Common use of Substantial Completion Clause in Contracts

Substantial Completion. (i) Gateway Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).

Substantial Completion. (i) Gateway Substantial Completion The Concessionaire shall have occurred, provide the Borrower Department and the Independent Engineer shall have certified to such effect with written notice of anticipated Substantial Completion at least 21 days prior to the Administrative Agentanticipated Substantial Completion Date. During such 21-day period, the Concessionaire, the Independent Engineer and the Department shall meet, confer and exchange information on a regular basis with the goal being the Department’s orderly, timely inspection and review of the Route 495 HOT Lanes in Virginia Project and final design and construction documents and the Department’s issuance of a Substantial Completion Certificate. In addition, the Independent Engineer shall have certified that, to its knowledgeconduct an inspection of the Route 495 HOT Lanes in Virginia Project, the Loan Parties have sufficient funds available to achieve Gateway Final Completionfinal design and construction documents, and such other matters as may be necessary to determine whether Substantial Completion is achieved and, not later than five days following the expiration of such 21-day period, shall deliver a written report of findings and recommendations to the Department and the Concessionaire. The Department may jointly with the Independent Engineer or independently conduct such inspection, review and investigation within such period. (ii) Diablo If the Department disapproves the issuance of a Substantial Completion Certificate, then the Department shall provide a written notice to the Concessionaire specifying its reasons for such disapproval, and the Concessionaire shall have a reasonable opportunity to correct the defects or deficiencies in the Work to which the Department’s disapproval relates. The Department may jointly with the Independent Engineer or independently inspect, review and investigate the corrective work. If the Department and the Concessionaire cannot, despite good faith efforts, agree as to Substantial Completion, such dispute shall be resolved in accordance with the dispute resolution procedures set forth in Section 17.06. The Concessionaire shall provide notice to the Department if the Department has occurred (and, if applicable, not approved or disapproved the Diablo Expansion issuance of a Substantial Completion Certificate within such 21-day period, and if the Department has occurred, andnot notified the Concessionaire of such approval or disapproval within 15 days after such Concessionaire notice, if the EPC Option has been exerciseddelay is not a result of a Concessionaire Party action or inaction, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer then such delay shall have certified to such effect to the Administrative Agentconstitute a Compensation Event, and the Independent Engineer Concessionaire shall have certified thatbe entitled to Concessionaire Damages, if any, pursuant to its knowledgeSections 13.02 and 13.03. (iii) Subject to Section 7.15, when the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway requirements for Substantial Completion and Diablo have been achieved with respect to the New Lanes in their entirety in accordance with this Section (without regard to the status of the remainder of the Route 495 HOT Lanes in Virginia Project), (A) the Department shall issue a Substantial Completion (andCertificate for the New Lanes, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer Department shall assume responsibility from the Concessionaire for operation and maintenance of the New Lanes, (C) the Department shall include such constructed New Lanes as part of the State Highway system, and (D) the Concessionaire shall have certified thatno further obligations with respect to the New Lanes except as required to satisfy the conditions to Final Acceptance as provided in Section 7.13(b) and as required by Sections 7.19, 8.07, 14.01 and 14.03; provided, that solely for the purpose of processing such Final Acceptance, all references to its knowledge, such deposited amount the Route 495 HOT Lanes in Virginia Project in Section 7.13(a)(ii) and (or amount of available unused equity commitments under iii) and (b) shall be changed to reference the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)New Lanes.

Substantial Completion. Section 7.4.1 When Supplier believes that it has achieved the requirements of Substantial Completion, Supplier shall provide written notice (ithe “Notice of Substantial Completion”) Gateway to System Owner stating that Supplier has achieved Substantial Completion, together with copies of all documents (as identified in the definition of Substantial Completion) that are required to be delivered to System Owner to meet Substantial Completion that have not been previously delivered. Section 7.4.2 Upon receipt of the Notice of Substantial Completion, System Owner shall promptly proceed to obtain Independent Engineer’s review and approval of the Notice of Substantial Completion and the Commissioning Report within a reasonable time, but in no event more than ten (10) Business Days following receipt of the Notice of Substantial Completion and all accompanying documents or such longer period of time as specified in the Construction Schedule (the “Substantial Completion Review Period”). Section 7.4.3 Supplier shall provide System Owner with reasonable notice of the date and time of the inspection or review of the System by a representative of the applicable Governmental Authority or Host Utility, if required, for purposes of achieving Substantial Completion, and System Owner shall have occurred, the Borrower right to have one or more representatives and the Independent Engineer present during such inspection or review. If the representative of the applicable Governmental Authority or Host Utility notifies Supplier or System Owner that the requirements for achieving Substantial Completion have not been achieved, then Supplier shall have certified promptly take such action as necessary to achieve such effect requirements and, to the Administrative Agentextent applicable, schedule another inspection or review of the System. Such procedure shall be repeated until such inspection or review has been satisfactorily completed and approved. Section 7.4.4 If System Owner and the Independent Engineer shall have certified that, to its knowledge, approve the Loan Parties have sufficient funds available to achieve Gateway Final Notice of Substantial Completion, System Owner shall, within the Substantial Completion Review Period, (a) notify Supplier of its approval and (iib) Diablo Substantial Completion has occurred issue written notice to Supplier to complete the Work (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred“Notice to Complete”), the Borrower and . Section 7.4.5 If System Owner or the Independent Engineer has a reasonable basis not to approve the Notice of Substantial Completion because the requirements for Substantial Completion have not been met, System Owner shall, within the Substantial Completion Review Period, notify Supplier of its non-approval and include a detailed explanation for the basis thereof. Supplier shall have certified to promptly undertake such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available action or work as necessary to achieve Diablo Final Completion; provided that Gateway such requirements and shall then issue another Notice of Substantial Completion and Diablo to System Owner stating that Supplier believes that such requirements have been achieved. Such procedure shall be repeated until Substantial Completion (andis achieved. If Supplier disputes the reasons stated in System Owner’s notification, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) then such dispute shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined resolved in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection accordance with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Article XIX.

Substantial Completion. (a) When Landlord receives written certification from Architect that construction of the Tenant Improvements constituting Landlord’s TI Work in the Building has been completed in accordance with the Approved Space Plan (except for Punch List Work), Landlord shall prepare and deliver to Tenant a certificate signed by both Landlord and Architect (the “Substantial Completion Certificate”) (i) Gateway Substantial Completion shall have occurredcertifying that the construction of the Tenant Improvements constituting Landlord’s TI Work in the Building has been substantially completed in a good and workmanlike manner in accordance with the Approved Space Plan in all material respects, the Borrower and the Independent Engineer shall have certified subject only to such effect to the Administrative Agentcompletion of Punch List Work, and specifying the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completiondate of that completion, and (ii) Diablo certifying that Landlord’s TI Work complies in all material respects with all laws, rules, regulations, codes, ordinances, requirements, covenants, conditions and restrictions applicable thereto at the time of such delivery. Upon receipt by Tenant of the Substantial Completion has occurred Certificate and tender of possession of the Premises by Landlord to Tenant, the Tenant Improvements constituting Landlord’s TI Work in the Building will be deemed delivered to Tenant and “Substantially Complete” for all purposes of the Lease (andsubject to Landlord’s continuing obligations with respect to any Punch List Work, and to any other express obligations of Landlord under the Lease or this Workletter with respect to such Tenant Improvements). (b) Promptly following delivery of the Substantial Completion Certificate for Landlord’s TI Work in the Building, Project Manager or other representatives of Landlord shall conduct one or more “walkthroughs” of the Building with Tenant and Tenant’s representatives, to identify any items of Punch List Work that may require correction and to prepare a joint punch list reflecting any such items, following which Landlord shall diligently complete the Punch List Work reflected in such joint punch list. At any time within forty-five (45) days after delivery of such Substantial Completion Certificate, Tenant shall be entitled to submit one or more lists to Landlord supplementing such joint punch list by specifying any additional items of Punch List Work to be performed on the applicable Tenant Improvements constituting Landlord’s TI Work in the Building, and upon receipt of such list(s), Landlord shall diligently complete such additional Punch List Work. (c) All construction, product and equipment warranties and guaranties obtained by Landlord with respect to Landlord’s TI Work shall, to the extent reasonably obtainable, include a provision that such warranties and guaranties shall also run to the benefit of Tenant, and Landlord shall cooperate with Tenant in a commercially reasonable manner to assist in enforcing all such warranties and guaranties for the benefit of Tenant. (d) Notwithstanding any other provisions of this Workletter or of the Lease, if applicableLandlord is delayed in substantially completing any of Landlord’s TI Work as a result of any Tenant Delay, and if the Lease Commencement Date is being determined under Section 1(c)(i) of the Lease, then notwithstanding any other provisions of the Lease to the contrary, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Premises shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account been “Substantially Complete” on the Term Conversion Date, and (B) date the Independent Engineer shall Premises would have certified that, to its knowledge, been “Substantially Complete” absent such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Tenant Delay.

Substantial Completion. The Tenant Improvements shall be deemed to be “Substantially Completed” on the date that (i) Gateway Substantial Completion shall have occurred, the Borrower Tenant Improvements are essentially and satisfactorily completed in accordance with the Independent Engineer shall have certified to such effect Final Plans to the Administrative Agentextent that the Leased Premises may be occupied by Tenant for its Approved Use, subject only to completion of minor finishing, adjustment of equipment, and other minor construction aspects (“punch list items”) which do not, in the Independent Engineer shall have certified thataggregate, to its knowledge, cause interference (other than minor inconvenience) with the Loan Parties have sufficient funds available to achieve Gateway Final Completionuse and occupancy of the Leased Premises for the Approved Use, and (ii) Diablo a certificate of occupancy, whether conditional or final, has been issued by the proper governmental authority. Landlord shall give Tenant at least 30 days prior notice (written or oral) of Landlord’s reasonable estimate of the date of Substantial Completion has occurred of the Tenant Improvements. Tenant shall schedule with Landlord a mutually acceptable date, which will not be later than 3 business days after the date of Substantial Completion (andbut in no event earlier than the Landlord’s estimated date of Substantial Completion), if applicablefor a walk-through inspection of the Leased Premises. In such walk-through, Landlord and Tenant will mutually and reasonably agree upon a punch list, and subject to Tenant Delay, Landlord will use reasonable efforts to cause such punch list work to be completed within 30 days after such walk-through. Landlord hereby warrants to Tenant, which warranty shall survive for one year following the date of Substantial Completion of the Tenant Improvements, that (a) the materials and equipment furnished by Landlord and Landlord’s contractors in the completion of the Tenant Improvements will be of good quality and new, and (b) such materials and equipment and the work of such contractors shall be free from defects not inherent in the quality required or permitted hereunder. This warranty shall exclude damages or defects caused by Tenant, its agents, employees or contractors, improper or insufficient maintenance, improper operation or normal wear and tear under normal usage. Landlord shall use diligent and good faith efforts to cause the Tenant Improvements for the Fifth Floor Premises to be Substantially Completed by November 1, 2018. Subject only to Force Majeure (as defined in §11 hereof) and Tenant Delay, and provided that Landlord, using good faith efforts, obtains all required construction permits for the Tenant Improvements (the “Construction Permits”) by not later than June 30, 2018, then in the event that Landlord fails to cause the Tenant Improvements for the Fifth Floor Premises to be Substantially Completed on or before December 1, 2018, (the “Fifth Floor Substantial Completion Date”), Tenant shall be entitled to a day-for-day credit of Base Rent due as of the Commencement Date, for each day after the Fifth Floor Substantial Completion Date that the Tenant Improvements for the Fifth Floor Premises are not Substantially Completed; provided, however, that, for every day of delay which results from a Tenant Delay or a Force Majeure, the Diablo Expansion Fifth Floor Substantial Completion Date shall be moved back on a day-for-day basis. Such day-for-day credit of Base Rent shall commence upon the Commencement Date and shall continue until applied in full; provided that at no time may Tenant offset more than 50% of the Base Rent amount due each month until such abatement has occurredbeen completed. Landlord shall use diligent and good faith efforts to cause the Tenant Improvements for the Fourth Floor Premises to be Substantially Completed by February 1, and2019. Subject only to Force Majeure (as defined in §11 hereof) and Tenant Delay, and provided that Landlord, using good faith efforts, obtains all required construction permits for the Tenant Improvements (the “Construction Permits”) by not later than June 30, 2018, then in the event that Landlord fails to cause the Tenant Improvements for the Fourth Floor Premises to be Substantially Completed on or before March 1, 2019, (the “Fourth Floor Substantial Completion Date”), Tenant shall be entitled to a day-for-day credit of Base Rent due as of the Commencement Date, for each day after the Fourth Floor Substantial Completion Date that the Tenant Improvements for the Fourth Floor Premises are not Substantially Completed; provided, however, that, for every day of delay which results from a Tenant Delay or a Force Majeure, the Fourth Floor Substantial Completion Date shall be moved back on a day-for-day basis. Such day-for-day credit of Base Rent shall commence upon the June 1, 2019, and shall continue until applied in full; provided that at no time may Tenant offset more than 50% of the Base Rent amount due each month until such abatement has been completed. Subject only to Force Majeure and Tenant Delay, and provided that Landlord, using good faith efforts, obtains all required Construction Permits by not later than June 30, 2018, if the EPC Option has been exercisedTenant Improvements for the Leased Premises are not Substantially Completed on or before April 1, the Diablo Project Substantial 2019 (“Outside Completion has occurredDate”), the Borrower and the Independent Engineer then Tenant shall have certified the one-time right by not later than 10 days after the Outside Completion Date to such effect terminate this lease by delivering written notice to the Administrative AgentLandlord, which notice shall be hand delivered to 0000 Xxxx Xxxxx Xxxxx, Xxxxxxxx, Xxxx 00000, Attention: Xxxxxx X. Xxxxx, Xx., and the Independent Engineer shall have certified thatupon hand delivery of such termination notice to said address, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) this lease shall be deemed null and void and the parties shall have no further rights or obligations hereunder, except those that specifically survive the expiration or earlier termination of this lease. Landlord and Tenant acknowledge and agree that Tenant’s damages as a result of Landlord’s failure to have occurred hereunder and under cause the other Loan Documents if all of Tenant Improvements for the conditions precedent Fifth Floor Premises to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion be Substantially Completed by not later than the Fifth Floor Substantial Completion Date or Diablo Project the Fourth Floor Premises to be Substantially Completed by not later than the Fourth Floor Substantial CompletionCompletion Date are difficult to ascertain, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as that such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, amounts set forth above are a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable pre-estimate of Tenant’s probable loss as a result thereof and that such Project Companydamages constitute reasonable liquidated damages for Tenant’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims loss and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)not a penalty.

Substantial Completion. (i) Gateway The Concessionaire shall provide the Department with written notice of anticipated Substantial Completion shall have occurredat least 21 days prior to the anticipated Substantial Completion Date. During such 21-day period, the Borrower Concessionaire and the Independent Engineer Department shall have certified meet, confer and exchange information on a regular basis with the goal being the Department’s orderly, timely inspection and review of the Project and final design and construction documents and the Department’s issuance of a Substantial Completion Certificate. In addition, the Department shall conduct an inspection of the Project, the final design and construction documents, and such other matters as may be necessary to determine whether Substantial Completion is achieved and, not later than five days following the expiration of such effect 21-day period, shall deliver a written report of findings and recommendations to the Administrative AgentConcessionaire. (ii) If the Department disapproves the issuance of a Substantial Completion Certificate, then the Department shall provide a written notice to the Concessionaire specifying its reasons for such disapproval, and the Independent Engineer Concessionaire shall have certified thata reasonable opportunity to correct the defects or deficiencies in the Work to which the Department’s disapproval relates. The Department may independently inspect, review and investigate the corrective work. If the Department and the Concessionaire cannot, despite good faith efforts, agree as to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Substantial Completion, and (ii) Diablo such dispute shall be resolved in accordance with the dispute resolution procedures set forth in Section 17.06. The Concessionaire shall provide notice to the Department if the Department has not approved or disapproved the issuance of a Substantial Completion Certificate within such 21-day period, and if the Department has occurred (and, if applicable, not notified the Diablo Expansion Substantial Completion has occurred, andConcessionaire of such approval or disapproval within 15 days after such Concessionaire notice, if the EPC Option has been exerciseddelay is not a result of a Concessionaire Party action or inaction, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer then such delay shall have certified to such effect to the Administrative Agentconstitute a Compensation Event, and the Independent Engineer Concessionaire shall have certified thatbe entitled to Concessionaire Damages, if any, pursuant to its knowledgeSections 13.02 and 13.03. (iii) Subject to Section 7.14(c), when the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway requirements for Substantial Completion and Diablo have been achieved with respect to the New Lanes in their entirety in accordance with this Section (without regard to the status of the remainder of the Project), (A) the Department shall issue a Substantial Completion (andCertificate for the New Lanes, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer Department shall assume responsibility from the Concessionaire for operation and maintenance of the New Lanes, (C) the Department shall include such constructed New Lanes as part of the State Highway system, and (D) the Concessionaire shall have certified thatno further obligations with respect to the New Lanes except as required to satisfy the conditions to Final Acceptance as provided in Section 7.13(b) and as required by Sections 7.19, 8.07, 14.01 and 14.03; provided, that solely for the purpose of processing such Final Acceptance, all references to its knowledge, such deposited amount the Project in Section 7.13(a)(ii) and (or amount of available unused equity commitments under iii) and (b) shall be changed to reference the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)New Lanes.

