Common use of Covenants of the Construction Agent Clause in Contracts

Covenants of the Construction Agent. The Construction Agent hereby covenants and agrees that it will: (a) following the Construction Commencement Date for each Property, cause the development, acquisition, installation, construction and testing of such Property to be prosecuted in a good and workmanlike manner, and respecting each Property substantially in accordance with the applicable Plans and Specifications, the Construction Budget, the applicable contracts relating to the Improvements, the Equipment, other components of such Property and procurement of construction materials, the applicable Construction Contracts, the applicable construction schedule, prevalent industry practices and otherwise in accordance with Section 3.1 hereof; (b) not commence construction with respect to any Improvements that cannot reasonably be expected to be completed by the Construction Period Termination Date; (c) cause the Completion Date for any Improvements to occur on or before 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; (d) obtain the certificate of occupancy for such Improvements by the Completion Date therefor; (e) at all times subsequent to the initial Advance respecting a Property (i) cause good and indefeasible title to the applicable Property to vest in the Owner Trustee, (ii) cause a valid, perfected, first priority Lien on the applicable Property to be in place in favor of the Agent (for the benefit of the Lenders and the Holders), subject to Permitted Liens, (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 and Lessor Liens) to be filed or maintained respecting the applicable Property; (f) no less than five (5) Business Days prior to the scheduled date for the initial Construction Advance to be made in connection with any Property, the Construction Agent shall deliver to the Agent (for the benefit of the Lessor) true, complete and correct copies of the Construction Budget therefor. 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 and progress reports regarding the development, acquisition, installation, construction and testing of the Properties; (g) procure insurance for the Properties during the Construction Period in accordance with the provisions of Article XIV of the Lease; and (h) on or before the Construction Period Termination Date, cause the Rent Commencement Date to occur with respect to all Properties or cause the Lessee to purchase any such Properties for an amount equal to the sum referenced in Section 5.3(b) hereof and otherwise in compliance with the other terms and provisions of the Operative Agreements. ARTICLE III

Covenants of the Construction Agent. The Construction Agent hereby covenants and agrees that it will: (a) following the Construction Commencement Date for each Property, cause the design, procurement, development, acquisition, installation, construction construction, repair, renovation, replacement, engineering and testing of such the Property to be prosecuted in a good and workmanlike mannermanner (subject to Force Majeure Events), and respecting each the Property substantially in accordance with the applicable Plans and SpecificationsConstruction Documents, the Construction BudgetLegal Requirements (including without limitation Environmental Laws), the Insurance Requirements, the applicable contracts relating to the Improvements, the Equipment, other components of such the Property and procurement of construction materials, the applicable Construction Contracts, the applicable construction schedulemanufacturer’s specifications and standards, prevalent industry practices and otherwise in accordance with Section 3.1 hereofunless 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) not commence construction with respect to any Improvements on a date that cannot reasonably be expected is within six (6) months prior to be completed by the Construction Period Termination Date; (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 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) [Reserved]; (e) at all times during the Construction Period (i) cause the Lessor to retain 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 and otherwise comply with all Insurance Requirements; (h) include in the Construction Budget and maintain Available Commitments in amounts equal to or greater than the cost for Completion Date 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 any Improvements to occur 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 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 thereofthereof other than Permitted Liens in compliance with the terms and provisions of the Operative Agreements; provided, notwithstanding the foregoing, upon the occurrence of any Force Majeure Event, Casualty or Condemnation, the Construction Agent shall 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 in such notice, the Construction Agent may request 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; (dj) obtain following Completion for the certificate of occupancy for such Improvements by 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 Completion Date thereforExpiration Date; (ek) at procure, maintain and comply with all times subsequent 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 initial Advance respecting 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) ensure that each Construction Document with respect to the Property is a Property contract for a firm price or a stipulated sum with one or more Contractors presenting one or more payment and performance bonds in an aggregate amount equal to the firm price or stipulated sum of each such contract, which contract shall (i) cause good satisfy the requirements of this Agreement and indefeasible title (ii) be otherwise reasonably acceptable to the applicable Agent, the Lessor and the Lenders in their sole discretion; (n) neither demand nor 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 vest the Construction Period Termination Date, the Construction Agent shall promptly (and in 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 Owner Trusteeevent 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 (iiand 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 applicable Property to be in place in favor of the Agent (for the benefit of the Lenders Secured Parties) and the Holders)(ii) file, subject or cause to Permitted Liensbe filed, (iii) file all necessary documents under the applicable real property Law law and Article 9 of the Uniform Commercial Code to perfect such title and Liens and Liens; (ivr) not permit Liens exceed the scope of its authority or violate the terms and conditions of this Agreement; (other than Permitted Liens s) take all commercially reasonable measures necessary to prevent the occurrence of any and Lessor Liens) all acts, omissions or circumstances giving rise to be filed or maintained Claims against any Financing Party respecting the applicable 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; (fu) no less than five (5) Business Days prior to the scheduled date for the initial Construction Advance take or cause to be made in connection with taken commercially reasonable and practical steps to minimize liabilities of the Lessor or the Agent or any PropertyPrimary Financing Party regarding delays, increased costs and the disruption of the construction process arising from Force Majeure Events, Casualties and Condemnations; (v) the Construction Agent shall deliver to not incur nor allow the Agent incurrence of any Property Costs, individually or in the aggregate, (for the benefit i) in excess of the Lessorsum of the aggregate Available Commitments as of the date of determination thereof or (ii) true, complete and correct copies of that would or could reasonably be expected to cause the Construction Budget therefor. Thereafter, the Construction Agent, on a monthly basis, shall deliver not to the Lessor true, correct and complete copies of any material modifications of the Construction Budget and progress reports regarding the development, acquisition, installation, construction and testing of the Properties; (g) procure insurance for the Properties during the Construction Period in accordance with the provisions of Article XIV of the Leasebe In Balance; and (hw) on or before the Construction Period Termination Date, Agent shall make (or cause to be made through Advances) 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 Rent Commencement Date to occur Ground Lease or with respect to all Properties or cause any of the Lessee to purchase Appurtenant Rights, except for any such Properties for an amount equal payment or other obligations which are expressly retained by the Lessor pursuant to the sum referenced in Section 5.3(b) hereof and otherwise in compliance with the other terms and provisions 1 of the Operative Agreements. ARTICLE IIIGround Lease.

Covenants of the Construction Agent. The Construction Agent hereby covenants and agrees that it will: (a) promptly, after receiving control of the Property, commence the Construction following the Restructuring Date and prosecute the Construction Commencement Date for each Property, cause the development, acquisition, installation, construction diligently and testing of such Property without interruption (subject only to be prosecuted in a good and workmanlike manner, and respecting each Property substantially delays caused by Force Majeure Events) in accordance in all Material respects with the applicable Plans and Specifications, the Construction Budget, the applicable contracts relating to the Improvements, the Equipment, other components all Requirements of such Property Law and procurement of construction materials, the applicable Construction Contracts, the applicable construction schedule, prevalent industry practices and otherwise in accordance with Section 3.1 hereofall Insurance Requirements; (b) not commence construction with respect promptly, upon its receipt thereof, deliver to any Improvements that cannot reasonably be expected to be completed by the Construction Period Termination DateLessor a true and complete copy of the Plans and Specifications for City Center II; (c) notify the Lessor in writing as soon as practical after the occurrence of each Force Majeure Event; (d) take all reasonable and practical steps to minimize the disruption of the construction process arising from Force Majeure Events; (e) cause the Substantial Completion Date for any Improvements of the Construction to occur on or before prior to the Construction Period Termination Outside Completion Date, free and clear cause all Liens (by removal or bonding) of including, without limitation, Liens or claims for materials supplied or labor or services performed in connection with the development, acquisition, installation, construction or testing thereof; (d) obtain the certificate of occupancy for such Improvements by the Completion Date therefor; (e) at all times subsequent to the initial Advance respecting a Property (i) cause good and indefeasible title to the applicable Property to vest in the Owner Trustee, (ii) cause a valid, perfected, first priority Lien on the applicable Property to be in place in favor of the Agent (for the benefit of the Lenders and the HoldersSubject Improvements), subject to other than Permitted Liens, (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 and Lessor Liens) to be filed or maintained respecting the applicable Propertydischarged; (f) no less than five (5) Business Days prior following the Substantial Completion of the Construction, cause all outstanding punch list items with respect to the scheduled date for the initial Construction Advance to be made in connection with any Property, the Construction Agent shall deliver to the Agent (for the benefit of the Lessor) true, complete promptly and correct copies of the Construction Budget therefor. 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 and progress reports regarding the development, acquisition, installation, construction and testing of the Propertiesexpeditiously completed; (g) procure insurance for cause the Properties during the Construction Period Subject Improvements to be constructed (x) substantially in accordance with the provisions of Article XIV applicable Plans and Specifications, (y) in compliance in all material respects with all Applicable Law and (z) in compliance with all Insurance Requirements; (h) ensure that the Land subject to Lease Supplement No. 4 acquired pursuant to the Operative Documents and the Subject Improvements shall be (x) in compliance in all material respects with all Applicable Law (including without limitation zoning and land use laws and Hazardous Materials Laws), and (y) fit for use as a property of the Leasetype specified in the Appraisal of such Property delivered in connection with the Acquisition Date thereto and other purposes attendant thereto; (i) as between the parties to the Operative Documents, maintain the Land subject to Lease Supplement No. 4 in safe condition free from injury or mishaps to third Persons; (j) ensure that on or prior to the Outside Completion Date for the Land and Improvements subject to Lease Supplement No. 4, all water, sewer, electric, gas, telephone and drainage facilities, all other utilities required to adequately service the Improvements for the intended use and means of access between such Improvements and public highways for pedestrians and motor vehicles will be available pursuant to adequate permits (including any that may be required under applicable Hazardous Materials Laws), and all utilities serving such Property, or proposed to serve such Property in accordance with the Plans and Specifications, are or will be located in, and vehicular access to the Improvements on such Property will be provided by, either public rights-of-way abutting such Property or appurtenant rights; (k) ensure that all licenses, approvals, authorizations, consents, permits (including, without limitation, building, demolition and environmental permits, licenses, approvals, authorizations and consents), easements and rights-of-way, including dedication, required for (x) the use, treatment, storage, transport, disposal or disposition of any Hazardous Materials on, at, under or from such Property during the construction of the Subject Improvements, and (y) construction of the Subject Improvements on such Property in accordance with the Plans and Specifications therefor and this Agreement will be obtained from the appropriate Governmental Authorities having jurisdiction or from private parties, as the case may be, prior to the time required by such Governmental Authority or private party, except where the failure to obtain such licenses, approvals, authorizations, consents, permits, easements, rights-of-way or dedications could not reasonably be expected to (x) have a Material Adverse Effect, (y) or materially adversely affect the Construction Agent's ability to comply with its covenants and agreements under this Agreement, including Section 2.7(b) or (z) have a material adverse effect on the use, value or remaining useful life of Land and Improvements subject to Lease Supplement No. 4; and (hl) on or before promptly notify the Lessor in writing if in the Construction Period Termination Date, cause Agent's reasonable judgment the Rent Commencement Date amount that needs to occur with respect be expended in order to all Properties or cause the Lessee to purchase any such Properties for an amount equal to the sum referenced in Section 5.3(b) hereof and otherwise in compliance with the other terms and provisions achieve Substantial Completion of the Operative Agreements. ARTICLE IIICity Center II Improvements is in excess of the Construction Commitment Amount.

