exv10w4



 



Exhibit 10.4


AMENDED AND RESTATED AGENCY AGREEMENT



Dated as of June 30, 2003



between



HUMAN GENOME SCIENCES, INC.,

as the Construction Agent,



and



WACHOVIA DEVELOPMENT CORPORATION,

as the Lessor



 






 





TABLE OF CONTENTS




	 	 	 	 	 	 
	 	 	 	Page
	 	 	 
	ARTICLE I DEFINITIONS; RULES OF USAGE
	 	 	2	 
	 	1.1   Definitions
	 	 	2	 
	 	1.2   Interpretation
	 	 	2	 
	ARTICLE II APPOINTMENT OF THE CONSTRUCTION AGENT
	 	 	2	 
	 	2.1   Appointment
	 	 	2	 
	 	2.2   Acceptance and Undertaking
	 	 	3	 
	 	2.3   Term
	 	 	3	 
	 	2.4   Scope of Authority
	 	 	3	 
	 	2.5   Delegation of Duties
	 	 	6	 
	 	2.6   Covenants of the Construction Agent
	 	 	6	 
	ARTICLE III THE PROPERTY
	 	 	10	 
	 	3.1   Construction
	 	 	10	 
	 	3.2   Amendments; Modifications
	 	 	10	 
	 	3.3   Insufficient Lender Commitments and Lessor Commitments
	 	 	11	 
	 	3.4   Grant of Security Interest
	 	 	11	 
	 	3.5   Insurance
	 	 	12	 
	 	3.6   Casualty, Condemnation and Environmental Violation
	 	 	18	 
	 	3.7   Abandonment or Permanent Discontinuance
	 	 	21	 
	 	3.8   Additions to the Property and Related Requirements
	 	 	22	 
	 	3.9   Warranty of Title
	 	 	23	 
	 	3.10  Permitted Contests Other Than in Respect of Indemnities
	 	 	23	 
	 	3.11  Impositions and Other Matters
	 	 	24	 
	ARTICLE IV PAYMENT OF FUNDS
	 	 	24	 
	 	4.1   Right to Receive Construction Cost
	 	 	24	 
	 	4.2    Limitations During Construction Period
	 	 	25	 
	ARTICLE V AGENCY AGREEMENT EVENTS OF DEFAULT
	 	 	25	 
	 	5.1   Agency Agreement Events of Default
	 	 	25	 
	 	5.2   Damages
	 	 	29	 
	 	5.3   Remedies; Remedies Cumulative
	 	 	29	 
	 	5.4   Limitation on Recourse
	 	 	31	 
	 	5.5   Determination of Whether Budget is “In Balance”
	 	 	32	 
	ARTICLE VI THE LESSOR’S RIGHTS
	 	 	33	 
	 	6.1   [Reserved]
	 	 	33	 
	 	6.2   The Lessor’s Right to Cure the Construction Agent’s Defaults
	 	 	33	 
	ARTICLE VII MISCELLANEOUS
	 	 	33	 
	 	7.1   Notices
	 	 	33	 
	 	7.2   Successors and Assigns
	 	 	33	 
	 	7.3   GOVERNING LAW
	 	 	33	 
	 	7.4   SUBMISSION TO JURISDICTION; VENUE; WAIVERS; ARBITRATION
	 	 	33	 
	 	7.5   Amendments and Waivers
	 	 	34	 



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	 	 	 	Page
	 	 	 
	 	7.6   Counterparts
	 	 	34	 
	 	7.7   Severability
	 	 	34	 
	 	7.8   Headings and Table of Contents
	 	 	34	 
	 	7.9   WAIVER OF JURY TRIAL
	 	 	34	 
	 	7.10  Assignment
	 	 	34	 
	 	7.11  No Waiver
	 	 	35	 
	 	7.12  Acceptance of Surrender
	 	 	35	 
	 	7.13  No Merger of Title
	 	 	35	 
	 	7.14  Survival
	 	 	35	 
	 	7.15  Limited Liability
	 	 	35	 
	 	7.16  Statement of Intent Regarding Accounting Compliance
	 	 	35	 
	 	7.17  Amendment Restatement
	 	 	36	 



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AMENDED AND RESTATED AGENCY AGREEMENT



     THIS AMENDED AND RESTATED AGENCY AGREEMENT, dated as of June 30, 2003 (as
amended, modified, extended, supplemented and/or restated from time to time,
the “Agreement”), is between WACHOVIA DEVELOPMENT CORPORATION, a North Carolina
corporation (the “Lessor”) and HUMAN GENOME SCIENCES, INC., a Delaware
corporation (the “Construction Agent”).


W I T N
E S S E T H:



     A.     WHEREAS, the Construction Agent, 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”);


     B.     WHEREAS, pursuant to the Master Transfer Agreement, among other things,
the Lessor has obtained 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);


     C.     WHEREAS, such assignment as referenced recital B included an assignment
of the Trust’s interest as the Lessor under the Construction Agency Agreement
dated as of November 7, 2001 (as amended, modified, extended, supplemented
and/or restated, the “Original Agency Agreement”) between the Trust and the
Construction Agent;


     D.     WHEREAS, subject to the terms and conditions of the Operative
Agreements, the Lessor will fund the acquisition, installation, testing, use,
development, construction, operation, maintenance, repair, refurbishment and
restoration of the Property by the Construction Agent; and


     E.     WHEREAS, the Lessor and the Construction Agent wish to amend and
restate the Original Agency Agreement, as it relates to the Property, pursuant
to the terms of this Agreement.


     NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:


 






 


ARTICLE I

DEFINITIONS; RULES OF USAGE



     1.1 Definitions.


     For purposes of this Agreement, capitalized terms used in this Agreement
and not otherwise defined herein shall have the meanings assigned to them in
Appendix A to that certain Amended and Restated Participation Agreement dated
as of June 30, 2003 (as amended, modified, extended, supplemented and/or
restated from time to time in accordance with the applicable provisions
thereof, the “Participation Agreement”) among the Construction Agent, the
Lessor, the Conduit (as defined therein), the various banks and other financial
institutions which are parties thereto from time to time as additional Lenders
(as defined therein), Wachovia Securities, LLC, as Deal Agent (as defined
therein), Wachovia Bank, National Association, as agent for the Primary
Financing Parties (as defined therein) and, respecting the Security Documents
(as defined therein), as the agent for the Secured Parties (as defined
therein).


     1.2 Interpretation.


     The rules of usage set forth in Appendix A to the Participation Agreement
shall apply to this Agreement. Unless otherwise indicated, references in this
Agreement to articles, sections, paragraphs, clauses, appendices, schedules and
exhibits are to the same contained in this Agreement.



ARTICLE II

APPOINTMENT OF THE CONSTRUCTION AGENT



     2.1 Appointment.


     Subject to the terms and conditions hereof, the Lessor hereby irrevocably
designates and appoints, except as expressly provided herein or in the other
Operative Agreements, the Construction Agent as its exclusive agent and the
Construction Agent accepts such appointment, in connection with the
identification and acquisition of the Property (provided, the interest of the
Lessor in certain of the real estate comprising a part of the Property shall be
a ground leasehold interest pursuant to the Ground Lease) and the development,
acquisition, installation, construction and testing of the Improvements, the
Equipment and the other components of the Property on the Land in accordance
with the Construction Documents, and pursuant to the terms of the Operative
Agreements. Notwithstanding any provisions hereof or in any other Operative
Agreement to the contrary, but subject to the conditions precedent and other
terms and conditions in the Operative Agreements applicable to Advances and
Commitments, the Construction Agent acknowledges and agrees that the Lessor
shall advance to the Construction Agent no more than the aggregate Commitments
which shall be reduced by previous Advances and requested Advances, which are
pending, and in accordance with the terms and conditions of the Operative
Agreements.


2






 


     For all purposes of the Operative Agreements, the Construction Agent
agrees that (unless the Construction Agent has been replaced in accordance with
the terms and conditions hereof) the Construction Agent shall be in absolute
possession and control of the Property, in absolute control of all activities
in connection therewith and as between the Lessor and the Construction Agent,
the Construction Agent shall be solely responsible for any and all acts and/or
omissions relating to the Property or activities in connection therewith, any
component of the Property, any event, circumstance or occurrence at, near or
otherwise with respect to the Property or any activity in connection therewith
and any and all Claims resulting from any of the foregoing, including without
limitation those arising under tort, contract, strict liability, negligence,
gross negligence, willful misconduct or any other theory of law or equity.


     2.2 Acceptance and Undertaking.


     The Construction Agent hereby unconditionally accepts the agency
appointment, acknowledges that the Lessor, concurrent with the effectiveness of
this Agreement, has acquired a ground leasehold interest in certain of the real
estate comprising a part of the Property pursuant to the Ground Lease and
various Appurtenant Rights (which Property, Ground Lease and Appurtenant Rights
are acceptable in all respect to the Construction Agent) and undertakes, for
the benefit of the Lessor, to develop, acquire, install, construct and test the
Improvements, the Equipment and the other components of the Property in
accordance with the Construction Documents and the Operative Agreements
including obtaining all necessary entitlements and permits (including all
environmental and occupancy permits, maintaining books and records relating to
the Property and other functions typically undertaken in developing the
Property).


     2.3 Term.


     This Agreement and the agency created by this Agreement shall commence on
the date hereof and except with respect to any (i) Construction Period Required
Amounts, (ii) Defaults or Events of Default which have occurred and are
continuing including any remedies related thereto or (iii) other matters as
otherwise expressly stated herein or unless terminated earlier pursuant to the
terms and conditions herein, shall terminate on the Construction Period
Termination Date.


     2.4 Scope of Authority.



		
	 	     (a) Subject to the terms, conditions, restrictions and limitations
set forth in the Operative Agreements, the Lessor hereby expressly
authorizes the Construction Agent, or any Construction Agency Person
acting on behalf of the Construction Agent, and the Construction Agent
unconditionally agrees for the benefit of the Lessor, subject to Section
2.4(b), to take all action necessary or desirable for the performance and
satisfaction of any and all of the Lessor’s obligations under any
construction agreement and to fulfill all of the obligations of the
Construction Agent including without limitation:




		
	 	     (i) the identification and assistance with the acquisition in
the name of the Lessor of the Property in accordance with the terms
and conditions of the Participation Agreement;



3






 





		
	 	     (ii) all design and supervisory functions relating to the
development, acquisition, installation, construction and testing of
the related Improvements, Equipment and other components of the
Property and performing all engineering work related thereto;




		
	 	     (iii) (A) negotiating, entering into, performing and enforcing
all contracts and arrangements to acquire or ground lease the
Property and to procure the equipment necessary to construct the
Property and (B) negotiating, executing, performing and enforcing
all contracts and arrangements to develop, acquire, install,
construct, repair, renovate, replace and test the Improvements, the
Equipment and the other components of the Property on such terms
and conditions as are customary and reasonable in light of local
and national standards and practices and the businesses in which
the Construction Agent is engaged;




		
	 	     (iv) obtaining all necessary permits, licenses, consents,
approvals, entitlements and other authorizations, including without
limitation all of the foregoing required for the Property and the
use and occupancy thereof and those required under applicable Law
(including without limitation Environmental Laws), from all
Governmental Authorities in connection with the development,
acquisition, installation, construction and testing of the
Improvements, the Equipment and the other components of the
Property in accordance with the Construction Documents;




		
	 	     (v) maintaining all books and records with respect to the
Property and the construction, operation and management thereof;




