased or otherwise acquired
using the proceeds of Advances, together with any and all appurtenances to such
buildings, structures or improvements, including without limitation sidewalks,
utility pipes, conduits and lines, parking areas and roadways, and including
without limitation all Modifications and other additions to or changes in the
Improvements at any time, including without limitation (a) any Improvements
existing as of the Closing Date as such


Appendix A - 27






 



Improvements may be referenced on the applicable Requisition and (b) any
Improvements made subsequent to the Closing Date.


     “In Balance” shall mean, with respect to the Site at any time of
determination thereof (1) the undisbursed portions of the Available Commitments
together with Other Available Amounts related to the Property, shall be
sufficient to complete construction of the Improvements in accordance with the
terms and conditions of the Agency Agreement prior to the applicable
Construction Period Termination Date, and (2) the undisbursed portions of the
Available Commitments, as such amounts may be adjusted pursuant to the Agency
Agreement (including the contingency reserve in the Construction Budget
approved in accordance with the Operative Agreements, to the extent such
contingency funds have not theretofore been set aside by Construction Agent for
the payment of overruns in other cost categories and Other Available Amounts)
shall be sufficient to complete the Construction of each such item in
accordance with the terms and conditions of the Agency Agreement prior to the
Construction Period Termination Date.


          “Indebtedness” of any Person shall mean, without duplication;




		
	 	     (a)     all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
	 
	 	     (b)     all obligations, contingent or otherwise, relative to the face
amount of all letters of credit, whether or not drawn, and banker’s
acceptances issued for the account of such Person other than letters of
credit or banker’s acceptances that support obligations of such Person in
respect of accounts payable, trade payments and other short-term trade
related obligations;
	 
	 	     (c)     all obligations of such Person as lessee under leases which have
been or should be, in accordance with GAAP, recorded as Capitalized
Leases; and
	 
	 	     (d)     all Contingent Liabilities of such Person recorded in the
financial statements (including the notes thereto) of such Person and its
Consolidated Subsidiaries in respect of any of the foregoing.



For all purposes of the Operative Agreements, the indebtedness of any Person
shall include the Indebtedness of any partnership or joint venture
characterized as a partnership for commercial law purposes in which such Person
is a general partner or a joint venturer as reflected in the books of such
Person pursuant to GAAP, consistently applied. The amount of Indebtedness of
any Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above and the maximum liability of any
such Contingent Liabilities at such date as reflected in the books of such
Person pursuant to GAAP, consistently applied.


     “Indemnified Person” shall mean each of the Financing Parties and their
respective successors, assigns, directors, trustees, shareholders, partners,
officers, employees, agents and Affiliates.


Appendix A - 28






 


     “Indemnity Provider” shall mean the Lessee.


     “Initial Construction Advance” shall mean any initial Advance to pay for
Property Costs for construction of any Improvements.


     “Insolvency Event” shall mean one or more of (a) the liquidation or
dissolution of the Construction Agent or the Lessee, or the suspension of the
business of the Construction Agent or the Lessee, or the filing by the
Construction Agent or the Lessee of a voluntary petition or an answer seeking
reorganization, arrangement, readjustment of its debts or for any other relief
under the Bankruptcy Code or under any other insolvency act or law, state or
federal, now or hereafter existing, or any other action of the Construction
Agent or the Lessee indicating its consent to, approval of or acquiescence in,
any such petition or proceeding; the application by the Construction Agent or
the Lessee for, or the appointment by, consent or acquiescence of the
Construction Agent or the Lessee of a receiver, a trustee or a custodian of the
Construction Agent or the Lessee for all or a substantial part of its property;
the making by the Construction Agent or the Lessee of any assignment for the
benefit of creditors; the inability of the Construction Agent or the Lessee, or
the admission by the Construction Agent or the Lessee in writing of its
inability, to pay its debts as they mature; or the Construction Agent or the
Lessee taking any corporate action to authorize any of the foregoing; (b) the
filing of an involuntary petition against the Construction Agent or the Lessee
in bankruptcy or seeking reorganization, arrangement, readjustment of its debts
or for any other relief under the Bankruptcy Code, as amended, or under any
other insolvency act or law, state or federal, now or hereafter existing; or
the involuntary appointment of a receiver, a trustee or a custodian of the
Construction Agent or the Lessee for all or a substantial part of its property;
or the issuance of a warrant of attachment, execution or similar process
against any substantial part of the property of the Construction Agent or the
Lessee, and the continuance of any of such events for ninety (90) days
undismissed or undischarged; (c) the adjudication of the Construction Agent or
the Lessee as bankrupt or insolvent or the occurrence of a Deemed Insolvency
with respect to the Construction Agent or the Lessee; or (d) the entering of
any order in any proceedings against the Construction Agent or the Lessee or
any Subsidiary of the foregoing decreeing the dissolution, divestiture or
split-up of the Construction Agent or the Lessee or any Subsidiary of the
Construction Agent or the Lessee, and such order remains in effect for more
than sixty (60) days.


     “Insolvency Laws” shall mean the Bankruptcy Code and all other applicable
liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, suspension of payments, or similar
debtor relief laws from time to time in effect affecting the rights of
creditors generally.


     “Insolvency Proceeding” shall mean, any case, action or proceeding before
any court or other Governmental Authority relating to any Bankruptcy Event.


     “Instruments” shall have the meaning given to such term in Section 1 of
the Security Agreement.


     “Insurance Requirements” shall mean all terms and conditions of any
insurance policy either required by the Lease to be maintained by the Lessee or
required by the Agency


Appendix A - 29






 



Agreement to be maintained by the Construction Agent, and all requirements of
the issuer of any such policy and, regarding self insurance, any other
requirements of the Lessee or the Construction Agent, as the case may be.


     “Interest” shall mean for each Loan for any Interest Period, the sum of
the products (for each day during such Interest Period) of:



	 	IR x LB x   1 / D



     where:



	 	 	 	 	 	 	 
	 	 	
LB
	 	=
	 	the outstanding balance of such Loan;
	 	 	 	 	 	 	 
	 	 	
IR
	 	=
	 	the Interest Rate applicable on such day; and
	 	 	 	 	 	 	 
	 	 	
D
	 	=
	 	360 or, to the extent the Interest Rate is based on the
ABR, 365 (or 366 as applicable)



provided, however, that (i) no provision of the Operative Agreements shall
require the payment or permit the collection of Interest in excess of the
maximum permitted by applicable Law and (ii) if at any time any distribution is
rescinded or must otherwise be returned for any reason, Interest shall not be
considered paid by such distribution after the date on which such distribution
is rescinded or otherwise returned.


     “Interest Period” shall mean (a) as to any CP Loan, the first to the end
of each calendar month, (b) as to any Eurodollar Loan or Eurodollar Lessor
Advance (i) with respect to the initial Interest Period and any Interest Period
immediately following a conversion from an ABR Loan to a Eurodollar Loan or
from an ABR Lessor Advance to a Eurodollar Lessor Advance, the period beginning
on the date of such Eurodollar Loan or Eurodollar Lessor Advance, as the case
may be, and ending on but not including the twentieth (20th) day of the
following month, and (ii) thereafter, each period commencing on and including
the last day of the preceding Interest Period applicable to such Eurodollar
Loan or Eurodollar Lessor Advance, as the case may be, and ending on but not
including the twentieth (20th) day of the following month; provided, however,
that all of the foregoing provisions relating to Interest Periods are subject
to the following: (A) other than with respect to CP Loans, if any Interest
Period would end on a day which is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day (except that where the
next succeeding Business Day falls in the next succeeding calendar month, then
on the next preceding Business Day), (B) no Interest Period shall extend beyond
the Expiration Date, as the case may be, and (C) there shall not be more than
four (4) Interest Periods outstanding at any one (1) time.