Covenants of the Construction Agent. The During the Construction Period (and, where indicated, thereafter), the Construction Agent hereby covenants and agrees that it willshall: (a) following the Construction Commencement Date for each Property, cause the developmentconstruction, acquisitionrenovation, installation, construction equipping, and testing improvement of the Project and cause such Property construction, renovation, installation, equipping, and improvement to be prosecuted in a good and workmanlike manner, and respecting each Property substantially in accordance with (i) the applicable Plans and Specifications, the Construction Cost Budget, (ii) the Approved Construction Documents, and (iii) the Work Schedule and (iv) all applicable contracts relating federal statutes and regulations, state laws, charter provisions, ordinances, building codes and policies of the City, including but not limited to competitive bidding procedures prescribed by the ImprovementsCity for the Project, and the Equipmentprevailing wage requirements of Chapter 4115, other components of such Property and procurement of construction materials, Ohio Revised Code or the applicable Construction Contracts, the applicable construction schedule, prevalent industry practices and otherwise in accordance with Section 3.1 hereofXxxxx-Xxxxx Act; (b) not commence construction with respect use all commercially reasonable efforts to any Improvements that cannot reasonably be expected cause construction, renovation, installation, equipping, and improvement of the Project to be completed as expeditiously as possible, and in all events by the Construction Period Termination DateFinal Completion date; (c) use all commercially reasonable efforts to cause all material outstanding punch list items with respect to the Completion Date for any Improvements to occur on or before the Construction Period Termination Dateconstruction, free and clear (by removal or bonding) of Liens or claims for materials supplied or labor or services performed in connection with the development, acquisitionrenovation, installation, construction or testing thereofequipping, and improvement of the Project to be completed as expeditiously as possible, and in all events by the Final Completion date; (d) obtain the certificate of occupancy for such Improvements by the Completion Date therefor; (e) at all times subsequent to the initial Advance respecting a Property Construction Draw (i) cause good and indefeasible title to the applicable Property to vest in the Owner Trustee, (ii) cause a valid, perfected, first priority Lien on the applicable Property to be in place in favor of the Agent (for the benefit of the Lenders and the Holders), subject to Permitted Liens, (iii) file all necessary documents under the applicable real property Law law and Article 9 of the Uniform Commercial Code in order to perfect and maintain the perfection of such title and Liens all other interests in favor of the City created and intended to be created or maintained under the Operative Documents, (ivii) pay, or cause to be paid, all assessments, charges and taxes, if any, payable in connection with the construction, renovation, installation, equipping, and improvement of the Project to be paid as and when due, whether claim shall be made for payment thereof during or after the Construction Period, subject to the right of the Construction Agent to contest, in good faith, any such assessment charge or tax so long as, by nonpayment of any such items, neither the Project nor any property of the City shall be subject to imminent loss or forfeiture, and in the contest of which, the City hereby agrees to cooperate, at the cost and expense of the Construction Agent, (iii) not permit Liens liens (other than Permitted Liens and Lessor LiensEncumbrances or those in favor of the City) to be filed or maintained respecting the Project, provided that affidavits of claims for mechanics liens pursuant to Section 1311.25, et seq., may be bonded and contested as provided herein, and (iv) on a monthly basis, deliver to the City true, correct and complete progress reports as required by Section 3.3 hereof regarding the construction, renovation, installation, equipping and improvement of the Project and adequacy of funding for the Project in relationship to the then current Cost Budget; (e) cause title to the Project to be and remain, during the Construction Period and upon Final Completion, free from and clear of all liens, claims, and encumbrances, except for (i) those created by or arising under the Operative Documents, (ii) real estate taxes and assessments that are a lien but not yet due and payable, (iii) affidavits of claims for mechanics liens, materials supplied or labor or work performed in connection with the construction, renovation, installation, equipping, and improvement of the Project that are bonded-off or otherwise removed in accordance with applicable Propertylaws within Ninety (90) days of the filing of such lien and in any event prior to the commencement of an action to foreclose on such lien, (iv) any Permitted Encumbrances under the Operative Documents and (v) any other liens or exceptions that are approved in writing by the City or that the City causes to be created; (f) no less than five (5) Business Days prior make available for inspection at the Construction Agent’s office by a duly authorized representative of the City during normal business hours, any of the Construction Agent’s books and records insofar as they relate solely to the scheduled date Project at such times as reasonably requested by the City when requested to do so; (g) reimburse the City from the proceeds of Construction Draws for all costs of the Project paid by the City in accordance with the Operative Documents, including but not limited to the costs of title insurance policies, title examinations, recording fees, surveys, fees of counsel for services rendered and out-of-pocket expenses to which the City is entitled to be reimbursed pursuant to the Operative Documents or the Bonds; (h) not purchase or acquire under any conditional sales contract or security agreement or any lease agreement, any personal property of any kind intended to be incorporated into the Project or paid for with the proceeds of Construction Draws, and apply the proceeds of Construction Draws available for such purpose under the Operative Documents to pay in full the purchase price of personal property before payment therefor becomes past due or, in any event, within thirty (30) days after delivery thereof; provided, however, that, the foregoing shall not apply to amounts withheld and unpaid on account of bona fide disputes with the suppliers thereof; (i) allow the City and the City’s agents, at all times (i) during normal business hours, the right of entry and free access to the Project to inspect all Work done, labor performed and materials furnished in and about the Project, and (ii) to require to be replaced or otherwise corrected (at the Construction Agent’s sole cost, or that of the contractors, subcontractors or material suppliers for the initial Project if the need for replacement or correction is the result of the breach of duty by or the intentional, wrongful or negligent act or failure to act of any such person, its agents or employees), any material or work that materially fails to comply with the respective Plans and Specifications therefore, provided that the City shall provide thirty (30) days’ notice of its election to exercise such right and reasonable opportunity for the Construction Advance Agent to be made in connection with cure such failure of compliance, and (iii) to prevent any Propertyperson other than the City, and the City’s agents, employees, licensees and invitees, the contractors, subcontractors, material suppliers for the Project or agents, employees or invitees of the Construction Agent, from entering upon the Project; (j) during the Construction Period, obtain and maintain, on behalf of the City and submit to the City for review, evidence of the following insurance coverages set forth in the Standard Conditions: (i) comprehensive general liability insurance, including auto, for property damage and personal injury or death, with limits of liability of at least $5,000,000 per occurrence and with a deductible not in excess of $5,000, which may be provided by umbrella or excess liability policies, and worker’s compensation insurance (including employer’s liability insurance), for all employees, if any, of the Construction Agent and for all employees, if any, of the Construction Manager in such amounts as are established by law; provided that, the Construction Agent may satisfy the requirements of this subparagraph with respect to employees of the Construction Agent’s agents, including the Construction Manager, through separate policies provided by each agent; (ii) all risk (Builder’s risk) property insurance in the amount of the full replacement cost of the Project under a policy satisfactory to the City in form and substance; and (iii) flood hazard coverage, if appropriate, in an amount acceptable to the City and with a deductible acceptable to the City. All insurance policies required by this Agreement shall name the Construction Agent as a named insured and the City as an additional insured and shall, unless otherwise agreed by the City in writing, be issued by carriers with a Best’s Insurance Reports policyholder’s rating, to the extent commercially reasonable, of “A” financial size category of “X” or better. The Construction Agent shall deliver to the Agent (for City prior to the benefit commencement of the Lessor) true, complete and correct Work copies of the Construction Budget all such policies, together with endorsements and original certificates therefor. Thereafter, Copies of all renewal policies (including endorsements) and original certificates therefor shall be deposited with the Construction Agent, on a monthly basis, City as evidence of such insurance. All policies shall deliver contain provisions for thirty days’ written notice to the Lessor true, correct and complete copies City prior to expiration or cancellation. Each insurer under any policies shall be required to waive any defenses the insurer may have to payment as a consequence of acts or omissions of any material modifications of the Construction Budget and progress reports regarding the development, acquisition, installation, construction and testing of the Propertiesparty; (gk) procure insurance for in the Properties event of any damage to or destruction of the Project, or any part thereof, during the Construction Period Period, to the extent that insurance proceeds, are not sufficient to cover the full cost of any repair, rebuilding or restoration due to deductible and co-insurance amounts under insurance policies maintained by the Construction Agent the Construction Agent shall provide funding, to pay the cost of repair, rebuilding or restoration; provided that, so long as a Project Funding Shortfall will not exist as a consequence of the use of amounts held in accordance any construction account or project fund established in connection with the provisions of Article XIV Bonds or otherwise established by the City for the Project for that purpose, amounts in such construction account or project fund may be used for that purpose; (l) notify the City in writing within three (3) days of the Leaseoccurrence of any default or Event of Default hereunder as to which the Construction Agent has knowledge; (m) not discriminate against any employee or applicant for employment because of race, religion, color, sex, national origin, disability, age, veteran status, or ancestry in violation of applicable laws, and ensure that applicants for employment are considered for employment and that employees are treated during employment, without regard to their race, religion, color, sex, national origin, disability, age, veteran status, or ancestry as required by applicable law, and incorporate the requirements of this paragraph in all of the respective contracts for any of the work prescribed herein (other than subcontracts for standard commercial supplies or raw materials), and require all contractors for any part of the work involved in the provision of the Project to incorporate such requirements in all subcontracts for such work; (n) obtain on a timely basis all utility connections and permits when needed and all utility services for water, gas, electric, telephone, sewer and storm drainage and sanitary waste disposal so that such utility services shall be available to an extent adequate to serve the Project; and (ho) on or before upon execution of the Construction Period Termination DateOperating Agreement, cause the Rent Commencement Date Project Guaranty to occur with respect to all Properties or cause the Lessee to purchase any such Properties for an amount equal be delivered to the sum referenced City, and thereafter maintained in Section 5.3(bfull force and effect. (p) hereof assure quality materials and otherwise in compliance with design, subject to the other terms and provisions City’s approval of the Operative Agreements. ARTICLE IIIdesign and material for the Project and the Plans and Specifications therefor.