		
	 	     (vi) performing any other acts necessary in connection with
the identification and acquisition or ground leasing of the
Property and the development, acquisition, installation,
construction, repair, renovation, replacement and testing of the
related Improvements, Equipment and all other additional components
of the Property in accordance with the Construction Documents;




		
	 	     (vii) performing or causing the performance of any other acts
necessary or desirable (as reasonably determined by the
Construction Agent) in connection with the construction and
development of the Improvements in accordance with all applicable
Laws and all Insurance Requirements unless the failure to comply is
not reasonably likely to give rise to a Material Adverse Effect;
provided, however, that the foregoing shall not limit the
Construction Agent’s right to engage in permitted contests in
accordance with Section 3.10;




		
	 	     (viii) paying when due or causing to be paid when due (subject
to reimbursement as provided for under this Agreement and subject
to the terms and conditions, if any in the case of such
reimbursement, relating to Construction Advances as set forth in
the Participation Agreement) pursuant to and subject to the
Construction Budget, and the Operative Agreements, all Property
Costs



4






 





		
	 	(including costs associated with the Construction Agent’s actions
as provided in Section 2.4(a)(x), pursuant to and subject to the
Construction Budget, provided, however, that the foregoing shall
not limit the Construction Agent’s right to engage in permitted
contests in accordance with Section 3.10; provided, further, that
the Construction Agent shall pay directly any Property Costs either
(x) during the continuance of an Agency Agreement Event of Default
or (y) while it is unable to satisfy all of the conditions for a
Construction Advance set forth in Section 5.4 of the Participation
Agreement (it being understood, however, that the Construction
Agent may be reimbursed for Property Costs paid by it prior to the
occurrence of the events described in clauses (x) and (y) to the
extent permitted under Section 5.17 of the Participation
Agreement). The Construction Agent acknowledges that any liability
resulting to any Primary Financing Party or any other Indemnified
Person as a result of or arising from any such negotiation,
permitted contest, or act or omission of the Construction Agent or
its designees with respect to such permitted contest will be a
Claim subject to indemnification under Section 11 of the
Participation Agreement;




		
	 	     (ix) enforcing or causing the enforcement in all material
respects of performance by each party to each Construction Document
of its respective obligations, warranties and other design,
construction and other obligations with respect to the design,
engineering, construction and completion of the Improvements on the
Land or pursuing remedies with respect to the breach of those
obligations, in each case, as deemed appropriate by the
Construction Agent in its discretion; and




		
	 	     (x) using the proceeds of any insurance maintained with
respect to the Improvements to complete construction of or rebuild
any portion of such Improvements with respect to a Casualty or
Condemnation and to fund all Interest accrued on the Loans and
Lessor Yield accrued on the Lessor Advances during the Construction
Period or rebuild, provided that the foregoing shall not affect the
Construction Agent’s right to purchase the Property in accordance
with Article XX of the Lease which shall be applicable during the
Construction Period and is hereby incorporated herein by reference,
mutatis mutandis.




		
	 	     (b) Neither the Construction Agent nor any Construction Agency
Person shall enter into any contract or consent to any contract in the
name of the Lessor without the Lessor’s prior written consent, such
consent to be given or withheld in the exercise of the Lessor’s
reasonable discretion (acting at the direction of the Agent); provided,
however, that (i) no such contract will increase the obligations of the
Lessor beyond the obligations of the Lessor as are expressly set forth in
the Operative Agreements and (ii) each such contract shall be expressly
non-recourse to the Lessor on terms and conditions that are reasonably
acceptable to the Lessor, (iii) each such contract shall expressly
acknowledge that the Lessor shall not have any liability, as principal
for the acts of the Construction Agent under such contracts or for the
acts of any other Construction Agency Person, (iv) each such contract
shall contain an express waiver of the other party’s rights to assert any
Lien or Claim against the Lessor arising out of any such purported agency
relationship,



5






 







		
	 	and (v) each such contract shall otherwise be on terms and conditions
that are reasonably acceptable to the Lessor. It is deemed to be
reasonable for the Lessor to withhold its consent to any contract which
fails to comply, in the Lessor’s judgement, with any of clauses (i)
through (v) of this subparagraph (b).




		
	 	     (c) Subject to the terms and conditions of this Agreement and the
other Operative Agreements, the Construction Agent shall have sole
management and control over the installation, construction and testing
means, methods, sequences and procedures with respect to the Property.




		
	 	     (d) As between the Lessor and the Construction Agent, the
Construction Agent shall be responsible for all acts or omissions of each
Construction Agency Person. The Lessor and the Construction Agent agree
that the Construction Agent shall at all times be deemed to be in
possession and control of the Property at all times until such possession
and control is relinquished pursuant to the terms of the Operative
Agreements.



     2.5
Delegation of Duties.


     The Construction Agent may execute any of its duties under this Agreement
by or through any Construction Agency Person; provided,
however, that no such
delegation shall limit or reduce in any way the Construction Agent’s duties,
obligations or liabilities under this Agreement or any other Operative
Agreement.


     2.6 Covenants of the Construction Agent.


     The Construction Agent hereby covenants and agrees that it will:



		
	 	     (a) cause the design, procurement, development, acquisition,
installation, construction, repair, renovation, replacement and testing
of the Property to be prosecuted in a good and workmanlike manner
(subject to Force Majeure Events), and respecting the Property in
accordance with the Construction Documents, the Legal Requirements
(including without limitation Environmental Laws), the Insurance
Requirements, the applicable contracts relating to the Improvements, the
Equipment, other components of the Property and procurement of
construction materials, the manufacturer’s specifications and standards,
prevalent industry practices and otherwise in accordance with Section 3.1
unless the failure to comply with the foregoing is not reasonably likely
to give rise to a Material Adverse Effect; provided,
however, the
foregoing shall not limit the Construction Agent’s right to engage in
permitted contests in accordance with Section 3.10;




		
	 	     (b) [Reserved];




		
	 	     (c) notify the Agent in writing not more than ten (10) Business Days
after the Construction Agent or any Affiliate of the Construction Agent
obtains Actual Knowledge of, or its receipt of oral or written
notification of, the occurrence of any Force Majeure Event or an event
under any Construction Document if such event is, in the reasonable



6






 





		
	 	judgment of the Construction Agent or such Affiliate of the Construction
Agent, reasonably likely to prevent Completion of the Property prior to
the Construction Period Termination Date or result in a Force Majeure
Event;




		
	 	     (d) cause the Completion Date for the Property to occur by the
Construction Period Termination Date free and clear (by removal or
bonding) of Liens or claims for materials supplied or labor or services
performed in connection with the development, acquisition, installation,
construction or testing thereof other than Permitted Liens;




		
	 	     (e) at all times during the Construction Period (i) cause the Lessor
to retain at all times during the term of this Agreement an enforceable
ground leasehold interest in the Property pursuant to the Ground Lease,
an enforceable interest in the Appurtenant Rights and ownership of the
portions of the Property not subject to the Ground Lease or the
Appurtenant Rights, (ii) cause a valid, perfected, first priority Lien on
the Property and the Collateral to be in place in favor of the Agent (for
the benefit of the Secured Parties and securing the obligations owed to
such party pursuant to the Operative Agreements), (iii) file all
necessary documents under the applicable real property law and Article 9
of the Uniform Commercial Code to perfect such title and Liens and (iv)
not permit Liens (other than Permitted Liens or Lessor Liens) to be filed
or maintained respecting the Property or the Collateral;




		
	 	     (f) on or prior to the Closing Date, deliver to the Agent (for the
benefit of the Lessor) true, complete and correct copies of the
Construction Budget and the Construction Schedule therefor, together with
evidence of builders’ risk insurance. Thereafter, the Construction
Agent, on a monthly basis, shall deliver to the Lessor true, correct and
complete copies of any material modifications of the Construction Budget
or the Construction Schedule and progress reports regarding the
development, acquisition, installation, construction and testing of the
Property, in a format acceptable to the Lessor;




		
	 	     (g) to the fullest extent commercially available, procure insurance
for the Property during the Construction Period in accordance with the
provisions of Section 3.5 and, as the Lessor shall otherwise reasonably
request from time to time, for such risks, which the Lessor determines
are not otherwise sufficiently covered by the Construction Agent;




		
	 	     (h) include in the Construction Budget and maintain Available
Commitments in amounts equal to or greater than the cost for Completion
plus all deductible amounts, if any, regarding insurance policies related
to the Property in place from time to time pursuant to the Operative
Agreements and also for the amount of all insurable losses regarding the
Property that are not insured;




		
	 	     (i) on or before the Construction Period Termination Date, cause the
Commencement Date to occur with respect to the Property or purchase the
Property for the Termination Value and otherwise in compliance with the
other terms and provisions of the Operative Agreements; provided,
notwithstanding the foregoing, upon the occurrence of any Force Majeure
Event, Casualty or Condemnation, the Construction



7






 







		
	 	Agent may provide the Lessor with written notice detailing such Force
Majeure Event, Casualty or Condemnation and the reasonable manner in
which the Construction Agent shall address the same in order to achieve
Completion of the Property in accordance with the Operative Agreements
and requesting an extension of the Construction Period Termination Date
for up to sixty (60) days to the extent reasonably necessary to address
such Force Majeure Event, Casualty or Condemnation; provided,
further,
upon receipt of such a notice, the Lessor shall acknowledge in writing
the extension of the Construction Period Termination Date as requested;




		
	 	     (j) following Completion for the Property, cause all outstanding
punch list items and Final Completion Work to be completed in a timely
manner, but in no event later than the Expiration Date;




		
	 	     (k) procure, maintain and comply with all licenses, permits, orders,
approvals, consents and other authorizations required for the
acquisition, installation, testing, use, development, construction,
operation, maintenance, repair, refurbishment and restoration of the
Property;




		
	 	     (l) from and after the occurrence of any Agency Agreement Default or
Agency Agreement Event of Default, the Construction Agent shall not cause
or permit itself to become obligated for any other payment obligation
pursuant to any Construction Document, Construction Material or any other
payment obligation with respect to the Property; provided, to the extent
the Construction Agent does obligate itself for any such additional
payment obligation from and after the occurrence of any Agency Agreement
Default or Agency Agreement Event of Default, the Construction Agent
acknowledges it shall have no right of reimbursement from any Financing
Party with respect to such additional payment obligation;




		
	 	     (m) regarding the Agreement dated as of November 7, 2001, as
amended, modified, extended, supplemented and/or restated from time to
time, between Human Genome Sciences, Inc., as the owner thereunder (as
construction agent under the Original Agency Agreement) and Gilbane
Building Company, as the designer/builder thereunder, the Construction
Agent shall ensure that such contract is for a guaranteed maximum price,
which price is not in excess of the amount contemplated therefor in the
Construction Budget;




		
	 	     (n) neither demand or accept any fees or other compensation for the
performance of its services under this Agreement or any other Operative
Agreement;




		
	 	     (o) after the Construction Agent gains Actual Knowledge or a
reasonable expectation that the costs for the Property shall exceed the
original Construction Budget (or exceed any Construction Budget modified
in accordance with the Operative Agreements) for the Property, that
construction is not occurring in accordance with the Construction
Schedule or that Completion for the Property shall not occur on or prior
to the Construction Period Termination Date, the Construction Agent shall
promptly (and in



8






 







		
	 	any event within ten (10) Business Days of gaining such Actual Knowledge
or expectation) notify the Lessor and the Agent in writing of the same;




		
	 	     (p) pay or cause to be paid upon demand all Construction Period
Required Amounts;