Appendix A - 30






 


     “Interest Rate” shall mean, unless the Lender Overdue Rate shall apply in
accordance with the Operative Agreements, for any Interest Period and for each
Loan funded by any Lender for each day during such Interest Period:



		
	 	     (a)     to the extent the Conduit funds the applicable Loan through the
issuance of Commercial Paper Notes, a rate equal to the CP Rate, or
	 
	 	     (b)     to the extent that clause (a) above is not applicable or, to the
extent the Conduit has transferred all or a portion of a Loan or Note to
one (1) or more Liquidity Banks pursuant to the Liquidity Agreement, then
to the extent that clause (a) above is not applicable or with regard to
the portion of a Loan or Note so transferred, a rate equal to the
Eurodollar Rate determined for the applicable Interest Period plus the
Applicable Percentage or the ABR plus the Applicable Percentage, as such
rate shall be elected by the Borrower or as shall otherwise apply in the
event of an Eurodollar Disruption Event (subject to Section 9 of the
Participation Agreement) in accordance with Section 2.8 of the applicable
Credit Agreement and the other applicable provisions of the Operative
Agreements; provided, however, notwithstanding the above, the Interest
Rate shall be the ABR plus the Applicable Percentage for any Interest
Period for any Loan as to which the Conduit has funded the acquisition or
maintenance thereof by the sale or assignment of an interest therein to
any Liquidity Bank under the Liquidity Agreement on any day other than
the first day of such Interest Period and without giving such Liquidity
Bank(s) at least two (2) Business Days’ prior notice of such sale or
assignment.



     “Intermediary” shall have the meaning given to such term in the Cash
Collateral Control Agreement or the Punch List Cash Collateral Control
Agreement, as applicable.


     “Investment Company Act” shall mean the Investment Company Act of 1940, as
amended, together with the rules and regulations promulgated thereunder.


     “Investment Property” shall have the meaning given to such term in Section
1 of the Security Agreement.


     “Investor” shall mean each bank or other financial institution which is
from time to time party to any of the Operative Agreements in its capacity as
an “Investor”.


     “Investor Funding Deficit” shall have the meaning given to such term in
Section 2.3(c) of the applicable Credit Agreement.


     “Issuer Group” shall mean any member of the same affiliated group for
purposes of GAAP.


     “Land” shall mean a parcel of real property subject to the Ground Lease,
as such parcel and/or Ground Lease is described on (a) the Requisition issued
by the Construction Agent on the Closing Date relating to such parcel and (b)
the schedules to the Lease Supplement executed and delivered in accordance with
the requirements of Section 2.4 of the Lease.


Appendix A - 31






 


     “Land Cost” shall have the meaning specified in Section 5.4 of the Agency
Agreement.


     “Law” shall mean, for any Person, all existing and future applicable laws,
rules, regulations (including proposed, temporary and final income tax
regulations), statutes, treaties, codes, ordinances, permits, directives,
certificates, orders and licenses of and interpretations by any Governmental
Authority (including, without limitation, usury laws, the Federal Truth in
Lending Act, and Regulation Z and Regulation B of the Board), and applicable
judgments, decrees, injunctions, writs, orders, or line action of any Tribunal,
arbitrator or other administrative, judicial, or quasi-judicial tribunal or
agency of competent jurisdiction.


     “Lease” or “Lease Agreement” shall mean the Amended and Restated Lease
Agreement dated as of the Closing Date, between the Lessor and the Lessee,
together with the Lease Supplement thereto.


     “Lease Default” shall mean any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute a Lease Event of
Default.


     “Lease Event of Default” shall have the meaning specified in Section 17.1
of the Lease.


     “Lease Supplement” shall mean the Lease Supplement substantially in the
form of EXHIBIT A to the Lease, together with all attachments and schedules
thereto.


     “Lease Supplement Balance” shall mean, with respect to the Property, an
amount equal to the Primary Financing Party Balances for all Primary Financing
Parties including without limitation any Capitalized Costs and other amounts
allocated to the Property pursuant to the Operative Agreements plus all other
costs for obligations (monetary or otherwise) of the Lessee and/or the
Construction Agent arising under or in connection with any of the Operative
Agreements (including without limitation but without duplication, accrued and
unpaid Rent), all as determined by the Agent, in the exercise of its reasonable
judgment.


     “Legal Requirements” shall mean all foreign, federal, state, county,
municipal and other governmental statutes, laws, rules, orders, regulations,
ordinances, judgments, decrees and injunctions affecting the Lessor, the
Lessee, the Agent, the Deal Agent, any Primary Financing Party, any Hedge
Provider or the Property, Land, Improvement, Equipment or the taxation,
demolition, construction, use or alteration of the Property, Land,
Improvements, or Equipment whether now or hereafter enacted and in force,
including without limitation any that require repairs, modifications or
alterations in or to the Property or in any way limit the use and enjoyment
thereof (including without limitation all building, zoning and fire codes and
the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et. seq., and
any other similar federal, state or local laws or ordinances and the
regulations promulgated thereunder) and any that may relate to environmental
requirements (including without limitation all Environmental Laws), and all
permits, certificates of occupancy, licenses, authorizations and regulations
relating thereto, and all covenants, agreements, restrictions and encumbrances
contained in any instruments which are either of record or known to the Lessee
affecting the Property or the Appurtenant Rights.


Appendix A - 32






 


     “Lender” shall mean each Credit Lender and each Mortgage Lender.


     “Lender Commitment” shall mean the Credit Loan Commitment for each Credit
Lender and the Mortgage Loan Commitment for each Mortgage Lender.


     “Lender Overdue Rate” shall have the meaning given to such term in Section
2.8(c) of the applicable Credit Agreement.


     “Lender Unused Fee” shall have the meaning given to such term in Section
7.4 of the Participation Agreement.


     “Lessee” shall have the meaning set forth in the Lease.


     “Lessee Person” shall mean the Lessee or any affiliate in its capacity as
owner, Construction Agent, or any Affiliate or successors and assigns of the
foregoing, and all of their respective officers, directors, shareholders,
partners, employees, agents, consultants (on the Property), service-providers
(on the Property), and any other Person under the supervision of any of the
foregoing pursuant to a written contract or otherwise.


     “Lessor” shall mean Wachovia Development Corporation, a North Carolina
corporation, and any successor, replacement and/or additional lessor under the
Lease expressly permitted under the Operative Agreements.


     “Lessor Advance” shall mean each advance made by the Lessor pursuant to
the terms of the Participation Agreement and, in accordance with Section 1 of
the Participation Agreement, shall be deemed to include the amounts advanced by
the Lessor to obtain its respective interests pursuant to the Master Transfer
Agreement on the Closing Date.


     “Lessor Commitment” shall mean the obligation of the Lessor to make the
Lessor Advances in an aggregate principal amount at any one time outstanding
not to exceed $12,000,000 amount may be increased or reduced from time to time
in accordance with the provisions of the Operative Agreements; provided, the
Lessor shall not be obligated to make any Lessor Advance in excess of the
Lessor Commitment.


     “Lessor Confirmation Letter” shall mean the confirmation letter issued by
the Lessor from time to time to the Lessee pursuant to Section 8.2(f) of the
Participation Agreement, in a form substantially similar to the form of
confirmation letter provided to the Lessee on or prior to the Closing Date.