Covenants of the Construction Agent. The Construction Agent hereby covenants and agrees that it will: (a) following the Construction Commencement Date for each Property, cause the development, acquisition, installation, construction and testing of such Property to be prosecuted in a good and workmanlike manner, and respecting each Property substantially in substantial accordance with the applicable Plans and Specifications, the Construction Budget, the applicable contracts relating to the Improvements, the Equipment, other components of such Property and procurement of construction materials, the applicable Construction Contractsconstruction contracts, the applicable construction schedule, prevalent industry practices and otherwise in accordance with Section 3.1 hereof; (b) not commence construction with respect to any Improvements budgeted to exceed $500,000 on a date that cannot reasonably be expected is within six (6) months prior to be completed by the Construction Period Termination Date; (c) cause the Completion Date for any Improvements to occur on or before the earlier of (i) the date that is twelve (12) months after the initial Construction Advance made in connection with such Improvements or (ii) the Construction Period Termination Date, in each case free and clear (by removal or bonding) of Liens (other than Permitted Liens and Lessor Liens) or claims for materials supplied or labor or services performed in connection with the development, acquisition, installation, construction or testing thereof; (d) obtain the certificate of occupancy for cause all outstanding punch list items with respect to such Improvements to be completed by the Completion Date thereforDate; (e) at all times subsequent to the initial Advance respecting a Property (i) cause good and indefeasible marketable title to the applicable Property to vest in the Owner Trustee, Trustee (except that the interest of the Lessor in certain Properties shall be a ground leasehold interest pursuant to one (1) or more Ground Leases if requested by the Construction Agent) (ii) cause a valid, perfected, first priority Lien (other than Permitted Liens and Lessor Liens) on the applicable Property to be in place in favor of the Agent (for the benefit of the Lenders and the Holders), subject to Permitted Liens, (iii) file all necessary documents under the applicable real property Law law and Article 9 of the Uniform Commercial Code to perfect such title and Liens and (iv) not permit Liens (other than Permitted Liens and Lessor Liens) to be filed or maintained respecting the applicable Property; (f) no less than five (5) Business Days prior to the scheduled date for the initial Construction Advance to be made in connection with any Property, the Construction Agent shall deliver to the Agent (for the benefit of the Lessor) true, complete and correct copies of the Construction Budget therefor. 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 and progress reports regarding the development, acquisition, installation, construction and testing of the Properties; (g) procure insurance for the Properties during the Construction Period in accordance with the provisions of Article XIV of the Lease; and (h) on or before the Construction Period Termination Date, cause the Rent Commencement Date to occur with respect to all Properties or cause the Lessee to purchase any such Properties for an amount equal to the sum referenced in Section 5.3(b) hereof and otherwise in compliance with the other terms and provisions of the Operative Agreements. ARTICLE III.

Covenants of the Construction Agent. The Construction Agent hereby covenants and agrees that it will: (a) following cause construction of the Construction Commencement Date for each Property, cause the development, acquisition, installation, construction and testing of such Property Improvements to be prosecuted in a good diligently and workmanlike manner, and respecting each Property substantially continuously in accordance with the applicable Plans and Specifications, the Construction Budget, the applicable contracts relating to the Improvements, the Equipment, other components of such Property Specifications and procurement of construction materials, the applicable Construction Contracts, the applicable construction schedule, prevalent industry practices all Legal Requirements and otherwise in accordance with Section 3.1 hereofInsurance Requirements; (b) not commence construction enter into Construction Contracts with respect reputable contractors on terms and conditions reasonably satisfactory to any the Lessor and the Agent, which Construction Contracts shall provide for the completion of the Improvements that cannot reasonably be expected to be completed by the Construction Period Termination Dateon each Property on a date certain and for a guaranteed maximum price; (c) within three (3) days after entering into a Construction Contract deliver copies of such Construction Contract to the Lessor and the Agent; (d) cause the Completion Date for any Improvements to occur on or before prior to the Construction Period Commitment Termination Date, free and clear (by removal or bonding) of Liens (other than Lessor Liens and Permitted Exceptions) or claims for materials supplied or labor or services performed in connection with the construction of the Improvements; (e) following the Completion Date of each Property, use reasonable good faith efforts to cause all outstanding punch list items with respect to the Improvements on such Property to be completed; (f) cause the Improvements on each Property to be constructed for an amount equal to or less than 110% of each Property's respective Projected Completion Value; (g) notify the Lessor in writing not less than three (3) Business Days after the occurrence of each Force Majeure Event; (h) promptly, but in any case within sixty (60) days of actual knowledge by the Construction Agent thereof and subject to Article XIII of the Lease, cause all Liens (other than Lessor Liens and Permitted Exceptions) on any Property (including Liens or claims for materials supplied or labor or services performed in connection with the developmentconstruction of the Improvements), acquisitionto be discharged or bonded off if disputed in good faith by the Construction Agent; (i) maintain each Property in a safe condition; (j) ensure that on or prior to the Commitment Termination Date all water, installationsewer, electric, gas, telephone and drainage facilities, all other utilities required to adequately service the Improvements for the intended use and means of access between such Improvements and public highways for pedestrians and motor vehicles will be available pursuant to adequate permits (including any that may be required under applicable Environmental Laws), and all utilities serving each Property, or proposed to serve such Property in accordance with the Plans and Specifications, are or will be located in, and vehicular access to the Improvements will be provided by, either public rights-of-way abutting such Property or Appurtenant Rights; (k) pay when due (subject to reimbursement as provided for under this Agreement) pursuant to and subject to the Budget, or cause to be paid when due in accordance with the Participation Agreement, all applicable Project Costs; (l) enforce or cause to be enforced performance by each party to each Construction Contract of their respective obligations, warranties and other design, construction or testing thereofother obligations with respect to the design, construction and completion of the Improvements or pursue remedies with respect to the breach of those obligations; (dm) obtain subject to ARTICLE VI and Articles XV and XVI of the certificate Lease, use the proceeds of occupancy for any property insurance maintained with respect to any Property to complete construction of, or rebuild or replace, any portion of such Improvements Property with respect to a Casualty or Condemnation occurring with respect to that portion of such Property; and (n) provide to the Lessor: (A) monthly, if requested by the Completion Date therefor; (e) at Lessor, copies of all times subsequent to the initial Advance respecting a Property (i) cause good and indefeasible title to the applicable Property to vest in the Owner Trusteechange orders, (ii) cause a validnotices, perfectedrequests for any increase of any contract sum payable, first priority Lien on the applicable Property to be in place in favor of the Agent (for the benefit of the Lenders and the Holders), subject to Permitted Liens, (iii) file all necessary documents or other communication received 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 and Lessor Liens) to be filed or maintained respecting the applicable Property; (f) no less than five (5) Business Days prior to the scheduled date for the initial Construction Advance to be made in connection with any PropertyConstruction Contract which seek to increase the total consideration payable under any Construction Contract; (B) promptly upon request, information regarding the status of the construction, compliance of the parties to the Construction Contracts with the terms thereof, and amounts due and payable under the Construction Contracts, including such information as the Lessor shall reasonably require to determine that the Budget is In Balance (for purposes of this Agreement and the other Operative Agreements, the Construction Agent shall deliver determination, at any time, including at the time of each request for an Advance, as to whether or not the Agent (for Budget is In Balance will be made in the benefit reasonable judgment of the Lessor); and (C) truemonthly, complete and correct copies its certification: (1) that the Budget is In Balance, (2) that the remaining Contingency Reserves are sufficient for any reasonably foreseeable contingency which might occur during the remaining period through Completion, (3) of the Construction Budget therefor. Thereafteranticipated date on which Completion will be achieved, the Construction Agent, on a monthly basis, shall deliver to the Lessor true, correct and complete copies of any material modifications (4) of the Construction Budget number of days the construction is, without overtime or premium pay (other than such overtime or premium pay as is budgeted or reserved for in the Budget) and progress reports regarding given the development, acquisition, installation, prevailing weather and other conditions of construction and testing that are anticipated to exist during the remaining course of the Properties; (g) procure insurance for construction, ahead of or behind the Properties during the Construction Period in accordance with the provisions of Article XIV of the Lease; and (h) on or before the Construction Period Termination Date, cause the Rent Commencement Date to occur with respect to all Properties or cause the Lessee to purchase any such Properties for an amount equal to the sum referenced in Section 5.3(b) hereof and otherwise in compliance with the other terms and provisions of the Operative Agreements. ARTICLE IIIapplicable construction schedule.