		
	 	     (q) promptly notify the Lessor and the Agent in the event it
receives Actual Knowledge that a Lien other than a Permitted Lien has
occurred with respect to the Property or any amounts payable pursuant to
this Agreement or any other Operative Agreement, and the Construction
Agent represents and warrants to, and covenants with, the Lessor that the
Liens in favor of the Lessor and/or the Agent created by the Operative
Agreements are (and shall remain until all amounts owing to the Financing
Parties under the Operative Agreements have been paid in full) first
priority perfected Liens subject only to Permitted Liens and Lessor
Liens. At all times prior to the Commencement Date respecting the
Property, the Construction Agent shall (i) cause a valid, perfected,
first priority Lien subject only to Permitted Liens and Lessor Liens on
the Property to be in place in favor of the Agent (for the benefit of the
Secured Parties) and (ii) file, or cause to be filed, all necessary
documents under applicable real property law and Article 9 of the Uniform
Commercial Code to perfect such title and Liens;




		
	 	     (r) not exceed the scope of its authority or violate the terms and
conditions of this Agreement;




		
	 	     (s) take all commercially reasonable measures necessary to prevent
the occurrence of any and all acts, omissions or circumstances giving
rise to Claims against any Financing Party respecting the Property or in
connection with such Financing Party’s role in the Operative Agreements;




		
	 	     (t) take all commercially reasonable and lawful measures necessary
to defend against any Condemnation by any Governmental Authority
regarding the Property prior to the Completion of the Property;




		
	 	     (u) take or cause to be taken commercially reasonable and practical
steps to minimize liabilities of the Lessor or the Agent or any Primary
Financing Party, delays, increased costs and the disruption of the
construction process arising from Force Majeure Events, Casualties and
Condemnations;




		
	 	     (v) the Construction Agent shall not incur nor allow the incurrence
of any Property Costs, individually or in the aggregate (i) in excess of
the sum of the aggregate Available Commitments as of the date of
determination thereof or (ii) that would or could reasonably be expected
to cause the Construction Budget not to be In Balance; and




		
	 	     (w) the Construction Agent shall make (or cause to be made) all
payments required to be made by Lessor and perform (or cause to be
performed) all obligations of Lessor (whether such payment or other
obligations are now existing or hereinafter arising) pursuant to the
Ground Lease or with respect to any of the Appurtenant Rights.



9






 






ARTICLE III

THE PROPERTY



     3.1 Construction.



	
	  	  The Construction Agent shall cause the Improvements, the Equipment and all
other components of the Property to be developed, acquired, installed,
constructed and tested in compliance with all Legal Requirements, all Insurance
Requirements, all manufacturer’s specifications and standards and the standards
maintained by the Construction Agent for similar properties owned or operated
by the Construction Agent, and all specifications and standards applicable to
properties of the Construction Agent which are similar to the Permitted
Facilities.



     3.2 Amendments; Modifications.



		
	 	     (a) The Construction Agent may at any time revise, amend or modify
(i) the Plans and Specifications without the consent of the Lessor;
provided, that any such amendment to the Plans and Specifications does
not (A) result in the Completion Date of the Improvements occurring on or
after the Construction Period Termination Date, or (B) result in the cost
of all Improvements exceeding the Budgeted Total Property Cost, as
amended from time to time, or (C) result in the cost yet to be funded or
reimbursed of all Improvements exceeding an amount equal to the then
Available Commitments, and (ii) the Construction Budget and enter into
any related amendments, modifications or supplements without the consent
of the Lessor; provided, that such revisions, amendments or modifications
to the Plans and Specifications or related amendments, modifications or
supplements to the Construction Budget do not result in (A) any increase
in the Budgeted Total Property Cost, for any single Property or in the
aggregate, greater than the amount specified in the Construction Budget,
as amended from time to time, or the then Available Commitments (reduced
by the Unfunded Amount), or (B) any breach or default under any relevant
construction contract. Notwithstanding the foregoing, it is specifically
understood and agreed that if at any time the total Property Costs
remaining to be expended or reimbursed exceed the then Available
Commitments (reduced by the Unfunded Amount), an Agency Agreement Event
of Default shall be deemed to have occurred and the Construction Agent
shall have the right to purchase set forth in Section 5.3(c), in which
case the limitations on recourse set forth in Section 5.4 shall not
apply.




		
	 	     (b) The Construction Agent agrees that it will not implement any
revision, amendment or modification to the Construction Documents for the
Property if the effect of such revision, amendment or modification, when
taken together with any previous or contemporaneous revision, amendment
or modification to the Construction Documents for the Property, would
have an adverse effect on the utility, useful life or the residual value
of the Property or would cause a material reduction in the fair market
value of the Property in excess of the cost reduction (if any) of such
revision, amendment or



10






 







		
	 	modification of the Property when completed, unless such revision,
amendment or modification is required by Legal Requirements.




		
	 	     (c) Upon the occurrence of any Construction Failure or Extra Budget
Cost, the Lessor may (i) modify the Construction Documents for the
Property in the sole discretion of the Lessor, (ii) inform the
Construction Agent that such Construction Agent no longer has the right
to modify any Construction Documents without the prior written consent of
the Lessor, (iii) reorient or change the location of any of the
Improvements, (iv) change the scope of the Property, (v) inform the
Construction Agent to stop in part or in whole Work and all other
activities as Construction Agent or (vi) replace the Construction Agent
with another construction agent to finalize Completion of the Property.
The costs and expenses incurred to finalize the Completion of the
Property as referenced in the preceding sentence shall be paid, at the
election of the Lessor, (x) by the Construction Agent on demand;
provided, payment by the Construction Agent of such costs and expenses
shall be part of (and limited by) the Maximum Amount for the Property or
(y) by Advances to the extent the Lenders and the Lessor agree to fund
the same.



     3.3 Insufficient Lender Commitments and Lessor Commitments.


     In the event the aggregate Available Commitments are insufficient or are
determined by the Lessor, in its reasonable judgment, to be insufficient for
Completion of the Property, then the Lessor may, in its sole discretion, elect
to:



		
	 	     (a) fund cost overruns (including in all cases all Excluded Costs)
with Commitments, provided such Commitments have been increased in
accordance with the Operative Agreements at then available financing
rates to sufficiently fund such cost overruns and the Budgeted Total
Property Cost with respect to the Property;




		
	 	     (b) replace the Construction Agent with a new construction agent
selected by the Lessor; or




		
	 	     (c) cease funding any or all amounts pursuant to the Operative
Agreements.



     3.4 Grant of Security Interest.


     The Construction Agent hereby conveys, grants, assigns, transfers,
hypothecates, mortgages and sets over to the Lessor, for the benefit of the
Secured Parties, a first priority security interest in and lien on all right,
title and interest of the Construction Agent (now owned or hereafter acquired)
in and to the Property, each of the Construction Documents, Casualty and
Condemnation proceeds, proceeds from any insurance required by the Insurance
Requirements and the proceeds of each of the foregoing to the extent such is
personal property, whether tangible or intangible, and irrevocably grants and
conveys a lien, deed of trust and mortgage on all right, title and interest of
the Construction Agent (now owned or hereafter acquired) in and to the Property
to the extent such is real property. The Lessor and the Construction Agent
further intend and agree that, for the purpose of securing the obligations of
the Construction Agent


11






 


and/or the Lessee now existing or hereafter arising under the Operative
Agreements, (i) this Agreement shall be a security agreement and financing
statement within the meaning of Article 9 of the Uniform Commercial Code
respecting the Property and all proceeds (including without limitation Casualty
and Condemnation proceeds, proceeds from any insurance required by the
Insurance Requirements and all other proceeds thereof) to the extent such is
personal property and an irrevocable grant and conveyance of a lien, deed of
trust and mortgage on the Property and all proceeds (including without
limitation Casualty and Condemnation proceeds, proceeds from any insurance
required by the Insurance Requirements and all other proceeds thereof) to the
extent such is real property; (ii) the Lessor’s acquisition of a leasehold
interest pursuant to the Ground Lease in the portion of the Property subject
thereto and the Lessor’s acquisition of its interest in the Appurtenant Rights
constitutes a grant by the Construction Agent to the Lessor of a security
interest, lien, deed of trust and mortgage in all of the Construction Agent’s
right, title and interest in and to the Property and all proceeds (including
without limitation Casualty and Condemnation proceeds, proceeds from any
insurance required by the Insurance Requirements and all other proceeds
thereof) of the conversion, voluntary or involuntary, of the foregoing into
cash, investments, securities or other property, whether in the form of cash,
investments, securities or other property, and an assignment of all rents,
profits and income produced by the Property; and (iii) notifications to Persons
holding such property, and acknowledgments, receipts or confirmations from
financial intermediaries, bankers or agents (as applicable) of the Construction
Agent shall be deemed to have been given for the purpose of perfecting such
lien, security interest, mortgage lien and deed of trust under applicable law.
The Construction Agent shall promptly take such actions as necessary (including
without limitation the filing of Primary Financing Party Financing Statements
and the various other filings reasonably requested by the Lessor) to ensure
that the lien, security interest, mortgage lien and deed of trust in the
Property and the other items referenced above will be deemed to be a perfected
lien, security interest, mortgage lien and deed of trust of first priority
(subject only to Permitted Liens and Lessor Liens) under applicable law and
will be maintained as such throughout the term of this Agreement.


     3.5 Insurance.



		
	 	     (a) Insurance By the Construction Agent: The Construction Agent
shall maintain or cause others to maintain regarding the Property in full
force and effect at all times during the Construction Period, insurance
policies with (i) responsible insurance companies authorized to do
business in Maryland (if so required by law or regulation) with (A) an
A.M. Best’s Key Rating Guide rating of A+ or better and an financial size
category of XI or higher, unless otherwise approved by the Lessor and the
Agent and (B) and an S&P or Moody’s financial strength rating of A or A2,
respectively, or higher, unless otherwise approved by the Lessor and the
Agent, or (ii) other companies acceptable to the Lessor and the Agent, in
all cases with regard to subsection (i) or (ii) above with limits and
coverage provisions sufficient to satisfy the requirements set forth
below. In addition, the Construction Agent shall from time to time, but
at intervals of not less than twelve (12) months each, undertake all
actions and due diligence as reasonably necessary to determine whether
the insurance coverage maintained by the Construction Agent pursuant to
this Agreement is in compliance with all of the requirements of this
Agreement, including any increases in coverage required as a result of
any change in any



12






 







		
	 	applicable Laws, and if the Construction Agent determines that such
insurance coverage does not meet such requirements, it agrees to promptly
cause such coverage to comply with such requirements and to notify the
Lessor and the Agent of the steps being taken by the Construction Agent
to do so.




		
	 	     (1) General Liability Insurance: Liability insurance on an
occurrence basis against claims filed anywhere in the world and
occurring in the United States for the Construction Agent’s, each
contractor’s and each subcontractor’s of any tier liability arising
out of claims for bodily injury, personal injury and property
damage. Such insurance shall provide coverage for
products-completed operations (which coverage shall remain in
effect for a period of at least five (5) years following the
Construction Period Termination Date), blanket contractual, broad
form property damage, personal injury insurance and independent
contractors with a $1,000,000 minimum limit per occurrence for
combined bodily injury and property damage provided that policy
aggregates, if any, shall apply separately to claims occurring with
respect to the Improvements. A maximum deductible or self-insured
retention of $250,000 per occurrence shall be allowed. All loss
payments due under the deductible shall be pre-funded by the
Construction Agent through additional premium payments.