Substantial Completion. 7.3.1 Xxxxxx Mechanical shall notify Owner when it believes the Plant has achieved Substantial Completion and, with or before such notice. Xxxxxx Mechanical shall prepare and issue a Certificate of Substantial Completion that will set forth (i) Gateway the date of Substantial Completion of the Work, (ii) the remaining items of Work that have to be completed before Final Completion (omissions of an item from the list shall not be a waiver of the right to have occurredsuch items of Work done or an admission that it was done), the Borrower and the Independent Engineer shall have certified to such effect (iii) provisions (to the Administrative Agentextent not already provided in the Contract) establishing Owner’s and Xxxxxx Mechanical’s responsibility for the Plant’s security, maintenance, utilities and insurance pending final payment and (iv) an acknowledgment that warranties commence to run on the date of Substantial Completion, except as may otherwise be noted in the Certificate of Substantial Completion. Within five (5) days of Owner’s receipt of Xxxxxx Mechanical’s notice, Owner and Xxxxxx Mechanical will jointly inspect the Plant Work to verify the Plant has achieved Substantial Completion with permanent equipment installed in operating condition and order required under the Contract, and verify the additional Work necessary to complete before Final Completion and to develop a mutually-agreeable Punch List. Owner shall give notice of objection to the claim of Substantial Completion within seven (7) days of the joint inspection date. Owner shall, within seven calendar days after the inspection deliver to Xxxxxx Mechanical its proposed Punch List signed by Owner’s Representative. Such Punch List shall clearly designate which items, if any, need to be completed in order to reach Final Completion. Xxxxxx Mechanical shall within six (6) calendar days of receipt of the Punch List xxxx the list to show Xxxxxx Mechanical’s disagreement, if any, with any of the items listed by Owner, and return a copy of the list so marked and signed by Xxxxxx Mechanical to Owner. In the event that Parties do not agree on the items that should be included on the Punch List within eight (8) calendar days thereafter, then either Party may submit the matter to disputes resolution under Section 17 below. 7.3.2 Upon achieving Substantial Completion, Hams Mechanical shall proceed to complete the Work and Delta-T with assistance from Xxxxxx Mechanical and Owner will continue the Performance Test protocol described at Exhibit C in effort to attain 100% of the performance guarantees as prescribed by Exhibit D for the periods required by Exhibit D. Upon achieving Substantial Completion, Owner shall release to Xxxxxx Mechanical 90% of the Retainage, and the Independent Engineer remaining 10% of the Retainage shall have certified thatbe retained until Final Completion or, to its knowledgeif earlier, until the Plant achieves 100% of the performance guarantees as prescribed by Exhibit D for the periods required by Exhibit D. If earlier than Final Completion the Plant achieves 100% of the performance guarantees, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) then remaining Retainage shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completionreleased, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused less an amount equal to 150% of the Borrower’s good faith, reasonable estimate value of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit remaining or incomplete items of Work as noted in the Construction Account on Certificate of Substantial Completion or as previously documented in writing. 7.3.3 At Substantial Completion, care, custody and control of the Term Conversion DatePlant, shall pass to Owner. Subsequent to Substantial Completion, Owner will permit Xxxxxx Mechanical access to the Plant, subject only to restrictions as necessary for security and safety, so that Xxxxxx Mechanical may conduct Corrective Action and additional Performance Tests as provided in this Article 7. After Substantial Completion, Owner shall be solely-responsible for providing property insurance coverage of the Plant, provided, however, that (i) a Certificate of Substantial Completion has been issued for the portion of Work addressing the items set forth in Section 7.3.1 above, (ii) Xxxxxx Mechanical and Owner have obtained the consent of their sureties and insurers, and to the extent applicable, the appropriate government authorities having jurisdiction over the Plant, and (Biii) Owner’s use or occupancy will not significantly interfere with Xxxxxx Mechanical’s completion of the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)remaining Work.

Substantial Completion. (i) Gateway Substantial Completion The Contractor shall notify the Engineer when the Contractor considers that the Works have occurred, the Borrower been completed in accordance with this Contract and the Independent Engineer shall have certified to such effect to the Administrative Agentare free from Defects, and the Independent Works can be effectively used for the purpose for which they are intended. When the Engineer considers that Substantial Completion may have occurred (save for minor defects and incomplete work) a Technical Inspection shall be carried out when instructed by UNICEF. Within seven (7) days of the Technical Inspection the Engineer shall have certified that, issue a defects list to its knowledge, the Loan Parties have sufficient funds available Contractor and UNICEF identifying all remaining defects and incomplete works and the timescales within which the Contractor is required to achieve Gateway Final remedy such defects and complete such incomplete work (“Defects List for Substantial Completion, and (ii) Diablo ”). The Contractor shall comply with the Defects List for Substantial Completion has occurred and shall notify the Engineer when it considers that all defects and incomplete work which the Contractor was required to remedy and complete in the Defects List for Substantial Completion have been remedied and completed. When instructed by UNICEF a further Technical Inspection shall be carried out to determine whether or not a certificate of substantial completion (and, if applicable, the Diablo Expansion "Certificate of Substantial Completion") should be issued. UNICEF (or with UNICEF’s prior written consent the Engineer on UNICEF’s behalf) shall issue the Certificate of Substantial Completion when UNICEF considers that Substantial Completion has occurred, andprovided that UNICEF shall be entitled, if at UNICEF’s absolute discretion, to issue the EPC Option has been exercised, the Diablo Project Certificate of Substantial Completion notwithstanding that UNICEF does not consider that Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway . Issue of any Certificate of Substantial Completion and Diablo Substantial Completion (and, if applicable, shall not relieve or limit the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and Contractor’s obligations or liabilities under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver this Contract and/or prejudice UNICEF’s rights and obligations under or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)this Contract.

Substantial Completion. As used herein, “Substantial Completion” shall mean (and the Premises shall be deemed “Substantially Complete”) when (i) Gateway Substantial Completion shall have occurredthe City of Seattle has given final approval in writing that all TI Work under the construction permit has been completed, (ii) installation of the Borrower and TI Work has occurred in accordance with the Independent Engineer shall have certified Working Drawings, subject only to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completionpunch-list items described below, and (iiiii) Diablo basic services as required under the Lease are available to the Premises. Notwithstanding the foregoing, Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder on the date on which Tenant takes occupancy of the Premises and under commences to do business therein. Substantial Completion shall be deemed to have occurred even if a “punch-list” or similar corrective work remains to be completed. Immediately before Tenant occupies any portion of the other Loan Documents if Premises, Landlord shall walk the portion of the Premises and create a punch-list of incomplete and defective items, and provide a copy of the punch-list to Tenant. Within thirty (30) days after Tenant commences occupancy of the Premises, Landlord, Tenant, and the Tenant’s Architect shall prepare a “punch-list” which shall consist of the items that have not been, but should have been, finished or furnished by Tenant prior to such date. Tenant shall proceed diligently to complete, or cause the TI Contractor to complete, all punch-list items, except for those punch-list items related to the Landlord’s Work which Landlord shall proceed diligently to complete, or cause its contractor to complete. Tenant shall require reasonable retainage in the TI Construction Contract and shall not release all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating retainage to the failure TI Contractor until such time as Tenant reasonably believes all punch-list items have been completed. Release of any retainage shall not release or relieve Tenant of the applicable EPC Contractor obligation to pay liquidated damages, any other similar Dispute (as such term is defined cause all punch-list items to be completed and the Premises to be in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date required under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)this Lease.

Substantial Completion. 10.3.1 Substantial Completion shall occur on the date on which: (i) Gateway Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Mechanical Completion has occurred, and(ii) the Performance Tests required for Substantial Completion in Exhibit A have been completed, if (iii) the EPC Option Facility has achieved 95% or more of the Target Performance Criteria for Facility output and 105% or less of the Target Performance Criteria for Facility heat rate, (iv) a thirty (30) hour continuous operation of the Facility has been exerciseddemonstrated in accordance with the continuous operation test as described in Exhibit A, and (v) there are no known items of uncompleted Work as of such date that would prevent compliance with the criteria in Article 10.1.1(a), (c) and (d); 10.3.2 When Contractor believes it has achieved Substantial Completion of the Facility, Contractor shall tender a certificate of Substantial Completion to Owner in substantially the form attached hereto as Exhibit F-1, together with documentation sufficient for independent verification. Owner shall accept or reject Contractor's certification of Substantial Completion in writing within five (5) Business Days after receipt of Contractor's tender. If Owner fails to notify Contractor of any such known reasons within the allotted time, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Facility shall be deemed to have occurred hereunder and under the other Loan Documents if all achieved Substantial Completion. If Owner rejects Contractor's certification of the conditions precedent to Gateway Substantial Completion, Diablo Owner shall identify its reasons for rejection in detail sufficient for verification and thereafter Contractor shall: (a) take prompt corrective action, as necessary, to achieve the requirements of Substantial Completion, Diablo Expansion and then submit a new certification of Substantial Completion to Owner as provided for above; or (b) disagree with Owner's reasons for such rejection, promptly notify Owner, and the Parties shall attempt to resolve the disagreement without delay. If the disagreement cannot be resolved within five (5) Business Days, then Contractor may cease further Performance Testing and seek a determination whether or Diablo Project not Substantial CompletionCompletion has been achieved under Article 12 "Dispute Resolution". 10.3.3 Notwithstanding the obligations of Contractor set forth in Articles 10.3.1 and 10.3.2, as applicable, have occurred under if Contractor is unsuccessful in meeting the relevant EPC Contract except Target Performance Criteria for any conditions precedent relating the Facility after reasonable efforts to the failure do so within ninety (90) days of the applicable EPC commencement of initial Performance Tests, Contractor shall not be obligated to pay liquidated damagescontinue to run Performance Tests. In such case, Owner and Contractor shall discuss alternatives that may be available to Owner that may remedy the problems that Owner and Contractor have encountered during the attempted Performance Tests. Contractor's costs of implementing any other similar Dispute (as such term is defined alternative(s) that are agreed upon shall be Reimbursable Costs that are not included in the applicable EPC Contract) Contract Sum and any reasonably related Disputes or failures by not chargeable against the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Target Price.

Substantial Completion. (i) Gateway Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company Borrower any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2A) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Companythe Borrower’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company the Borrower by such the EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Companythe Borrower’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company the Borrower by such the EPC Contractor).

Substantial Completion. (iA) Gateway Substantial Completion Attached hereto as Exhibit C is a schematic work plan (the "Plan") and accompanying specification (the "Specifications") showing in schematic fashion and also describing the detail pursuant to which the Premises will be built out and improved for Tenant's occupancy. The Plan and Specifications are collectively called the "Plans." Tenant hereby approves the Plans and acknowledges that they show in schematic fashion the work. Landlord and Tenant hereby agree that upon the terms and conditions herein set forth, Landlord shall build out and improve the Premises consistent with the scope of work shown on the Plan and set forth in the Specifications using materials and construction methods as determined by Landlord ("Landlord's Work"). In no event shall Landlord's Work exceed the scope shown on the Plan and set forth in the Specifications. Without limiting the generality of the foregoing sentence, in no event shall Landlord have any responsibility for the installation or connection of Tenant's computer, telephone, other communication equipment, systems or wiring. Based on the aforesaid Plans, Landlord will prepare or cause to be prepared construction plans and accompanying specifications (if needed) for Landlord's Work consistent with the Plans. Said construction plans and specifications will be submitted by Landlord to Tenant and Tenant shall have occurredthe limited right to approve same for consistency with the Plans, such approval not to be unreasonably withheld, delayed, or conditioned. If Tenant does not respond to Landlord within three (3) business days after receipt of the Borrower construction plans and the Independent Engineer shall have certified to such effect to the Administrative Agentspecifications from Landlord, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Tenant shall be deemed to have occurred hereunder approved same. (B) Subject to delays due to Force Majeure, as defined in Section 6.1, Landlord shall use reasonable speed and under diligence in the other Loan Documents if performance of Landlord's Work, but Tenant shall have no claim against Landlord for failure so to complete construction of Landlord's Work in the Premises, except for the right to terminate this Lease, without further liability to either party, in accordance with the provisions hereinafter specified in Section 3.2. The Premises shall be treated as having been substantially completed and be deemed ready for Tenant's occupancy on the later of: (a) The date on which Landlord's Work, together with common facilities for access and services to the Premises, has been completed (or would have been completed except for Tenant Delay) except for items of work and adjustment of equipment and fixtures which can be completed after occupancy has been taken without causing substantial interference with Tenant's use of the Premises (i.e. so-called "punch list" items) and items of work for which there is a long lead time in obtaining the materials therefor or which are specially or specifically manufactured, produced or milled for the work in or to the Premises and require additional time for receipt or installation ("long lead" items), or (b) The date when permission has been obtained from the applicable governmental authority, to the extent required by law, for occupancy by Tenant of the Premises for the Permitted Use. Landlord shall complete as soon as conditions practically permit all items and work excepted by Section 3.1(B)(a) above, and Tenant shall cooperate with Landlord in providing access as may be required to complete such work in a normal manner. Landlord shall permit Tenant access for installing Tenant's trade fixtures in portions of the Premises and for wiring its computer system prior to substantial completion when all of the conditions precedent same can be done without material interference with remaining work or with the maintenance of harmonious labor relations. In the event of any dispute as to Gateway Substantial Completionthe date on which Landlord's Work has been completed as described in subsection 3.1(B)(a) above, Diablo Substantial Completionthe reasonable determination of Landlord's architect as to such date shall be deemed conclusive and binding on both Landlord and Tenant. Tenant agrees that no delay by it, Diablo Expansion Substantial Completion or Diablo Project Substantial Completionanyone employed by it, in performing work to prepare the Premises for occupancy (including, without limitation, the work in installing Tenant's trade fixtures) (collectively a "Tenant Delay") shall delay commencement of the Term or the obligation to pay rent, regardless of the reason for such delay or whether or not it is within the control of Tenant or any such employee, and Landlord's Work shall be deemed completed as of the date when the same would have been substantially completed except for Tenant Delay, as applicable, have occurred under determined by Landlord in the relevant EPC Contract except for any conditions precedent relating to the failure exercise of the applicable EPC Contractor to pay liquidated damages, its good faith business judgment. Nothing contained in this paragraph shall limit or qualify or prejudice any other similar Dispute (as such term is defined covenants, agreements, terms, provisions and conditions contained in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)this Lease.

Substantial Completion. (a) As used herein “Substantial Completion,” “Substantially Completed,” and any derivations thereof mean that (i) Gateway the Tenant Improvements have been substantially completed in accordance with the Final CDs as determined by Architect (and confirmed by Landlord’s construction manager, which confirmation shall not be unreasonably withheld, conditioned or delayed), (ii) Tenant can lawfully occupy the Premises for business purposes. Substantial Completion shall have occurredoccurred even though minor details of construction, decoration, landscaping and mechanical adjustments and other “punch-list” items remain to be completed. Tenant shall have the sole responsibility for obtaining any certificate of occupancy (or equivalent). When the Architect considers the Tenant Improvements to be Substantially Completed, Tenant will notify Landlord and within three (3) business days thereafter, Landlord’s Representative and Tenant’s Representative shall conduct a walk-through of the Premises and identify any necessary touch-up work, repairs and minor completion items that are necessary for final completion of the Tenant Improvements. Tenant shall use commercially reasonable efforts to cause the General Contractor performing the Tenant Improvements to complete all punch-list items within thirty (30) days after agreement thereon. Notwithstanding the above, Substantial Completion of the Tenant Improvements is not a condition to the Commencement Date or Tenant’s obligation to pay Rent under the Lease. (b) All Tenant Improvements shall be the property of Landlord upon installation unless Landlord and Tenant otherwise agree in writing and provided that Landlord may designate for removal by Tenant (and at Tenant’s cost) any Tenant Improvements that are not Building Standard. For purposes of the foregoing sentence, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) following shall be deemed to have occurred hereunder Building Standard Tenant Improvements: usual office improvements for a general, standard office use such as standard gypsum board, partitions, typical office ceiling grids and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completiontiles, Diablo Substantial Completiontypical office lighting panels, Diablo Expansion Substantial Completion or Diablo Project Substantial Completiontypical office doors and carpeting, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) standard break rooms and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)lunchrooms.

Substantial Completion. (i) Gateway Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Suite 750 Improvements shall be deemed substantially complete when all work called for by the Drawings has been finished and the Premises (including Suite 750) is ready to be used and occupied by Tenant, even though minor items may remain to be installed, finished or corrected (“Substantial Completion Date” or the “Date of Substantial Completion”). Tenant shall cause the contractors to diligently complete any items of work not completed when the Premises (including Suite 750) are substantially complete. In the event of any dispute as to substantial completion of Suite 750 Improvements, the statement of Landlord’s construction manager shall be conclusive. Substantial completion shall have occurred hereunder and under notwithstanding punch list items. Promptly after the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial CompletionDate, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined parties will execute an instrument in the applicable EPC Contract) and any reasonably related Disputes or failures by form attached hereto as Exhibit C, setting forth the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records)Suite 750 Commencement Date, so long as that said date is certain and such instrument, when executed, is hereby made a part of this Amendment and incorporated herein by reference. NO DELAY IN THE SUBSTANTIAL COMPLETION DATE SHALL CAUSE THE RENT SUITE 750 COMMENCEMENT DATE TO BE DELAYED; PROVIDED, HOWEVER, TO THE EXTENT THE SUBSTANTIAL COMPLETION DATE DOES NOT OCCUR WITHIN NINETY (A)(190) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or DAYS FOLLOWING THE DELIVERY DATE, AND SUCH DELAY IS DUE TO A LANDLORD DELAY, THEN THE SUITE 750 COMMENCEMENT DATE SHALL BE DELAYED BY THE SAME AMOUNT OF TIME AS THE LANDLORD DELAY. MOREOVER, IF THE LANDLORD DELAY CAUSES THE SUBSTANTIAL COMPLETION DATE TO EXTEND BEYOND ONE HUNDRED TWENTY (2120) the Borrower has caused an amount equal to the Borrower’s good faithDAYS FOLLOWING THE DELIVERY DATE, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(sTHEN IN ADDITION TO THE EXTENSION OF THE RENT SUITE 750 COMMENCEMENT DATE, TENANT SHALL ALSO BE ENTITLED TO ONE (1) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)ADDITIONAL DAY OF ABATED BASE RENT FOR EACH DAY THAT THE LANDLORD DELAY CAUSES THE SUBSTANTIAL COMPLETION DATE TO EXTEND BEYOND SUCH DATE.

Substantial Completion. (i) Gateway Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Tenant Improvements shall be deemed substantially complete when all work called for by the Drawings has been finished and the Premises is ready to be used and occupied by Tenant, even though minor items may remain to be installed, finished or corrected (“Substantial Completion Date” or the “Date of Substantial Completion”). Tenant shall cause the contractors to diligently complete any items of work not completed when the Premises are substantially complete. In the event of any dispute as to substantial completion of Tenant Improvements, the statement of Landlord’s construction manager shall be conclusive. Substantial completion shall have occurred hereunder and under notwithstanding punch list items. Promptly after the other Loan Documents if all Substantial Completion Date, the parties will execute an instrument in the form attached hereto as Exhibit C-2 setting forth the Commencement Date of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records)Lease, so long as that said date is certain and such instrument, when executed, is hereby made a part of this Lease and incorporated herein by reference. NO DELAY IN THE SUBSTANTIAL COMPLETION DATE SHALL CAUSE THE RENT COMMENCEMENT DATE TO BE DELAYED; PROVIDED, HOWEVER, TO THE EXTENT THE SUBSTANTIAL COMPLETION DATE DOES NOT OCCUR BY MAY 1, 2015, AND SUCH DELAY IS DUE TO A LANDLORD DELAY, THEN THE RENT COMMENCEMENT DATE SHALL BE DELAYED BY THE SAME AMOUNT OF TIME AS THE LANDLORD DELAY. MOREOVER, IF THE LANDLORD DELAY CAUSES THE SUBSTANTIAL COMPLETION DATE TO EXTEND BEYOND JUNE 1, 2015, THEN IN ADDITION TO THE EXTENSION OF THE RENT COMMENCEMENT DATE, TENANT SHALL ALSO BE ENTITLED TO ONE (A)(11) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faithADDITIONAL DAY OF ABATED BASE RENT FOR EACH DAY THAT THE LANDLORD DELAY CAUSES THE SUBSTANTIAL COMPLETION DATE TO EXTEND BEYOND JUNE 1, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)2015.