     “Lessor Lien” shall mean any Lien, true lease or sublease or disposition
of title arising as a result of (a) any claim against the Lessor not resulting
from the transactions contemplated by the Operative Agreements, (b) any act or
omission of the Lessor which is not required by the Operative Agreements or is
in violation of any of the terms of the Operative Agreements, (c) any claim
against the Lessor with respect to Taxes or Transaction Expenses against which
the Lessee is not required to indemnify the Lessor pursuant to Section 11 of
the Participation Agreement or (d) any claim against the Lessor arising out of
any transfer by the Lessor of all or any portion of


Appendix A - 33






 




the interest of the Lessor in the Property, the Borrower’s Interest or the
Operative Agreements other than the transfer of title to or possession of the
Property by the Lessor pursuant to and in accordance with the Lease, the Credit
Agreements, the Security Documents or the Participation Agreement or pursuant
to the exercise of the remedies set forth in Article XVII of the Lease.


     “Lessor Notice” shall have the meaning given to such term in Section
8.2(e) of the Participation Agreement.


     “Lessor Overdue Rate” shall mean the lesser of (a) the Lessor Yield plus
two percent (2%) and (b) the highest rate permitted by applicable Law.


     “Lessor Unused Fee” shall have the meaning given to such term in Section
7.4 of the Participation Agreement.


     “Lessor Yield” shall mean, unless the Lessor Overdue Rate shall apply in
accordance with the Operative Agreements, (a) regarding any Lessor Advance
bearing a yield based on the Eurodollar Rate, the Eurodollar Rate plus the
Applicable Percentage and (b) regarding any Lessor Advance bearing a yield
based on the ABR, the ABR plus the Applicable Percentage.


     “Letter-of-Credit Rights” shall have the meaning given to such term in
Section 1 of the Security Agreement.


     “LIBOR Rate” shall mean for any Eurodollar Loan or Eurodollar Lessor
Advance and any day during any Interest Period, an interest rate per annum
equal to:



		
	 	          (a)     the posted rate for thirty (30) day deposits in United States
Dollars appearing on Telerate page 3750 as of 11:00 a.m. (London time) on
the Business Day which is the second Business Day immediately preceding
the first day of the applicable Interest Period; or




		
	 	          (b)     if no such rate appears on Telerate page 3750 at such time and
day, then the LIBOR Rate shall be determined by Wachovia at its principal
office in Charlotte, North Carolina as its rate (each such determination,
absent manifest error, to be conclusive and binding on all parties hereto
and their assignees) at which thirty (30) day deposits in United States
Dollars are being, have been, or would be offered or quoted by Wachovia
to major banks in the applicable interbank market for Eurodollar deposits
at or about 11:00 a.m. (Charlotte, North Carolina time) on such day.



     “Lien” shall mean any mortgage, pledge, security interest, encumbrance,
lien, option or charge of any kind.


     “Limited Recourse Amount” shall mean with respect to the Property, an
amount equal to the Termination Value with respect to the Property on the
Expiration Date, less the Maximum Residual Guarantee Amount as of such date
with respect to the Property.


Appendix A - 34






 


     “Limited Recourse Event of Default” shall have the meaning given to such
term in Section 17.12 of the Lease.


     “Liquid Collateral” shall mean Permitted Investments with a scheduled
maturity date of not more than seven (7) years from the date of purchase,
except for corporate bonds rated lower than A by S&P or A2 by Moody’s which
must have a scheduled maturity date not to exceed five (5) years from the date
of purchase.


     “Liquid Collateral Account” shall mean the special purpose, segregated
account (Account No. 1002669, ABA No. 022000046) established by M and T Bank
and subject to a Lien in favor of the Agent for the benefit of the Secured
Parties; the operation of the Liquid Collateral Account shall be governed by
the Liquid Collateral Agreements and the other Operative Agreements, as
applicable.


     “Liquid Collateral Agreement Event of Default” shall have the meaning
given to such term in Section 3.1 of the Cash Collateral Agreement.


     “Liquid Collateral Agreements” shall mean the Cash Collateral Agreement
and the Cash Collateral Control Agreement.


     “Liquidity Agreement” shall mean the Liquidity Purchase Agreement, dated
as of the Closing Date, between the Conduit, as seller, the “Investors” named
therein, the Deal Agent, as deal agent and documentation agent, and Wachovia,
as liquidity agent.


     “Liquidity Bank” shall mean each liquidity bank that is a party to the
Liquidity Agreement.


     “Liquidity Fee” shall have the meaning given to such term in Section 7.7
of the Participation Agreement.


     “Loans” shall mean the Credit Loans and the Mortgage Loans.


     “Majority Credit Lenders” shall mean at any time, Lenders whose Credit
Loans outstanding represent at least fifty-one percent (51%) of (a) the
aggregate Credit Loans outstanding or (b) to the extent there are no Credit
Loans outstanding, the aggregate of the Credit Loan Commitments.


     “Majority Lenders” shall mean at any time, Lenders whose Loans outstanding
represent at least fifty-one percent (51%) of (a) the aggregate Loans
outstanding or (b) to the extent there are no Loans outstanding, the aggregate
of the Lender Commitments.


     “Majority Mortgage Lenders” shall mean at any time, Lenders whose Mortgage
Loans outstanding represent at least fifty-one percent (51%) of (a) the
aggregate Mortgage Loans outstanding or (b) to the extent there are no Mortgage
Loans outstanding, the aggregate of the Mortgage Loan Commitments.


Appendix A - 35






 


     “Majority Secured Parties” shall mean at any time, Primary Financing
Parties whose Financings outstanding represent at least fifty-one percent (51%)
of (a) the aggregate Financings outstanding or (b) to the extent there are no
Financings outstanding, the aggregate of the Commitments of all Primary
Financing Parties.


     “M and T Bank” shall mean Manufacturers and Traders Trust Company, a New
York state chartered bank.


     “Marketable Securities” shall mean all securities regularly traded on a
national securities exchange that are reflected on the balance sheet of HGSI
and its Consolidated Subsidiaries in accordance with GAAP.


     “Marketing Period” shall mean, if the Lessee has given a Sale Notice in
accordance with Section 20.1 of the Lease, the period commencing on the date
such Sale Notice is given and ending on the Expiration Date.


     “Master Transfer Agreement” shall mean the Master Purchase and Liquidation
Agreement dated as of or about the Closing Date among the Lessee, the Ground
Lessor, the Genome Statutory Trust 2001A, in its various capacities thereunder,
Wells Fargo Bank, Northwest, N.A., in its various capacities thereunder,
BancBoston Leasing Investments Inc., in its various capacities thereunder,
Eagle Funding Capital Corporation, in its various capacities thereunder, Fleet
Securities, Inc., in its various capacities thereunder, Fleet National Bank in
its various capacities thereunder, Wachovia Bank, National Association, in its
various capacities thereunder, Wachovia Development Corporation in its various
capacities thereunder, and Variable Funding Capital Corporation in its various
capacities thereunder.


     “Material” means material in relation to the business, operations,
affairs, financial condition, assets or properties of any Person and its
Subsidiaries taken as a whole.


     “Material Adverse Effect” shall mean any change or changes, effect or
effects or condition or conditions that individually or in the aggregate are
materially adverse to (a) the ability of the Lessee or the Construction Agent
to perform its obligations under the Operative Agreements to which it is a
party or to lease the Property under the Lease, (b) the validity or
enforceability of any of the Operative Agreements or any rights or remedies
under any thereof, (c) the status, priority or perfection of the Agent’s Lien
on any Collateral pursuant to the Operative Agreements or (d) the value or
condition of the Property.