		
	 	     (2) Automobile Liability Insurance: Automobile liability
insurance for the Construction Agent’s liability arising out of
claims for bodily injury and property damage covering all owned (if
any), leased (if any), non-owned and hired vehicles used in the
performance of the Construction Agent’s obligations under this
Agreement with a $1,000,000 minimum limit per accident for combined
bodily injury and property damage and containing appropriate
no-fault insurance provisions wherever applicable. A maximum
deductible or self-insured retention of $1,000 per occurrence shall
be allowed.




		
	 	     (3) Workers Compensation: Workers Compensation insurance,
which shall include Stop Gap, Longshore and Harbor Workers
Compensation, Outer Continental Shelf Lands Act, Maritime Coverage
and Voluntary Coverage, with a minimum limit of the statutory
limits for Part A and a $100,000/$500,000/$1,000,000 minimum limit
for employer liability.




		
	 	     (4) Umbrella or Excess Liability Insurance: Umbrella or excess
liability insurance on an occurrence basis covering claims in
excess of the underlying insurance described in the foregoing
subsections (1) and (3), with a $100,000,000 minimum limit per
occurrence, such insurance shall contain a provision that it will
not be more restrictive than the primary insurance, provided that
aggregate limits of liability, if any, shall apply separately to
claims occurring with respect to the Improvements.




		
	 	     The amounts of insurance required in the foregoing subsections
(1), (3) and this subsection (4) may be satisfied by the
Construction Agent purchasing coverage in the amounts specified or
by any combination of primary and excess



13






 





		
	 	insurance, so long as the total amount of insurance meets the
requirements specified above.




		
	 	     (5) [Reserved.]




		
	 	     (6) Builder’s Risk Insurance: During the Construction Period
with respect to the Property, property damage insurance on an “all
risk” basis insuring the Construction Agent and the Lessor, as
their interests may appear, including coverage for the perils of
earth movement (including but not limited to earthquake, landslide,
subsidence and volcanic eruption), wind, flood, terrorist acts, if
commercially available for similar operations in the mid-Atlantic
region of the United States, at commercially reasonable cost, a
boiler and machinery accidents.




		
	 	     (A) Property Covered: The builder’s risk insurance shall
provide coverage for (i) the buildings, all fixtures,
materials, supplies, machinery and Equipment of every kind to
be used in, or incidental to, the Construction if the
acquisition of any such item was funded with one or more
Advances (ii) new underground works, sidewalks, paving, site
works and excavation works and landscaping, (iii) the
Improvements, (iv) property of others in the care, custody or
control of the Construction Agent or of a contractor to the
extent the Construction Agent is under obligation to insure
for physical loss or damage, (v) all preliminary works and
temporary works, (vi) foundations and other property below
the surface of the ground, and (vii) electronic equipment and
media.




		
	 	     (B) Additional Coverages: The builder’s risk policy
shall insure (i) the cost of preventive measures to reduce or
prevent a loss, (ii) inland transit with sub-limits
sufficient to insure the largest single shipment to or from
the Land from anywhere within the United States or Canada,
(iii) attorney’s fees, engineering and other consulting
costs, and permit fees directly incurred in order to repair
or replace damaged insured property, (iv) expediting
expenses, (v) off-site storage with sub-limits sufficient to
insure the full replacement value of any property or
equipment not stored on the Land, (vi) the removal of debris,
and (vii) demolition and increased costs of construction due
to the operation of building laws or ordinances in an amount
not less than $10,000,000.




		
	 	     (C) Special Clauses: The builder’s risk policy shall
include (i) a 72 hour flood/storm/earthquake clause, (ii) an
unintentional errors and omissions clause, (iii) a
requirement that the insurer pay losses within 30 days after
receipt of an acceptable proof or loss or partial proof of
loss, (iv) an other insurance clause making this insurance
primary over any other insurance (except any such builder’s
risk policy placed and maintained by the Lessor or an
Affiliate of the Lessor which covers the Property) and (v) a
clause stating that the policy shall not be subject to



14






 





		
	 	cancellation by the insurer except for non-payment of
premium, fraud or material misrepresentation.




		
	 	     (D) Prohibited Exclusions: The builder’s risk policy
shall not contain any (i) coinsurance provisions, or (ii)
exclusion for loss or damage resulting from freezing or
mechanical breakdown.




		
	 	     (E) Sum Insured: The builder’s risk policy shall (i) be
on a completed value form, with no periodic reporting
requirements, (ii) insure 100% of the replacement value of
the Improvements, and (iii) value losses at replacement cost,
without deduction for physical depreciation or obsolescence
including custom duties, taxes and fees (if rebuilt or
repaired).




		
	 	     (F) Deductible: The builder’s risk insurance shall have
no deductible greater than $50,000 per occurrence for all
coverage. All loss payments due under the deductible shall
be pre-funded by the Construction Agent through additional
premium payments.




		
	 	     (7) Bonding: With respect to the Property, performance bond or
comparable insurance program to manage the financial risks of
failure to perform of each Construction Agency Person. The amount
of the performance bond or comparable insurance shall have a policy
limit no less than $30,000,000 per occurrence and $90,000,000 in
the aggregate.




		
	 	     (8) Deductibles: Such insurance shall (A) have a deductible
of not greater than 30 days aggregate for all occurrences. during
the Construction Period, (B) have an indemnity period not less than
12 months, (C) include an interim payments (or partial payment)
clause allowing for the monthly payment of a claim pending final
determination of the full claim amount, (D) cover loss sustained
when access to the Land is prevented due to an insured peril at
premises in the vicinity of the Land, (E) cover loss sustained due
to the action of a public authority preventing access to the Land
due to imminent or actual loss or destruction arising from an
insured peril at premises in the vicinity of the Land, (F) insure
loss caused by damage to finished equipment or machinery while
awaiting shipment at a supplier’s premises, (G) insure loss caused
by damage or mechanical breakdown to construction plant and
equipment at the Land not already insured by Section (6) above, (H)
not contain any form of a coinsurance provision or include a waiver
of such provision and (I) cover loss sustained due to the
accidental interruption or failure of supplies of electricity, gas,
sewers, water or telecommunication up to the terminal point of the
utility supplier with the Land.




		
	 	     (9) Endorsements: All policies of liability insurance required
to be maintained by the Construction Agent shall be endorsed as
follows:



15






 







		
	 	     (A) To name the Lessor and each Financing Party as
additional insureds;




		
	 	     (B) To provide a severability of interests and cross
liability clause;




		
	 	     (C) That the insurance shall be primary and not excess
to or contributing with any insurance or self-insurance
maintained by the Lessor.




		
	 	     (10)  Waiver of Subrogation: The Construction Agent hereby
waives any and every claim for recovery from the Lessor for any and
all loss or damage covered by any of the insurance policies to be
maintained under this Agreement to the extent that such loss or
damage is recovered under any such policy. Inasmuch as the
foregoing waiver will preclude the assignment of any such claim to
the extent of such recovery, by subrogation (or otherwise), to an
insurance company (or other person), the Construction Agent shall
give written notice of the terms of such waiver to each insurance
company which has issued, or which may issue in the future, any
such policy of insurance (if such notice is required by the
insurance policy) and shall cause each such insurance policy to be
properly endorsed by the issuer thereof to, or to otherwise contain
one or more provisions that, prevent the invalidation of the
insurance coverage provided thereby by reason of such waiver.




		
	 	     (b) Conditions:




		
	 	     (1) Loss Notification: The Construction Agent shall promptly
notify the Agent of any single loss or event likely to give rise to
a claim against an insurer for an amount in excess of $1,000,000
covered by any insurance maintained pursuant to this Agreement.




		
	 	     (2) Payment of Loss Proceeds: All policies of insurance
required to be maintained pursuant to Sections 3.5(a)(6), (7) and
(8), shall provide that the proceeds of such policies shall be
payable solely to the Lessor and the Agent.




		
	 	     (3) Loss Adjustment and Settlement: A loss under any insurance
required to be carried under Sections 3.5(a)(6), (7) and (8), shall
be adjusted with the insurance companies, including the filing in a
timely manner of appropriate proceedings, by the Construction
Agent, subject to the approval of the Lessor and the Agent if such
loss is in excess of $1,000,000. In addition the Construction
Agent may in its reasonable judgment consent to the settlement of
any loss, provided that in the event that the amount of the loss
exceeds $1,000,000 the terms of such settlement is concurred with
by the Lessor and the Agent.




		
	 	     (4) Policy Cancellation and Change: All policies of insurance
required to be maintained pursuant to Section 3.5(a) shall be
endorsed so that if at any time



16






 







		
	 	should they be canceled, or coverage be reduced (by any party
including the insured) which affects the interests of any Financing
Party, such cancellation or reduction shall not be effective as to
any Financing Party for 60 days, except for non-payment of premium
which shall be for 10 days, after receipt by the Lessor and the
Agent of written notice from such insurer of such cancellation or
reduction.




		
	 	     (5) Miscellaneous Policy Provisions: All policies of insurance
required to be maintained pursuant to Sections 3.5(a)(6), (7) and
(8), shall (i) not include any annual or term aggregate limits of
liability except as regards the insurance applicable to the perils
of flood and earth movement and pollutant clean up of land and
water at the Land (project site), (ii) shall include the Lessor and
the Agent as additional insured and as sole loss payee, as their
interest may appear, and (iii) include a clause requiring the
insurer to make final payment on any claim within 30 days after the
submission of proof of loss and its acceptance by the insurer.




		
	 	     (6) Separation of Interests: All policies (other than in
respect to liability or workers compensation insurance) shall
insure the interests of the Lessor and the Agent regardless of any
breach or violation by the Construction Agent or any other party of
warranties, declarations or conditions contained in such policies,
any action or inaction of the Construction Agent or others.




		
	 	     (7) Acceptable Policy Terms and Conditions: All policies of
insurance required to be maintained pursuant to this Agreement
shall contain terms and conditions acceptable to the Lessor.




		
	 	     (8) Waiver of Subrogation: All policies of insurance to be
maintained by the provisions of this Agreement shall provide for
waivers of subrogation in favor of the Lessor and the Agent.




		
	 	     (c) Evidence of Insurance: On the Closing Date and at least 10 days
prior to each policy anniversary, the Construction Agent shall furnish
the Lessor and the Agent with (1) certificates of insurance or binders,
in a form acceptable to the Lessor and the Agent, evidencing all of the
insurance required by the provisions of this Agreement and (2) a schedule
of the insurance policies held by or for the benefit of the Construction
Agent and required to be in force by the provisions of this Agreement.
Such certificates of insurance/binders shall be executed by each insurer
or by an authorized representative of each insurer where it is not
practical for such insurer to execute the certificate itself. Such
certificates of insurance/binders shall identify underwriters, the type
of insurance, the insurance limits and the policy term and shall
specifically list the special provisions enumerated for such insurance
required by this Agreement. Upon request, the Construction Agent will
promptly furnish the Lessor and the Agent with copies of all insurance
policies, binders and cover notes or other evidence of such insurance
relating to the insurance required to be maintained by the Construction
Agent. The schedule of



17






 





		
	 	insurance shall include the name of the insurance company, policy number,
type of insurance, major limits of liability and expiration date of the
insurance policies.