Substantial Completion. (i) Gateway Substantial Completion The Contractor shall notify the Engineer when the Contractor considers that the Works have occurred, the Borrower been completed in accordance with this Contract and the Independent Engineer shall have certified to such effect to the Administrative Agentare free from Defects, and the Independent Works can be effectively used for the purpose for which they are intended. When the Engineer considers that Substantial Completion may have occurred (save for minor defects and incomplete work) a Technical Inspection shall be carried out when instructed by UNICEF. Within seven (7) days of the Technical Inspection the Engineer shall have certified that, issue a defects list to its knowledge, the Loan Parties have sufficient funds available Contractor and UNICEF identifying all remaining defects and incomplete works and the timescales within which the Contractor is required to achieve Gateway Final remedy such defects and complete such incomplete work (“Defects List for Substantial Completion, and (ii) Diablo ”). The Contractor shall comply with the Defects List for Substantial Completion has occurred and shall notify the Engineer when it considers that all defects and incomplete work which the Contractor was required to remedy and complete in the Defects List for Substantial Completion have been remedied and completed. When instructed by UNICEF a further Technical Inspection shall be carried out to determine whether or not the certificate of Substantial Completion should be issued (and, if applicable, the Diablo Expansion "Certificate of Substantial Completion"). UNICEF (or with UNICEF’s prior written consent the Engineer on UNICEF’s behalf) shall issue the Certificate of Substantial Completion when UNICEF considers that Substantial Completion has occurred, andprovided that UNICEF shall be entitled, if at UNICEF’s absolute discretion, to issue the EPC Option has been exercised, the Diablo Project Certificate of Substantial Completion notwithstanding that UNICEF does not consider that Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway . Issue of any Certificate of Substantial Completion and Diablo Substantial Completion (and, if applicable, shall not relieve or limit the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and Contractor’s obligations or liabilities under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver this Contract and/or prejudice UNICEF’s rights and obligations under or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)this Contract.

Substantial Completion. Upon a determination by Northwind that the Plant has been substantially completed in accordance with the Plant Plans and Specifications, which shall only be when (i) Gateway Substantial Completion shall have occurredthe Plant has demonstrated performance in accordance with the design requirements, all applicable Laws and Government Approvals, the Borrower Quality Control and the Independent Engineer shall have certified to such effect to the Administrative AgentInspection Program, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final CompletionPerformance Tests, and Northwind has so certified to Aladdin, (ii) Diablo Northwind has further certified to Aladdin that the Plant has been designed and constructed and is operating in accordance with the Work and this Agreement and (iii) Northwind has performed all obligations under this Agreement to be then performed by Northwind, Northwind shall deliver to Aladdin a certificate of substantial completion (the "Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurredCertificate"), which shall be in the Borrower form agreed to, initialed by the Parties and attached hereto as Exhibit E by not later than thirty (30) days after Notice to Proceed is received by Northwind. If Aladdin believes, at the Independent Engineer shall have certified to time of such effect to certification by Northwind, that the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Plant has not reached Substantial Completion, andthen, if within ten (10) Business Days after Aladdin receives the EPC Option has been exercisedSubstantial Completion Certificate, Aladdin shall provide Northwind with written notice clearly setting forth the Diablo Project Substantial Completionbasis for Aladdin's belief. Any portions of the Plant to which timely objection is not made by Aladdin shall be considered substantially complete. Failure by Aladdin to deliver any notice within said ten (10) Business Day period shall be deemed to have occurred hereunder and under the other Loan Documents if all be acceptance of the conditions precedent Plant as substantially complete. If Aladdin delivers a notice as aforesaid, Northwind shall determine whether it agrees with such notice, and if Northwind does so agree, Northwind shall complete the Plant in the manner required by the terms of this Agreement diligently and in good faith. If Northwind does not agree with Aladdin's notice, Northwind shall so inform Aladdin and Northwind and Aladdin promptly shall confer and exert their best efforts in good faith to Gateway Substantial Completionreach a reasonable and equitable resolution of the issue. If Northwind and Aladdin are unable to resolve the issue within five (5) Business Days, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under then the relevant EPC Contract except for any conditions precedent relating matter shall be referred to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion DateIndependent Engineer, and (B) the Parties agree to accept the Independent Engineer shall have certified thatEngineer's determination as binding, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)act accordingly.

Substantial Completion. 4.3.1 The Contractor shall achieve Substantial Completion when (i) Gateway the Facility has been started-up, functionally tested, feedstock introduced, and all Pilot Scale Tests set forth on Exhibit E have been completed, data collected and reports generated to the mutual satisfaction of the Owner and Contractor; and, if all Pilot Scale Tests indicate full commercial viability of the Facility and Owner’s Technology,(ii) Contractor provides verification to Owner Contractor’s willingness to guarantee the performance of the Technology under future EPC Contracts involving the same feedstock and test parameters involved in the Pilot Scale Tests. 4.3.2 Within ten (10) Days following the receipt of the Certificate of Substantial Completion, in the form set forth in Exhibit F, Owner shall inspect the Facility and review all Work,Pilot Scale Tests, data collected, reports and services performed by Contractor with respect thereto, and shall either (i) deliver to Contractor the Certificate of Substantial Completion shall countersigned and certifying that the requirements of this Contract applicable to Substantial Completion have occurred, been fully satisfied for the Borrower Facility and Substantial Completion of the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and Facility has accordingly been achieved or (ii) Diablo if reasonable cause exists for doing so, notify Contractor in writing that Substantial Completion of the Facility has not been achieved, stating in detail the reasons therefore. In the event that Owner determines that Substantial Completion has occurred (andnot been achieved and Contractor has not disputed Owner’s determination, if applicable, the Diablo Expansion Contractor shall promptly take such corrective action or perform such additional Work or other services as shall achieve Substantial Completion has occurred, and, if of the EPC Option Facility and shall issue to Owner another Certificate of Substantial Completion. Such procedure shall be repeated until the date that Substantial Completion of the Facility has been exercised, achieved (the Diablo Project “Substantial Completion has occurred), Date”) or either party refers such matter to dispute resolution pursuant to ARTICLE 12; Owner shall respond to any such subsequent Certificate of Subsequent Completion within five (5) Days following the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)receipt thereof.

Substantial Completion. The term “Substantial Completion” shall mean that (i) Gateway Substantial Completion the Premises shall have occurredbe in a state of completion which will, except for any improvements or work to be performed by Tenant, allow Tenant to utilize the Borrower and Premises for the Independent Engineer shall have certified to such effect permitted use hereunder (including the availability of required utility services) without material interference to the Administrative Agentcustomary business activities of Tenant by reason of the completion of Landlord’s work, all as more fully described in Paragraph 17 below and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, Exhibit “F” attached hereto and (ii) Diablo Landlord has received a temporary or permanent Occupancy Permit (as defined below), if required, provided that the foregoing will not be construed to relieve Tenant of the obligation to install all Tenant Work (as defined in Exhibit “F”), and to perform all other installations of furniture, fixtures and equipment in the course of taking occupancy and moving into the Premises, properly if and to the extent applicable governmental authorities require that such construction and other installations be completed prior to conducting final inspections or issuing a final inspection certificate, certificate of occupancy, or its equivalent (any of the foregoing, an “Occupancy Permit”) for the Premises (and Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall nevertheless be deemed to have occurred hereunder and under if Landlord has completed the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute Tenant Improvements (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2Exhibit “F”) the Borrower has caused an amount equal to the Borrower’s good faithextent described above, reasonable estimate but Tenant is denied an Occupancy Permit because Tenant has failed to install any Tenant Work or to perform all other installations of such Project Company’s reasonably anticipated liability its furniture, fixtures and equipment properly and in connection accordance with such Dispute(s) (after giving effect to all potential offsetsapplicable Governmental Requirements). The Premises shall be deemed substantially complete even though minor or insubstantial details of construction, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) mechanical adjustment or decoration remain to be on deposit in performed, the Construction Account on non-completion of which does not materially interfere with Tenant’s use of the Term Conversion Date, and Premises or the conduct of its business therein. Landlord will use commercially reasonable efforts to cause Substantial Completion to occur not later than one hundred twenty (B120) days after the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount date of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)this Lease.

Substantial Completion. (a) The Concessionaire will achieve Substantial Completion on or before the Guaranteed Substantial Completion Date, subject to adjustment in accordance with this Agreement; provided that failure to achieve Substantial Completion by the Guaranteed Substantial Completion Date, in and of itself, will not result in a default under Section 19.01, except as set forth in Section 19.01(e). (b) The Department will issue a written certificate of Substantial Completion at such time as Substantial Completion occurs. If the Department approves the issuance of a Substantial Completion Certificate, the Department will provide with its Substantial Completion Certificate a Punch List of items to be completed to achieve Final Acceptance. (c) Substantial Completion will have been achieved when each of the following conditions have occurred for the entire Project Assets: (i) Gateway Substantial Completion shall have occurredall lanes of traffic (including ramps, interchanges, overpasses, underpasses, and other crossings) set forth in the Borrower Construction Documentation are in their final configuration and available for normal and safe use and operation; (ii) all major safety features are installed and functional, including, as required, shoulders, guard rails, striping and delineations, concrete traffic barriers, bridge railings, cable safety systems, metal beam guard fences, safety end treatments, terminal anchor sections and crash attenuators; (iii) all required illumination for normal and safe use and operation is installed and functional in accordance with the Independent Engineer shall have certified Technical Requirements; (iv) all required signs and signals for normal and safe use and operation are installed and functional in accordance with the Technical Requirements; (v) the need for temporary traffic controls or for lane closures at any time has ceased (except for any then required for routine maintenance, and except for temporary lane closures in accordance with and as permitted by a Department-approved traffic management plan solely in order to such effect to complete Punch List items); (vi) the Administrative AgentConcessionaire has completed the toll commissioning process described in the Technical Requirements, and the Independent Engineer shall have certified thatETTM System is completed, has passed all demonstration and performance testing in accordance with the Construction Documentation and the Technical Requirements, including demonstration of interoperability with E-ZPass or any successor to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final CompletionE-ZPass then utilized on State Highways, and is ready for normal operation unless the foregoing conditions have been previously satisfied under Section 9.02(a)(viii); (iivii) Diablo Substantial Completion the TMS (if any) and safety features for TMS components are installed and functional; and (viii) the Concessionaire has occurred (andotherwise completed the Work in accordance with this Agreement, if applicable, including the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative AgentTechnical Requirements, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledgeDocumentation, such deposited amount (or amount that the Project Assets are in a physical condition that it can be used for normal and safe vehicular travel in all lanes and at all points of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected entry and exit, subject only to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Punch List items.

Substantial Completion. (i) Gateway If the Building Shell Improvements are not Substantially Completed by the Estimated Building Shell Substantial Completion Date, because of a Tenant Delay, then the Lease Commencement Industrial Lease—Atlanta Dendreon Corporation Date shall be sixty (60) days following the date the Building Shell Improvements would have occurredbeen Substantially Completed but for any Tenant Delay, subject to the provisions of Section 2.02 above. Tenant agrees that any Tenant Delay shall be cumulative and shall not cause the Lease Commencement Date to be extended beyond what it otherwise would have been in the absence of any Tenant Delay. For purposes of this Lease, the Borrower Building Shell Improvements shall be Substantially Completed when (a) all of such improvements are completed in accordance with the Building Shell Plans, except for minor items of work (e.g., pick-up, “punch list” work, etc.) that can be completed with only minor interference with construction and installation of the Independent Engineer Tenant Improvements, which shall have certified to such effect to be itemized on a punch list and completed by Landlord within forty-five (45) days following the Administrative Agentdate of Substantial Completion of the Building Shell Improvements, (b) the applicable governmental authority has conducted its final inspection of all Building Shell Improvements, has provided its approval thereof, and has issued a Temporary Certificate of Occupancy (if applicable and available), (c) the Independent Engineer shall have certified that, architect of record (Xxxxxxx Xxxxxxx) has delivered to Tenant its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final executed Certificate of Substantial Completion, and (iid) Diablo Substantial Completion has occurred upon written notice from Landlord to Tenant of the foregoing, accompanied by a copy of such Temporary Certificate of Occupancy (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower applicable and the Independent Engineer shall have certified to available) and a copy of such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Certificate of Substantial Completion and Diablo Substantial Completion granting Tenant possession and occupancy of the Building Shell Improvements (and, if applicable, the Diablo Expansion “Substantially Completed” or “Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all ” of the conditions precedent to Gateway Substantial CompletionBuilding Shell Improvements, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractorphrase).

Substantial Completion. (ia) Gateway After substantial completion of the 3650-3660 X. Xxxxxxxx Redevelopment Project, including the 3650-3660 X. Xxxxxxxx CID Project, in accordance with the provisions of this Agreement, the Developer shall furnish a Certificate of Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative AgentConstruction Inspector certifying the substantial completion of the 3650-3660 X. Xxxxxxxx Redevelopment Project. The Construction Inspector shall, and within forty-five (45) days following receipt of the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Certificate of Substantial Completion (andthe “Inspection Period”), if applicablecarry out such inspections as she or he deems necessary to verify to her or his reasonable satisfaction the accuracy of the certifications contained in the Certificate of Substantial Completion. If, prior to the expiration of the Inspection Period, the Diablo Expansion Substantial Completion, and, if City does not accept and execute the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all Certificate of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under furnish the relevant EPC Contract except for any conditions precedent relating Developer with specific written objections to the failure status of the applicable EPC Contractor 3650-3660 X. Xxxxxxxx Redevelopment Project, describing such objections and the measures required to pay liquidated damagescorrect such objections in reasonable detail, any other similar Dispute the Developer shall provide written notice to the Construction Inspector (as such term is defined in with a copy to the applicable EPC ContractCity Administrator) and any reasonably related Disputes or failures that the Certificate of Substantial Completion will be deemed accepted by the relevant EPC Contractor to satisfy City unless, before the end of an applicable condition precedent in connection with such Dispute(sadditional fifteen (15) day period, the City (including any failure by 1) accepts and executes the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release Certificate of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred Substantial Completion or (2) furnishes the Borrower has caused an amount equal Developer with specific written objections to the Borrower’s good faithstatus of the 3650-3660 X. Xxxxxxxx Redevelopment Project, describing such objections and the measures required to correct such objections in reasonable estimate detail. Upon acceptance of such Project Company’s reasonably anticipated liability in connection the Certificate of Substantial Completion by the City or upon the expiration of the additional fifteen (15) day period referenced above, without any written objections thereto, the Developer may record the Certificate of Substantial Completion with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion DateSt. Louis County Recorder of Deeds, and (B) the Independent Engineer same shall have certified that, constitute evidence of the satisfaction of the Developer’s agreements and covenants to its knowledge, such deposited amount (or amount of available unused equity commitments under complete the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).3650-3660 X.

Substantial Completion. The date that Landlord Substantially Completes Phase II of Landlord’s 20th/21st Floor Work shall be deemed the “Substantial Completion Date”. For the purposes of the Original Lease, as amended by this Amendment (including without limitation this Exhibit B-2), the term “Substantial Completion” shall mean that, with the exception of minor details of construction, mechanical adjustments or decoration, neither the completion of which nor the failure of completion of which shall materially interfere with Tenant’s use of the 20th/21st Floor Space, or items of work which, in accordance with good construction practice, should be completed after the completion of other work to be performed in the 20th/21st Floor Space (collectively, “Punch-List Items”), the Landlord’s 20th/21st Floor Work shall have been completed substantially in accordance with the Final Plans and all mechanical systems serving or affecting the 20th/21st Floor Space shall then be in working order. Landlord and Tenant shall thereupon set a mutually convenient time for Tenant’s Agent, Landlord and Landlord’s contractor to inspect the 20th/21st Floor Space and the Landlord’s 20th/21st Floor Work, at which time Tenant’s Agent shall prepare and submit to Landlord the Punch List of items to be completed. Upon completion of the inspection, and unless at such time Tenant in good faith shall reasonably contend that Substantial Completion (subject to completion of the Punch-List Items) has not occurred, Tenant’s Agent shall acknowledge in writing that Substantial Completion of the Landlord’s 20th/21st Floor Work has occurred, subject to any Punch-List Items to be completed (it being agreed however, that (i) Gateway Substantial Completion if Tenant shall have occurred, the Borrower and the Independent Engineer shall have certified to contend that such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has not in fact occurred, andthen Tenant, if within three (3) Business Days after the EPC Option has been exerciseddate of such inspection (with time of the essence) shall provide notice to Landlord, the Diablo Project Substantial Completion has occurred)in reasonable detail, the Borrower and the Independent Engineer shall have certified to specifying why Tenant contends that such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (andsubject to completion of Punch-List Items) has not occurred, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) failing which Tenant shall be deemed to have acknowledged that such Substantial Completion has occurred hereunder and under the other Loan Documents if all (ii) failure or refusal by Tenant’s Agent so to acknowledge that Substantial Completion of the conditions precedent Landlord’s 20th/21st Floor Work has occurred, subject to Gateway any Punch-List Items to be completed, shall not negate that Substantial Completion of Landlord’s 20th/21st Floor Work has in fact occurred, subject to any Punch-List Items to be completed). Landlord shall endeavor to complete the Punch List Items within a reasonable period thereafter. Anything herein to the contrary notwithstanding, it is expressly understood and agreed that if the Substantial Completion Date would have occurred by a particular date (the “Identified Date”) but for delays resulting from Tenant Delay and/or Unavoidable Delay, then notwithstanding such delays in achieving Substantial Completion, Diablo Substantial Completion, Diablo Expansion the Substantial Completion or Diablo Project Substantial Completion, as applicable, Date shall have been deemed to have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Identified Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).