     “Material Construction Documents” shall mean the contracts identified on
Schedule I to the Participation Agreement.


     “Maturity Date” shall mean the Expiration Date.


     “Maximum Amount” shall have the meaning given to such term in Section 5.4
of the Agency Agreement.


Appendix A - 36






 


     “Maximum Residual Guarantee Amount” shall mean an amount equal to the
product of the Property Cost times eighty-seven and seventy-five hundredths
percent (87.75%).


     “Memorandum” shall have the meaning given to such term in the preamble of
EXHIBIT B to the Lease.


     “Modifications” shall have the meaning specified in Section 11.1(a) of the
Lease.


     “Money Market Funds” shall mean any regulated investment company of
recognized standing shares of which are marketable with more than one billion
dollars in assets that has had a historically constant dollar net asset value
and has been in business more than five years, and whose performance is easily
tracked.


     “Moody’s” shall mean Moody’s Investors Service, Inc.


     “Mortgage Backed Securities” shall mean any sequential, targeted or
planned amortization mortgage-backed U.S. Agency Obligation rated at the time
when pledged to the Liquid Collateral Account and at all times thereafter Aaa
by Moody’s and AAA by S&P.


     “Mortgage Instrument” shall mean the deed of trust and any other
instrument executed by the Lessor and the Lessee in favor of the Agent (for the
benefit of the Secured Parties) and evidencing a Lien on the Property, in form
and substance reasonably acceptable to the Agent.


     “Mortgage Lender” shall mean the Conduit and each bank or other financial
institution which is from time to time party to any of the Operative Agreements
in its capacity as a “Mortgage Lender”.


     “Mortgage Loan Agreement” shall mean the Amended and Restated Credit
Agreement (Mortgage Loans) dated as of June 30, 2003 among the Borrower,
Variable Funding Capital Corporation, as a Lender thereunder, the several
Investors from time to time party thereto, Wachovia Securities, LLC, as the
Deal Agent, and Wachovia Bank, National Association, as the Agent thereunder.


     “Mortgage Loan Commitments” shall mean the obligation of the Mortgage
Lenders to make the Mortgage Loans to the Lessor in an aggregate principal
amount at any one time outstanding not to exceed the aggregate of the amounts
set forth opposite each Mortgage Lender’s name on Schedule 2.1 to the Mortgage
Loan Agreement, as such amount may be increased or reduced from time to time in
accordance with the provisions of the Operative Agreements; provided, no
Mortgage Lender shall be obligated to make Mortgage Loans in excess of such
Mortgage Lender’s share of the Mortgage Loan Commitments as set forth adjacent
to such Mortgage Lender’s name on Schedule 2.1 to the Mortgage Loan Agreement.


     “Mortgage Loan Default” shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute a Mortgage Loan Event of
Default.


Appendix A - 37






 


     “Mortgage Loan Event of Default” shall have the meaning given to such term
in Section 6 of the Mortgage Loan Agreement.


     “Mortgage Loans” shall mean the loans made pursuant to the Mortgage Loan
Commitments and, in accordance with Section 1 of the Participation Agreement,
shall be deemed to include the amounts advanced by the Mortgage Lenders to
obtain their respective interests pursuant to the Master Transfer Agreement on
the Closing Date.


     “Mortgage Note” shall mean each promissory note issued in favor of a
Mortgage Lender from time to time pursuant to the Mortgage Loan Agreement.


     “Mortgage Obligations” shall mean any obligations owing to the Lessor
pursuant to the Operative Agreements.


     “MPLA Documents” shall have the meaning given to such term in the Master
Transfer Agreement.


     “Multiemployer Plan” shall mean a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been made by the Lessee or
any ERISA Affiliate and that is covered by Title IV of ERISA.


     “Multiple Employer Plan” shall mean a plan to which the Lessee or any
ERISA Affiliate and at least one (1) other employer other than an ERISA
Affiliate is making or accruing an obligation to make, or has made or accrued
an obligation to make, contributions.


     “Negotiable Certificates of Deposit” shall mean negotiable certificates of
deposit traded on the secondary market of any commercial bank incorporated
under the laws of the United States, or any state thereof, of recognized
standing whose short-term commercial paper rating at the time the securities
are pledged to the Liquid Collateral Account or the Punch List Liquid
Collateral Account, as the case may be, and at all times thereafter is at least
A-1 by S&P and at least P-1 by Moody’s and whose long-term unsecured debt
rating at the time the negotiable certificates of deposit are pledged to the
Liquid Collateral Account or the Punch List Liquid Collateral Account, as the
case may be, and at all times thereafter is at least A by S&P and A2 by
Moody’s.


     “Non-Defaulting Investor” shall have the meaning given to such term in
Section 2.3(c) of the applicable Credit Agreement.


     “Non-Properly Margined Liquid Collateral” shall mean Liquid Collateral
credited to the Liquid Collateral Account or the Punch List Liquid Collateral
Account, as the case may be, that (a) satisfies the Concentration Limits (in
the case of the Liquid Collateral Account only) but (b) is not otherwise
Properly Margined Liquid Collateral.


     “Non-Public Company” shall mean a Person that at the time of determination
is not obligated to register any class of securities pursuant to Section 12 or
Section 15 of the Securities and Exchange Act of 1934, as amended.


Appendix A - 38






 


     “Notes” shall mean those notes issued to the Lenders pursuant to the
Credit Agreements.


     “Obligations” shall mean the collective reference to all obligations
(including without limitation all payment and performance obligations), now
existing or hereafter arising, owing by the Borrower and/or the Lessee and/or
any of their affiliates to the Secured Parties under or pursuant to the
Operative Agreements whether direct or indirect, absolute or contingent, due or
to become due, now existing or hereafter incurred, which may arise under, out
of, or in connection with the Participation Agreement, the Lease Agreement, the
Agency Agreement, any Hedging Agreement or any of the other Operative
Agreements, whether on account of principal, advanced amounts, interest,
reimbursement obligations, fees, indemnities, costs, expenses, termination
payments or otherwise (including without limitation all reasonable fees and
disbursements of counsel to any of the Secured Parties) that are required to be
paid by the Borrower and/or the Lessee pursuant to the terms of the Operative
Agreements.


     “Officer’s Certificate” with respect to any person shall mean a
certificate executed on behalf of such person by a Responsible Officer who has
made or caused to be made such examination or investigation as is necessary to
enable such Responsible Officer to express an informed opinion with respect to
the subject matter of such Officer’s Certificate.


     “Operative Agreements” shall mean the following: the Master Transfer
Agreement, the MPLA Documents, the Participation Agreement, the Agency
Agreement, the Credit Loan Agreement, the Mortgage Loan Agreement, the Notes,
the Lease, the Lease Supplement, the Ground Lease, the HVAC Easement, the
Security Agreement, the Hedging Agreements, the Liquid Collateral Agreements,
the Punch List Liquid Collateral Agreements, the Mortgage Instruments, the
Bifurcation Documents, the other Security Documents and any and all other
agreements, documents and instruments executed in connection with any of the
foregoing.


     “Original A Loan Agreement” shall have the meaning given to such term in
the Recitals to the Credit Loan Agreement.


     “Original Agency Agreement” shall have the meaning given to such term in
the Recitals of the Agency Agreement.


     “Original Assignment of Liquid Collateral” shall have the meaning given to
such term in the Recitals to the Cash Collateral Agreement.


     “Original B Loan Agreement” shall have the meaning given to such term in
the Recitals to the Mortgage Loan Agreement.