		
	 	     (d) Reports: Concurrently with the furnishing of the certification
referred to in Section 3.5(c), the Construction Agent shall furnish the
Lessor and the Agent with a report of an independent broker, signed by an

officer of the broker, stating that in the opinion of such broker, the
insurance then carried or to be renewed is in accordance with the terms
of this Agreement and attaching an updated copy of the schedule of
insurance required by Section 3.5(c) above. In addition the Construction
Agent will advise the Lessor and the Agent in writing promptly of any
default in the payment of any premium and of any other act or omission on
the part of the Construction Agent which may invalidate or render
unenforceable, in whole or in part, any insurance being maintained by the
Construction Agent pursuant to this Agreement.




		
	 	     (e) No Duty of Agent to Verify or Review: No provision of this
Agreement shall impose on any Financing Party any duty or obligation to
verify the existence or adequacy of the insurance coverage maintained by
the Construction Agent, nor shall any Financing Party be responsible for
any representations or warranties made by or on behalf of the
Construction Agent to any insurance company or underwriter. Any failure
on the part of any Financing Party to pursue or obtain the evidence of
insurance required by this Agreement from the Construction Agent and/or
failure of any Financing Party to point out any non-compliance of such
evidence of insurance shall not constitute a waiver of any of the
insurance requirements in this Agreement.



     3.6 Casualty, Condemnation and Environmental Violation.



		
	 	     (a) Subject to the provisions of this Section 3.6 and prior to the
occurrence and continuation of an Agency Agreement Default or an Agency
Agreement Event of Default, the Construction Agent shall, prior to the
Commencement Date for the Property, be entitled to receive (and the
Lessor hereby irrevocably assigns to the Construction Agent all of the
right, title and interest of the Lessor in) any condemnation proceeds,
award, compensation or insurance proceeds under Sections 3.5(b) or 3.5(c)
to which the Construction Agent or the Lessor may become entitled by
reason of their respective interests in the Property, (i) if all or a
portion of the Property is damaged or destroyed in whole or in part by a
Casualty or (ii) if the use, access, occupancy, easement rights or title
to the Property or any part thereof is the subject of a Condemnation;
provided, however, if an Agency Agreement Default or Agency Agreement
Event of Default shall have occurred and be continuing or if such award,
compensation or insurance proceeds shall exceed $1,000,000, then such
award, compensation or insurance proceeds (including without limitation
any Excess Proceeds) shall be paid directly to the Lessor or, if received
by the Construction Agent, shall be held in trust for the Lessor, and
shall be paid over by the Construction Agent to the Lessor and held in
accordance with the terms of this Section 3.6. All amounts held by the
Lessor hereunder on account of any award, compensation or insurance
proceeds either paid directly to the Lessor or turned over to the Lessor
shall be held as security for the performance of the Construction Agent’s
obligations hereunder and under the other Operative Agreements and (X) to
the extent no



18






 







		
	 	Agency Agreement Default or Agency Agreement Event of Default shall have
occurred and be continuing at such time, the Lessor shall pay such
amounts so held by the Lessor to the Construction Agent to reimburse the
Construction Agent for the costs it incurs to restore and repair the
Property pursuant to Section 3.6(c); (provided, prior to such
reimbursement, the Construction Agent must give the Lessor reasonable
evidence of such restoration and repair work) with any excess amounts
held by the Lessor hereunder after completion of such restoration or
repair to be paid to the Construction Agent or (Y) to the extent an
Agency Agreement Default or an Agency Agreement Event of Default shall
have occurred and be continuing at such time, all amounts so held by the
Construction Agent shall be paid over to the Lessor until all such
obligations of the Construction Agent with respect to such matters (and
all other obligations of the Construction Agent which should have been
satisfied pursuant to the Operative Agreements as of such date have been
satisfied and no Agency Agreement Default or Agency Agreement Event of
Default is then continuing).




		
	 	     (b) The Lessor and the Construction Agent agree that this Agreement
shall control the rights of the Lessor and the Construction Agent in and
to any award, compensation or insurance payment on account of any
Casualty or Condemnation.




		
	 	     (c) Subject to Section 3.6(d), if the Construction Agent shall
receive notice or otherwise have Actual Knowledge of a Casualty,
Condemnation or Force Majeure Event prior to the Commencement Date, the
Construction Agent shall give notice thereof to the Lessor promptly after
the Construction Agent’s receipt of such notice or gaining such Actual
Knowledge. In the event such a Casualty, Condemnation or Force Majeure
Event occurs (regardless of whether the Construction Agent gives notice
or has Actual Knowledge thereof), then the Construction Agent shall
(subject to reimbursement in accordance with Section 3.6(a) and subject
to reimbursement in accordance with the procedures for obtaining Advances
set forth in the Operative Agreements), promptly and diligently repair
any damages to the Property in accordance with Section 3.6(a) and
otherwise in conformity with the Plans and Specifications and in
accordance with all applicable Legal Requirements and Insurance
Requirements, so as to restore the Property to the same or a greater
remaining economic value, useful life, utility, condition, operation and
function as existed immediately prior to such Casualty, Condemnation or
Force Majeure Event (assuming all construction requirements pursuant to
the Operative Agreements and the applicable construction contracts have
been satisfied) and on or before the Construction Period Termination
Date. In such event, the Lessor shall retain its leasehold interest
pursuant to the Ground Lease regarding the Property, its interest in the
Appurtenant Rights and its ownership of such portion of the Property not
subject to the Ground Lease or the Appurtenant Rights.




		
	 	     (d) If the Construction Agent reasonably determines that a Force
Majeure Event will cause Completion of the Property to occur later than
the Construction Period Termination Date, the Construction Agent may
request that the Construction Period Termination Date be extended by the
Lessor for the period (not to exceed ninety (90) days following the
original Construction Period Termination Date) reasonably necessary to
achieve Completion of the Property in light of the event or circumstances
giving rise to



19






 







		
	 	such Force Majeure Event. Any such request shall be in writing
delivered to the Lessor and the Agent and shall contain a certification
by the Construction Agent with respect to the Property (1) describing the
facts and circumstances giving rise to such Force Majeure Event, the
expected duration of such delay resulting in such Force Majeure Event,
and the date the Construction Agent reasonably believes Completion will
be achieved, (2) that the remaining Available Commitments, together with
insurance proceeds paid and Other Available Amounts received, if any,
with respect to such Force Majeure Event, are adequate to achieve
Completion and rebuild or restore any portion of the Property not
constituting part of the Improvements within such extension period in
accordance with the applicable Construction Materials and Construction
Contracts (including the Capitalized Costs accruing during such extension
period), (3) that the occurrence of such Force Majeure Event and the
construction repairs or restoration to occur following such date will not
materially affect the appraised value of the Property set forth in the
Appraisal delivered pursuant to the Participation Agreement, (4) that
there are proceeds from Other Available Amounts which are sufficient to
remediate all Force Majeure Losses arising from Force Majeure Events and
that the Construction Agent will cause such Other Available Amounts to be
applied to remediate such losses, and (5) the Construction Agent shall
have caused any necessary Construction Changes to be made as necessary to
effectuate such extension; provided, the Property shall in all events
shall be a Permitted Facility. The Construction Agent shall also supply
to the Lessor and the Agent such other information as each such Person
may reasonably request. The consent of the Lessor under this Section
3.6(d) shall not be withheld or delayed if the determination is made that
the request meets the requirements set forth herein in all material
respects.




		
	 	     (e) Notwithstanding any provision to the contrary contained herein
without increasing any obligation of the Construction Agent hereunder,
should a Casualty, Condemnation or Force Majeure Event with respect to
the Property occur during the Construction Period, the Construction Agent
shall have no recourse liability to fund any shortfall in the available
insurance proceeds and/or Condemnation proceeds required to repair and
restore the Property and to cause Completion of the Property unless such
shortfall arose as a result of or was otherwise caused by a Construction
Agent Related Event, a Full Recourse Event of Default, any Environmental
Violation or any other environmental matter giving rise to an indemnity
claim pursuant to the Operative Agreements in which case, unless the
Construction Agent purchases the Property for the Termination Value, the
Construction Agent shall be liable for such shortfall. “Construction
Agent Related Event” shall mean any act or omission of the Construction
Agent or any other Construction Agency Person, including without
limitation any breach by any such Person under any Operative Agreement
(including the insurance provisions of this Agreement) or by any such
Person under any Construction Contract.




		
	 	     (f) Promptly upon the Construction Agent’s Actual Knowledge of the
presence of Hazardous Substances in any portion of the Property in
concentrations and conditions that constitute an Environmental Violation
and which, in the reasonable opinion of the Construction Agent, the cost
to undertake any legally required response, clean up, remedial or other
action will or might result in a cost to the Construction Agent of more
than $100,000, the Construction Agent shall notify the Lessor in writing
of such



20






 





		
	 	condition. In the event of any Environmental Violation (regardless of
whether notice thereof must be given), the Construction Agent shall, not
later than thirty (30) days after the Construction Agent has Actual
Knowledge of such Environmental Violation, at the Construction Agent’s
sole cost and expense, promptly and diligently undertake and diligently
complete any response, clean up, remedial or other action (including
without limitation the pursuit by the Construction Agent of appropriate
action against any off-site or third party source for contamination)
necessary to remove, cleanup or remediate the Environmental Violation in
accordance with all Environmental Laws. Any such response, clean up,
remedial or other action shall be timely completed in accordance with
prudent industry standards and, upon completion of any such response,
clean up, remedial or other action, the Construction Agent shall cause to
be prepared by a reputable environmental consultant acceptable to the
Lessor a report describing the Environmental Violation and the actions
taken by the Construction Agent (or its agents) in response to such
Environmental Violation, and a statement by the consultant that the
Environmental Violation has been remedied in full compliance with
applicable Environmental Law.




		
	 	     (g) Promptly, but in any event within ten (10) Business Days from
the date the Construction Agent has Actual Knowledge thereof, the
Construction Agent shall provide to the Lessor written notice of any
pending or threatened claim, action or proceeding involving any
Environmental Law or any Release on or in connection with the Property.
All such notices shall describe in reasonable detail the nature of the
claim, action or proceeding and the Construction Agent’s proposed
response thereto. In addition, the Construction Agent shall provide to
the Lessor, within ten (10) Business Days of receipt, copies of all
material written communications with any Governmental Authority relating
to any Environmental Law in connection with the Property. The
Construction Agent shall also promptly provide such detailed reports of
any such material environmental claims as may reasonably be requested by
the Lessor and the Lessor.



     3.7 Abandonment or Permanent Discontinuance.


     Until termination of the Agency Agreement, the Construction Agent shall
promptly and diligently complete the development, acquisition, refinancing,
installation, construction and testing of the Property in accordance with the
Construction Documents and with the terms hereof and cause the date of
Completion with respect to the Property to occur on or prior to the
Construction Period Termination Date.


     If the Construction Agent shall abandon or permanently discontinue the
construction and development of the Property (which abandonment or permanent
discontinuance shall be deemed to have occurred if no work at the Property site
is undertaken or completed during a period of thirty (30) days or more for
reasons other than a Force Majeure Event), then the Construction Agent shall
pay to the Lessor, on a date designated by the Lessor, an aggregate amount
equal to the liquidated damages amount referenced in Section 5.3(b) regarding
the Property. On such date, the Lessor shall convey the Property to the
Construction Agent in accordance with Section 20.2 of the Lease; provided,
however, in the event the Lessor replaced the Construction Agent, the Lessor
may not cite abandonment or discontinuance, which occurs after such replacement
of the Construction Agent.