Covenants of the Construction Agent. The Construction Agent hereby covenants and agrees that it will: (a) following the Construction Commencement Date for each Property, cause the design, procurement, development, acquisition, installation, construction construction, repair, renovation, replacement and testing of such the Property to be prosecuted in a good and workmanlike mannermanner (subject to Force Majeure Events), and respecting each the Property substantially in accordance with the applicable Plans and SpecificationsConstruction Documents, the Construction BudgetLegal Requirements (including without limitation Environmental Laws), the Insurance Requirements, the applicable contracts relating to the Improvements, the Equipment, other components of such the Property and procurement of construction materials, the applicable Construction Contracts, the applicable construction schedulemanufacturer’s specifications and standards, prevalent industry practices and otherwise in accordance with Section 3.1 hereofunless 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 commence construction with respect 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 judgment of the Construction Agent or such Affiliate of the Construction Agent, reasonably likely to any Improvements that cannot reasonably be expected prevent Completion of the Property prior to be completed by the Construction Period Termination DateDate or result in a Force Majeure Event; (cd) cause the Completion Date for any Improvements the Property to occur on or before by the Construction Period Termination Date, 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; (d) obtain the certificate of occupancy for such Improvements by the Completion Date thereforthereof other than Permitted Liens; (e) at all times subsequent to during the initial Advance respecting a Property Construction Period (i) cause good and indefeasible title the Lessor to retain at all times during the term of this Agreement an enforceable ground leasehold interest in the Property pursuant to the applicable Property to vest Ground Lease, an enforceable interest in the Owner TrusteeAppurtenant 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 applicable Property and the Collateral to be in place in favor of the Agent (for the benefit of the Lenders Secured Parties and securing the Holdersobligations owed to such party pursuant to the Operative Agreements), subject to Permitted Liens, (iii) file all necessary documents under the applicable real property Law law and Article 9 of the Uniform Commercial Code to perfect such title and Liens and (iv) not permit Liens (other than Permitted Liens and or Lessor Liens) to be filed or maintained respecting the applicable PropertyProperty or the Collateral; (f) no less than five (5) Business Days on or prior to the scheduled date for the initial Construction Advance to be made in connection with any PropertyClosing Date, the Construction Agent shall 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 PropertiesProperty, in a format acceptable to the Lessor; (g) to the fullest extent commercially available, procure insurance for the Properties Property during the Construction Period in accordance with the provisions of Article XIV of Section 3.5 and, as the Lease; andLessor 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 Rent Commencement Date to occur with respect to all Properties the Property or cause purchase the Lessee to purchase any such Properties Property for an amount equal to the sum referenced in Section 5.3(b) hereof 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 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 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. ARTICLE IIIAt 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.

Covenants of the Construction Agent. The Construction Agent hereby covenants and agrees that it will: (a) following the Construction Commencement Date for each Property, cause the development, acquisition, installation, construction and testing of such Property to be prosecuted in a good and workmanlike manner, and respecting each Property substantially in accordance with the applicable Plans and Specifications, the Construction Budget, the applicable contracts relating to the Improvements, the Equipment, other components of such Property and procurement of construction materials, the applicable Construction Contractsconstruction contracts, the applicable construction schedule, prevalent industry practices and otherwise in accordance with Section 3.1 hereof; (b) not commence construction with respect to any Improvements on a date that cannot reasonably be expected is within six (6) months prior to be completed by the Construction Period Termination Date; (c) cause the Completion Date for any Improvements to occur on or before the Construction Period Termination Date, in each case 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; provided, if the Construction Agent does not timely complete 5 167 its construction obligations referenced in this subsection (c), then the provisions of the third paragraph of Section 2.1 shall apply; (d) obtain the certificate of occupancy for cause all outstanding punch list items with respect to such Improvements to be completed by the Final Completion Date thereforDate; provided, if the Construction Agent does not timely complete its construction obligations referenced in this subsection (d), then the provisions of the third paragraph of Section 2.1 shall apply; (e) at all times subsequent to the initial Advance respecting a Property (i) cause good and indefeasible title to the applicable Property to vest in the Owner Trustee, Trustee (ii) cause a valid, perfected, first priority Lien on except that the applicable Property to be in place in favor interest of the Agent Lessor in certain Properties shall be a ground leasehold interest pursuant to one (for the benefit of the Lenders and the Holders), subject to Permitted Liens, (iii1) 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 and Lessor Liens) to be filed or maintained respecting the applicable Property; (f) no less than five (5) Business Days prior to the scheduled date for the initial Construction Advance to be made in connection with any Property, the Construction Agent shall deliver to the Agent (for the benefit of the Lessor) true, complete and correct copies of the Construction Budget therefor. Thereafter, more Ground Leases if requested by 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 and progress reports regarding the development, acquisition, installation, construction and testing of the Properties; (g) procure insurance for the Properties during the Construction Period in accordance with the provisions of Article XIV of the Lease; and (h) on or before the Construction Period Termination Date, cause the Rent Commencement Date to occur with respect to all Properties or cause the Lessee to purchase any such Properties for an amount equal to the sum referenced in Section 5.3(b) hereof and otherwise in compliance with the other terms and provisions of the Operative Agreements. ARTICLE III)