     “Original Control Agreement” shall have the meaning given to such term in
the Recitals to the Cash Collateral Control Agreement.


     “Original Executed Counterpart” shall have the meaning given to such term
in Section 5 of EXHIBIT A to the Lease.


Appendix A - 39






 


     “Original Lease” shall have the meaning given to such term in the Recitals
to the Lease.


     “Original Participation Agreement” shall have the meaning given to such
term in the Recitals to the Participation Agreement.


     “Original Security Agreement” shall have the meaning given to such term in
the Recitals to the Security Agreement.


     “Other Available Amounts” shall mean any insurance proceeds available
under related insurance policies maintained by or on behalf of the Lessee, the
Lessor or the Construction Agent, letter of credit proceeds, proceeds under
surety bonds, and similar proceeds consisting of available cash which are
payable to the Lessee, the Lessor or the Construction Agent in settlement of a
Claim or for use in the Construction of the Improvements.


     “Overdue Interest” shall mean any Interest payable pursuant to Section
2.8(b) of the applicable Credit Agreement.


     “Overdue Rate” shall mean (a) regarding amounts owing pursuant to the
Operative Agreements to the Lessor, the Lessor Overdue Rate and (b) regarding
amounts owing pursuant to the Operative Agreements to the Lenders and any other
Person (other than the Lessor), the Lender Overdue Rate.


     “Participant” shall have the meaning given to such term in Section 9.7 of
the applicable Credit Agreement.


     “Participation Agreement” shall mean the Amended and Restated
Participation Agreement dated as of the Closing Date, among the Lessee and the
Financing Parties.


     “Payment Date” shall mean any Scheduled Interest Payment Date and any date
on which Interest or Lessor Yield in connection with a prepayment of principal
on the Financing is due under the applicable Credit Agreement, the
Participation Agreement, the Notes or with respect to the Lessor Advances,
unless such day is not a Business Day and then on the next occurring Business
Day.


     “PBGC” shall mean the Pension Benefit Guaranty Corporation created by
Section 4002(a) of ERISA or any successor thereto.


     “Pension Plan” shall mean a “pension plan”, as such term is defined in
section 3(2) of ERISA, which is subject to title IV of ERISA (other than a
Multiemployer Plan), and to which the Lessee or any ERISA Affiliate may have
any liability, including without limitation any liability by reason of having
been a substantial employer within the meaning of section 4063 of ERISA at any
time during the preceding five (5) years, or by reason of being deemed to be a
contributing sponsor under section 4069 of ERISA.


     “Performance Bonds” shall mean any performance bonds and labor and
material payment bonds as to the General Contractor and any other Contractor
(and any of their respective


Appendix A - 40






 




subcontractors) as may be reasonably required by the Agent, each of which shall
name the Lessor and the Agent as additional obligees.


     “Permitted Facility” shall mean the office, clinical and laboratory
facility located on an approximately 12.95 acre tract subject to the Ground
Lease, as supported by the Appurtenant Rights, in Montgomery County, Maryland,
known as “Traville”.


     “Permitted Investments” shall mean the following investments, in each case
payable in Dollars and payable in the United States of America; (a) U.S.
Treasury Obligations and U.S. Agency Obligations, (b) commercial paper notes
with a rating of P-1 or higher by Moody’s and a rating of A-1 or higher by S&P,
(c) notes or debentures issued or guaranteed by a state or political
subdivision of a state rated at the time when pledged to the Liquid Collateral
Account or the Punch List Liquid Collateral Account, as the case may be, and at
all times thereafter at least A3 or higher by Moody’s and A- or higher by S&P
(separately or collectively, “Municipal Bonds”), (d) any unsecured long-term
debt obligations (other than Municipal Bonds) rated at the time when pledged to
the Liquid Collateral Account or the Punch List Liquid Collateral Account, as
the case may be, and at all times thereafter at least A3 or higher by Moody’s
and A- or higher by S&P (separately or collectively, “Bonds”), (e) any
asset-baked securities rated at the time when pledged to the Liquid Collateral
Account or the Punch List Liquid Collateral Account, as the case may be, and at
all times thereafter Aaa by Moody’s and AAA by S&P, (separately or
collectively, “Asset Backed Securities”) (f) Money Market Funds, (g) Repurchase
Obligations, (h) Mortgage Backed Securities, (i) Negotiable Certificates of
Deposit, (j) Bank Obligations and (k) to the extent not otherwise included in
the foregoing subsections (a)-(j), any other investment which is expressly
permitted in accordance with the then current investment guidelines of the
Lessee (previously delivered to the Agent) duly authorized and adopted by the
Lessee but only to the extent such other investment is approved in writing by
the Agent for inclusion as a Permitted Investment, with such determination to
be in the sole discretion of the Agent (acting upon the advice of the Majority
Secured Parties). Permitted Investments shall include those investments for
which the Agent or an Affiliate of the Agent provides services, provided that
such investments meet the criteria of any of (a)-(k) above. If a Permitted
Investment is rated only by S&P or Moody’s, such single rating shall be
applicable. No investment shall be a Permitted Investment unless it satisfies
the requirements of the definition of “Liquid Collateral”.


     “Permitted Liens” shall mean, with respect to the Property:



		
	 	     (a)     the respective rights and interests of the parties to the
Operative Agreements as provided in the Operative Agreements;
	 
	 	     (b)     the rights of any sublessee or assignee under a sublease or an
assignment expressly permitted by the terms of the Lease for no longer
than the duration of the Lease;
	 
	 	     (c)     Liens for Taxes that either are not yet due or are being
contested in accordance with the provisions of Section 13.1 of the Lease;



Appendix A - 41






 





		
	 	     (d)     Liens arising by operation of law, materialmen’s, mechanics’,
workmen’s, repairmen’s, employees’, carriers’, warehousemen’s and other
like Liens relating to the construction of the Improvements or in
connection with any Modifications or arising in the ordinary course of
business for amounts that either are not more than thirty (30) days past
due or are being diligently contested in good faith by appropriate
proceedings, so long as such proceedings satisfy the conditions for the
continuation of proceedings to contest Taxes set forth in Section 13.1 of
the Lease;
	 
	 	     (e)     Liens of any of the types referred to in clause (d) above that
have been bonded for not less than the full amount in dispute (or as to
which other security arrangements reasonably satisfactory to the Lessor
and the Agent have been made), which bonding (or arrangements) shall
comply with applicable Legal Requirements, and shall have effectively
stayed any execution or enforcement of such Liens;
	 
	 	     (f)     Liens arising out of judgments or awards with respect to which
appeals or other proceedings for review are being prosecuted in good
faith and for the payment of which adequate reserves have been provided
as required by GAAP, which are or will be covered by a policy or policies
of insurance or for which other appropriate provisions have been made, so
long as such proceedings have the effect of staying the execution of such
judgments or awards and, if such appeal relates to Taxes, the conditions
for the continuation of proceedings to contest Taxes set forth in Section
13.1 of the Lease have been satisfied;
	 
	 	     (g)     Liens in favor of municipalities to the extent agreed to by the
Lessor and the Agent;
	 
	 	     (h)     all encumbrances, exceptions, restrictions, easements, rights of
way, servitudes, encroachments and irregularities in title, other than
Liens which, in the reasonable assessment of the Agent, will have a
Material Adverse Effect; and
	 
	 	     (i)     any other Lien expressly consented to or approved by the Agent.




     “Person” shall mean any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization, governmental authority or any other entity.

     “Plan” shall mean an Employee Benefit Plan.