21






 


     3.8 Additions to the Property and Related Requirements.



		
	 	     (a) The Construction Agent will provide the Lessor with prior
written notice of any change of location of its principal place of
business, the location of its chief executive office or the location of
its jurisdiction of organization. Regarding the Property, the Lease
Supplement shall correctly identify the initial location of the related
Equipment (if any) and Improvements (if any) and contain an accurate
legal description for the related parcel of Land. The Equipment and
Improvements respecting the Property will be located only at the location
identified in the Ground Lease or, respecting certain Equipment, at the
location identified in the HVAC Easement.




		
	 	     (b) The Construction Agent will not attach or incorporate any item
of Equipment to or in any other item of equipment or personal property,
or to or in any real property, in a manner that could give rise to the
assertion of any Lien (other than any Permitted Lien or Lessor Lien) on
such item of Equipment by reason of such attachment or the assertion of a
claim that such item of Equipment has become a fixture and is subject to
a Lien in favor of a third party that is prior to the Liens thereon
created by the Operative Agreements.




		
	 	     (c) [Reserved.]




		
	 	     (d) The Construction Agent shall not use or locate any component of
the Property outside of Montgomery County, Maryland. The Construction
Agent shall not move or relocate any component of the Property beyond the
boundaries of the Land (comprising part of the Property) described in the
Ground Lease, except for the temporary removal of Equipment and other
personal property for repair or replacement and except for certain of the
Equipment which is subject to the HVAC Easement.




		
	 	     (e) If any component of the Property becomes worn out, lost,
destroyed, damaged beyond repair or otherwise permanently rendered unfit
for use, the Construction Agent will within a reasonable time replace
such component with a replacement component which is free and clear of
all Liens (other than Permitted Liens and Lessor Liens) and has a value,
utility and useful life at least equal to the component replaced
(assuming the component replaced had been maintained and repaired in
accordance with the requirements of this Agreement).




		
	 	     (f) The Construction Agent shall cause to be delivered to the Lessor
one (1) or more additional Appraisals (or reappraisals or updates of
prior Appraisals of the Property) as the Lessor may request if and to the
extent any of the Agent or any Primary Financing Party is required
pursuant to any applicable Legal Requirement to obtain such Appraisals
(or reappraisals or updates of prior Appraisals) and upon the occurrence
of any Agency Agreement Event of Default.




		
	 	     (g) The Lessor shall under no circumstances be required to build any
improvements or install any equipment on the Property, make any repairs,
replacements,



22






 







		
	 	alterations or renewals of any nature or description to the Property,
make any expenditure whatsoever in connection with this Agreement or
maintain the Property in any way. The Lessor shall not be required to
maintain, repair or rebuild all or any part of the Property, and the
Construction Agent waives the right to (i) require the Lessor to
maintain, repair, or rebuild all or any part of the Property, or (ii)
make repairs at the expense of the Lessor pursuant to any Legal
Requirement, Insurance Requirement, contract, agreement, covenant,
condition or restriction at any time in effect.



     3.9 Warranty of Title.


     The Construction Agent hereby acknowledges and shall cause (a) the Lessor
to have a valid, enforceable ground leasehold interest pursuant to the Ground
Lease in that portion of the Property subject to the Ground Lease and a valid,
enforceable interest pursuant to the Appurtenant Rights in that portion of the
Property subject to the Appurtenant Rights and (b) to the extent not subject to
the Ground Lease, title in the Property (including without limitation all
Equipment, all Improvements, all replacement components to the Property and all
Modifications) immediately and without further action to vest in and be the
property of the Lessor and to be subject to the terms of the Operative
Agreements from and after the Closing Date or such date of incorporation into
the Property. The Construction Agent agrees that, subject to the terms of
Section 3.10 relating to permitted contests, the Construction Agent shall not
directly or indirectly create or allow to remain, and shall promptly discharge
at its sole cost and expense, any Lien, defect, attachment, levy, title
retention agreement or claim upon the Property, any component thereof or any
Modifications or any Lien, attachment, levy or claim with respect to any
amounts held by the Lessor, the Agent or any Primary Financing Party pursuant
to any Operative Agreement, other than Permitted Liens and the Lessor Liens.
The Construction Agent shall promptly notify the Lessor in the event it
receives Actual Knowledge that a Lien other than a Permitted Lien has occurred
with respect to the Property or any other such amounts.


     3.10 Permitted Contests Other Than in Respect of Indemnities.


     Except to the extent otherwise provided for in Section 11 of the
Participation Agreement, the Construction Agent, on its own or on the Lessor’s
behalf may contest, by appropriate administrative or judicial proceedings
conducted in good faith and with due diligence, the amount, validity or
application, in whole or in part, of any Legal Requirement, Imposition or any
of the matters described in Section 3.8(c) or any Lien, attachment, levy,
encumbrance or encroachment and the Lessor agrees not to pay, settle or

otherwise compromise any such item, provided, that (a) the commencement and
continuation of such proceedings shall suspend the collection of any such
contested amount from, and suspend the enforcement thereof against, the
Property, the Lessor, the Agent and each Primary Financing Party; (b) there
shall not be imposed a Lien (other than Permitted Liens and the Lessor Liens)
on the Property that would subject any part of the Property to a material risk
of being sold, forfeited, lost or deferred or a material reduction in value;
(c) at no time during the permitted contest shall there be a risk of the
imposition of criminal liability or material civil liability on the Agent or
any Primary Financing Party for failure to comply therewith; and (d) in the
event that, at any time, there shall be a material risk of extending the
application of such item beyond the end of the Construction Period, then the
Construction Agent shall deliver to the Lessor, the Agent and each other


23






 


Financing Party an Officer’s Certificate certifying as to the matters set forth
in clauses (a), (b) and (c) of this Section 3.10. The Lessor shall execute and
deliver to the Construction Agent such authorizations and other documents as
may reasonably be required in connection with any such contest and, if
reasonably requested by the Construction Agent, shall join as a party therein.


     3.11 Impositions and Other Matters.


     Except with respect to Impositions and such other matters referenced in
Section 3.10 which are the subject of ongoing proceedings contesting the same
in a manner consistent with the requirements of Section 3.10, the Construction
Agent shall cause all Impositions and such other matters to be timely complied
with, paid through Advances, settled or compromised, as appropriate, with
respect to the Property.


ARTICLE IV

PAYMENT OF FUNDS



     4.1 Right to Receive Construction Cost.



		
	 	     (a) In connection with the development, acquisition, installation,
construction, repair, renovation, replacement and testing of the Property
and during the course of the construction of the Improvements on the
Property, the Construction Agent may deliver Requisitions to request that
the Lessor advance funds for the payment of Property Costs, and the
Lessor will comply with such request to the extent provided for under the
Participation Agreement and the other Operative Agreements. The
Construction Agent and the Lessor acknowledge and agree that the
Construction Agent’s right to request such funds and the Lessor’s
obligation to advance such funds for the payment of Property Costs is
subject in all respects to the terms and conditions of the Participation
Agreement and each of the other Operative Agreements. Without limiting
the generality of the foregoing it is specifically understood and agreed
that in no event shall the aggregate amounts advanced by the Primary
Financing Parties for Property Costs and any other amounts due and owing
hereunder or under any of the other Operative Agreements exceed the sum
of the aggregate Commitments of the Primary Financing Parties, including
without limitation such amounts owing for (i) development, acquisition,
installation, construction and testing of the Property, (ii) additional
amounts which accrue or become due and owing under either Credit
Agreement or the Participation Agreement as obligations of the Lessor
prior to the Completion Date or (iii) any other purpose.




		
	 	     (b) The proceeds of any funds made available to the Lessor to pay
Property Costs shall be made available to or for the benefit of the
Construction Agent in accordance with the Requisition relating thereto
and the terms of the Participation Agreement. The Construction Agent
will use such proceeds only to pay the Property Costs set forth in the
Requisition relating to such funds.



24






 






     4.2 Limitations During Construction Period.


     If at any time there shall be Property Costs (including any costs
resulting from a Force Majeure Event), or other amounts which are required to
be paid prior to or during the Construction Period through Advances under any
Operative Agreement, and (i) such amounts are not included in the Construction
Budget (as same may be adjusted pursuant to the Agency Agreement) or (ii) there
are not sufficient Available Commitments remaining to complete the construction
of the Improvements pursuant to the Construction Documents (net of all Advances
for Lessor Yield and Interest on the Loans), and, in either case, there are no
Other Available Amounts to pay for such amounts, then at such time an Agency
Agreement Event of Default shall be deemed to have occurred.


ARTICLE V

AGENCY AGREEMENT EVENTS OF DEFAULT



     5.1 Agency Agreement Events of Default.


     If any one or more of the following events (each an “Agency Agreement
Event of Default”) shall occur:



		
	 	     (a) the Construction Agent applies any Advance for purposes other
than as set forth in the related Requisition or the Construction Agent
otherwise applies any funds paid by any Primary Financing Party to the
Construction Agent for purposes not permitted hereby or by any other
Operative Agreement, or there shall exist any other misapplication of
funds relating to the Property, including, but not limited to fraud,
illegal acts or willful misconduct by the Construction Agent or its
Affiliates or any Construction Agency Person or any other Person under
the direct or indirect supervision of the Construction Agent related to
or in respect of the transaction contemplated herein or the Operative
Agreement or with respect to the Property or the Land;




		
	 	     (b) the Construction Agent shall fail to comply with Section 2.6(c);




		
	 	     (c) (i) the Construction Budget shall not be In Balance and such
failure to be In Balance shall continue after the expiration of the
thirty (30) day period discussed in Section 5.5(b), or (ii) the
Construction Agent shall fail to timely make a Balance Deposit required
under Section 5.5(c);
	 
	 	     (d) an Insolvency Event with respect to the Construction Agent or
any of its Affiliates shall have occurred and become continuing;
	 
	 	     (e) the Construction Agent shall default in the due performance and
observance of any of its obligations under Sections 5.11, 8.3A(v), (w),
(x), (y) or (aa) of the Participation Agreement or Section 5.11 of the
Participation Agreement;



25






 







		
	 	     (f) any representation, warranty or statement made or restated by
the Construction Agent or the Lessee in this Agency Agreement or in any
other Operative Agreement, or in any statement or certificate delivered
or required to be delivered pursuant hereto or thereto, shall prove to be
untrue in any material respect on the date as of which made or restated,
and (i) the circumstances rendering such representation or warranty or
statement incorrect shall not be remediable or, (ii) if such
representation or warranty or statement is remediable and the
Construction Agent or the Lessee is proceeding diligently so to remedy,
shall continue unremedied for thirty (30) days after the earlier of: (x)
the date on which written notice is delivered by the Lessor or the Agent
to the Construction Agent or the Lessee specifying such circumstances and
demanding that they be remedied and (y) the date on which any Responsible
Officer of the Construction Agent or the Lessee has Actual Knowledge of
such incorrectness; provided, however, that if such default is capable of
cure but cannot be cured by payment of money or cannot be cured by
diligent efforts within such thirty (30) day period but such diligent
efforts shall be properly commenced within the cure period and the
Construction Agent or the Lessee is diligently pursuing, and shall
continue to pursue diligently, remedy of such failure, the cure period
shall be extended for an additional period of time as may be necessary to
cure, not to exceed an additional one hundred and twenty (120) days and
not to extend beyond the Construction Period Termination Date;
	 