Covenants of the Construction Agent. The Construction Agent hereby covenants and agrees that it will: (a) following the Construction Commencement Date for each PropertyDate, cause the development, acquisition, installation, construction and testing of such Property Construction to be prosecuted in a good diligently and workmanlike manner, and respecting each Property substantially without interruption (subject to Force Majeure Events) in accordance in all material respects with the applicable Plans and Specifications, the Approved Construction Budget, the applicable contracts relating to Approved Construction Schedule and the Improvements, the Equipment, other components Approved Plans and Specifications and all Requirements of such Property Law and procurement of construction materials, the applicable Construction Contracts, the applicable construction schedule, prevalent industry practices and otherwise in accordance with Section 3.1 hereofInsurance Requirements; (b) not commence take all reasonable and practical steps to minimize Casualties and Condemnations, liabilities of Agent Lessor or any Participant, delays, increased costs and the disruption of the construction with respect to any Improvements that cannot reasonably be expected to be completed by the Construction Period Termination Dateprocess; (c) cause the Substantial Completion Date for any Improvements to occur on or before prior to the Construction Period Termination Outside Completion Date, free and clear cause all Liens (by removal or bonding) of including Liens or claims for materials supplied or labor or services performed in connection with the developmentconstruction of the Premises), acquisitionother than Permitted Liens, installation, construction or testing thereofto be discharged; (d) obtain following Substantial Completion, cause all outstanding punch list items with respect to the certificate Construction to be completed in a timely manner, but in no event later than ninety (90) days after the date of occupancy for such Improvements by the Completion Date thereforSubstantial Completion; (e) at all times subsequent to the initial Advance respecting a Property (i) during Construction, cause good and indefeasible all title to all personalty which will become a permanent part of the Financed Improvements on or within the Land (and any other personal property constituting a part of the Financed Improvements which Construction Agent acquired with the funds advanced by the Participants) to be and remain vested in the Agent Lessor and cause to be on file (including financing statements and fixture filings) with the applicable Property to vest in the Owner Trustee, (ii) cause a valid, perfected, first priority Lien on the applicable Property to be in place in favor of the Agent (for the benefit of the Lenders and the Holders), subject to Permitted Liens, (iii) file filing office all necessary documents under the applicable real property Law and Article 9 of the Uniform Commercial Code to perfect such title and free of all Liens and (iv) not permit Liens (other than Permitted Liens and Lessor Liens) to be filed or maintained respecting the applicable Property; (f) no less than five (5) Business Days prior to the scheduled date for the initial Construction Advance to be made in connection with any Propertyat all times during Construction, the Construction Agent shall deliver to the Agent (maintain, for the benefit of the Agent Lessor) true, complete and correct copies the insurance described in Article XIII of the Lease. In addition, Construction Budget therefor. ThereafterAgent will from time to time, but in intervals of not less than six months each, undertake all actions and due diligence as reasonably necessary to determine whether the insurance coverage required to be maintained by Lessee under the Lease is in compliance with all of the requirements thereunder, including any increases in coverage required as a result of any change in any Applicable Laws, and if Construction Agent determines that such insurance coverage does not meet such requirements, it agrees to promptly take all actions and steps necessary to cause such coverage to comply with such requirements and to notify Agent Lessor and Administrative Agent of the steps being taken by Construction Agent, on a monthly basis, shall deliver to the Lessor true, correct and complete copies of any material modifications of the Construction Budget and progress reports regarding the development, acquisition, installation, construction and testing of the Properties; (g) procure insurance (i) cause each Person engaged under any Construction Document to covenant and agree (it being understood that this clause (i) may be satisfied by the General Contractor and the Architect if such covenants and agreements are contained in the acknowledgment and consent such Person is required to deliver to Administrative Agent pursuant to this Agreement) that: (A) none of the Agent Lessor or any Participant is personally liable for any claims or obligations incurred under such contract, (B) such Person will provide written notice to the Agent Lessor and Administrative Agent of any material breach under such contract and, during the existence of a Construction Agency Event of Default, the Agent Lessor and Administrative Agent shall have at least thirty (30) days following the receipt of such notice to cure such breach, plus any additional reasonable time as may be required, and (C) upon written request of the Agent Lessor or Administrative Agent, such Person shall provide to the Agent Lessor and Administrative Agent an estoppel certificate in respect of such contract in a form reasonably requested by the Agent Lessor or Administrative Agent, and (ii) all Construction Documents (or a separate writing made for the Properties during benefit of Agent Lessor, Administrative Agent and each Participant, which writing may take the Construction Period in accordance with the provisions of Article XIV form of the LeaseAcknowledgment of and Consent to Construction Documents Assignment attached as Exhibit C) to contain stipulations by the other parties to such Construction Documents that such parties shall have no recourse to the Agent Lessor, Administrative Agent or any of the Participants with respect to any claims arising under such Construction Documents; and (h) on Monthly: (A) provide to the Agent Lessor: (i) copies of all change orders, notices, requests for any increase of any contract sum payable, or before other communication received under or in connection with any Construction Document which either (x) seeks to increase the total consideration payable under any Construction Document, or (y) asserts that the Construction Period Termination DateAgent or any other party to any Construction Document is in breach or default, cause or with notice and lapse of time or both will be in breach or default under any Construction Document; (ii) such information as may be reasonably requested by Agent Lessor regarding the Rent Commencement Date status of the Construction, compliance of the parties to occur the Construction Documents with respect the terms thereof, and amounts due and payable under the Construction Documents, including, without limitation, such information as Agent Lessor shall reasonably require to all Properties or cause determine that the Lessee to purchase Approved Construction Budget is In Balance. For purposes of this Agreement and the other Operative Documents, the determination, at any such Properties time, including at the time of each request for an amount equal Advance, as to whether or not the sum referenced Approved Construction Budget is In Balance will be made in Section 5.3(b) hereof the sole and otherwise in compliance with the other terms and provisions reasonable judgment of the Operative Agreements. ARTICLE IIIAgent Lessor.

Covenants of the Construction Agent. The Construction Agent hereby covenants and agrees that it will: (a) following the Construction Commencement Date for each Propertyparcel of Land subject to this Agreement, but subject to Construction Force Majeure Events, cause the development, acquisition, installation, construction and testing of a Building on such Property Land to be prosecuted in a good diligently and workmanlike manner, and respecting each Property without undue interruption substantially in accordance with the applicable Plans and SpecificationsSpecifications for such Land, the Construction Budget, the applicable contracts relating to the Improvements, the Equipment, other components of such Property and procurement of construction materials, the applicable Construction Contracts, the applicable construction schedule, prevalent industry practices and otherwise in accordance with Section 3.1 hereofthe Construction Budget for such Leased Property and in compliance in all material respects with all Applicable Law and insurance requirements; (b) notify the Lessor and the Agent in writing not commence construction with respect to any Improvements that cannot reasonably be expected to be completed by less than five (5) Business Days after the occurrence of each Construction Period Termination DateForce Majeure Event; (c) take all reasonable and practical steps to cause the Completion Date for any Improvements such Leased Property to occur on or before prior to the Scheduled Construction Period Termination DateDate for such Leased Property, free subject to the occurrence of Construction Force Majeure Events, and clear cause all Liens (by removal or bonding) of including, without limitation, Liens or claims for materials supplied or labor or services performed in connection with the developmentconstruction of the Buildings), acquisitionother than Permitted Liens and Lessor Liens, installationto be discharged or bonded off, construction or testing thereofif disputed in good faith by appropriate proceedings by the Construction Agent; (d) obtain the certificate of occupancy for such Improvements by following the Completion Date thereforfor each Leased Property, (A) cause all outstanding punch list items with respect to the Buildings on such Leased Property to be completed within ninety (90) days after such Completion Date and (B) provide to the Lessor a list, in reasonable detail, of all Funded Equipment related to such Leased Property; (e) at all times subsequent to the initial Advance respecting a Property (i) during Construction, cause good and indefeasible all title to all personalty financed by the applicable Property to vest in the Owner Trustee, (ii) cause a valid, perfected, first priority Lien Lessor on the applicable or within such Leased Property to be and remain vested in place in favor of the Agent (for Lessor and cause to be on file with the benefit of the Lenders and the Holders), subject to Permitted Liens, (iii) file applicable filing office or offices all necessary documents under the applicable real property Law and Article 9 of the Uniform Commercial Code to perfect such title and Lessor's interest therein, free of all Liens and (iv) not permit Liens (other than Permitted Liens and Lessor Liens) , it being understood and acknowledged that such Lessor's rights, title and interest in and to be filed said personalty have been assigned to, or maintained respecting for the applicable Propertybenefit of, the Agent pursuant to the Operative Documents; (f) no less not enter into any agreements or arrangements with any Person (other than five (5the Funding Parties pursuant to the Operative Documents) Business Days that would result in any claim against, or liability of, the Agent or any Funding Party resulting from the fact that any Leased Property is not completed on or prior to the scheduled date for the initial Scheduled Construction Advance to be made in connection with any Property, the Construction Agent shall deliver to the Agent (for the benefit of the Lessor) true, complete and correct copies of the Construction Budget Termination Date therefor. 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 and progress reports regarding the development, acquisition, installation, construction and testing of the Properties;; and (g) procure insurance for take all reasonable and practical steps to minimize the Properties during the Construction Period in accordance with the provisions of Article XIV disruption of the Lease; and (h) on or before the construction process arising from Construction Period Termination Date, cause the Rent Commencement Date to occur with respect to all Properties or cause the Lessee to purchase any such Properties for an amount equal to the sum referenced in Section 5.3(b) hereof and otherwise in compliance with the other terms and provisions of the Operative Agreements. ARTICLE IIIForce Majeure Events.