     “Plans and Specifications” shall mean, with respect to Improvements,
Equipment and other components of the Property, the plans and specifications
for such Improvements, Equipment and other components of the Property to be
constructed, as such Plans and Specifications may be amended, modified or
supplemented from time to time in accordance with the terms of the Operative
Agreements.


     “Pledged Securities” shall mean the Securities credited to the Liquid
Collateral Account or the Punch List Liquid Collateral Account, as the case may
be, from time to time, less any


Appendix A - 42






 




Pledged Securities released to the Lessee in accordance with the Liquid
Collateral Agreements, the Punch List Liquid Collateral Agreements and the
Participation Agreement.


     “Pledgor” shall have the meaning given to such term in the Cash Collateral
Control Agreement or the Punch List Liquid Collateral Account, as the case may
be.


     “Post-Expiration Date Balance” shall mean the sum of (i) the remaining
Termination Value for the Property after application of the Maximum Residual
Guarantee Amount actually paid to Lessor on the Expiration Date pursuant to
Section 22.1(b) of the Lease, (ii) all reasonable costs and expenses incurred
by or payable to Lessor (including management, supervisory or any remarketing
fees payable to any Person, including Lessor) following the Expiration Date to
maintain, lease or sell the Property (including any allocated internal costs of
Lessor), and (iii) an amount equal to the amount of holdover rent that Lessor
would have received under Article XXIII of the Lease if Lessee had remained in
possession of the Property during the period following the Expiration Date
through the date Lessor recovers gross proceeds of sale (without deduction for
any marketing, closing or other costs, prorations or commissions) equal to the
sum of items (i) and (ii) above.


     “Primary Financing Parties” shall mean the Credit Lenders, the Mortgage
Lenders, the Lessor and any other banks, financial institutions or other
institutional investors which may be from time to time a Credit Lender, a
Mortgage Lender or the Lessor.


     “Primary Financing Party Balance” shall mean, with respect to any Primary
Financing Party as of any date of determination: (i) with respect to any
Lender, the outstanding principal amount of the Loans owed to such Lender or
(ii) with respect to the Lessor, the outstanding principal amount of the Lessor
Advance, plus, in each case, all accrued and unpaid Interest and Lessor Yield,
as the case may be, thereon.


     “Primary Financing Party Financing Statements” shall mean UCC financing
statements and fixture filings appropriately completed for filing in the
applicable jurisdiction in order to procure a security interest in favor of the
Agent in the Collateral subject to the Security Documents.


     “Proceeds” shall have the meaning given to such term in Section 1 of the
Security Agreement.


     “Program Fee” shall have the meaning given to such term in Section 7.8 of
the Participation Agreement.


     “Prohibited Transaction” shall mean a transaction that is prohibited under
Section 4975 of the Code or Section 406 of ERISA and not exempt under Section
4975 of the Code or Section 408 of ERISA.


     “Project Cost” shall have the meaning given to such term in Section 5.1 of
the Participation Agreement.


Appendix A - 43






 


     “Properly Margined Collateral Coverage” shall mean Liquid Collateral the
Fair Market Sales Value of which is adjusted in accordance with the definition
of Adjusted Market Value (Item), and maintained in accordance with the
Concentration Limits (in the case of the Liquid Collateral Account only) and
other terms set forth in the Operative Agreements.


     “Properly Margined Liquid Collateral” shall mean Liquid Collateral the
amount of which is determined on the basis of Properly Margined Collateral
Coverage.


     “Property” shall mean the Permitted Facility that is (or is to be)
acquired, constructed and/or renovated pursuant to the terms of the Operative
Agreements, the Land (including without limitation the Ground Lease) and each
item of Equipment and the various Improvements, in each case located on such
Land and the Appurtenant Rights.


     “Property Cost” shall mean, with respect to the Property at any date of
determination, an amount equal to (a) the aggregate principal amount of all
Advances made on or prior to such date and advanced to or for the benefit of
the Construction Agent pursuant to and for the purposes set forth in Section
5.1 of the Participation Agreement with respect to the Property minus (b) the
aggregate amount of prepayments or repayments as the case may be of the Credit
Loans, the Mortgage Loans or the Lessor Advances allocated to reduce the
Property Cost pursuant to Section 2.6(c) of the applicable Credit Agreement or
Section 5A.4(c) of the Participation Agreement, respectively.


     “Punch List Cash Collateral Agreement” shall mean the Assignment of Punch
List Liquid Collateral Account dated as of the Closing Date executed by the
Lessee in favor of the Agent, on behalf of the Secured Parties.


     “Punch List Cash Collateral Control Agreement” shall mean the Punch List
Control Agreement dated as of the Closing Date among the Agent, on behalf of
the Secured Parties, the Lessee and the Intermediary.


     “Punch List Liquid Collateral” shall have the meaning given to such term
in Section 1.1(d) of the Punch List Cash Collateral Agreement.


     “Punch List Liquid Collateral Account” shall mean the special purpose,
segregated account (Account No.        , ABA No. 022000046) established by M
and T Bank and subject to a Lien in favor of the Agent for the benefit of the
Secured Parties; the operation of the Punch List Liquid Collateral Account
shall be governed by the Punch List Liquid Collateral Agreements and the other
Operative Agreements, as applicable.


     “Punch List Liquid Collateral Agreement Event of Default” shall have the
meaning given to such term in Section 3.1 of the Punch List Cash Collateral
Agreement.


     “Punch List Liquid Collateral Agreements” shall mean the Punch List Cash
Collateral Agreement and the Punch List Cash Collateral Control Agreement.


Appendix A - 44






 


     “Purchase Option” shall have the meaning given to such term in Section
20.1 of the Lease.


     “Purchasing Lender” shall have the meaning given to such term in Section
9.8(a) of the applicable Credit Agreement.


     “Rating Agencies” shall mean Moody’s, S&P or Fitch Investors Service, L.P.
or, in each case, any successor nationally recognized statistical rating
organization.


     “Reference Bank” shall mean any bank that furnishes information for the
purpose of determining the Eurodollar Rate.


     “Register” shall have the meaning given to such term in Section 9.9(a) of
the applicable Credit Agreement.


     “Regulation B” shall mean Regulation B of the Board, as the same may be
modified and supplemented and in effect from time to time.


     “Regulation D” shall mean Regulation D of the Board, as the same may be
modified and supplemented and in effect from time to time.


     “Regulation T” shall mean Regulation T of the Board, as the same may be
modified and supplemented and in effect from time to time.


     “Regulation U” shall mean Regulation U of the Board, as the same may be
modified and supplemented and in effect from time to time.


     “Regulation X” shall mean Regulation X of the Board, as the same may be
modified and supplemented and in effect from time to time.


     “Regulation Z” shall mean Regulation Z of the Board, as the same may be
modified and supplemented and in effect from time to time.


     “Release” shall mean any release, pumping, pouring, emptying, injecting,
escaping, leaching, dumping, seepage, spill, leak, flow, discharge, disposal or
emission of a Hazardous Substance.


     “Renewal Term” shall mean each of the three (3) renewal terms with regard
to the Lease permitted in accordance with Section 2.2 of the Lease.


     “Rent” shall mean, collectively, the Basic Rent and the Supplemental Rent,
in each case payable under the Lease.


     “Reportable Event” shall have the meaning specified in Section 4043 of
ERISA.


Appendix A - 45






 


     “Repurchase Obligations” shall mean repurchase obligations with a term of
not more than 31 days for underlying debt securities that are rated AAA by S&P
and Aaa by Moody’s, and/or that are U.S. Treasury Obligations and/or U.S.
Agency Obligations which in each case are secured by a fully perfected security
interest in 102% of such underlying securities.