	 	     (g) except as otherwise permitted under the Operative Agreements,
any Lien granted pursuant to any Operative Agreement affecting any
portion of the Property shall, in whole or in material part, cease to be
a perfected first priority security interest (other than Permitted Liens
and the Lessor Liens), other than with respect to any immaterial portion
of the Land, unless such cessation shall be the result of the willful
misconduct or gross negligence of the Agent or the Lessor, provided,
however, that with respect to any Lien which fails to be so effective or
perfected, the Construction Agent shall have thirty (30) days from the
earlier of the Construction Agent’s Actual Knowledge of such condition or
receipt of notice thereof from the Lessor or the Agent to cure such
failure;
	 
	 	     (h) the Construction Agent or the Lessee shall default in the due
performance or observance by it of any term, covenant, condition or
agreement on its part to be performed or observed under any Operative
Agreement to which it is a party (not otherwise specified in this Section
5.1) and such default shall have continued unremedied for a period of at
least thirty (30) days after receipt of notice by the Construction Agent
or the Lessee from either the Lessor or the Agent, provided, however,
that if such default is capable of cure but cannot be cured by payment of
money or cannot be cured by diligent efforts within such thirty (30) day
period but such diligent efforts shall be properly commenced within the
cure period and the Construction Agent or the Lessee is diligently
pursuing, and shall continue to pursue diligently, remedy of such
failure, the cure period shall be extended for an additional period of
time as may be necessary to cure, not to exceed an additional one hundred
and twenty (120) days and not to extend beyond the Construction Period
Termination Date;
	 
	 	     (i) an event described in Section 4.2 of this Agreement shall have
occurred;



26






 







		
	 	     (j) any default, event of default or any event which with the
passage of time or the giving of notice, or both, would permit the
exercise of remedies under the Ground Lease or any of the Appurtenant
Rights or any sublease thereof or the Ground Lease or any of the
necessary Appurtenant Rights shall terminate;
	 
	 	     (k) the Construction Agent shall fail to maintain insurance required
by Section 3.5 or the Construction Agent shall fail to deliver the
certification required by Section 3.5 and such failure shall continue for
ten (10) days after notice to the Construction Agent;
	 
	 	     (l) [Reserved];
	 
	 	     (m) one or more judgments or orders for the payment of money in the
aggregate amount in excess of $10,000,000 shall be rendered against the
Construction Agent or any of its Affiliates and such judgment or order
shall continue unsatisfied or unstayed for a period of sixty (60) days;
	 
	 	     (n) an “event of default” shall occur in (i) the payment when due
(subject to any applicable grace period), whether by acceleration or
otherwise, of any Indebtedness of the Construction Agent or any of its
Subsidiaries having a principal amount, individually or in the aggregate,
in excess of $10,000,000, or (ii) the performance or observance of any
obligation or condition with respect to such Indebtedness;
	 
	 	     (o) the Lessor’s rights pursuant to the Liquid Collateral Agreements
or the Punch List Liquid Collateral Agreements, as applicable, to require
the Lessee to pledge additional Permitted Investments shall for any
reason cease to be a legal, valid and binding agreement with the Lessee;
or
	 
	 	     (p) the Lien of the Liquid Collateral Agreements or the Punch List
Liquid Collateral Agreements, as applicable, with respect to the Liquid
Collateral shall cease to constitute a first priority perfected security
interest (except as a result of a voluntary release by the Agent of any
Liquid Collateral).
	 
	 	     (q) any Lease Event of Default, Liquid Collateral Agreement Event of
Default or Punch List Liquid Collateral Agreement of Default (as such
terms are defined in Appendix A to the Participation Agreement) shall
have occurred and not be cured within any cure period expressly permitted
under the terms of the applicable document;
	 
	 	     (r) any fraudulent or illegal act or omission or any willful
misconduct of any Construction Agency Person in connection with the
Property or otherwise with respect to the negotiation, execution,
delivery, consummation and/or performance of any Operative Agreement or
any Construction Document or any other contractual agreement relating to
the Property or the Construction or Work thereon which act, omission or
misconduct contributes to the Construction Budget not being In Balance or
which otherwise contributes to a Construction Failure;



27






 







		
	 	     (s) any Construction Agency Person shall breach any of its
respective obligations, covenants, representations or warranties under
this Agreement, any Construction Document or any other contractual
agreement or law relating to the Property or the Construction or Work
thereon;
	 
	 	     (t) there occurs an Environmental Violation that is reasonably
likely to cost or actually costs more than $500,000 to remediate;
	 
	 	     (u) the Construction Agent or any member of the Controlled Group
shall fail to pay when due an amount or amounts aggregating in excess of
$2,000,000, which it shall have become liable to pay to the PBGC or to a
Pension Plan under Title IV of ERISA; or notice of intent to terminate a
Pension Plan or Pension Plans having aggregate Unfunded Liabilities in
excess of $2,000,000 shall be filed under Title IV of ERISA by the
Construction Agent or any member of the Controlled Group, any plan
administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause a
trustee to be appointed to administer any such Pension Plan or Pension
Plans or a proceeding shall be instituted by a fiduciary of any such
Pension Plan or Pension Plans against the Construction Agent or any
member of the Controlled Group to enforce Section 515 or 4219(c)(5) of
ERISA; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any such Pension Plan or
Pension Plans must be terminated;
	 
	 	     (v) [Reserved]; or
	 
	 	     (w) any Lien granted under any Security Document shall, in whole or
in part, terminate, cease to be effective or lose its first priority
status, except as expressly contemplated by the Operative Agreements or
as the result of an act or omission of the Lessor or the Agent;



then, in any such event, the Lessor may, in addition to the other rights and
remedies provided for in this Agreement, terminate this Agreement by giving the
Construction Agent written notice of such termination and upon the expiration
of the time fixed in such notice (or immediately if no such time is set forth
in such notice) and the payment of all amounts owing by the Construction Agent
hereunder (including without limitation any amounts specified under Section
5.3), this Agreement shall terminate provided, notwithstanding the foregoing,
this Agreement shall be deemed to be automatically terminated without the
giving of notice upon the occurrence of an Insolvency Event. The Lessor may
enter upon and repossess the Property by such means as are available at law or
in equity, and may remove the Construction Agent, all Construction Agency
Persons and all other Persons and any and all personal property and the
equipment and personalty of each Construction Agency Person and severable
Modifications from the Property. The Lessor shall have no liability by reason
of any such entry, repossession or removal performed in accordance with
applicable law. Following an Agency Agreement Event of Default and upon the
written demand of the Lessor, the Construction Agent shall return the Property
promptly to the Lessor, in the manner and condition required by, and otherwise
in accordance with the provisions of Section 3.8. With the exception of
Uninsured Force Majeure Losses, subject to the limitation in Section 5.4, the
Construction Agent shall pay all costs and


28






 


expenses incurred by or on behalf of the Lessor, including without limitation
fees and expenses of counsel, as a result of any Agency Agreement Event of
Default hereunder.


     A POWER OF SALE HAS BEEN GRANTED IN THIS AGREEMENT. A POWER OF SALE MAY
ALLOW THE LESSOR TO TAKE THE PROPERTY AND SELL THE PROPERTY WITHOUT GOING TO
COURT IN A FORECLOSURE ACTION UPON THE OCCURRENCE OF AN AGENCY AGREEMENT EVENT
OF DEFAULT.


     5.2 Damages.


     The termination of this Agreement pursuant to Section 5.1 shall in no
event relieve the Construction Agent of its liability and obligations
hereunder, all of which shall survive any such termination.


     5.3 Remedies; Remedies Cumulative.



		
	 	     (a) If an Agency Agreement Event of Default shall have occurred and
be continuing, the Lessor shall have all rights available to the Lessor
herein and under the other Operative Agreements and all other rights
otherwise available at law, equity or otherwise; provided, however, such
rights of the Lessor and the other remedies set forth in this Section 5.3
shall be subject to Section 5.4.




		
	 	     (b) Upon the occurrence of an Agency Agreement Event of Default, the
Lessor shall have (in addition to its rights otherwise described in this
Agreement or existing at law, equity or otherwise) the option (and shall
be deemed automatically, and without any further action, to have
exercised such option upon the occurrence of any Insolvency Event) to
transfer and convey to the Construction Agent upon a date designated by
the Lessor all right, title and interest of the Lessor in and to the
Property after the Lessor receives payment of the amount specified in
subparagraph (iii) of this Section 5.3(b) (including without limitation
any Land and/or any Improvements, any interest in any Improvements, any
Equipment and the Property then under construction). On any transfer and
conveyance date specified by the Lessor pursuant to this Section 5.3(b),
(i) the Lessor shall transfer and convey (at the cost of the Construction
Agent) all right, title and interest of the Lessor in and to the Property
free and clear of the Lien of the Lease, this Agreement, the other
Operative Agreements and all Lessor Liens, (ii) the Construction Agent
hereby covenants and agrees that it will accept such transfer and
conveyance of right, title and interest in and to the Property and (iii)
the Construction Agent hereby promises to pay to the Lessor, as
liquidated damages (it being agreed that it would be impossible
accurately to determine actual damages), an aggregate amount equal to the
Termination Value of the Property. The Construction Agent specifically
acknowledges and agrees that its obligations under this Section 5.3(b),
including without limitation its obligations to accept the transfer and
conveyance of the Property and its payment obligations described in
subparagraph (iii) of this Section 5.3(b), shall be absolute and
unconditional under any and all circumstances and shall be performed
and/or paid, as the case may be, without notice or demand and without any
abatement, reduction, diminution, setoff, defense, counterclaim or
recoupment whatsoever.



29






 







		
	 	Notwithstanding the foregoing provisions of this Section 5.3(b), the
Lessor shall have the right in its sole discretion to rescind any
exercise of its option under this Section 5.3(b) upon the giving of its
written confirmation of such rescission to the Construction Agent.




		
	 	     (c) Except to the extent the Lessor has previously transferred the
Property pursuant to the exercise of remedies or otherwise, the
Construction Agent shall have the right to cure an Agency Agreement
Default or Agency Agreement Event of Default hereunder with respect to
the Property by purchasing or causing the Construction Agent to purchase
the Property from the Lessor for an amount equal to the liquidated
damages amount set forth in Section 5.3(b).
	 
	 	     (d) With respect to any Agency Agreement Event of Default, none of
(a) the termination of this Agreement as to the Property pursuant to
Section 5.1; (b) the repossession of the Property; or (c) the failure of
the Lessor to complete or relet the Property, the Completion or reletting
of all or any portion thereof, or the failure of the Lessor to collect or
receive any rentals due upon any such reletting, shall relieve the
Construction Agent of its liabilities and obligations hereunder, all of
which shall survive any such Final Completion, termination, repossession
or reletting.
	 
	 	     (e) Without limiting any other remedies set forth in this Agreement,
the Lessor and the Construction Agent agree that the Construction Agent
has granted, pursuant to Section 3.4 hereof, a Lien against the Property
WITH POWER OF SALE, and that, upon the occurrence and during the
continuance of any Agency Agreement Event of Default, the Lessor shall
have the power and authority, to the extent provided by law, after prior
notice and lapse of such time as may be required by law, to foreclose its
interest (or cause such interest to be foreclosed) in all or any part of
the Property.
	 