Covenants of the Construction Agent. The Construction Agent hereby covenants and agrees with respect to each Uncompleted Property that it will: (a) following notify the Construction Commencement Date for Lessor Trust in writing not less than ten (10) Business Days after the occurrence of each Force Majeure Event with respect to such Property, cause the development, acquisition, installation, construction and testing of such Property to be prosecuted in a good and workmanlike manner, and respecting each Property substantially in accordance with the applicable Plans and Specifications, the Construction Budget, the applicable contracts relating to the Improvements, the Equipment, other components of such Property and procurement of construction materials, the applicable Construction Contracts, the applicable construction schedule, prevalent industry practices and otherwise in accordance with Section 3.1 hereof; (b) not commence construction with respect cause the Completion Date for such Property to any Improvements occur on or prior to the Outside Completion Date for such Property; provided that cannot reasonably be expected it shall have no obligation to pay for Construction Costs unless it is entitled to be completed by reimbursed for such Construction Costs pursuant to the Construction Period Termination DateParticipation Agreement; (c) cause the Completion Date for any Improvements to occur all Liens on or before the Construction Period Termination Datesuch Property (including, free and clear (by removal or bonding) of without limitation, Liens or claims for materials supplied or labor or services performed in connection with the developmentConstruction of the Improvements), acquisitionother than Permitted Property Liens, installation, construction to be discharged or testing thereofbonded off if disputed in good faith by the Construction Agent; (d) obtain cause all Improvements to be constructed (x) substantially in accordance with the certificate applicable Plans and Specifications (as revised or amended in accordance with Section 3.2), (y) in compliance with all Requirements of occupancy for such Improvements by the Completion Date thereforLaw and (z) in compliance with all Insurance Requirements; (e) at all times subsequent to ensure that the initial Advance respecting a Property (i) cause good and indefeasible title to the applicable Property to vest in the Owner Trustee, (ii) cause a valid, perfected, first priority Lien on the applicable Property to Land shall be in place in favor compliance with all Requirements of the Agent (Law, and fit for the benefit of the Lenders and the Holders)use as wine production, subject to Permitted Liens, (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 and Lessor Liens) to be filed distribution or maintained respecting the applicable Propertystorage facilities; (f) no less than five cause the Initial Construction Date to occur within twelve (512) Business Days months of the Acquisition Date and in any event prior to the scheduled date for twelve (12) months before the initial Construction Advance to be made in connection with any Property, the Construction Agent shall deliver to the Agent (for the benefit of the Lessor) true, complete and correct copies of the Construction Budget therefor. 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 and progress reports regarding the development, acquisition, installation, construction and testing of the PropertiesInterim Termination Date; (g) procure insurance cause the aggregate Property Cost for the Properties during the Construction Period in accordance with the provisions of Article XIV such Property not to exceed 110% of the Leasesum of the Land Acquisition Cost and the Estimated Improvement Costs for such Property; provided that it shall have no obligation to pay for Construction Costs unless it is entitled to be reimbursed for such Construction Costs pursuant to the Participation Agreement; and (h) on or before as between the Construction Period Termination Date, cause the Rent Commencement Date to occur with respect to all Properties or cause the Lessee to purchase any such Properties for an amount equal parties to the sum referenced Operative Documents, maintain such Property in Section 5.3(b) hereof and otherwise in compliance with the other terms and provisions of the Operative Agreements. ARTICLE IIIsafe condition free from injury or mishaps to third Persons.

Covenants of the Construction Agent. The Construction Agent hereby covenants and agrees that it will: (a) following the Construction Commencement Date for each portion of the Property, cause the development, acquisition, installation, construction and testing of such portion of the Property to be prosecuted in a good and workmanlike manner, and respecting each portion of the Property substantially in accordance with the applicable Plans and SpecificationsSpecifications therefor, the Construction BudgetBudget therefor, the applicable contracts relating to the applicable Improvements, the applicable Equipment, other components of such portion of the Property and procurement of construction materials, the applicable Construction Contractsconstruction contracts, the applicable construction schedule, prevalent industry practices and otherwise in accordance with Section 3.1 hereof; (b) not commence construction with respect to any Improvements that cannot reasonably be expected to be completed by the Construction Period Termination Date[Intentionally Omitted]; (c) cause the Completion Date for any Improvements to occur on or before the earlier of (i) the date that is twenty-four (24) months after the Closing Date, in the case of the Initial Improvements and related Property, or such date following the Construction Commencement Date therefor as shall have been agreed to by Construction Agent and the Financing Parties prior to such Construction Commencement Date, in the case of any Subsequent Improvements, or (ii) the applicable Construction Period Termination Date, in each case 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, except for Permitted Liens; provided, that the failure to cause the Completion of any such portion of the Property by such date shall not be deemed a breach hereunder if such delay is caused by a Force Majeure Event and Completion in respect of such portion of the Property is accomplished within three (3) months of the date otherwise applicable but for this proviso; provided, further, to the extent such failure to complete is caused by a Force Majeure Event extending beyond such three (3) month period, the Construction Agent shall elect one of the Construction Agent Options set forth in Section 2.1 and, if such election is not made within ten (10) Business Days of the end of such three (3) month period, the Construction Agent shall be deemed to have elected to purchase the applicable Improvements and related portions of the Property for the Termination Value therefor in accordance with the provisions of Section 2.1; (d) obtain the certificate of occupancy for such use its good faith efforts to cause all outstanding punch list items with respect to any Improvements by and related Property to be completed promptly following the Completion Date therefor; (e) at all times subsequent to the initial Advance respecting a any portion of the Property (i) cause good and indefeasible marketable title to such portion of the applicable Property to vest in the Owner Trustee, Trustee (ii) cause a valid, perfected, first priority Lien on such portion of the applicable Property to be in place in favor of the Agent (for the benefit of the Lenders and the Holders), subject to Permitted Liens, (iii) file all necessary documents under the applicable real property Law law and Article 9 of the Uniform Commercial Code to perfect such title and Liens and (iv) subject to the terms of Article XIII of the Lease relating to Permitted Contests, not permit Liens (other than Permitted Liens and Lessor Liens) to be filed or maintained respecting the applicable Property; (f) no less than five (5) Business Days on or prior to the scheduled date for required pursuant to Section 5.4(g) of the initial Construction Advance Participation Agreement with respect to be made in connection with the Initial Improvements or any PropertySubsequent Improvements, the Construction Agent shall deliver to the Agent (for the benefit of the Lessor) true, complete and correct copies of the Construction Budget therefor. Thereafter, the Construction Agent, on a monthly basis, shall deliver to the Lessor true, correct and complete copies of any material modifications of the any such Construction Budget and progress reports regarding the development, acquisition, installation, construction and testing of the Propertiesapplicable portion of the Property; (g) procure insurance for the Properties Property during the any Construction Period in accordance with the provisions of Article XIV of the Lease; and (h) on or before the Construction Period Termination DateDate in respect of any portion of the Property (which date shall be subject to extension pursuant to the provisions of Section 2.1 in the sole and absolute discretion of the Lenders and the Holders), cause the Rent Commencement Date to occur with respect to all Properties such portion of the Property or cause the Lessee to purchase any such Properties portion of the Property for an amount equal to the sum referenced in Section 5.3(b) hereof applicable thereto and otherwise in compliance with the other terms and provisions of the Operative Agreements. ARTICLE III.

Covenants of the Construction Agent. The Construction Agent hereby covenants and agrees that it will: (a) following the Construction Commencement Date for each PropertyDate, cause the design, development, acquisition, installation, construction and testing of such the Property to be prosecuted in a good and workmanlike manner, and respecting each the Property substantially in accordance with the applicable Plans and Specifications, the Construction Budget, the applicable contracts relating to the Improvements, the Equipment, other components of such Property and procurement of construction materials, the applicable Construction Contracts, the applicable construction scheduleDocuments, prevalent industry practices and otherwise in accordance with Section 3.1 hereof, all with such changes, subject to Section 3.2, as the Construction Agent may deem necessary or advisable; (b) not commence construction with respect to any Improvements that cannot reasonably be expected cause the date on which Completion for the Property occurs to be completed by the Construction Period Termination Date; (c) cause the Completion Date for any Improvements to occur on or before 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; (dc) obtain the certificate of occupancy for cause all outstanding punch list items with respect to such Improvements by the to be completed promptly following Completion Date thereforthereof; (ed) at all times subsequent to the initial Advance respecting a the Property (i) cause good and indefeasible marketable title to the applicable Property to vest in the Owner TrusteeLessor, (iiii)(A) cause a valid, perfected, first priority Lien on the applicable Property promptly execute and deliver to be in place in favor of the Agent (for all additional documents reasonably requested by the benefit of the Lenders and the Holders), subject to Permitted Liens, (iii) file all necessary documents Agent under the applicable real property Law and law and/or Article 9 of the Uniform Commercial Code to perfect such title and the Liens granted by the Construction Agent pursuant to the Security Documents and (ivB) promptly consent to the execution and delivery by the Lessor to the Agent of all additional documents from the Lessor reasonably requested by the Agent to carry out and effectuate the intent and purposes of the Operative Agreements and (iii) not permit Liens (other than Permitted Liens and Lessor Liens) to be filed or maintained respecting the applicable Property; (f) no less than five (5) Business Days prior to the scheduled date for the initial Construction Advance to be made in connection with any Property, the Construction Agent shall deliver to the Agent (for the benefit of the Lessor) true, complete and correct copies of the Construction Budget therefor. 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 and progress reports regarding the development, acquisition, installation, construction and testing of the Properties; (ge) procure insurance for the Properties Property during the Construction Period in accordance compliance with Article XIV of the Lease as though the provisions of Article XIV of the Lease; andLease were stated herein; (hf) on or before the Construction Period Termination Date, (i) cause the Rent Commencement Date Completion to occur with respect to all Properties the Property in compliance with the terms and provisions of the Operative Agreements or cause (ii) in the Lessee to context of the Lessor electing the remedy set forth in Section 5.3(b) in connection with the occurrence of an Agency Agreement Event of Default, purchase any such Properties the Property for an amount equal to the sum referenced Termination Value, but subject to the limitations of Section 5.4; (g) cause all Improvements on the Property to be constructed (x) substantially in Section 5.3(baccordance with the applicable Plans and Specifications (as amended or modified from time to time in accordance with the Operative Agreements), except to the extent that failure to do so does not have, and could not reasonably be expected to have, a Material Adverse Effect, (y) hereof and otherwise in compliance with all Applicable Laws unless the other terms failure to do so does not (i) have, and provisions of could not reasonably be expected to have, a Material Adverse Effect or (ii) give rise to a Claim against the Lessor for which the Construction Agent has no obligation to indemnify the Lessor pursuant to the Operative Agreements and (z) in compliance with all Insurance Requirements; (h) ensure that all Land acquired pursuant to the Operative Agreements and all Improvements constructed on the Land shall be in compliance with all Applicable Laws unless the failure to do so does not (i) have, and could not reasonably be expected to have, a Material Adverse Effect or (ii) give rise to a Claim against the Lessor for which the Construction Agent has no obligation to indemnify the Lessor pursuant to the Operative Agreements. ARTICLE III, and fit for use as a property of the type specified in the Appraisal of the Property (if any) delivered in connection with the Property Closing Date therefor and other purposes attendant thereto; (i) ensure that on or prior to the Construction Period Termination Date, all water, sewer, electric, gas, telephone and drainage facilities, all other utilities required to adequately service the Improvements for the intended use and means of access between such Improvements and public highways for pedestrians and motor vehicles will be available pursuant to adequate permits (including any that may be required under applicable Environmental Laws), and all utilities serving the Property, or proposed to serve the Property in accordance with the Plans and Specifications, are or will be located in, and vehicular access to the Improvements on the Property will be provided by, either public rights-of-way abutting the Property or appurtenant rights; (j) ensure that all necessary licenses, approvals, authorizations, consents, permits (including building, demolition and environmental permits, licenses, approvals, authorizations and consents), easements and rights of way, including dedication required for (i) the use, treatment, storage, transport, disposal or disposition of any Hazardous Substances on, at, under, or from the Property during the construction of the applicable Improvements thereon, and (ii) construction of the Improvements in accordance with the Plans and Specifications and this Agreement will be obtained from the appropriate Governmental Authorities having jurisdiction or from private parties, as the case may be, prior to the time required by such Governmental Authority or private party, except where the failure to obtain such licenses, approvals, authorization, consents, permits, easements, rights of way or dedication could not reasonably be expected to (i) have a Material Adverse Effect or (ii) give rise to a Claim against the Lessor for which the Construction Agent has no obligation to indemnify the Lessor pursuant to the Operative Agreements; (k) notify the Lessor in writing not less than ten (10) Business Days after the occurrence of each Force Majeure Event with respect to the Property that Construction Agent reasonably believes will cause disruption or delay in construction of the Property of at least one (1) month; (l) ensure at all times that the total Property Costs remaining to be expended for Completion of the Property does not exceed in the aggregate the Available Lessor Parties Commitment; and (m) commence construction of the Improvements no later than January 31, 2018 and thereafter effect construction and development of the Property with diligence and continuity and ensure that at no point in time shall construction of the Property cease for a period in excess of sixty (60) days or more.