     “Requested Funds” shall mean any funds requested by the Lessee or the
Construction Agent, as applicable, in accordance with Section 5 of the
Participation Agreement.


     “Required Liquid Collateral Amount” shall mean on any determination date,
Liquid Collateral, in an amount equal to the sum of (a) the product of (i) one
hundred two percent (102%) and (ii) the product of (A) ninety-four percent
(94%) and (B) the Property Cost, including without duplication all Capitalized
Costs and (b) the product of (i) six percent (6%) and (ii) the Property Cost,
including without duplication all Capitalized Costs.


     “Requisition” shall have the meaning specified in Section 4.2 of the
Participation Agreement.


     “Responsible Officer” shall mean the Chairman or Vice Chairman of the
Board of Directors, the Chief Executive Officer, the President, any Senior Vice
President or Executive Vice President, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer, or any Assistant Treasurer.


     “Restoration” shall have the meaning given to such term in Section 15.1(e)
of the Lease.


     “S&P” shall mean Standard and Poor’s Rating Group, a division of The
McGraw-Hill Companies, Inc.


     “Sale Date” shall have the meaning given to such term in Section 20.3(a)
of the Lease.


     “Sale Notice” shall mean a notice given to the Agent in connection with
the election by the Lessee of its Sale Option.


     “Sale Option” shall have the meaning given to such term in Section 20.1 of
the Lease.


     “Sale Proceeds Shortfall” shall mean the amount by which the proceeds of a
sale described in Section 22.1 of the Lease are less than the Limited Recourse
Amount with respect to the Property if it has been determined that the Fair
Market Sales Value of the Property at the expiration of the term of the Lease
has been impaired by greater than ordinary wear and tear during the Term of the
Lease.


     “Scheduled Interest Payment Date” shall mean as to any CP Loan, any
Eurodollar Loan, any Eurodollar Lessor Advance, any ABR Loan, any ABR Lessor
Advance, any Interest payment to any Investor pursuant to any Note and any
Lessor Yield payment to the Lessor in connection with any Lessor Advance, the
twentieth (20th) day of each month, unless such day is not a Business Day and
in such case on the next occurring Business Day.


Appendix A - 46






 


     “SEC” means United States Securities and Exchange Commission.


     “Secured Parties” shall have the meaning given to such term in the
Security Agreement.


     “Securities” shall have the meaning given to such term in Section
8-102(a)(15) of the Uniform Commercial Code.


     “Securities Act” shall mean the Securities Act of 1933, as amended,
together with the rules and regulations promulgated thereunder.


     “Security Agreement” shall mean the Amended and Restated Security
Agreement dated as of the Closing Date between the Borrower and the Agent, for
the benefit of the Secured Parties, and accepted and agreed to by the Lessee.


     “Security Assets” shall have the meaning given to such term in Section 2
of the Security Agreement.


     “Security Documents” shall mean the collective reference to the
Bifurcation Documents, the Security Agreement, the Mortgage Instrument, (to the
extent the Lease is construed as a security instrument) the Lease, (to the
extent the Agency Agreement is construed as a security instrument) the Agency
Agreement, the Liquid Collateral Agreements, the Punch List Liquid Collateral
Agreements, the Primary Financing Party Financing Statements and all other
security documents hereafter delivered to the Agent granting a Lien on any
asset or assets of any Person to secure the obligations and liabilities of the
Lessor under the Credit Agreements and/or under any of the other Credit
Documents.


     “Senior Debt” shall mean regarding any Person and its Consolidated
Subsidiaries as of the determination date, the outstanding principal amount of
Indebtedness less Indebtedness that is expressly subordinated in right of
payment.


     “Senior Debt Ratio” shall mean, at the end of any Fiscal Quarter, the
ratio of



		
	 	     (a)     the aggregate amount of cash, Cash Equivalents and Marketable
Securities of HGSI and its Subsidiaries on a consolidated basis at such
time
	 
	 	     to
	 
	 	     (b)     the sum of total Senior Debt and (but without duplication)
Synthetic Lease Obligations of HGSI and its Subsidiaries on a
consolidated basis outstanding at such time.



     “Single Employer Plan” shall mean any Plan which is not a Multiemployer
Plan.


     “Site” shall mean the land subject (or to be subject) to the Ground Lease,
and all of the appurtenances, easements, restrictions, and rights of way
relating to the foregoing.


Appendix A - 47






 


     “Soft Costs” shall mean all costs which are ordinarily and reasonably
incurred in relation to the acquisition, development, installation,
construction, improvement and testing of the Property other than Hard Costs,
including without limitation structuring fees, administrative fees, legal fees,
upfront fees, fees and expenses related to appraisals, title examinations,
title insurance, document recordation, surveys, environmental site assessments,
geotechnical soil investigations and similar costs and professional fees
customarily associated with a real estate closing, the fees and expenses of the
Lessor payable or reimbursable under the Operative Agreements and costs and
expenses incurred pursuant to Sections 7.3(a), 7.3(b), 7.4(a), 7.4(b), 7.5,
7.6, 7.7 and 7.8 of the Participation Agreement.


     “Subsidiary” shall mean, as to any Person, any corporation of which at
least a majority of the outstanding stock having by the terms thereof ordinary
voting power to elect a majority of the board of directors of such corporation
(irrespective of whether or not at the time stock of any other class or classes
of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person, or by one
(1) or more Subsidiaries, or by such Person and one (1) or more Subsidiaries.


     “Supplemental Amounts” shall have the meaning given to such term in
Section 9.18 of the applicable Credit Agreement.


     “Supplemental Rent” shall mean all amounts, liabilities and obligations
(other than Basic Rent) which the Lessee assumes or agrees to pay to the
Lessor, the Agent, the Primary Financing Parties or any other Person under the
Lease or under any of the other Operative Agreements including without
limitation payments of the Termination Value and the Maximum Residual Guarantee
Amount, all indemnification amounts, liabilities and obligations and all
amounts payable or owing to any Hedge Provider pursuant to one or more Hedging
Agreements (including without limitation any and all termination payments
thereunder).


     “Synthetic Lease Obligation” shall mean, with respect to any Person that
is a lessee under a lease of the type referred to as a synthetic lease that is
characterized as an operating lease in accordance with GAAP, the outstanding
“lease balance” or other similar amount; i.e., the outstanding principal amount
of any notes of the lessor outstanding with respect to the property under lease
plus the equity investment made with respect to such lease, plus, without
duplication the “lease balance”, subject to the limitations set forth in
Schedule II of the Participation Agreement, with respect to the synthetic
leases described in Schedule II to the Participation Agreement.


     “Tax Affiliate” means, with respect to any corporate Person, any member of
an affiliated group (within the meaning of Section 1504(a) of the Code or any
similar provision of state or local law) in which such Person is a member.


     “Taxes” shall have the meaning specified in the definition of
“Impositions”.


     “Term” shall mean, collectively, the Basic Term and each Renewal Term, if
any.


     “Termination Date” shall have the meaning specified in Section 16.2(a) of
the Lease.


Appendix A - 48






 


     “Termination Event” shall mean (a) with respect to any Pension Plan, the
occurrence of a Reportable Event or an event described in Section 4062(e) of
ERISA, (b) the withdrawal of the Lessee or any ERISA Affiliate from a Multiple
Employer Plan during a plan year in which it was a substantial employer (as
such term is defined in Section 4001(a)(2) of ERISA), or the termination of a
Multiple Employer Plan, (c) the distribution of a notice of intent to terminate
a Plan or Multiemployer Plan pursuant to Section 4041(a)(2) or 4041A of ERISA,
(d) the institution of proceedings to terminate a Plan or Multiemployer Plan by
the PBGC under Section 4042 of ERISA, (e) any other event or condition which
might constitute grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Plan or Multiemployer Plan, or
(f) the complete or partial withdrawal of the Lessee or any ERISA Affiliate
from a Multiemployer Plan.