	 	     (f) If an Agency Agreement Event of Default shall have occurred and
be continuing, and whether or not this Agreement shall have been
terminated pursuant to Section 5.1, the Construction Agent shall pay
directly to any third party (or at the Lessor’s election, reimburse the
Lessor) for the cost of any environmental testing (provided, if there is
no recognized Environment Violation, recourse to the Construction Agent
shall be limited as set forth in Section 5.4) and/or remediation work
undertaken respecting the Property, as such testing or work is deemed
appropriate in the reasonable judgment of the Lessor, and shall indemnify
and hold harmless the Lessor and each other Indemnified Person therefrom.
The Construction Agent shall pay all amounts referenced in the
immediately preceding sentence within ten (10) days of any request by the
Lessor for such payment. The provisions of this Section 5.3(f) shall not
limit the obligations of the Construction Agent under any Operative
Agreement regarding indemnification obligations, environmental testing,
remediation and/or work.
	 
	 	     (g) If this Agreement shall be terminated pursuant to Section 5.1,
the Construction Agent waives, to the fullest extent permitted by Law,
(i) any notice of re-entry or the institution of legal proceedings to
obtain re-entry or possession; (ii) any right of redemption, re-entry or
possession; (iii) the benefit of any laws now or hereafter in force
exempting property from liability for rent or for debt; and (iv) any
other rights,



30






 







		
	 	which might otherwise limit or modify any of the Lessor’s rights or
remedies under this Section 5.3.




		
	 	     (h) If an Agency Agreement Event of Default shall have occurred and
be continuing, and whether or not this Agreement shall have been
terminated pursuant to Section 5.1, the Construction Agent shall upon the
Lessor’s demand immediately assign, transfer and set over to the Lessor
all of the Construction Agent’s right, title and interest in and to each
agreement executed by the Construction Agent in connection with the
acquisition, installation, testing, use, development, construction,
operation, maintenance, repair, refurbishment and restoration of the
Property (including without limitation all right, title and interest of
the Construction Agent with respect to all warranty, performance, service
and indemnity provisions and each Construction Document), as and to the
extent that the same relate to the acquisition, installation, testing,
use, development, construction, operation, maintenance, repair,
refurbishment and restoration of the Property or any portion of them.




		
	 	     (i) No failure to exercise and no delay in exercising, on the part
of the Lessor, any right, remedy, power or privilege under this Agreement
or under the other Operative Agreements shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege under this Agreement preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges provided in this
Agreement are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.




		
	 	     (j) The remedies herein provided shall be cumulative and in addition
to (and not in limitation of) any other remedies available at law, equity
or otherwise, including without limitation any mortgage foreclosure
remedies.



     5.4 Limitation on Recourse.


     Notwithstanding anything contained herein or in any other Operative
Agreement to the contrary, upon the occurrence and during the continuance of an
Agency Agreement Event of Default relating solely to the Property (other than
as a result of (a) a Full Recourse Event of Default or (b) any indemnity claim
pursuant to the Operative Agreements including without limitation pursuant to
Sections 10.1(c) and 11.1 through 11.7 of the Participation Agreement, in
either such case pursuant to the foregoing subsections (a) or (b), the
limitations contained in this Section 5.4 shall not apply), the maximum
aggregate amount (the “Maximum Amount”) that the Lessor, or any person or
entity acting by or through the Lessor, including without limitation the Agent
and the other Financing Parties, shall be entitled to recover from the
Construction Agent on account of such Agency Agreement Event of Default shall
be an amount equal to the sum of (i) 89.9% of the aggregate GAAP Eligible Cost,
exclusive of the portion of the aggregate GAAP Eligible Cost expended for the
purchase of the Land related to the Property (the “Land Cost”) plus (ii) 100%
of the Land Cost, plus (iii) all amounts owed by the Construction Agent under
or with respect to any Operative Agreement in connection with any potential
Environmental Violation related to the Property. The Construction Agent
nonetheless acknowledges and agrees that even though the maximum aggregate
recovery from the Construction Agent is limited as


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aforesaid, the Lessor’s right of recovery from the Property (as opposed to any
recovery from the Construction Agent) is not so limited and the Lessor shall be
entitled to recover 100% of the amounts owed to the Lessor in accordance with
the Operative Agreements from its interest in the Property.


     5.5
Determination of Whether Budget is “In Balance”.



		
	 	     (a) If the Agent determines that the Construction Budget may not be
In Balance, the Agent shall give notice to such effect to the
Construction Agent, together with a reasonably detailed explanation of
the basis for the Agent’s determination and to the extent available
calculations upon which the Agent has based its determination. Within
ten (10) days following the Construction Agent’s receipt of such notice,
the Construction Agent shall deliver a certification to the Agent that
either (i) the Construction Budget is not In Balance and describing the
steps the Construction Agent is taking to remedy such condition, if any,
or (ii) the Construction Budget is In Balance and stating sufficient
detail to describe why the Construction Agent believes the Construction
Budget is In Balance.




		
	 	     (b) If after receipt by the Agent of a certification from the
Construction Agent pursuant to Section 5.5(a)(ii) above that the
Construction Budget is In Balance, the Agent still disagrees with such
certification, the Construction Agent and the Agent shall, for a period
of thirty (30) days following the Agent’s receipt of such certification,
consult with each other and use their reasonable efforts to resolve such
dispute as to whether the Construction Budget is In Balance.




		
	 	     (c) Upon the occurrence of either (i) the Construction Agent’s
delivery of certification pursuant to Section 5.5(a)(i) above that the
Construction Budget is not In Balance, or (ii) the thirty (30) days
consultation period referred to in Section 5.5(b) above shall expire and
the Agent shall continue to disagree with the Construction Agent’s
assertion that the Construction Budget is In Balance, the Lessor shall
have the option, exercisable in its sole discretion, upon notice to the
Construction Agent, to require the Construction Agent to deposit (a
“Balance Deposit”) with the Lessor within five (5) Business Days an
amount equal to the lesser of (x) the amount which if paid to the
Construction Agent would, together with any Available Commitments and
Other Available Amounts be sufficient to make the Construction Budget In
Balance and (y) the Maximum Amount.




		
	 	     (d) In the event the Construction Agent is required to make a
Balance Deposit pursuant to Section 5.5(c) above, such Balance Deposit
shall evidence a portion of the Maximum Amount and any amounts withdrawn
from the Balance Deposit to fund Property Costs shall reduce dollar for
dollar the Maximum Amount.



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ARTICLE VI

THE LESSOR’S RIGHTS



     6.1 [Reserved].


     6.2 The Lessor’s Right to Cure the Construction Agent’s Defaults.


     The Lessor, without waiving or releasing any obligation or Agency
Agreement Event of Default, may (but shall be under no obligation to) remedy
any Agency Agreement Event of Default for the account of and at the sole cost
and expense of the Construction Agent. All out-of-pocket costs and expenses so
incurred (including without limitation fees and expenses of counsel), together
with interest thereon at the Overdue Rate from the date on which such sums or
expenses are paid by the Lessor, shall be paid by the Construction Agent to the
Lessor on demand.


ARTICLE VII

MISCELLANEOUS



     7.1 Notices.


     All notices required or permitted to be given under this Agreement shall
be in writing and delivered as provided in Section 12.2 of the Participation
Agreement.


     7.2 Successors and Assigns.


     This Agreement shall be binding upon and inure to the benefit of the
Lessor, the Construction Agent, the Construction Agent and their respective
successors and the assigns.


     7.3 GOVERNING LAW.


     THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT 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.


     7.4 SUBMISSION TO JURISDICTION; VENUE; WAIVERS; ARBITRATION


     THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO SUBMISSION TO
JURISDICTION, VENUE AND ARBITRATION ARE HEREBY INCORPORATED BY REFERENCE
HEREIN, MUTATIS MUTANDIS.


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     7.5 Amendments and Waivers.


     None of the terms or provisions of this Agreement may be terminated,
amended, supplemented, waived, modified or discharged except in accordance with
the provisions of Section 12.4 of the Participation Agreement.


     7.6 Counterparts.


     This Agreement may be executed in any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument.


     7.7 Severability.


     Any provision of this Agreement, which is prohibited or unenforceable in
any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.


     7.8 Headings and Table of Contents.


     The headings and table of contents contained in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.


     7.9 WAIVER OF JURY TRIAL.


     TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE LESSOR AND THE
CONSTRUCTION AGENT IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND ANY COUNTERCLAIM
THEREUNDER.


     7.10 Assignment.



		
	 	     (a) The Construction Agent may not assign this Agreement or any of
its rights or obligations hereunder or with respect to the Property in
whole or in part to any Person without the prior written consent of the
Agent, the Lenders and the Lessor.




		
	 	     (b) No assignment by the Construction Agent (referenced in this
Section 7.10 or otherwise) or other relinquishment of possession to the
Property shall in any way discharge or diminish any of the obligations of
the Construction Agent to the Lessor hereunder and the Construction Agent
shall remain directly and primarily liable under the Operative Agreements
as to any rights or obligations assigned by the Construction Agent or
regarding the Property in which rights or obligations have been assigned
or otherwise transferred.



34






 






     7.11 No Waiver.


     No failure by the Lessor or the Construction Agent to insist upon the
strict performance of any term hereof or to exercise any right, power or remedy
upon a default hereunder, and no acceptance of full or partial payment of any
amount from, or on behalf of, the Construction Agent during the continuance of
any such default, shall constitute a waiver of any such default or of any such
term. To the fullest extent permitted by law, no waiver of any default shall
affect or alter this Agreement, and this Agreement shall continue in full force
and effect with respect to any other then existing or subsequent default.


     7.12 Acceptance of Surrender.


     No surrender to the Lessor of this Agreement or of all or any portion of
the Property or of any part of the Property or of any interest therein shall be
valid or effective unless agreed to and accepted in writing by the Lessor and
no act by the Lessor or the Agent or any representative or agent of the Lessor
or the Agent, other than a written acceptance, shall constitute an acceptance
of any such surrender.


     7.13 No Merger of Title.


     There shall be no merger of this Agreement by reason of the fact that the
same Person may acquire, own or hold, directly or indirectly, in whole or in
part, (a) this Agreement or any interest in this Agreement, (b) any right,
title or interest in the Property, (c) any Notes or (d) an assignment from or a
beneficial interest in the Lessor.


     7.14 Survival.


     Anything contained in this Agreement to the contrary notwithstanding, all
claims against and liabilities of the Construction Agent or the Lessor arising
from events arising prior to the expiration or earlier termination of this
Agreement shall survive such expiration or earlier termination. If any
provision of this Agreement shall be held to be unenforceable in any
jurisdiction, such unenforceability shall not affect the enforceability of any
other provision of this Agreement and such jurisdiction or of such provision or
of any other provision hereof in any other jurisdiction.


     7.15 Limited Liability.


     The parties to this Agreement hereby agree that the provisions of Section
12.9 of the Participation Agreement are hereby incorporated herein as though
such Section 12.9 were restated herein in its entirety.


     7.16 Statement of Intent Regarding Accounting Compliance.


     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


35






 


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.


     7.17 Amendment Restatement.


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


[signature page follows]



36






 





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



	 	 	 	 	 
	 	 	HUMAN
GENOME SCIENCES, INC., as the 
Construction Agent
	 	 	 	 	 
	 	 	
By:
	/s/ Steven C. Mayer
	 	 	 	

	 	 	
Name:
	 	Steven C. Mayer
	 	 	
Title:
	 	Senior Vice President and
	 	 	 	 	Chief Financial Officer
	 	 	 	 	 
	 	 	WACHOVIA
DEVELOPMENT CORPORATION, 
as the Lessor
	 	 	 	 	 
	 	 	
By:
	/s/ Evander S. Jones, Jr.
	 	 	 	

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





Amended and Restated Agency
Agreement

Human Genome Sciences, Inc.