Substantial Completion. (i) Gateway Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion “Substantial Completion, and, if the EPC Option ” shall occur upon notice from CHGE to Owner that CHGE has been exercised, the Diablo Project Substantial Completion) shall be deemed received evidence reasonably satisfactory to have occurred hereunder and under the other Loan Documents if CHGE of satisfaction of all of the following conditions. The Parties agree that review and approval of these conditions precedent may occur on an incremental basis as such conditions are satisfied: Owner has entered into, and complied in all material respects with its obligations under, the Interconnection Agreement; interconnection of the Project has been completed in accordance with the Interconnection Agreement, including installation of all metering and telemetry equipment required to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo deliver the Product in accordance with the NYISO Tariff; the Interconnection Facilities are sufficient to enable delivery of the installed capacity of the Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating up to the failure Contract Capacity; and the Interconnection Agreement remains in full force and effect; Owner shall have provided a certificate from an Independent and Actively Licensed New York State (“NYS”) Registered Professional Engineer that the Project has been mechanically and electrically completed in all material respects, excepting items that do not adversely affect the ability of the applicable EPC Contractor Project to pay liquidated damagesachieve Commercial Operation in accordance with the requirements of this Agreement; Owner has obtained all Permits necessary for Owner to perform its obligations under this Agreement and all such Permits are in final form and in full force and effect; Owner has obtained authority from FERC, any other similar Dispute pursuant to Section 205 of the Federal Power Act, 16 U.S.C. § 824d for wholesale sales of electric energy, capacity, and ancillary services at market-based rates (“Market-Based Rate Authority”); Owner is registered in NYISO as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) a market participant (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement NYISO Tariff) for the Project; Owner has not occurred or (2) registered the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit NYISO for use as a dispatchable energy storage resource operating in the Construction Account on NYISO Markets; Owner has completed all registrations with NERC (North American Electric Reliability Corporation) and NPCC (Northeast Power Coordinating Council) as applicable to Owner as the Term Conversion Date, owner and operator of the Project; the NYSERDA Agreement shall be in full force and effect and Owner shall not be in breach or default of any of its obligations thereunder; Owner has delivered to CHGE all insurance documents required under Section 14.7 (BInsurance) and all documented insurance shall be in full force and effect with all required premiums paid; the Independent Engineer Project shall not be subject to any Encumbrances other than Permitted Encumbrances; Owner shall have certified thatdelivered a final, comprehensive list of remaining tasks required for completion of the Project (“Punch List”) revised to its knowledge, such deposited amount (or amount reflect comments from CHGE on a draft Punch List provided by Owner; and Owner shall not be in default of available unused equity commitments any obligation under the Equity Contribution this Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).

Substantial Completion. (a) Subject to the occurrence of the FNTP Date, Seller shall cause the Work to achieve Substantial Completion. If and when Xxxxxx considers that the Work has achieved Substantial Completion, Seller shall certify the same to Buyer in writing by delivering a certificate substantially in the form of Exhibit AA (the “Substantial Completion Certificate”), which shall be signed by a duly authorized representative of Seller and, as provided in Section 7.6(a), shall include with such Substantial Completion Certificate a copy of its proposed Punchlist. Buyer shall, within ten (10) Business Days after receipt of such Substantial Completion Certificate, either (i) Gateway confirm in writing to Seller that it agrees that the Work has achieved Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and or (ii) Diablo Substantial Completion notify Seller in writing that it does not agree that the Work has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway achieved Substantial Completion and Diablo provide in reasonable detail an explanation of the basis for its disagreement. If Buyer provides Seller with a notice pursuant to clause (ii) immediately above, Seller shall address and resolve any and all deficiencies in the Work or that served as the basis for Xxxxx’s dispute of Seller’s determination that the Work has achieved Substantial Completion (and, if applicableand resubmit its Substantial Completion Certificate to Buyer. For all purposes of this Agreement, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Work shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion achieved Substantial Completion or Diablo Project on the earlier of (A) the date Buyer confirms in writing to Seller that it agrees the Work has achieved Substantial CompletionCompletion and (B) if within ten (10) Business Days after receipt of a Substantial Completion Certificate, as applicableBuyer has neither confirmed in writing that it agrees the Work has achieved Substantial Completion nor provided Seller a notice pursuant to clause (ii) above, have occurred under the relevant EPC Contract except tenth (10th) Business Day after Seller issues the Substantial Completion Certificate to Buyer in accordance with the requirements of this Agreement; provided, however, that, for any conditions precedent relating to the failure purposes of the applicable EPC Contractor determining Seller’s obligation to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contractdamages pursuant to Section 7.4(b) and any reasonably related Disputes or failures by the relevant EPC Contractor Buyer’s right to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor terminate this Agreement pursuant to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and recordsSection 7.4(c), so long the Work shall be deemed to have achieved Substantial Completion on (1) if Buyer does not dispute Seller’s Substantial Completion Certificate as (A)(1) provided above, the Termination Date under and as defined in the Equity Contribution Agreement has not occurred date Seller issues to Buyer such Substantial Completion Certificate, or (2) if Buyer disputes Seller’s Substantial Completion Certificate as provided above and, without resolving Buyer’s objections and resubmitting its Substantial Completion Certificate, Seller disputes Buyer’s objections, then the Borrower has caused an amount equal later of (x) the date Seller issued to Buyer such Substantial Completion Certificate or (y) the date that, according to the Borrower’s good faithfinal resolution of the Dispute (whether by agreement of the Parties or Expert determination pursuant to Section 26.10(b)), reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) is determined to be the date as of which all conditions to Substantial Completion were, and continued to be, satisfied. (b) If Substantial Completion is not achieved on deposit in or prior to the Construction Account on the Term Conversion Guaranteed Substantial Completion Date, and Seller shall pay to Buyer, as liquidated damages, [●] Dollars per day (B$[●]/day)50 for each day after the Guaranteed Substantial Completion Date that Substantial Completion is not achieved until the earliest of (i) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).date Seller achieves Substantial Completion,

Substantial Completion. The Landlord shall notify the Tenant when “Substantial Completion” (ias defined in Section 1.1) Gateway has occurred. Any such notice delivered to the Tenant pursuant to the preceding sentence (a “Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial CompletionNotice”) shall (a) specify the date the Landlord claims to be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project date on which Substantial Completion, as applicablethe case may be, have occurred under the relevant EPC Contract except for any conditions precedent relating occurred, (b) with respect to the failure that portion of the applicable EPC Contractor Landlord’s Work and Tenant Improvements delivered, set forth the Landlord’s position regarding the respective responsibilities of the Landlord and the Tenant for security, maintenance, heat, utilities, damage to pay liquidated damagessuch work and insurance, any other similar Dispute (as such term is defined in c) with respect to that portion of the applicable EPC Contract) Landlord’s Work and any reasonably related Disputes Tenant Improvements delivered, set forth a list of items remaining to be completed or failures by the relevant EPC Contractor to satisfy an applicable condition precedent corrected in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Datesuch, and (Bd) specify the Independent Engineer date or dates by which each of the remaining items referred to in clause (c) above shall be completed or corrected, not to exceed thirty (30) calendar days from the date of Substantial Completion (unless the punchlist item involves a long lead time item in which case such work shall be completed within ten (10) days after receipt of such long lead item, but in any event within ninety (90) calendar days of Substantial Completion. Should Landlord fail to complete or correct any such items within the timeframe set forth above, Tenant may, upon ten (10) calendar days written notice to Landlord, make such correction and have certified thatthe option, at the sole discretion of the Tenant, to its knowledgededuct said amount as an offset against Rent due by Tenant or to accept such amount in cash from the Landlord. If the Tenant shall agree with the date of Substantial Completion, as the case may be, specified in such deposited amount Substantial Completion Notice, the Tenant shall confirm such date in a written notice delivered to the Landlord within five (5) business days from receipt of the Substantial Completion Notice. If the Tenant shall disagree with the date of Substantial Completion, as the case may be, specified in such Substantial Completion Notice, the Tenant shall so notify the Landlord within such five (5) business day period, setting forth with reasonable specificity the Tenant’s basis for asserting that one or amount more of available unused equity commitments under the Equity Contribution Agreementcriteria for Substantial Completion, as the case may be, have not been satisfied. The Landlord and Tenant shall then work together for a period of ten (10) is reasonably expected calendar days in an effort to resolve their differences with respect to Substantial Completion. Should Landlord and Tenant be sufficient unable to make payment resolve their disputes regarding Substantial Completion, the dispute shall be resolved by the appropriate court of such Project Companyjurisdiction in Hillsborough County, Florida. Tenant’s reasonably anticipated liability obligation to pay Rent shall commence on the date of Substantial Completion specified in connection the Substantial Completion Notice, regardless of whether Tenant disagrees with such Dispute(sthe date of Substantial Completion and elects to follow the procedure set forth in this subjection (d) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)resolve the disagreement.

Substantial Completion. Seller shall use commercially reasonable efforts to obtain, or cause the Contractor to obtain, a building permit and all other permits, licenses and approvals of governmental authorities required for the construction, equipping and furnishing of the Hotel in accordance with the Plans and Specifications and this Contract. Seller shall diligently pursue construction of the Hotel in accordance with this Contract and, subject to Force Majeure, shall cause the Contractor to Substantially Complete the Hotel no later than 425 days after the commencement of the Review Period (i) Gateway the “Substantial Completion Date”). Seller shall have occurred, notify Buyer within three (3) Business Days after the Borrower occurrence of any Force Majeure and shall keep Buyer informed as to the nature and extent of the Force Majeure and the Independent Engineer estimated length of any anticipated delay in Substantial Completion. If Seller fails to Substantially Complete the Hotel by the Substantial Completion Date as a result of Force Majeure, this Contract shall have certified not terminate but the Substantial Completion Date shall be extended to a date reasonably agreed upon in writing by Buyer and Seller taking into account such effect Force Majeure. If Seller fails to Substantially Complete the Administrative AgentHotel by the Substantial Completion Date as a result of any act, omission or event other than Force Majeure or default by Seller, but the Hotel is Substantially Completed within one hundred twenty (120) days after the Substantial Completion Date, Buyer shall receive a Purchase Price credit equal to One Thousand Five Hundred Dollars ($1,500) per day for each day (up to one hundred twenty (120) days) that expire after the Substantial Completion Date, and the Independent Engineer Substantial Completion Date shall be extended to the date the Hotel is Substantially Completed. If Seller fails to Substantially Complete the Hotel by the end of such one hundred twenty (120) day period other than as a result of any act, omission or event other than Force Majeure or default by Seller, Buyer, in its sole and absolute discretion, shall have certified thatthe right (a) to terminate this Contract by written notice to Seller given within three (3) Business Days after the expiration of such one hundred twenty (120) day period, to its knowledge, in which event the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Xxxxxxx Money Deposit shall be deemed returned to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, Buyer as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent its sole remedy in connection with such Dispute(stermination, and thereafter both Buyer and Seller shall thereupon be released from all obligations with respect to this Contract or (b) to treat this Contract as being in full force and effect, in which event Buyer shall receive a Purchase Price credit at Closing in the amount of One Hundred Eighty Thousand Dollars (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records$180,000), so long as (A)(1) and the Termination Substantial Completion Date under shall be extended to a date reasonably agreed upon in writing by Buyer and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Seller.

Substantial Completion. ‌‌ (a) Subject to the occurrence of the FNTP Date, Seller shall cause the Work to achieve Substantial Completion. If and when Seller considers that the Work has achieved Substantial Completion, Seller shall certify the same to Buyer in writing by delivering a certificate substantially in the form of Exhibit Z (the “Substantial Completion Certificate”), which shall be signed by a duly authorized representative of Seller and, as provided in Section 7.6(a), shall include with such Substantial Completion Certificate a copy of its proposed Punchlist. Buyer shall, within ten (10) Business Days after receipt of such Substantial Completion Certificate, either (i) Gateway confirm in writing to Seller that it agrees that the Work has achieved Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and or (ii) Diablo Substantial Completion notify Seller in writing that it does not agree that the Work has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway achieved Substantial Completion and Diablo provide in reasonable detail an explanation of the basis for its disagreement. If Buyer provides Seller with a notice pursuant to clause (ii) immediately above, Seller shall address and resolve any and all deficiencies in the Work or that served as the basis for Xxxxx’s dispute of Seller’s determination that the Work has achieved Substantial Completion (and, if applicableand resubmit its Substantial Completion Certificate to Buyer. For all purposes of this Agreement, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Work shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion achieved Substantial Completion or Diablo Project on the earlier of (A) the date Buyer confirms in writing to Seller that it agrees the Work has achieved Substantial CompletionCompletion and (B) if within ten (10) Business Days after receipt of a Substantial Completion Certificate, as applicableBuyer has neither confirmed in writing that it agrees the Work has achieved Substantial Completion nor provided Seller a notice pursuant to clause (ii) above, have occurred under the relevant EPC Contract except tenth (10th) Business Day after Seller issues the Substantial Completion Certificate to Buyer in accordance with the requirements of this Agreement; provided, however, that, for any conditions precedent relating to the failure purposes of the applicable EPC Contractor determining Seller’s obligation to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contractdamages pursuant to Section 7.4(b) and any reasonably related Disputes or failures by the relevant EPC Contractor Buyer’s right to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor terminate this Agreement pursuant to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and recordsSection 7.4(c), so long the Work shall be deemed to have achieved Substantial Completion on (1) if Buyer does not dispute Seller’s Substantial Completion Certificate as (A)(1) provided above, the Termination Date under and as defined in the Equity Contribution Agreement has not occurred date Seller issues to Buyer such Substantial Completion Certificate, or (2) if Buyer disputes Seller’s Substantial Completion Certificate as provided above and, without resolving Buyer’s objections and resubmitting its Substantial Completion Certificate, Seller disputes Buyer’s objections, then the Borrower has caused an amount equal later of (x) the date Seller issued to Buyer such Substantial Completion Certificate or (y) the date that, according to the Borrower’s good faithfinal resolution of the Dispute (whether by agreement of the Parties or Expert determination pursuant to Section 26.10(b)), reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) is determined to be the date as of which all conditions to Substantial Completion were, and continued to be, satisfied. (b) If Substantial Completion is not achieved on deposit in or prior to the Construction Account on the Term Conversion Guaranteed Substantial Completion Date, and Seller shall pay to Buyer, as liquidated damages, [●] Dollars per day (B$[●]/day)53 for each day after the Guaranteed Substantial Completion Date that Substantial Completion is not achieved until the earliest of (i) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).date Seller achieves Substantial Completion,‌

Substantial Completion. The Landlord Work shall be deemed to be “Substantially Complete” with respect to the Twelfth Expansion Space on the date that (i) Gateway Substantial Completion shall have occurredall Landlord Work with respect to the Twelfth Expansion Space (other than any details of construction, mechanical adjustment or any other similar matter, the Borrower noncompletion of which does not materially interfere with Tenant’s use or occupancy of the Twelfth Expansion Space) has been performed in accordance with the Approved Construction Documents (as modified by any Change Order approved in writing by Landlord and the Independent Engineer shall have certified to such effect to the Administrative AgentTenant), and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion CPS has occurred obtained all required final inspection approvals and/or necessary certificates allowing occupancy from all applicable authorities, (andiii) all Building systems and equipment and that of the Landlord Work are fully tested and operational; and (iv) Tenant has had access to the Twelfth Expansion Space to install furniture, if applicablefixtures and equipment for a period of ten (10) Business Days. Prior to the Twelfth Expansion Space (or any portion thereof) being delivered to Tenant, a representative of Landlord and a representative of Tenant shall walk through the Diablo Twelfth Expansion Substantial Completion has occurredSpace (or such portion thereof) and jointly prepare a list of minor items which, andin the mutual opinion of Landlord and Tenant, if have not been fully completed or which require repair (the EPC Option has been exercised“Punch List Items”). Landlord shall cause its contractor to complete or repair the Punch List Items within 30 days after the date of the “walk-through”. Tenant shall not be entitled to any abatement of any rental obligations as pertains to the Twelfth Expansion Space pending completion of the Punch List Items. In the event that Tenant takes possession of any portion of the Twelfth Expansion Space following the construction of Landlord Work in such portion of the Twelfth Expansion Space in the absence of having created a punch list, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall Tenant will be deemed to have certified waived its right to create a punch list with respect to such effect to portion of the Administrative Agent, Twelfth Expansion Space and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and accepted such portion of the Twelfth Expansion Space in its "AS IS" condition; provided, that Tenant will not be deemed to have waived any of Landlord’s warranty or repair obligations under the other Loan Documents if all Lease. Time is of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent essence in connection with such Dispute(s) (including the obligations of CPS and Tenant under this Work Letter. Except as provided in Paragraph 1 of the Sixteenth Modification, neither Landlord nor CPS shall be liable or responsible for any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount claims incurred (or amount of available unused equity commitments under the Equity Contribution Agreementalleged) is reasonably expected by Tenant due to be sufficient to make payment of such Project Companyany delay in achieving Substantial Completion for any reason. Tenant’s reasonably anticipated liability sole and exclusive remedy for any delay in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and achieving Substantial Completion for any reason other amounts payable to such Project Company by such EPC Contractor).20750729v.5 B - v

Substantial Completion. At such time as Sublandlord considers the Subtenant Improvements to be substantially completed, Sublandlord or Sublandlord’s representative will schedule a walk-through of the Sublease Premises with Subtenant or Subtenant’s representative. During such walk-through, Sublandlord or Sublandlord’s representative along with Subtenant or Subtenant’s representative will prepare a list of minor finish-out and punch list items to be completed (ithe “Punch List”). Sublandlord shall cause Sublandlord’s Contractor to complete and/or correct all items on the Punch List promptly after Sublandlord receives the Punch List and shall give Subtenant written notice when all of the items on the Punch List have been completed and/or corrected. Any items not on the Punch List which could have, with reasonable diligence, been discovered by Subtenant or Subtenant’s representative and included on the Punch List shall be deemed accepted by Subtenant, and any items not on the Punch List which could not have, with reasonable diligence, been discovered by Subtenant or Subtenant’s representative and included on the Punch List and are thereafter discovered by Subtenant within thirty (30) Gateway days after Substantial Completion shall have occurredbe corrected by Sublandlord’s Contractor promptly after Sublandlord receives notice of the same from Subtenant. If Subtenant and/or Subtenant’s representative fails to appear for such inspection, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Subtenant shall be deemed to have occurred hereunder agreed that no items exist that are incomplete or require correction which could have, with reasonable diligence, been discovered by Subtenant or Subtenant’s representative had Subtenant and/or Subtenant’s representative appeared at the inspection, and therefore Subtenant Improvements has been completed and Sublandlord shall not be required to complete or correct any such items which may in fact exist; or at Sublandlord’s election, Sublandlord or Sublandlord’s representative may prepare and approve the Punch List on Subtenant’s behalf. Subtenant Improvements (which for purposes of determining substantial completion may exclude, at Sublandlord’s election, any Additional Work) shall be considered “Substantially Complete” for all purposes under this Exhibit TI and the other Loan Documents if all Sublease when: (i) the applicable governmental authority issues a temporary or permanent certificate of occupancy for the Sublease Premises, or (ii) Subtenant first takes occupancy of the conditions precedent to Gateway Substantial CompletionSublease Premises for the conduct of its business, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)whichever first occurs.