     “Termination Notice” shall have the meaning specified in Section 16.1 of
the Lease.


     “Termination Value” shall mean the sum of (a) the outstanding aggregate
principal amount of the Mortgage Loans, plus (b) the outstanding aggregate
principal amount of the Credit Loans, plus (c) the outstanding aggregate
principal amount of the Lessor Advances, plus (d) any accrued and unpaid
Interest and fees owing to the Credit Lenders and/or the Mortgage Lenders, plus
(e) any accrued and unpaid Lessor Yield, plus (f) any amounts then due and
payable pursuant to Section 11 of the Participation Agreement (including
without limitation Breakage Costs and all other indemnification amounts then
due and payable pursuant thereto), plus (g) to the extent the same is not
duplicative of the amounts payable under clauses (a) through (f) above, all
other Rent and other amounts then due and payable or accrued under the Agency
Agreement, Lease and/or under any other Operative Agreement (including without
limitation all costs and expenses referred to in clause FIRST of Section 22.2
of the Lease plus (h) to the extent the same is not duplicative of the amounts
payable under clauses (a) through (g) above, all amounts payable or owing to
any Hedge Provider pursuant to one or more Hedging Agreements (including
without limitation any and all termination payments thereunder)).


     “Transaction Expenses” shall mean all Soft Costs and all other costs and
expenses incurred in connection with the preparation, execution and delivery of
the Operative Agreements and the transactions contemplated by the Operative
Agreements including without limitation all costs and expenses described in
Section 7 of the Participation Agreement and the following:



		
	 	     (a)     the reasonable fees, out-of-pocket expenses and disbursements of
counsel to the Financing Parties, and of counsel to the Lessee in
negotiating the terms of the Operative Agreements and the other
transaction documents, preparing for the closings under, and rendering
opinions in connection with, such transactions and in rendering other
services customary for counsel representing parties to transactions of
the types involved in the transactions contemplated by the Operative
Agreements, but excluding in all cases the fees, expenses and
disbursements of counsel to any individual Credit Lender or Mortgage
Lender;



Appendix A - 49






 





		
	 	     (b)     the reasonable fees, out-of-pocket expenses and disbursements of
accountants for the Lessee in connection with the transaction
contemplated by the Operative Agreements;
	 
	 	     (c)     any and all other reasonable fees, charges or other amounts
payable to the Financing Parties which arises under any of the Operative
Agreements;
	 
	 	     (d)     any other reasonable fees, out-of-pocket expenses, disbursements
or costs of any party to the Operative Agreements or any of the other
transaction documents; and
	 
	 	     (e)     any and all Taxes and fees incurred in recording or filing any
Operative Agreement or any other transaction document, any deed,
declaration, mortgage, security agreement, notice or financing statement
with any public office, registry or governmental agency in connection
with the transactions contemplated by the Operative Agreements.



     “Transfer” shall have the meaning given to such term in Section 10.1(f) of
the Participation Agreement.


     “Tribunal” shall mean any state, commonwealth, federal, foreign,
territorial, or other court or government body, subdivision agency, department,
commission, board, bureau or instrumentality of a governmental body.


     “Trust” shall mean Genome Statutory Trust 2001A, a Connecticut statutory
trust.


     “Type” shall mean, as to any Loan, whether it is a CP Loan, an ABR Loan or
a Eurodollar Loan.


     “U.S. Agency Obligations” shall mean bonds, notes, debentures, obligations
or other evidence of indebtedness issued and/or guaranteed by Federal National
Mortgage Association, Federal Home Loan Deed of Trust Corporation, Government
National Mortgage Association or any other agency or instrumentality of the
U.S. of America, in each case supported by the direct or indirect full faith
and credit of the U.S. Government, as well as mortgaged backed securities
issued by any of the foregoing agencies.


     “U.S. Person” shall have the meaning specified in Section 11.2(e) of the
Participation Agreement.


     “U.S. Taxes” shall have the meaning specified in Section 11.2(e) of the
Participation Agreement.


     “U.S. Treasury Obligations” shall mean securities issued or guaranteed by
the U.S. Government, including U.S. Treasury obligations and any other
obligations the timely payment of principal and interest of which are
guaranteed by the U.S. Government.


     “UCC Financing Statements” shall mean collectively the Primary Financing
Party Financing Statements.


Appendix A - 50






 


     “Unanimous Vote Matters” shall have the meaning given to such term in
Section 12.4 of the Participation Agreement.


     “Unfunded Amounts” shall mean the unpaid cost of Construction and all
other amounts necessary for Final Completion.


     “Unfunded Liability” shall mean, with respect to any Plan, at any time,
the amount (if any) by which (a) the present value of all accrued benefits
under such Plan exceeds (b) the fair market value of all Plan assets allocable
to such benefits, all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess represents a potential
liability of the Lessee or any member of the Controlled Group to the PBGC or
such Plan under Title IV of ERISA.


     “Uniform Commercial Code” and “UCC” shall mean the Uniform Commercial Code
as in effect in any applicable jurisdiction.


     “Uninsured Force Majeure Loss” shall mean an amount equal to the Force
Majeure Loss less any and all insurance proceeds paid in connection with the
Force Majeure Event giving rise to such Force Majeure Loss.


     “Unrestricted Cash, Cash Equivalents and Marketable Securities” shall mean
of any Person, as of the date of determination, all cash, Cash Equivalents and
Marketable Securities of such Person and its Consolidated Subsidiaries as of
such date which are not encumbered by any Lien or subject to any defeasance,
sinking fund, escrow or similar deposit arrangement pursuant to which such
funds are not subject to voluntary withdrawal by such Person and its
Consolidated Subsidiaries or are set aside for a purpose other than use in such
Person’s or its Consolidated Subsidiary’s current operation and which are not
otherwise required to be designated as restricted funds on such Person’s
consolidated balance sheet in accordance with GAAP.


     “Unused Fee Payment Date” shall mean the twentieth (20th) Business Day of
each calendar month during the Commitment Period.


     “Unused Fees” shall refer to the Lender Unused Fees and the Lessor Unused
Fees.


     “Voting Stock” means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right so to
vote has been suspended by the happening of such a contingency.


     “Wachovia” shall mean Wachovia Bank, National Association, a national
banking association.


     “Wachovia Securities” shall mean Wachovia Securities, LLC, a Delaware
limited liability company.


Appendix A - 51






 


     “WCM” shall have the meaning given to such term in Section 10.1(f) of the
Participation Agreement.


     “Wholly-Owned Entity” shall mean a Person all of the shares of capital
stock or other ownership interest of which are owned by a specified Person
and/or one of such specified Person’s wholly-owned Subsidiaries or other
wholly-owned entities.


     “Withdraw Liability” shall have the meaning given to such term under Part
I of Subtitle E of Title IV of ERISA.


     “Withholdings” shall have the meaning specified in Section 11.2(e) of the
Participation Agreement.


     “Work” shall mean the furnishing of labor, materials, components,
furniture, furnishings, fixtures, appliances, machinery, equipment, tools,
power, water, fuel, lubricants, supplies, goods and/or services with respect to
the Property.


     “WSI” shall have the meaning given to such term in Section 10.1(f) of the
Participation Agreement.


Appendix A - 52