Covenants of the Construction Agent. The Construction Agent hereby covenants and agrees that it will, with respect to each Construction Property subject to this Agreement: (a) following promptly commence the Construction Commencement Date for each Property, cause the development, acquisition, installation, construction and testing of such Property following the Acquisition Date therefor and prosecute the Construction diligently and without interruption (subject only to be prosecuted in a good and workmanlike manner, and respecting each Property substantially delays caused by Force Majeure Events) in accordance with the applicable Plans and Specifications, the other Construction Budget, the applicable contracts relating to the Improvements, the Equipment, other components Documents and all Requirements of such Property Law and procurement of construction materials, the applicable Construction Contracts, the applicable construction schedule, prevalent industry practices and otherwise in accordance with Section 3.1 hereofInsurance Requirements; (b) notify the Lessor in writing not commence construction with respect to any Improvements that cannot reasonably be expected to be completed by less than five (5) Business Days after the Construction Period Termination Dateoccurrence of each Force Majeure Event; (c) cause use its best efforts to minimize the Completion Date disruption of and delays to the construction process arising from Force Majeure Events; (d) comply with all Applicable Law (including Environmental Laws) relating to such Property during Construction of the Improvements; (e) obtain, maintain and comply with the terms of all Governmental Actions required for any Improvements to occur on or before the Construction Period Termination Dateof the Improvements; (f) cause all Liens (including, free and clear (by removal or bonding) of without limitation, Liens or claims for materials supplied or labor or services performed in connection with the developmentconstruction of the Improvements), acquisitionother than Permitted Liens, installation, construction or testing thereofto be discharged; (dg) obtain following the certificate Substantial Completion of occupancy the Construction of such Property, cause all outstanding punch list items with respect to such Construction to be completed diligently and as promptly as practicable after the date of Substantial Completion and, in any case, before the exercise of the Remarketing Option for such Improvements by the Completion Date therefor; (e) at all times subsequent to the initial Advance respecting a Property (i) cause good and indefeasible title to the applicable Property to vest in the Owner Trustee, (ii) cause a valid, perfected, first priority Lien on the applicable Property to be in place in favor of the Agent (for the benefit of the Lenders and the Holders), subject to Permitted Liens, (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 and Lessor Liens) to be filed or maintained respecting the applicable Property; (fh) no less than five (5) Business Days prior use its best efforts to minimize or avoid damage or destruction to the scheduled date Improvements, prevent loss or deterioration to the materials stored at the project site, and prevent injury to third Persons or property of third Persons; (i) enter into an EPC Construction Contract or GC Construction Contracts, as the case may be, for such Property which conform to the initial Construction Advance requirements of the Lease and furnish true and correct copies thereof to the Lessor at or before the time required by the Lease; (j) prepare or cause to be made in connection with any Property, the Construction Agent shall deliver prepared and furnish to the Agent (for Lessor at or before the benefit of time required by the Lessor) true, complete Lease true and correct copies of the Construction Plans and Specification and the Budget therefor. 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 and progress reports regarding the development, acquisition, installation, construction and testing of the Properties; (g) procure insurance for the Properties during the Construction Period in accordance with the provisions of Article XIV of the Leasesuch Property; and (hk) on or before not amend the Construction Period Termination DateDocuments (including the EPC Construction Contract or the GC Construction Contract, cause as the Rent Commencement Date to occur with respect to all Properties case may be), the Plans and Specifications or cause the Lessee to purchase any Budget for such Properties for an amount equal to the sum referenced in Section 5.3(b) hereof and otherwise in compliance with the other terms and provisions of the Operative Agreements. ARTICLE IIIProperty except as permitted by SECTION 3.2.

Covenants of the Construction Agent. The Construction Agent hereby covenants and agrees that it will: (a) following the Construction Commencement Date for each Property, cause construction of the development, acquisition, installation, construction and testing of such Property applicable Improvements to be prosecuted in a good diligently and workmanlike manner, and respecting each Property substantially in accordance with the applicable Plans and Specifications, the Construction Budget, the applicable contracts relating to the Improvements, the Equipment, other components of Specifications for such Property and procurement of construction materials, the applicable Construction Contracts, the applicable construction schedule, prevalent industry practices all material Legal Requirements and otherwise in accordance with Section 3.1 hereofInsurance Requirements; (b) not commence construction with respect to any Improvements that cannot reasonably be expected to be completed by the Construction Period Termination Date; (c) cause the Completion Date for any such Improvements to occur on or before the Construction Period Termination Date, in each case free and clear (by removal or bonding) of Liens (other than Permitted Liens) or claims for materials supplied or labor or services performed in connection with the development, acquisition, installation, construction or testing thereofof the Improvements; (c) cause all outstanding punch list items with respect to such Improvements to be completed; (d) obtain the certificate of occupancy for such Improvements by the Completion Date therefor; (e) at during construction, cause all times subsequent to the initial Advance respecting a Property (i) cause good and indefeasible title to the applicable all Equipment on each Property to vest in the Owner Trustee, (ii) cause a valid, perfected, first priority Lien on the applicable Property to be in place in favor of the Agent (for the benefit of the Lenders Trustee and the Holders), subject to Permitted Liens, (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 and Lessor Liens) to the extent perfection can be filed or maintained respecting obtained by filing under the applicable PropertyUCC); (fe) no less than five (5) Business Days prior to the scheduled date for the initial Construction Advance to be made in connection with any PropertyImprovements, the Construction Agent shall deliver to the Agent (for the benefit of the Lessor) Lessor true, complete and correct copies of the Construction Budget thereforfor such Improvements. 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 and progress reports regarding the development, acquisition, installation, construction and testing of the Properties;Budget; and (gf) procure (or cause to be procured), on behalf of Lessor (but at Construction Agent's expense) insurance for the Properties during the period commencing on each Property Closing Date and continuing to and throughout the Construction Period in accordance such amounts and with the provisions of Article XIV of the Lease; and (h) on or before the Construction Period Termination Date, cause the Rent Commencement Date to occur with respect to all Properties or cause the Lessee to purchase any such Properties for an amount equal to the sum referenced in Section 5.3(b) hereof and otherwise in compliance with the other terms and provisions of the Operative Agreements. ARTICLE IIIcoverages