Substantial Completion. (i) Gateway Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion “Substantial Completion, and, if ” (and any correlative variations thereof) of the EPC Option has been exercised, the Diablo Project Substantial Completion) Warm Shell Improvements shall be not be deemed to have occurred hereunder occur until (a) the Building shells, the Building lobbies, the entrances, stairways and under access ways for access to the other Loan Documents if Buildings, and all of the conditions precedent other Warn Shell Improvements described in the Final Warm Shell Plans have been completed, and Landlord’s architect (“Landlord’s Architect”) has certified in writing that the Warm Shell Improvements have been completed in accordance with the Final Warm Shell Plans, except for finishing details, minor omissions, decorations and mechanical adjustments of the type normally found on an architectural “punch list” (which Landlord shall use commercially reasonable efforts to Gateway cause to be completed within thirty (30) days after Substantial Completion); (b) all utilities systems serving the Premises, Diablo life safety support systems, including fire sprinklers and safety auditory systems, all heating, ventilating and air conditioning systems serving the Premises, except to the extent such items may be included in Tenant’s Tenant Improvements, and Building elevators have been installed and are operating; (c) all necessary governmental inspections of the Warm Shell Improvements have been obtained and approved; (d) the Premises are in such a state of completion that, upon completion of the Tenant Improvements, the requirements necessary to obtain approval for occupancy of the Premises from applicable governmental authorities (including approval from the Building Department and Fire Department of the City of Sunnyvale for Tenant to occupy the Premises) have been satisfied; and (e) subject to minor items which do not materially affect the usability of the Building, the Common Areas serving the Building are sufficiently complete to be usable by Tenant’s employees and customers (subject to completion of Tenant’s Tenant Improvements), but which Landlord shall use commercially reasonable efforts to cause to be completed within thirty (30) days after Substantial Completion, Diablo Expansion . Upon Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damagesWarm Shell Improvements, any other similar Dispute Landlord and Tenant shall arrange a mutually convenient time, no later than five (5) business days after the Substantial Completion date, for Tenant and/or Tenant’s Architect (as such term is defined in the applicable EPC Contractbelow) and any reasonably related Disputes or failures by Landlord and/or Landlord’s Architect to conduct a walk-through inspection of the relevant EPC Contractor Warm Shell Improvements. During the inspection, Landlord’s Architect shall compile a punchlist of items yet to satisfy an applicable condition precedent in connection with such Dispute(sbe completed. Landlord shall use commercially reasonable efforts to complete the punchlist items within thirty (30) (including any failure by days following the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of lienswalk-through, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in unreasonable interference with the Construction Account on construction of the Term Conversion Date, and (B) Tenant Improvements while completing the Independent Engineer punchlist work shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)constitute a Landlord Delay.

Substantial Completion. (i) Gateway SUBSTANTIAL COMPLETION" shall occur when ---------------------- ---------------------- the Improvements are substantially completed as certified by the architect preparing the Shell Plans utilizing AIA document G704, Certificate of Substantial Completion, and Landlord has obtained all requisite governmental approvals relating to substantial completion such that Tenant may lawfully occupy the Building. Substantial Completion shall have occurredoccurred even though minor details of construction, decoration, landscaping, and mechanical adjustments remain to be completed by Landlord. When the Borrower Certificate of Substantial Completion is issued, Landlord and the Independent Engineer architect shall have certified prepare a punch list of incomplete, minor, detail items and Landlord shall use all reasonable efforts to complete such items within 30 days after the Certificate of Substantial Completion is issued, except as to such effect to the Administrative Agent, and the Independent Engineer shall have certified items that, by their nature, will take a longer period to its knowledge, complete as set forth in the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo punch list. If Substantial Completion has not occurred within 12 months after the Interior Drawings have been approved by Landlord and Tenant, plus the sum of the number of Force Majeure Delay Days (and, if applicable, defined below) and the Diablo Expansion Substantial Completion has occurred, and, if number of Tenant Delay Days (defined below) (the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred"TERMINATION DATE"), then Tenant may terminate this Lease ---------------- by delivering written notice thereof to Landlord (a "TERMINATION NOTICE") before ------------------ the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion earlier of (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completiona) shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) ten days after the Termination Date under and as defined in or (b) the Equity Contribution Agreement has not occurred or date of Substantial Completion. "FORCE MAJEURE DELAY DAYS" means the number of days ------------------------ of delay for Substantial Completion caused by Force Majeure Events. "TENANT ------ DELAY DAYS" means the number of days of delay for Substantial Completion caused ---------- by (1) any acts of a Tenant Party, (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company changes requested by such EPC Contractor) to be on deposit Tenant in the Construction Account approved Shell Plans or approved Interior Drawings, or (3) any specifications by Tenant of materials or installations which are not readily available. If Substantial Completion is delayed because of Tenant Delay Days, then the Commencement Date shall not be extended, but rather shall start on the Term Conversion date on which Substantial Completion would have occurred but for such delay days. The termination right herein provided shall be Tenant's sole remedy for Landlord's failure to cause Substantial Completion to occur by the Termination Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).

Substantial Completion. At such time as Seller in good faith believes the Perimeter Improvements have been Substantially Completed, Seller shall deliver to Buyer the following items with respect to the Perimeter Improvements: (i) Gateway Substantial Completion shall a certificate from the current architect for the Perimeter Improvements (the “Perimeter Architect”) certifying to Buyer that the Perimeter Improvements have occurredbeen substantially completed on AIA Form G704, the Borrower and the Independent Engineer shall have certified subject to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and Punch-List Items; (ii) Diablo Substantial Completion has occurred a temporary certificate of occupancy and all other certificates, licenses, consents and approvals required for the use and operation of the Perimeter Improvements, issued by the appropriate governmental authorities (andother than a final certificate of occupancy); (iii) an executed “Letter of Understanding” attached as Exhibit “C” to the Channeladvisor Lease; (iv) to the extent available (unless such unavailability is the result of defects in the Perimeter Improvements or deviations thereof from the Perimeter Plans and Specifications), if applicablea certification or acknowledgement from the applicable engineer or engineers for the Perimeter Improvements stating that, in regard to the Diablo Expansion Substantial Completion has occurred, and, if material/controls inspections and based on the EPC Option has been exercised, material/controls inspection reports (the Diablo Project Substantial Completion has occurred“Controls Inspection Reports”), the Borrower Perimeter Improvements have been Substantially Completed in accordance with the Perimeter Plans and Specifications; and (v) lien releases and lien waivers evidencing that all work performed and materials supplied for the Independent Engineer shall have certified Perimeter Improvements has been paid to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledgedate (collectively, the Loan Parties have sufficient funds available “Preliminary Completion Items”). Within ten (10) days after Seller has delivered to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if Buyer all of the conditions precedent Preliminary Completion Items, Seller, Buyer, Buyer’s agents and representatives, the Perimeter Architect and an architect selected by Buyer (the “Buyer Architect”) shall conduct a final walk through of Perimeter Four and the Perimeter Improvements to Gateway assess the status of completion of the Perimeter Improvements (the “Walk-Through”). During such walk-through of the Property, Seller and Buyer (acting in good faith and in a commercially reasonable manner) shall list any Punch-List Items (as defined below). “Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion” and “Substantially Completed”, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure shall mean (i) all of the applicable EPC Contractor Preliminary Completion Items have been delivered to pay liquidated damagesBuyer, any other similar Dispute (as such term is defined ii) the Buyer Architect shall have confirmed to Buyer that the Perimeter Improvements have been substantially completed, subject to Punch-List Items, and (iii) construction of the Perimeter Improvements has been completed in accordance with Section 14.32(a) of this Agreement, subject only to Punch-List Items that (A) are estimated by the Perimeter Architect and the Buyer Architect to cost less than $500,000.00 in the applicable EPC Contract) aggregate to complete and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Datecorrect, and (B) do not, individually or collectively, (x) have an adverse effect on the Independent Engineer operation of Perimeter Four or the occupancy of any Tenant therein or (y) result in any offset against or reduction of rent payable to Buyer under the Leases. Seller shall achieve Substantial Completion no later than December 31, 2015, subject to Force Majeure Delays (as defined below). Buyer shall be solely responsible for the fees and costs of the Buyer Architect, and Seller shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)no responsibility therefor.

Substantial Completion. (i) Gateway The following are conditions precedent to Substantial Completion for each Unit: (a) the results of the applicable Acceptance Test of such Unit reflect achievement of the Minimum Performance Criteria; (b) subject to Section 14.3, Contractor shall have occurred, the Borrower and the Independent Engineer shall have certified paid all undisputed Delay Liquidated Damages due pursuant to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and Section 15.1 (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion all amounts of disputed Delay Liquidated Damages that are ultimately determined to be due and Diablo Substantial Completion owing shall accrue interest from the date such amounts are determined to have been owed); (andc) Owner has received all Contractor Deliverables in accordance with the Contractor Submittals Table, if applicable, the Diablo Expansion including all Required Manuals identified therein for delivery prior to Substantial Completion; (d) pursuant to Section 3.19.1, and, if training of Operating Personnel is complete; (e) the EPC Option has been exercised, the Diablo Project Substantial Completion) Punchlist for such Unit shall be in final form or be deemed to be in final form as provided in Section 14.1.1; (f) all Work related to such Unit other than record drawings and items of Non-Critical Deficiency listed on the Punchlist shall have occurred hereunder been completed without any Errors or Omissions or Defects; (g) Contractor shall have licensed or granted, in accordance with this Agreement, all Intellectual Property Rights necessary for such Unit to be operated by Owner EXECUTION COPY without violating any of Contractor’s, any Subcontractor’s or any third party’s rights to such Intellectual Property Rights; (h) Contractor shall have delivered all applicable Conditional Waivers and under the other Loan Documents if all of the conditions precedent to Gateway Substantial CompletionReleases Upon Milestone or Progress Payment from Contractor, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completionand, as applicable, Conditional Waivers and Releases Upon Milestone or Progress Payment, Conditional Waivers and Releases Upon Final Payment and Unconditional Waivers and Releases Upon Final Payment from each Major Subcontractor, or shall have occurred under the relevant EPC Contract except for any conditions precedent relating delivered security in lieu thereof, as required to be delivered pursuant to Section 6.4; and (i) all operational spare parts used by Contractor prior to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Substantial Completion Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) that are to be on deposit in the Construction Account on the Term Conversion Date, replaced or reconditioned by Contractor pursuant to Section 3.20.3 have been delivered or purchased for delivery to Owner and (B) the Independent Engineer shall all special tools have certified that, been turned over to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Owner.

Substantial Completion. (a) The Concessionaire will achieve Substantial Completion on or before the Scheduled Substantial Completion Date for the applicable Project Asset, subject to adjustment in accordance with this Agreement and subject to the assessment of liquidated damages pursuant to Section 8.10(a). (b) The Department will issue a written certificate of Substantial Completion at such time as Substantial Completion occurs for each Project Asset. (c) Substantial Completion of each Project Asset will have been achieved when each of the following conditions have occurred for the applicable Project Asset: (i) Gateway Substantial Completion shall have occurredall lanes of traffic (including ramps, interchanges, overpasses, underpasses, and other crossings) set forth in the Borrower Construction Documentation are in their final configuration and available for normal and safe use and operation; (ii) all major safety features are installed and functional, including, as required, shoulders, guard rails, striping and delineations, concrete traffic barriers, bridge railings, cable safety systems, metal beam guard fences, safety end treatments, terminal anchor sections and crash attenuators; (iii) all required illumination for normal and safe use and operation is installed and functional in accordance with the Independent Engineer shall have certified Technical Requirements; (iv) all required signs and signals for normal and safe use and operation are installed and functional in accordance with the Technical Requirements; (v) the need for temporary traffic controls or for lane closures at any time has ceased (except for any then required for routine maintenance, and except for temporary lane closures in accordance with and as permitted by a Department-approved traffic management plan solely in order to such effect to complete Punch List items); (vi) the Administrative AgentConcessionaire has completed the toll commissioning process described in the Technical Requirements, and the Independent Engineer shall components of the ETTM System (other than the TMS) are complete, have certified thatpassed all demonstration testing in accordance with the Construction Documentation and the Technical Requirements (other than the Integration Acceptance Test), including demonstration of interoperability with the E-ZPass network or any successor to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final CompletionE-ZPass then utilized on State Highways, and are ready for normal operation; provided, however, with respect to any Project Asset for which (iiA) Diablo Substantial Completion a Tolling and O&M Notice to Proceed has occurred been issued or (B) the Department has agreed in writing pursuant to Section 9.02(a)(viii) that the conditions in Section 9.02(a)(viii) have been satisfied, then the conditions of this Section 8.08(c)(vi) will be deemed satisfied; (vii) the TMS (if any) and safety features for TMS components are installed and functional; and (viii) the Concessionaire has otherwise completed the construction Work in accordance with this Agreement, if applicableincluding the Technical Requirements, and with the Diablo Expansion Construction Documentation, such that the Project is in a physical condition that it can be used for normal and safe vehicular travel in all lanes and at all points of entry and exit, subject only to Punch List items. (d) The parties will disregard the status of the landscaping and aesthetic features included in the Construction Documentation in determining whether Substantial Completion has occurred, except to the extent that its later completion will affect public safety or satisfaction of the criterion in Section 8.08(c). (e) The Concessionaire will provide the Department with written notice of anticipated Substantial Completion of the applicable Project Asset at least 21 Days prior to such anticipated Substantial Completion Date. During such 21-Day period, the Concessionaire and the Department will meet, confer and exchange information on a regular basis with the goal being the Department’s orderly, timely inspection of the applicable Project Asset and review of the final Construction Documentation for the applicable Project Asset and the Department’s issuance of a Substantial Completion Certificate for the applicable Project Asset. In addition, the Department will conduct an inspection of the applicable Project Asset and review of the final Construction Documentation for the applicable Project Asset, and such other matters as may be necessary to determine whether Substantial Completion for the applicable Project Asset is achieved within such 21-Day period. (f) If the Department disapproves the issuance of a Substantial Completion Certificate, then the Department will provide a written notice to the Concessionaire specifying in reasonable detail its reasons for such disapproval within ten Days of receipt of the final Construction Documentation and completion of the inspection for the applicable Project Asset, and the Concessionaire will satisfy the conditions to Substantial Completion that were not met for the applicable Project Asset to which the Department’s disapproval relates. The Department will inspect, review and investigate the applicable Project Asset and the corrective work and, if it does so, will complete such inspection, review and investigation within five Days after (i) the EPC Option Concessionaire provides written notice that such work has been exercisedcompleted and (ii) the Department is provided access to such corrective work. If the Department and the Concessionaire cannot, the Diablo Project despite good faith efforts, agree as to Substantial Completion has occurred)for the applicable Project Asset, such Dispute will be resolved in accordance with the Borrower and the Independent Engineer shall have certified to such effect dispute resolution procedures set forth in Article 21. (g) The Concessionaire will provide notice to the Administrative AgentDepartment if the Department has not approved or disapproved the issuance of a Substantial Completion Certificate within 21 Days after delivery of the notice by the Concessionaire pursuant to Section 8.08(e). If the Department has not notified the Concessionaire of such approval or disapproval within 15 Days after such Concessionaire notice, and if the delay is not a result of a Concessionaire Party action or inaction, then such delay will constitute a Compensation Event, and the Independent Engineer shall have certified thatConcessionaire will be entitled to Concessionaire Damages, if any, pursuant to its knowledgeSection 14.01. (h) If the Department approves the issuance of a Substantial Completion Certificate, the Loan Parties have sufficient funds available Department will provide with its Substantial Completion Certificate a Punch List of items to be completed to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure Acceptance of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Asset.

Substantial Completion. (i) Gateway Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) The Leased Premises shall be deemed to be substantially completed ("Substantial Completion") at such time as Landlord shall certify in writing to Tenant that said Leased Premises have occurred hereunder been completed in substantial accordance with the Shell Plans and under Specifications and the other Loan Documents if all Interior Plans and Specifications described above subject only to minor punch list items (i.e., such unfinished items as shall not impair Tenant's ability to use the Leased Premises in the manner intended by the Lease). In the event Landlord and Tenant do not agree upon the date of the conditions precedent to Gateway Substantial Completion, Diablo Landlord shall furnish Tenant with a Certificate of Substantial Completion from an independent architect within five (5) business days after Lanxxxxx'x receipt of notice of disagreement. In the event of any dispute with respect to the date of Substantial Completion of the Leased Premises, Landlord and Tenant agree that Landlord's initial determination of such date shall be deemed correct unless and until otherwise shown by the architect's Certificate of Substantial Completion, Diablo Expansion . If Substantial Completion of the Leased Premises has not occurred on or Diablo Project before April 20, 2000, and Landlord's failure to achieve such Substantial Completion is not the result of force majeure of any Tenant Caused Delay, Landlord shall be responsible for (i) in the event of a consensual holdover, payment of the holdover penalty portion of the monthly rental, defined in Tenant's existing lease dated August 29, 1989, as amended, with Trustee of the Marx X. Xxxxx Xxust U/A ("Existing Lease"), commencing on April 20, 2000 and continuing until the date of Substantial Completion (hereinafter referred to as "Holdover Rent"); and (2) and in the event of a non-consensual holdover, payment of Tenant's Holdover Rent plus payment of Tenant's reasonable attorneys fees actually incurred by Tenant in defending any litigation instituted as a result of Tenxxx'x non-consensual holdover (hereinafter referred to as "Attorneys Fees"). In the event Tenant is required to holdover under the Existing Lease, Tenxxx xxrees to use its best efforts to obtain the existing landlord's consent to such holdover and to take any other reasonable measures to minimize the Holdover Rent or Attorney Fees. In addition, if Substantial Completion has not occurred on or before May 20, 2000, and Landlord's failure to achieve such Substantial Completion is not the result of force majeure or any Tenant Caused Delay, Landlord shall be responsible for (i) the Holdover Rent as otherwise provided in this Lease; (ii) the Attorneys Fees as otherwise provided in this Lease; and (iii) one (1) day's Minimum Annual Rental abatement for each day of delay after May 20, 2000. Finally, if Substantial Completion has not occurred on or before June 20, 2000, and Landlord's failure to achieve Substantial Completion is not the result of force majeure or any Tenant Caused Delay, Tenant shall have the right to terminate this Lease by providing written notice to Landlord prior to the date of Substantial Completion. Upon such termination, as applicableboth parties shall be released from further liability under this Lease, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure obligation which either expressly or by its nature survives termination of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).this Lease. The

Substantial Completion. ‌ (a) Subject to the occurrence of the FNTP Date, Seller shall cause the Work to achieve Substantial Completion. If and when Xxxxxx considers that the Work has achieved Substantial Completion, Seller shall certify the same to Buyer in writing (and, as provided in Section 7.5(a), shall include with such certification a copy of its proposed Punchlist). Buyer shall, within ten (10) Business Days after receipt of such certification, either (i) Gateway confirm in writing to Seller that it agrees that the Work has achieved Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and or (ii) Diablo notify Seller in writing that it does not agree that the Work has achieved Substantial Completion and provide in reasonable detail an explanation of the basis for its disagreement. If Buyer provides Seller with a notice pursuant to clause (ii) immediately above, Seller shall address and resolve any and all deficiencies in the Work or that served as the basis for Xxxxx’s dispute of Seller’s determination that the Work has occurred (and, if applicable, the Diablo Expansion achieved Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project and resubmit its certification of Substantial Completion has occurredto Buyer. For the purposes of determining Seller’s obligation to pay liquidated damages pursuant to Section 7.3(b) and Buyer’s right to terminate this Agreement pursuant to Section 7.3(c), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Work shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion achieved Substantial Completion or Diablo Project on the date Seller issues to Buyer a written certification that all conditions for Substantial CompletionCompletion have been met, unless Buyer disputes Seller’s certification of Substantial Completion as applicableprovided above. For all other purposes of this Agreement, the Work shall be deemed to have occurred under achieved Substantial Completion on the relevant EPC Contract except for any conditions precedent relating to the failure earlier of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1A) the Termination Date under and as defined date Buyer confirms in writing to Seller that it agrees the Equity Contribution Agreement Work has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, achieved Substantial Completion and (B) unless Buyer provides Seller with a notice pursuant to clause (ii) above within ten (10) Business Days of receipt of a written certification from Seller that the Independent Engineer Work has achieved Substantial Completion, the tenth (10th) Business Day after Seller issues Buyer a written certification that the Work has achieved Substantial Completion. (b) If Substantial Completion is not achieved on or prior to the Guaranteed Substantial Completion Date, Seller shall have certified thatpay to Buyer, as liquidated damages and the exclusive remedy of Buyer for Seller’s failure to its knowledgeachieve Substantial Completion on or prior to the Guaranteed Substantial Completion Date, [●] Dollars per day ($[●]/day)26 (“Delay Liquidated Damages”) for each day after the Guaranteed Substantial Completion Date that Substantial Completion is not achieved until the earliest of (i) the date Seller achieves Substantial Completion, (ii) the date this Agreement is validly terminated, and (iii) the Substantial Completion Termination Trigger Date. Nothing in this Section 7.3(b) shall limit Buyer’s rights or remedies with respect to any breach by or default of Seller of any provision of this Agreement or any Ancillary Agreement. Seller and Buyer agree that the failure of Seller to achieve Substantial Completion on or prior to the Guaranteed Substantial Completion Date shall not constitute, in and of itself, such deposited a breach or default. Seller and Xxxxx also agree that: (A) it is 26 NTD: This amount (will be $500/MW of nameplate capacity per day. difficult or impossible to determine with precision the amount of available unused equity commitments under damages that would or might be incurred by Buyer as a result of the Equity Contribution Agreement) is reasonably expected failure of Substantial Completion to be sufficient achieved on or prior to make the Guaranteed Substantial Completion Date; (B) Buyer would be damaged by any failure of Seller to meet such obligations; (C) it would be impracticable or extremely difficult to fix the actual damages resulting therefrom; (D) any sums that would be payable under this Section 7.3(b) are (i) except for Buyer’s termination rights under this Agreement, Buyer’s sole and exclusive remedy for such failure and (ii) in the nature of liquidated damages, and not a penalty, and are fair and reasonable; (E) each payment represents a reasonable estimate of fair compensation for the damages that may reasonably be anticipated from such Project Company’s reasonably anticipated liability in connection with failure; and (F) each of Seller and Buyer hereby irrevocably waives any right to claim to any court or arbitral tribunal or seek the adjustment of any such Dispute(ssums. (c) If Substantial Completion is not achieved on or prior to the Substantial Completion Termination Trigger Date, Buyer shall be entitled to terminate this Agreement by delivering a written notice to Seller (after giving effect to all potential offsetssuch notice, retainagea “Substantial Completion Termination Notice”). The Substantial Completion Termination Notice shall designate a Termination Date, counterclaims and any other amounts payable to which shall be no earlier than the date such Project Company Substantial Completion Termination Notice is delivered by such EPC Contractor)Buyer.

Substantial Completion. (a) Subject to the occurrence of the FNTP Date, Seller shall cause the Work to achieve Substantial Completion. If and when Seller considers that the Work has achieved Substantial Completion, Seller shall certify the same to Buyer in writing by delivering a certificate substantially in the form of Exhibit Y (the “Substantial Completion Certificate”), which shall be signed by a duly authorized representative of Seller and, as provided in Section 7.6(a), shall include with such Substantial Completion Certificate a copy of its proposed Punchlist. Buyer shall, within ten (10) Business Days after receipt of such Substantial Completion Certificate, either (i) Gateway confirm in writing to Seller that it agrees that the Work has achieved Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and or (ii) Diablo Substantial Completion notify Seller in writing that it does not agree that the Work has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway achieved Substantial Completion and Diablo provide in reasonable detail an explanation of the basis for its disagreement. If Buyer provides Seller with a notice pursuant to clause (ii) immediately above, Seller shall address and resolve any and all deficiencies in the Work or that served as the basis for Xxxxx’s dispute of Seller’s determination that the Work has achieved Substantial Completion (and, if applicableand resubmit its Substantial Completion Certificate to Buyer. For all purposes of this Agreement, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Work shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion achieved Substantial Completion or Diablo Project on the earlier of (A) the date Buyer confirms in writing to Seller that it agrees the Work has achieved Substantial CompletionCompletion and (B) if within ten (10) Business Days after receipt of a Substantial Completion Certificate, as applicableBuyer has neither confirmed in writing that it agrees the Work has achieved Substantial Completion nor provided Seller a notice pursuant to clause (ii) above, have occurred under the relevant EPC Contract except tenth (10th) Business Day after Seller issues the Substantial Completion Certificate to Buyer in accordance with the requirements of this Agreement; provided, however, that, for any conditions precedent relating to the failure purposes of the applicable EPC Contractor determining Seller’s obligation to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contractdamages pursuant to Section 7.4(b) and any reasonably related Disputes or failures by the relevant EPC Contractor Buyer’s right to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor terminate this Agreement pursuant to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and recordsSection 7.4(c), so long the Work shall be deemed to have achieved Substantial Completion on (1) if Buyer does not dispute Seller’s Substantial Completion Certificate as (A)(1) provided above, the Termination Date under and as defined in the Equity Contribution Agreement has not occurred date Seller issues to Buyer such Substantial Completion Certificate, or (2) if Buyer disputes Seller’s Substantial Completion Certificate as provided above and, without resolving Buyer’s objections and resubmitting its Substantial Completion Certificate, Seller disputes Buyer’s objections, then the Borrower has caused an amount equal later of (x) the date Seller issued to Buyer such Substantial Completion Certificate or (y) the date that, according to the Borrower’s good faithfinal resolution of the Dispute (whether by agreement of the Parties or Expert determination pursuant to Section 26.10(b)), reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) is determined to be the date as of which all conditions to Substantial Completion were, and continued to be, satisfied. (b) If Substantial Completion is not achieved on deposit in or prior to the Construction Account on the Term Conversion Guaranteed Substantial Completion Date, and Seller shall pay to Buyer, as liquidated damages, [●] Dollars per day (B$[●]/day)51 for each day after the Guaranteed Substantial Completion Date that Substantial Completion is not achieved until the earliest of (i) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).date Seller achieves Substantial Completion,

Substantial Completion. (i) Gateway SUBSTANTIAL COMPLETION" shall occur when the ---------------------- ---------------------- Improvements are substantially completed as certified by the architect preparing the Shell Plans utilizing AIA document G704, Certificate of Substantial Completion. Substantial Completion shall have occurredoccurred even though minor details of construction, decoration, landscaping, and mechanical adjustments remain to be completed by Landlord. When the Borrower Certificate of Substantial Completion is issued, Landlord and the Independent Engineer architect shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, prepare a punch list or withhold drawings or other books of incomplete, minor, detail items and recordsLandlord shall rise all reasonable efforts to complete such items within 30 days after the Certificate of Substantial Completion is issued, except as to such items that, by their nature, will take a longer period to complete as set forth in the punch list. The "TARGET DATE" for ----------- Substantial Completion of the Improvements is February 1, 1998. If the actual date of Substantial Completion is delayed beyond the Target Date because of events beyond Landlord's reasonable control, including matters of the type described in Section 23.(c), so long as (A)(1) then Landlord shall have no liability therefor and the Termination date for Substantial Completion shall be extended by the period of any such delay. If Substantial Completion is delayed because of any acts of a Tenant Party, then the Commencement Date under and as defined in the Equity Contribution Agreement has shall not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faithbe extended, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account but rather shall start on the Term Conversion Datedate on which it would have occurred but for such event. Except if Tenant terminates this Lease under Section 1.(b), and (B) the Independent Engineer this Lease shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability remain in connection with such Dispute(s) (after giving full effect to all potential offsets, retainage, counterclaims and notwithstanding any other amounts payable to such Project Company by such EPC Contractor)delay in Substantial Completion.

Substantial Completion. (a) The Concessionaire will achieve Substantial Completion on or before the Scheduled Substantial Completion Date for the applicable Project Asset, subject to adjustment in accordance with this Agreement and subject to the assessment of liquidated damages pursuant to Section 8.10(a). EXECUTION VERSION – DECEMBER 5, 2011 (b) The Department will issue a written certificate of Substantial Completion at such time as Substantial Completion occurs for each Project Asset. (c) Substantial Completion of each Project Asset will have been achieved when each of the following conditions have occurred for the applicable Project Asset: (i) Gateway Substantial Completion shall have occurredall lanes of traffic (including ramps, interchanges, overpasses, underpasses, and other crossings) set forth in the Borrower Construction Documentation are in their final configuration and available for normal and safe use and operation; (ii) all major safety features are installed and functional, including, as required, shoulders, guard rails, striping and delineations, concrete traffic barriers, bridge railings, cable safety systems, metal beam guard fences, safety end treatments, terminal anchor sections and crash attenuators; (iii) all required illumination for normal and safe use and operation is installed and functional in accordance with the Independent Engineer shall have certified Technical Requirements; (iv) all required signs and signals for normal and safe use and operation are installed and functional in accordance with the Technical Requirements; (v) the need for temporary traffic controls or for lane closures at any time has ceased (except for any then required for routine maintenance, and except for temporary lane closures in accordance with and as permitted by a Department-approved traffic management plan solely in order to such effect to complete Punch List items); (vi) the Administrative AgentConcessionaire has completed the toll commissioning process described in the Technical Requirements, and the Independent Engineer shall components of the ETTM System (other than the TMS) are complete, have certified thatpassed all demonstration testing in accordance with the Construction Documentation and the Technical Requirements (other than the Integration Acceptance Test), including demonstration of interoperability with the E-ZPass network or any successor to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final CompletionE-ZPass then utilized on State Highways, and are ready for normal operation; provided, however, with respect to any Project Asset for which (iiA) Diablo Substantial Completion a Tolling and O&M Notice to Proceed has occurred been issued or (B) the Department has agreed in writing pursuant to Section 9.02(a)(viii) that the conditions in Section 9.02(a)(viii) have been satisfied, then the conditions of this Section 8.08(c)(vi) will be deemed satisfied; (vii) the TMS (if any) and safety features for TMS components are installed and functional; and (viii) the Concessionaire has otherwise completed the construction Work in accordance with this Agreement, if applicableincluding the Technical Requirements, and with the Diablo Expansion Construction Documentation, such that the Project is in a physical condition that it can be used for normal and safe vehicular travel in all lanes and at all points of entry and exit, subject only to Punch List items. EXECUTION VERSION – DECEMBER 5, 2011 (d) The parties will disregard the status of the landscaping and aesthetic features included in the Construction Documentation in determining whether Substantial Completion has occurred, except to the extent that its later completion will affect public safety or satisfaction of the criterion in Section 8.08(c). (e) The Concessionaire will provide the Department with written notice of anticipated Substantial Completion of the applicable Project Asset at least 21 Days prior to such anticipated Substantial Completion Date. During such 21-Day period, the Concessionaire and the Department will meet, confer and exchange information on a regular basis with the goal being the Department’s orderly, timely inspection of the applicable Project Asset and review of the final Construction Documentation for the applicable Project Asset and the Department’s issuance of a Substantial Completion Certificate for the applicable Project Asset. In addition, the Department will conduct an inspection of the applicable Project Asset and review of the final Construction Documentation for the applicable Project Asset, and such other matters as may be necessary to determine whether Substantial Completion for the applicable Project Asset is achieved within such 21-Day period. (f) If the Department disapproves the issuance of a Substantial Completion Certificate, then the Department will provide a written notice to the Concessionaire specifying in reasonable detail its reasons for such disapproval within ten Days of receipt of the final Construction Documentation and completion of the inspection for the applicable Project Asset, and the Concessionaire will satisfy the conditions to Substantial Completion that were not met for the applicable Project Asset to which the Department’s disapproval relates. The Department will inspect, review and investigate the applicable Project Asset and the corrective work and, if it does so, will complete such inspection, review and investigation within five Days after (i) the EPC Option Concessionaire provides written notice that such work has been exercisedcompleted and (ii) the Department is provided access to such corrective work. If the Department and the Concessionaire cannot, the Diablo Project despite good faith efforts, agree as to Substantial Completion has occurred)for the applicable Project Asset, such Dispute will be resolved in accordance with the Borrower and the Independent Engineer shall have certified to such effect dispute resolution procedures set forth in Article 21. (g) The Concessionaire will provide notice to the Administrative AgentDepartment if the Department has not approved or disapproved the issuance of a Substantial Completion Certificate within 21 Days after delivery of the notice by the Concessionaire pursuant to Section 8.08(e). If the Department has not notified the Concessionaire of such approval or disapproval within 15 Days after such Concessionaire notice, and if the delay is not a result of a Concessionaire Party action or inaction, then such delay will constitute a Compensation Event, and the Independent Engineer shall have certified thatConcessionaire will be entitled to Concessionaire Damages, if any, pursuant to its knowledgeSection 14.01. (h) If the Department approves the issuance of a Substantial Completion Certificate, the Loan Parties have sufficient funds available Department will provide with its Substantial Completion Certificate a Punch List of items to be completed to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure Acceptance of the applicable EPC Contractor to pay liquidated damagesProject Asset. EXECUTION VERSION – DECEMBER 5, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).2011

Substantial Completion. (i) Gateway Except as provided in this Work Letter, the ---------------------- Commencement Date shall occur as set forth in Section 2.1 of the Lease. If there is any delay in the Substantial Completion shall have occurredof the Improvements or in the occurrence of any of the other conditions precedent to the Commencement Date, as set forth in Article 3 of the Lease, and such delay is a result of a Tenant Delay, then notwithstanding anything to the contrary set forth in the Lease or this Work Letter and regardless of the actual date of Substantial Completion of the Improvements, the Borrower and Commencement Date shall be deemed to be the Independent Engineer shall date the Commencement Date would have certified to such effect to the Administrative Agentoccurred if no Tenant Delay had occurred; provided, and the Independent Engineer shall have certified thathowever, to its knowledgeexcept in connection with a Change Order Delay, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) no Tenant Delay shall be deemed to have occurred hereunder unless and under until Landlord has provided written notice to Tenant ("Delay Notice"), specifying the other Loan Documents if all action or inaction by Tenant which Landlord contends constitutes the Tenant Delay. If such action or inaction is not cured by Tenant within two (2) business days ("Grace Period") following receipt of such Delay Notice, then a Tenant Delay, as set forth in such Delay Notice, shall be deemed to have occurred commencing as of the conditions precedent to Gateway Substantial Completionexpiration of such Grace Period, Diablo Substantial Completionprovided that Tenant shall only be permitted an aggregate of five (5) Grace Periods, Diablo Expansion Substantial Completion or Diablo Project Substantial Completionand thereafter, as applicableif a Tenant Delay occurs, have occurred under such Tenant Delay shall commence upon the relevant EPC Contract except for any conditions precedent relating to the failure receipt of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Delay Notice.

Substantial Completion. (a) Landlord shall cause the General Contractor to construct the Tenant Improvements in the Fifth Floor Premises and Fourth Floor Premises in accordance with the applicable Approved Final Drawings and in a good and workmanlike manner. The Tenant Improvements for the Fourth Floor Premises shall be deemed substantially complete on the date that (i) Gateway Substantial Completion shall have occurred, the Borrower and building officials of the Independent Engineer shall have certified to such effect applicable governmental agency(s) issues its final approval of the construction of the Tenant Improvements relating to the Administrative AgentFourth Floor Premises as evidenced by a certificate of occupancy or equivalent document permitting Tenant to occupy the Fourth Floor Premises (or such date that such agency(s) would have issued such certificate of occupancy or equivalent document permitting Tenant to occupy the Fourth Floor Premises, and the Independent Engineer shall have certified thatbut for any Tenant Delays), to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and or (ii) Diablo the date on which Tenant first takes occupancy of the Fourth Floor Premises for purposes other than to perform the Tenant’s Pre-Occupancy Work, whichever first occurs (“Substantial Completion”, or “Substantially Completed”, or “Substantially Complete”). Tenant hereby acknowledges and agrees that the term “Substantial Completion” of the Tenant Improvements as used herein will not include the completion of any work associated with Tenant’s Installations, including without limitation, work related to any requirements of governmental and regulatory agencies with respect to any of Tenant’s Installations. (b) Landlord shall notify Tenant in writing upon Landlord’s receipt of notice from the General Contractor that the General Contractor believes that Substantial Completion of the Tenant Improvements in the Fourth Floor Premises has occurred (andor will occur on a specified date). Landlord shall request that the General Contractor provide the Landlord (and Landlord shall endeavor to provide Tenant) within at least ten (10) days advance notice of the General Contractor’s estimate of Substantial Completion of the Fourth Floor Premises; provided, if applicablehowever, in no event shall Landlord (or the General Contractor) be liable for failure to provide such ten (10) days advance notice, nor shall the date of Substantial Completion of the Fourth Floor Premises be affected thereby. Representatives of Landlord and Tenant shall accompany the Architect and the General Contractor on a walk-through and inspection of the Fourth Floor Premises following Landlord’s determination that completion of the Tenant Improvements has occurred. Within five (5) days after such walk-through, the Diablo Expansion Substantial Completion has occurredArchitect shall provide to Landlord the list in writing identifying all of the items of defective work, andnon-conforming work and incomplete work observed by the parties, if referred to as the EPC Option has been exercised, “Punch List”. Within ten (10) business days after the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion date of Substantial Completion, andTenant shall identify in writing to Landlord a list of any items of defective work, non-conforming work and incomplete work previously obstructed or obscured during the walk-through and inspection. Landlord shall use commercially reasonable efforts to cause the completion of the Punch List items within thirty (30) days after receipt of the Punch List and shall use commercially reasonable efforts to minimize any material interference with Tenant’s use or occupancy of the Premises. (c) Neither the validity nor enforceability of the Lease shall be affected by the completion or non-completion of the Tenant Improvements and Landlord shall have no liability to Tenant as a result of any delay in occupancy (whether for damages, abatement of all or any portion of the Rent, or otherwise). Notwithstanding the foregoing, if Landlord fails to deliver possession of the EPC Option has been exercisedFourth Floor Premises with the Tenant Improvements in the Fourth Floor Premises Substantially Completed on or before July 15, 2008 (as such date may be extended by Force Majeure Delays and/or Tenant delays (the Diablo Project Substantial Completion“Outside Delivery Date”), Tenant shall have the right to terminate the Lease upon delivery to Landlord of written notice of its election to do so on or prior to five (5) business days following the Outside Delivery Date. If Tenant fails to deliver such written notice to Landlord on or prior to five (5) business days following the Outside Delivery Date, Tenant shall have no further right to terminate the Lease for Landlord’s failure to deliver possession of the Fourth Floor Premises to Tenant. Tenant’s right to terminate this Lease pursuant to this Section 6(c) shall be Tenant’s sole right and/or remedy for Landlord’s failure to deliver possession of the Premises to Tenant. The Tenant Improvements shall belong to Landlord and shall be deemed to have occurred hereunder and under be incorporated into the other Loan Documents if Fourth Floor Premises for all purposes of the conditions precedent Lease, unless Landlord, in writing, indicates otherwise to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Tenant.