Covenants of the Construction Agent. The Construction Agent hereby covenants and agrees that it will: (a) following the Construction Commencement Date for each Propertyparcel of Land subject to this Agreement, but subject to Construction Force Majeure Events, cause the development, acquisition, installation, construction and testing of a Building on such Property Land to be prosecuted in a good diligently and workmanlike manner, and respecting each Property without undue interruption substantially in accordance with the applicable Plans and SpecificationsSpecifications for such Land, the Construction Budget, the applicable contracts relating to the Improvements, the Equipment, other components of such Property and procurement of construction materials, the applicable Construction Contracts, the applicable construction schedule, prevalent industry practices and otherwise in accordance with Section 3.1 hereofthe Construction Budget for such Leased Property and in compliance in all material respects with all Applicable Law and insurance requirements; (b) notify the Lessor and the Agent in writing not commence construction with respect to any Improvements that cannot reasonably be expected to be completed by less than five (5) Business Days after the occurrence of each Construction Period Termination DateForce Majeure Event; (c) take all reasonable and practical steps to cause the Completion Date for any Improvements such Leased Property to occur on or before prior to the Scheduled Construction Period Termination DateDate for such Leased Property, free subject to the occurrence of Construction Force Majeure Events, and clear cause all Liens (by removal or bonding) of including, without limitation, Liens or claims for materials supplied or labor or services performed in connection with the developmentconstruction of the Buildings), acquisitionother than Permitted Liens and Lessor Liens, installation, construction to be discharged or testing thereofbonded off if disputed in good faith by appropriate proceedings by the Construction Agent; (d) obtain the certificate of occupancy for such Improvements by following the Completion Date therefor;for each Leased Property, (A) cause all outstanding punch list items with respect to the Buildings on such Leased Property to be completed within ninety (90) days after said Completion Date and (B) provide to the Lessor a list, in reasonable detail, of all Funded Equipment related to such Leased Property; and (e) at all times subsequent to the initial Advance respecting a Property (i) during Construction, cause good and indefeasible all title to all personalty financed by the applicable Property to vest in the Owner Trustee, (ii) cause a valid, perfected, first priority Lien Lessor on the applicable or within such Leased Property to be and remain vested in place in favor of the Agent (for Lessor and cause to be on file with the benefit of the Lenders and the Holders), subject to Permitted Liens, (iii) file applicable filing office or offices all necessary documents under the applicable real property Law and Article 9 of the Uniform Commercial Code to perfect such title and Lessor’s interest therein free of all Liens and (iv) not permit Liens (other than Permitted Liens and Lessor Liens) , it being understood and acknowledged that such Lessor’s rights, title and interest in and to be filed said personalty have been assigned to, or maintained respecting for the applicable Propertybenefit of, the Agent pursuant to the Operative Documents; (f) no less not enter into any agreements or arrangements with any Person (other than five (5the Funding Parties pursuant to the Operative Documents) Business Days that would result in any claim against, or liability of, the Agent or any Funding Party resulting from the fact that any Leased Property is not completed on or prior to the scheduled date for the initial Scheduled Construction Advance to be made in connection with any Property, the Construction Agent shall deliver to the Agent (for the benefit of the Lessor) true, complete and correct copies of the Construction Budget Termination Date therefor. 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 and progress reports regarding the development, acquisition, installation, construction and testing of the Properties;; and (g) procure insurance for take all reasonable and practical steps to minimize the Properties during the Construction Period in accordance with the provisions of Article XIV disruption of the Lease; and (h) on or before the construction process arising from Construction Period Termination Date, cause the Rent Commencement Date to occur with respect to all Properties or cause the Lessee to purchase any such Properties for an amount equal to the sum referenced in Section 5.3(b) hereof and otherwise in compliance with the other terms and provisions of the Operative Agreements. ARTICLE IIIForce Majeure Events.

Covenants of the Construction Agent. The Construction Agent hereby covenants and agrees that it will: (a) following the Construction Commencement Date for each PropertyClosing Date, cause the design, development, acquisition, installation, construction and testing of such the Property to be prosecuted in a good and workmanlike manner, and respecting each Property substantially in accordance with the applicable Plans and Specifications, the Construction Budget, the applicable contracts relating to the Improvements, the Equipment, other components of such Property and procurement of construction materials, the applicable Construction Contractscontracts, the applicable construction schedule, prevalent industry practices and otherwise in accordance with Section 3.1 hereof, all with such changes, subject to Section 3.2, as the Construction Agent may deem necessary or advisable; (b) not commence construction with respect to any Improvements that cannot reasonably be expected cause the date on which Completion occurs to be completed by the Construction Period Termination Date; (c) cause the Completion Date for any Improvements to occur on or before the Construction Period Termination Date, in each case free and clear (by removal or bonding) of Liens (excepting any Permitted Liens) or claims for materials supplied or labor or services performed in connection with the development, acquisition, installation, construction or testing thereof; (dc) obtain cause all outstanding punch list items with respect to the certificate of occupancy for such Improvements by the to be completed promptly following Completion Date thereforthereof; (ed) at all times subsequent to the initial Advance respecting a Property (i) cause good and indefeasible title to a ground leasehold interest in the applicable Property Land to vest in the Owner TrusteeLessor, (iiii)(A) cause a validpromptly, perfected, first priority Lien on the applicable Property and in any event within five (5) Business Days execute and deliver to be in place in favor of the Agent (for all additional documents reasonably requested by the benefit of the Lenders and the Holders), subject to Permitted Liens, (iii) file all necessary documents Agent under the applicable real property Law and law and/or Article 9 of the Uniform Commercial Code to perfect such title and the Liens granted by the Construction Agent pursuant to the Security Documents and (ivB) promptly, and in any event within five (5) Business Day consent to the execution and delivery by the Lessor to the Agent of all additional documents reasonably requested by the Agent under the applicable real property law and/or Article 9 of the Uniform Commercial Code to perfect the Liens granted by the Lessor pursuant to Security Documents and (iii) not permit Liens (other than Permitted Liens and Lessor Liens) to be filed or maintained respecting the applicable Property; (f) no less than five (5) Business Days prior to the scheduled date for the initial Construction Advance to be made in connection with any Property, the Construction Agent shall deliver to the Agent (for the benefit of the Lessor) true, complete and correct copies of the Construction Budget therefor. 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 and progress reports regarding the development, acquisition, installation, construction and testing of the Properties; (ge) procure insurance for the Properties Property during the Construction Period in accordance compliance with Article XIV of the Lease as though the provisions of Article XIV of the Lease; andLease were stated herein; (f) commence construction of the Improvements no later than July 30, 2015 and thereafter effect construction and development of the Property with diligence and continuity and ensure that at no point in time shall construction of the Property cease for a period in excess of sixty (60) days or more, subject to any delay arising due to a Force Majeure Event; (g) cause all Improvements to be constructed (x) substantially in accordance with the Plans and Specifications (as amended or modified from time to time in accordance with the Operative Agreements), except to the extent that failure to do so does not have, and could not reasonably be expected to have, a Material Adverse Effect, (y) in compliance with all Applicable Laws unless the failure to do so does not have, and could not reasonably be expected to have, a Material Adverse Effect or give rise to a Claim against the Lessor for which the Construction Agent has no obligation to indemnify the Lessor pursuant to the Operative Agreements and (z) in compliance with all Insurance Requirements; (h) ensure that all Land ground leased pursuant to the Operative Agreements and all Improvements constructed on the Land shall be in compliance with all Applicable Laws unless the failure to do so does not have, and could not reasonably be expected to have, a Material Adverse Effect or give rise to a Claim against the Lessor for which the Construction Agent has no obligation to indemnify the Lessor pursuant to the Operative Agreements, and fit for use as a property of the type specified in the Appraisal of the Property delivered on the Closing Date and other purposes attendant thereto; (i) with respect to the Property, ensure that on or before prior to the Construction Period Termination Date, cause all water, sewer, electric, gas, telephone and drainage facilities, all other utilities required to adequately service the Rent Commencement Date Improvements for the intended use and means of access between such Improvements and public highways for pedestrians and motor vehicles will be available pursuant to occur adequate permits (including any that may be required under applicable Environmental Laws), and all utilities serving the Property, or proposed to serve the Property in accordance with the Plans and Specifications, are or will be located in, and vehicular access to the Improvements on the Property will be provided by, either public rights-of-way abutting the Property or appurtenant rights; (j) ensure that all necessary licenses, approvals, authorizations, consents, permits (including building, demolition and environmental permits, licenses, approvals, authorizations and consents), easements and rights of way, including dedication required for (i) the use, treatment, storage, transport, disposal or disposition of any Hazardous Substances on, at, under, or from each Property during the construction of the Improvements thereon, and (ii) construction of the Improvements in accordance with the Plans and Specifications and this Agreement will be obtained from the appropriate Governmental Authorities having jurisdiction or from private parties, as the case may be, prior to the time required by such Governmental Authority or private party, except where the failure to obtain such licenses, approvals, authorization, consents, permits, easements, rights of way or dedication could not reasonably be expected to have a Material Adverse Effect or give rise to a Claim against the Lessor for which the Construction Agent has no obligation to indemnify the Lessor pursuant to the Operative Agreements; (k) notify the Lessor in writing not less than ten (10) Business Days after the occurrence of each Force Majeure Event with respect to the Property that Construction Agent reasonably believes will cause disruption or delay in construction of the Property of at least one (1) month; and (l) ensure at all Properties or cause times that the Lessee total Property Costs remaining to purchase any such Properties be expended for an amount equal to Completion does not exceed in the aggregate the sum referenced in Section 5.3(b) hereof and otherwise in compliance with the other terms and provisions of the Operative Agreements. ARTICLE IIIAvailable Mortgage Loan Commitments, the Available Credit Loan Commitments and the Available Lessor Commitment.