Substantial Completion. (a) Developer shall give Mall II Buyer quarterly updates of the progress of construction of the Mall Improvements and the Palazzo Casino Resort and monthly updates for the six (6) months immediately preceding the date on which Developer expects to achieve Substantial Completion. Developer shall achieve Substantial Completion by the date that is the earlier of (i) Gateway Substantial Completion shall have occurred, thirty-six (36) months after the Borrower and the Independent Engineer shall have certified date on which sufficient permits are received to such effect allow Developer to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, begin construction in compliance with Legal Requirements and (ii) Diablo March 1, 2008, as the same may be extended due to Force Majeure, Construction Delays or Buyer Delays (the "Outside Substantial Completion Date"). In the event that, despite Developer's diligent efforts, Substantial Completion has not occurred by the Outside Substantial Completion Date and Developer shall nevertheless be endeavoring diligently to complete the Mall Improvements, then so long as Mall II Buyer is not in default of any obligations under this Agreement, Mall II Buyer shall be entitled to liquidated damages (and, if applicable, the Diablo Expansion "Interim Liquidated Damages") in the amount of $5,000 per day for each day after the Outside Substantial Completion Date on which Substantial Completion has occurred, and, if not occurred up to and including the EPC Option has been exercised, date that is six (6) months after the Diablo Project Outside Substantial Completion Date and $10,000 per day for each day from and after said date to and including the date that is one (1) year after the Outside Substantial Completion Date on which Substantial Completion has not occurred). During the one year period during which Interim Liquidated Damages are payable, the Borrower Developer shall also reimburse Mall II Buyer for actual out-of-pocket damages incurred and the Independent Engineer shall have certified paid to such effect to the Administrative AgentTenants under said Tenant's Leases (including any reduced rent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo rent abatements or other rent concessions under said Tenant's Leases) resulting from Developer's delay in achieving Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion"Lease Damages"). (b) shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion If Substantial Completion has not occurred on or Diablo Project before the date that is one (1) year after the Outside Substantial CompletionCompletion Date, subject to extension for Force Majeure, Construction Delays and Buyer Delays, then Mall II Buyer and Developer agree that it would be impracticable and extremely difficult to ascertain the actual damage to Mall II Buyer as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to a result of the failure of Developer to achieve Substantial Completion by such date and that the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term Buyer Liquidated Damages Amount is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment damages which Mall II Buyer will incur as a result of such Project Company’s reasonably anticipated liability failure and, in connection with such Dispute(s) an event, Developer shall pay to Mall II Buyer the Buyer Liquidated Damages Amount and Developer shall be responsible to pay the Lease Damages. The "Buyer Liquidated Damages Amount" as used in this Agreement shall mean one hundred million dollars (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor$100,000,000).

Substantial Completion. Sublandlord shall use reasonable efforts to cause Sublandlord’s Work to be Substantially Completed (as defined in Section 3(B) of the Sublease), subject to delays caused by Force Majeure (as defined below) and Subtenant Delays (as defined in Paragraph 6 below), on or before March 15, 2016 (the “Anticipated Substantial Completion Date”). If Sublandlord’s Work is not Substantially Completed on or before the Anticipated Substantial Completion Date (as extended), the Sublease shall remain in full force and effect; provided: (i) Gateway Substantial Completion The Sublease Term Commencement Date shall have occurrednot occur until Sublandlord’s Work is Substantially Completed, the Borrower and the Independent Engineer shall have certified except as set forth in Section 6 with respect to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and a Subtenant Delay; (ii) Diablo Substantial Completion has occurred If Sublandlord does not deliver the Subleased Premises to Subtenant in the Delivery Condition with the Sublandlord Work Substantially Completed by April 15, 2016 (the “First Outside Date”) and such failure to so deliver is not the result of Force Majeure or Subtenant Delay, then for each day thereafter until such time as the Subleased Premises are delivered to Subtenant in the Delivery Condition with the Sublandlord’s Work Substantially Completed, Subtenant shall receive a rent credit equal to one day’s Base Rent at the highest rental rate payable during the first Lease Year and after the initial ninety (90) days thereof which reflects a reduced rental rate; and (iii) In the event that Sublandlord does not deliver the Subleased Premises to Subtenant in the Delivery Condition with the Sublandlord’s Work Substantially Completed by July 12, if applicable, 2016 (the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred“Final Outside Date”), and such failure to so deliver is not the Borrower and result of Force Majeure (but the Independent Engineer extension on account of Force Majeure shall not exceed 30 days) or Subtenant Delay, then Subtenant shall have certified the right to such effect terminate this Sublease by written notice to Sublandlord at any time after the Final Outside Date but prior to the Administrative Agent, date that Sublandlord actually Substantially Completes the Sublandlord’s Work and delivers the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined Premises in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Delivery Condition.

Substantial Completion. (i) Gateway Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion “Substantial Completion, and, if the EPC Option ” shall occur upon notice from NYSEG to Owner that NYSEG has been exercised, the Diablo Project Substantial Completion) shall be deemed received evidence reasonably satisfactory to have occurred hereunder and under the other Loan Documents if NYSEG of satisfaction of all of the following conditions. The Parties agree that review and approval of these conditions precedent may occur on an incremental basis as such conditions are satisfied: Owner has entered into, and complied in all material respects with its obligations under, the Interconnection Agreement; interconnection of the Project has been completed in accordance with the Interconnection Agreement, including installation of all metering and telemetry equipment required to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo deliver the Product in accordance with the NYISO Tariff; the Interconnection Facilities are sufficient to enable delivery of the installed capacity of the Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating up to the failure Contract Capacity; and the Interconnection Agreement remains in full force and effect; Owner shall have provided a certificate from an Independent and Actively Licensed New York State (NYS) Registered Professional Engineer that the Project has been mechanically and electrically completed in all material respects, excepting items that do not adversely affect the ability of the applicable EPC Contractor Project to pay liquidated damagesachieve Commercial Operation in accordance with the requirements of this Agreement; Owner has obtained all Permits necessary for Owner to perform its obligations under this Agreement and all such Permits are in final form and in full force and effect; Owner has obtained authority from FERC, any other similar Dispute pursuant to Section 205 of the Federal Power Act, 16 U.S.C. § 824d for wholesale sales of electric energy, capacity, and ancillary services at market-based rates (“Market-Based Rate Authority”); Owner is registered in NYISO as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) a market participant (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement NYISO Tariff) for the Project; Owner has not occurred or (2) registered the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit NYISO for use as a dispatchable energy storage resource operating in the Construction Account on NYISO Markets; Owner has completed all registrations with NERC (North American Electric Reliability Corporation) and NPCC (Northeast Power Coordinating Council) as applicable to Owner as the Term Conversion Date, owner and operator of the Project; the NYSERDA Agreement shall be in full force and effect and Owner shall not be in breach or default of any of its obligations thereunder; Owner has delivered to NYSEG all insurance documents required under Section 14.7 (BInsurance) and all documented insurance shall be in full force and effect with all required premiums paid; the Independent Engineer Project shall not be subject to any Encumbrances other than Permitted Encumbrances; Owner shall have certified thatdelivered a final, comprehensive list of remaining tasks required for completion of the Project (“Punch List”) revised to its knowledge, such deposited amount (or amount reflect comments from NYSEG on a draft Punch List provided by Owner; and Owner shall not be in default of available unused equity commitments any obligation under the Equity Contribution this Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).

Substantial Completion. SUBSTANTIAL COMPLETION" occurs when all of the following conditions have been satisfied: (ia) Gateway receipt of a Certificate of Substantial Completion shall by Architect on AIA Form G704 (or a substantially similar form) relating to the construction of the Expansion Improvements; (b) Tenant can use the Expansion Improvements for its intended purposes without material interference to Tenant conducting its business activities; (c) Final Inspection has occurred; (d) Tenant, its employees, agents and invitees have occurredready access to, and parking (if contemplated by the Plans) for, the Borrower Expansion Improvements (but not necessarily on paved surfaces); (e) necessary utilities (not including natural gas) and plumbing are available (availability through temporary facilities will be acceptable for this purpose) in capacities not less than as set forth in the Plans, are connected to mains or other appropriate sources, and all utility meters have been set and activated; (f) receipt of a certificate from an engineer stating that no additional easements are required to be granted for the benefit of Parcel on which the Expansion Improvements are is located in order for such Parcel and the Independent Engineer shall have certified improvements located thereon to such effect be provided with access, utility services and drainage, as required by the Lease and this Expansion Space Work Letter; (g) receipt of an instrument from Xxxxx/Skyland Joint Venture, Ltd. (or its successor) regarding the Expansion Improvements, in the form described in Section 10.h of the Declaration of Covenants, Conditions, Restrictions and Easements described in the definition of "CC&R's" and (h) receipt (at Tenant's sole cost and expense) of evidence that no exceptions to title not set forth on Exhibit B as to the Administrative Agent, Expansion Improvements and the Independent Engineer shall have certified thatParcel on which they are located, exist. At Landlord's request, Tenant will execute and deliver to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Landlord a written acknowledgment that Substantial Completion has occurred. Acceptance of possession, and, if use or occupancy of the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer Expansion Improvements by Tenant shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall not be deemed to have occurred hereunder and under constitute a waiver of Landlord's duties, obligations or warranties expressly set forth in the other Loan Documents if all Lease. Landlord shall use reasonable efforts to give Tenant at least fifteen days' advance notice of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion estimated date on which Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for is expected to occur and five days' advance notice of any conditions precedent relating changes to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)estimated Substantial Completion date.

Substantial Completion. (i) Gateway Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) If Landlord shall be deemed to have occurred hereunder and under delayed in substantial completion as a result of Tenant Delays, then the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Commencement Date, and (B) Tenant's obligation to begin paying Base Rent and Additional Charges, shall be adjusted to reflect what the Independent Engineer Commencement Date would have been if there had been no Tenant Delays. Notwithstanding the forgoing, if Tenant Delays occur and, as a result thereof, Landlord reasonably anticipates that Substantial Completion will not occur on or before the Scheduled Commencement Date, then at Landlord's sole election and in addition to any other remedies that may be available to Landlord under the Lease or at law or in equity, at Landlord's written request Tenant shall have certified thatcommence payment of Base Rent and Additional Charges on the date one month following the Scheduled Commencement Date. If Landlord makes such election, then the installment of Base Rent, and any installments of any components of Additional Charges, that are first due after Substantial Completion occurs shall be adjusted to reflect the actual Commencement Date. Landlord's election, as set forth above, shall not constitute a waiver of any default by Tenant or any other remedy available to Landlord as a result thereof, to its knowledge, such deposited amount (the extent the circumstances giving rise to a Tenant Delay constitute a default by Tenant hereunder or amount of available unused equity commitments under the Equity Contribution AgreementLease. Within seven (7) is reasonably expected days after written request of Landlord, Tenant agrees to be sufficient give Landlord a letter confirming the Commencement Date and certifying that Tenant has accepted delivery of the Premises and that the condition of the Premises complies with Landlord's obligations hereunder. EXHIBIT "B" 6 66 EXHIBIT "B-1" ------------------------------------------------------------------------------- LANDLORD'S PLANS The plans and specifications related to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsetsTwo Circle Star Way as drawn or assembled by Kennxxx Xxxxxxxxx & Xartners, retainageInc. as called out below: GENERAL A0.0 COVER SHEET A0.1 GENERAL INFORMATION SHEET/ 1/22/98 TITLE 24 ENERGY COMPLIANCE 1/22/98 CIVIL C0.2 STORM WATER POLLUTION PREVENTION PLAN 11/14/97 C1.1 LAYOUT AND PAVING PLAN 12/19/97 C1.2 LAYOUT AND PAVING PLAN 11/14/97 C2.1 GRADING PLAN 11/14/97 C2.2 GRADING PLAN 11/14/97 C3.1 UTILITY PLAN 11/14/97 C3.2 UTILITY PLAN 11/14/97 C4.1 DETAILS 11/14/97 C4.2 DETAILS 11/14/97 C4.3 DETAILS 12/19/97 ARCHITECTURAL A2.1 BUILDING ONE FIRST FLOOR PLAN 2/26/98 A2.2 BUILDING ONE SECOND FLOOR PLAN 1/22/98 A2.3 BUILDING ONE THIRD FLOOR PLAN 1/22/98 A2.4 BUILDING ONE FOURTH FLOOR PLAN 1/22/98 A2.5 ENLARGED CORE PLAN 1/22/98 A2.6 ENLARGED BATHROOM PLANS 1/22/98 A3.1 BUILDING ONE ROOF PLAN 1/22/98 A4.1 BUILDING ONE ELEVATIONS 2/26/98 A4.2 BUILDING ONE ELEVATIONS 1/22/98 A5.1 BUILDING SECTION 1/22/98 A5.2 TYPICAL WALL SECTIONS 1/22/98 A7.1 REFLECTED CEILING PLANS 3/5/97 A7.2 ENLARGED STAIR PLANS AND SECTIONS 1/22/98 A7.3 ENLARGED ELEVATOR PLANS AND SECTIONS 1/22/98 A7.4 DOOR AND HARDWARE SCHEDULE/ROOM 3/11/98 FINISH SCHEDULE A8.1 EXTERIOR DETAILS 1/22/98 A8.2 DOOR/WINDOW DETAILS 1/22/98 A8.3 ROOF DETAILS 1/22/98 A9.1 WALL TYPES 1/22/98 A9.2 INTERIOR DETAILS 1/22/98 EXHIBIT "B-1" 1 67 A9.3 UL ASSEMBLIES 11/14/97 STRUCTURAL S0.1 GENERAL NOTES 10/6/97 S2.1 BUILDING ONE FOUNDATION/FIRST 10/6/97 FLOOR FRAMING PLAN S2.2 BUILDING ONE 2ND FLR. FRAMING PLAN 10/6/97 S2.3 BUILDING ONE 3RD FLR. FRAMING PLAN 10/6/97 S2.4 BUILDING ONE 4TH FLR. FRAMING PLAN 10/6/97 S2.5 BUILDING ONE ROOF FRAMING PLAN 10/6/97 S2.5A BUILDING ONE ROOF SCREEN/SLAB 10/6/97 REINFORCING PLAN S3.1 TYPICAL CONCRETE DETAILS 7/23/97 S3.2 CONCRETE DETAILS NO. 1 10/6/97 S3.3 CONCRETE DETAILS NO. 2 10/6/97 S3.4 CONCRETE DETAILS NO. 3 10/6/97 S5.1 TYPICAL METAL DECK DETAILS NO. 1 10/6/97 S5.2 TYPICAL METAL DECK DETAILS NO. 2 10/6/97 S5.3 TYPICAL STEEL DETAILS 10/6/97 S5.4 COLUMN SCHEDULE AND DETAILS 10/6/97 S5.5 BRACED FRAME ELEVATIONS AND DETAILS 10/6/97 S5.6 STEEL DETAILS NO. 1 10/6/97 S5.7 STEEL DETAILS NO. 2 10/6/97 S9.1 PRECAST PANEL SUPPORT PLAN 10/6/97 S9.2 PRECAST PANEL SUPPORT PLAN 7/30/97 S9.3 PRECAST PANEL SUPPORT DETAILS 10/6/00 XXXXXXXXX X-0 XXXXX XXX XXXES AND LEGEND 2/6/98 L-2 PHASE ONE LAYOUT AND GRADING PLAN 2/6/98 L-3 PHASE ONE PLATING PLAN 2/6/98 L-4 PHASE ONE IRRIGATION 2/6/98 L-5 PHASE ONE DETAILS 7/28/97 L-6 PHASE ONE DETAILS 11/26/97 L-7 PHASE ONE DETAILS 2/6/98 MECHANICAL AC0.01 TITLE 24, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).DRAWING SCHEDULE, MANDATORY 3/10/98 MEASURES, AND GENERAL NOTES 3/10/98 AC0.02 EQUIPMENT SCHEDULE 3/10/98 AC1.01 FIRST FLOOR HVAC PLAN 3/10/98 AC1.02 SECOND FLOOR HVAC PLAN 3/10/98 AC1.03 THIRD FLOOR HVAC PLAN 3/10/98 AC1.04 FOURTH FLOOR HVAC PLAN 3/10/98 AC1.05 ROOF PLAN 3/10/98 AC1.06 ROOF COORDINATION PLAN 3/10/98 AC2.01 PIPING SCHEMATICS AND DETAILS 3/10/98 EXHIBIT "B-1" 2 68 AC7.01 WIRING AND CONTROLS 3/10/98 ELECTRICAL CIR-E0 COVER SHEET 7/23/97 CIR-SE1 SITE LIGHTING PLAN 7/23/97 CIR-SE2 SITE LIGHTING PLAN 7/23/97 CIR-E1 FIRST FLOOR LIGHTING PLAN 7/23/97 CIR-E2 SECOND FLOOR LIGHTING PLAN 7/23/97 CIR-E3 THIRD FLOOR LIGHTING PLAN 7/23/97 CIR-E4 FOURTH FLOOR LIGHTING PLAN 7/23/97 CIR-E5 FIRST FLOOR POWER PLAN 7/23/97 CIR-E6 SECOND FLOOR POWER PLAN 7/23/97 CIR-E7 THIRD FLOOR POWER PLAN 7/23/97 CIR-E8 FOURTH FLOOR POWER PLAN 7/23/97 CIR-E9 FIRST FLOOR MECHANICAL PLAN 7/23/97 CIR-E10 SECOND FLOOR MECHANICAL PLAN 7/23/97 CIR-E11 THIRD FLOOR MECHANICAL PLAN 7/23/97 CIR-E12 FOURTH FLOOR MECHANICAL PLAN 7/23/97 CIR-E13 ROOF MECHANICAL PLAN 7/23/97 CIR-E14 SINGLE LINE DIAGRAM 11/24/97 CIR-E15 PANEL SCHEDULES 7/23/97 CIR-E16 PANEL SCHEDULES 7/23/97 CIR-E17 TITLE 24 7/23/97 PLUMBING P1A 0XX XXXXX XXXXX XXXXX 00/00/00 X0X 0XX XXXXX XXXVE GRADE 12/18/97 P2 2ND FLOOR 12/18/97 P3 0XX XXXXX 00/00/00 X0 0XX XXXXX 12/18/97 P5 ROOF PLAN 12/18/97 FIRE ALARM SYSTEM FA-1 FIRST FLOOR BUILDING ONE 12/5/97 FA-2 SECOND FLOOR BUILDING ONE 12/5/97 FA-3 THIRD FLOOR BUILDING ONE 12/5/00 XX-0 XXXXXX XXXXX XXXLDING ONE 12/5/97 FA-5 ROOF PLAN BUILDING ONE 12/5/97 EXHIBIT "B-1" 3 69 EXHIBIT "B-2" -------------------------------------------------------------------------------- MINIMUM INFORMATION REQUIRED FLOOR PLANS INDICATING:

Substantial Completion. (A) Landlord shall perform the work described on Exhibit B annexed hereto and described therein as the Phase I Construction and the Phase II Construction (collectively, "Landlord's Work"); provided, however, that the Landlord shall have no responsibility for the installation or connection of Tenant's computer, telephone, other communication equipment, systems or wiring. It is agreed that (i) Gateway Substantial Completion shall have occurred, construction of the Borrower Phase I Construction is intended to be "turnkey" and the Independent Engineer shall have certified to such effect will be completed at Landlord's sole cost and expense (subject to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, terms of Section 3.1(B) below) and (ii) Diablo Substantial Completion has occurred subject to Section 3.2.B, Tenant shall, as Additional Rent, after the Phase II Construction is completed, reimburse Landlord upon demand an amount (and"Phase II Contribution") equal to the lesser of (x) one-half (1/2) of the cost of the Phase II Construction or (y) Two Thousand and 00/100 ($2,000.00) Dollars, and Landlord shall be responsible for the balance of the costs of the Phase II Construction. Landlord's Work shall be performed using Building Standard methods, materials and finishes. Landlord and Tenant hereby agree that that certain letter agreement dated June 27, 2002 between Landlord and Tenant relating to reimbursement of certain construction related costs shall upon the full execution and delivery of this Lease be of no further force or effect. (B) If Tenant shall request any revisions to Landlord's Work, Landlord shall have such revisions prepared at Tenant's sole cost and expense and Tenant shall reimburse Landlord for the cost of preparing any such revisions to the Landlord's Work, plus any applicable state sales or use tax thereon, upon demand. Promptly upon completion of the revisions, Landlord shall notify Tenant in writing of the increased cost in Landlord's Work, if applicableany, resulting from such revisions to the Landlord's Work. Tenant, within one business day shall notify Landlord in writing whether it desires to proceed with such revisions. In the absence of such written authorization, Landlord shall have the option to continue to work on the Premises disregarding the requested revision. Tenant shall be responsible for any Tenant Delay in completion of the Premises resulting from any revisions to the Landlord's Work. If such revisions result in an increase in the cost of Landlord's Work, such increased costs plus any applicable state sales or use tax thereon, shall be payable by Tenant upon demand. Notwithstanding anything herein to the contrary, all revisions to the Landlord's Work shall be subject to the approval of Landlord. (C) Subject to delays due to Force Majeure, as defined in Section 6.1, Landlord shall use reasonable speed and diligence in the performance of Landlord's Work, but Tenant shall have no claim against Landlord for failure so to complete construction of Landlord's Work in the Premises, except for the right to terminate this Lease, without further liability to either party, in accordance with the provisions hereinafter specified in Section 3.2. The Phase I Construction shall be treated as having been substantially completed on the later of: (a) The date on which the Phase I Construction, together with common facilities for access and services to the Premises, has been completed (or would have been completed except for Tenant Delay) except for items of work and adjustment of equipment and fixtures which can be completed after occupancy has been taken without causing substantial interference with Tenant's use of the Premises (i.e. so-called "punch list" items) and items of work for which there is a long lead time in obtaining the materials therefore or which are specially or specifically manufactured, produced or milled for the work in or to the Premises and require additional time for receipt or installation ("long lead" items), or (b) The date when Landlord has received a Certificate of Occupancy, as defined in Section 2.4(a). The Phase II Construction shall be performed promptly after the substantial completion of the Phase I Construction. Landlord shall complete as soon as conditions practically permit all items and work excepted by Section 3.1(C)(a) above, and Tenant shall cooperate with Landlord in providing access as may be required to complete such work in a normal manner. Landlord shall permit Tenant access for installing Tenant's trade fixtures in portions of the Premises prior to substantial completion when it can be done without material interference with remaining work or with the maintenance of harmonious labor relations. In the event of any dispute as to the date on which the Phase I Construction has been completed as described in subsection 3.1(B)(a) above, the Diablo Expansion Substantial Completion has occurredreasonable determination of Landlord's architect as to such date shall be deemed conclusive and binding on both Landlord and Tenant. Tenant agrees that no delay by it, andor anyone employed by it, if in performing work to prepare the EPC Option has been exercisedPremises for occupancy (including, without limitation, the Diablo Project Substantial Completion has occurred)work in installing Tenant's trade fixtures) (collectively a "Tenant Delay") shall delay commencement of the Term or the obligation to pay rent, regardless of the Borrower and reason for such delay or whether or not it is within the Independent Engineer shall have certified to control of Tenant or any such effect to the Administrative Agentemployee, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Phase I Construction shall be deemed to have occurred hereunder and under the other Loan Documents if all completed as of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completiondate when the same would have been substantially completed except for Tenant Delay, as applicable, have occurred under determined by Landlord in the relevant EPC Contract except for any conditions precedent relating to the failure exercise of the applicable EPC Contractor to pay liquidated damages, its good faith business judgment. Nothing contained in this paragraph shall limit or qualify or prejudice any other similar Dispute (as such term is defined covenants, agreements, terms, provisions and conditions contained in this Lease. 3.2 A. If Landlord shall have failed substantially to complete the Phase I Construction in the applicable EPC Contract) and any reasonably related Disputes Premises described in Exhibit B on or failures by before the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Outside Completion Date under and for Phase I Construction as defined in Section 1.1 hereof (which date shall be extended automatically for such periods of time as Landlord is prevented from proceeding with or completing the Equity Contribution Agreement has not occurred or same by reason of Force Majeure as defined in Section 6.1) Tenant shall have the right to terminate this Lease by giving notice (2"Termination Notice") to Landlord of Tenant's desire to do so before such completion and after the Borrower has caused an amount equal Outside Completion Date for the Phase I Construction (as so extended) and by paying to Landlord, at the Borrower’s good faithtime that Tenant gives such Termination Notice, reasonable estimate the sum of Thirty Thousand and 00/100 ($30,000.00) Dollars ("Termination Fee"); and, upon the giving of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims Termination Notice and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated Termination Fee, the term of this Lease shall cease and come to an end without further liability or obligation on the part of either party; and such right of termination shall be Tenant's sole and exclusive remedy for Landlord's failure so to complete the Phase I Construction within such time. Each day of Tenant Delay shall be deemed conclusively to cause an equivalent day of delay by Landlord in connection with substantially completing the Phase I Construction pursuant to Section 3.1, and thereby automatically extend for each such Dispute(s) (after giving effect equivalent day of delay the date of the Outside Completion Date for the Phase I Construction. If Tenant fails to all potential offsetspay the Termination Fee at the time Tenant gives such Termination Notice, retainage, counterclaims then Tenant's Termination Notice shall be null and any other amounts payable to such Project Company by such EPC Contractor)void and of no force or effect.

Substantial Completion. Except as otherwise specifically provided in this Lease (i) Gateway including without limitation a delay in Landlord’s achieving Substantial Completion by reason of a Tenant Delay), and consistent with the provisions of Sections 6.2 and 6.3 of this Lease, Tenant shall have occurred, not be liable to Landlord for the Borrower payment of Rent or any other payment under this Agreement applicable to a Phase (“Tenant Payment Obligations”) until the Landlord’s Work with respect to the applicable Phase is substantially completed in accordance with all Legal Requirements and the Independent Engineer shall have Final Plans, as certified to such effect to by Architect in an executed and dated document on Architect’s letterhead (the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final “Architect’s Certificate of Substantial Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred”), the Borrower Phase is ready for occupancy by Tenant, and Landlord has obtained a certificate of occupancy therefor, or Tenant has taken occupancy of substantially all of a Phase and commenced doing business therein (hereinafter, “Substantial Completion”). Subject to the Independent Engineer preceding sentence, if Tenant occupies any portion of the Building prior to Substantial Completion of the Improvements, the terms of this Lease shall have certified apply to such effect to the Administrative Agentoccupancy. By occupying any Phase, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Tenant shall be deemed to have occurred hereunder accepted the same and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completionhave acknowledged that such Phase, as applicable, is in the condition required by this Lease except for those items set forth in the “Punch Lists” (defined herein), if any, and latent defects in Landlord’s Work. Tenant Payment Obligations shall commence upon the Phase Commencement Date (defined herein) applicable to a Phase in accordance with Sections 6.2 and 6.3 (or, if earlier, the date such Phase Commencement would have occurred under but for a Tenant Delay); provided, however, if the relevant EPC Contract except Building is partially completed and partially ready for any conditions precedent relating occupancy, and is occupied by Tenant, or Tenant is required to occupy same, a pro rata portion of all Tenant Payment Obligations shall be payable commencing with such date of partial occupancy, and shall be equitably adjusted from time-to-time based upon the portion of the Phase substantially completed and occupied by Tenant. Tenant shall notify Landlord when it needs to obtain access to the failure applicable Phase to perform Tenant Fixturing Work and in response thereto Landlord shall notify Tenant of the applicable EPC Contractor date when Substantial Completion of each Phase of the Premises is expected to pay liquidated damagesbe achieved (“Substantial Completion Target Date”). With the exception of the Existing Renovated Office Space, any other similar Dispute absent such notification, Landlord shall give notice to Tenant approximately forty-five (as such term is defined in 45) days prior to the Substantial Completion Target Date. After the applicable EPC Contractnotice is either given or received by Landlord, Tenant shall be permitted (a) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver access to the relevant Project Company any waiver or release First Phase upon execution of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Datethis Lease, and (Bb) limited access to the Independent Engineer Second Phase on or before April 1, 2003 (such date of limited access to the Second Phase is referred to herein as the “Limited Access Date”) to perform Tenant Fixturing Work; provided that: (a) Section 19 (Indemnification) and Section 20 (Insurance), shall be applicable and effective as of the Limited Access Date; (b) Tenant shall deliver to Landlord the Certificate of Insurance noted in Section 20 prior to the Limited Access Date and the insurance shall be effective as of that date; (c) Tenant will avoid any interference with Landlord’s completion of the Landlord’s Work; and (d) Tenant shall submit its installation plans to Landlord for Landlord’s approval, which shall not be unreasonably withheld, conditioned or delayed. The Vivarium Phase shall not be deemed to have certified thatobtained Substantial Completion if the certificate of occupancy with respect thereto has any prohibition against the use of the vivarium for animal research (other than a prohibition against on-site disposal by burning of dead animals), and any such prohibition shall be deemed, for purposes of this Lease, to its knowledge, such deposited amount be the equivalent of the pendency of any Zoning Amendment Appeal (defined herein) or amount of available unused equity commitments Subsequent Appeal (defined herein) under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Section 9 .

Substantial Completion. 9.8.1 Substantial Completion is the stage in the progress of the Work when the Work is complete in accordance with the Contract Documents so the Owner can occupy or utilize the Work for its intended use. 9.8.2 Unless otherwise provided in the Contract Documents, when the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept separately, is substantially complete, the Contractor shall thoroughly inspect the Work and prepare and submit to the Engineer a comprehensive list of items to be completed or corrected, Contractor’s Notice of Substantial Completion, and a written request for Engineer’s review of the Work. The Contractor shall proceed promptly to complete and correct items on the list. Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. Upon approval of Substantial Completion by Brazos County, Contractor has thirty (i30) Gateway days to reach Final Completion of the Work. If the Contractor does not achieve Final Completion within thirty (30) days after Substantial Completion, Contractor shall be subject to additional Liquidated Damages as set forth under paragraph 9.11 herein. 9.8.3 Unless otherwise provided in the Contract Documents, after receipt of the Contractor’s Notice of Substantial Completion and the Contractor’s list, the Engineer and Owner will make inspections to determine whether the Work or designated portion thereof is substantially complete. If the Engineer's and Owner’s inspections disclose any item, whether or not included on the Contractor's list, which is not in accordance with the requirements of the Contract Documents, the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct such item upon notification by the Engineer. In such case, the Contractor shall then submit another Contractor’s Notice of Substantial Completion and a request for another inspection by the Engineer and Owner to determine Substantial Completion. 9.8.4 When the Work is substantially complete, the Engineer will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the contractor shall finish all items on the list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. The Certificate of Substantial Completion shall have occurredbe submitted to the Owner and Contractor for their written acceptance or responsibilities assigned to them in such Certificate. 9.8.5 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their written acceptance of responsibilities assigned to them in such Certificate. Upon such acceptance and consent of surety, if any, the Borrower and the Independent Engineer Owner shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable retainage applying to such Project Company by such EPC Contractor)Work or designated portion thereof. Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents.

Substantial Completion. “Substantial Completion” or “Substantially Completed” as used herein shall mean all of the following have occurred: (i) Gateway Substantial Completion shall have occurreddelivery of a factually correct written notice to Tenant of the completion of construction of the Tenant Improvements in the Premises substantially in accordance with the approved T.I. Plans and Specifications with the exception of minor details of construction installation, the Borrower decoration, or mechanical adjustments, punchlist items and the Independent Engineer shall have certified to such effect any work relating to the Administrative Agentbackup generator as set forth in Section 29.35 of the Lease and/or Tenant’s Hazardous Materials storage container as set forth in Section 29.33 of the Lease (irrespective of whether such item(s) are installed by Tenant during the Early Access Period as part of Tenant’s Work), and such notice to be in substantially the Independent Engineer shall have certified thatform of Attachment “A” hereto, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo expiration of the Early Access Period (as defined in Section 5.1) (iii) the City of Carlsbad has issued a final inspection approval, certificate of occupancy (or equivalent), a temporary certificate of occupancy (or equivalent) or other equivalent authorization, or Tenant has occupied and obtained the beneficial use of the Premises. Xxxxxx agrees that if Landlord shall be delayed in causing such work to be Substantially Completed as a result of any of the events described herein (or elsewhere in the Lease) as a “Tenant Delay,” then such delay shall be the responsibility of Tenant. In any such event, Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all earlier of: (a) the date of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project (b) the date when Substantial Completion, as applicable, Completion would have occurred under if there had been no Tenant Delay. Landlord shall not be required to work on an overtime basis. For the relevant EPC Contract except purposes of this Tenant Work Letter, a “Tenant Delay” is defined as any delay directly or indirectly resulting from: (1) Tenant’s failure to comply with any time frames set forth herein or in the Lease (including the deadline set forth in Section 3.3.1 for any conditions precedent relating to the failure Tenant’s approval of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and recordsSpace Plan), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or ; (2) any changes in any stage of the Borrower has caused an amount equal to the BorrowerT.I. Plans and Specifications requested by Tenant after Landlord’s good faith, reasonable estimate and Tenant’s approval of such Project Companystage, including, without limitation, any Change Order or changes made to reduce the Estimated Construction Cost; (3) Tenant’s reasonably anticipated liability failure to timely furnish any documents required herein or to timely approve any item or any cost estimates, the Estimated Construction Costs or any Change Orders, as required herein; (4) Tenant’s request for materials, finishes, or installations other than Landlord’s Building Standard items (and with specific reference to any delays resulting from the design and/or installation of the backup generator as set forth in connection with such Dispute(sSection 29.35 of the Lease and/or Tenant’s Hazardous Materials storage container as set forth in Section 29.33 of the Lease ); (5) Tenant’s failure to timely perform any act or obligation imposed on Tenant by the Lease or this Tenant Work Letter as and when requested thereunder or hereunder; (after giving effect 5) Tenant’s failure to all potential offsets, retainage, counterclaims assemble its systems furniture to satisfy fire and building inspector requirements to procure a certificate of occupancy (or equivalent); or (6) any other amounts payable delay otherwise caused by Tenant, its officers, directors, owners, agents, invitees, permittees, employees or contractors which operates to such Project Company delay Landlord’s Substantial Completion of the Tenant Improvements, as reasonably determined by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Landlord.

Substantial Completion. (ia) Gateway Substantial Completion Landlord shall have occurred, use reasonable efforts to Substantially Complete that portion of the Borrower Office Improvements related to Tenant's computer room (said computer room being shown on EXHIBIT B-4 attached hereto) and the Independent Engineer shall have certified to such effect to Warehouse Items (said portion of the Administrative Agent, Office Improvements and the Independent Engineer Warehouse Items being referred to hereinafter, collectively, as the "Phase I Improvements") on or before November 24, 2003, as such date may be extended due to Force Majeure or Tenant Delay (the "Phase I Date"). If Landlord fails to Substantially Complete the Phase I Improvements on or before the fifteenth (15th) day after the Phase I Date, Tenant shall have certified that, to its knowledge, receive one (1) day of free Base Rent and Tenant's Proportionate Share of CAM Charges for each day after such fifteenth (15th) day that the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and Phase I Improvements are not Substantially Complete. Except as set forth in this subsection (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurreda), no liability whatsoever shall arise or accrue against Landlord by reason its failure to Substantially Complete the Borrower Phase I Improvements on or before the Phase I Date. (b) Without limiting subsection (a) above, Landlord shall use reasonable efforts to Substantially Complete the remainder of the Office Improvements (the "Phase II Improvements") on or before the Target Commencement Date, as such date may be extended due to Force Majeure or Tenant Delay (the "Phase II Date"). If Landlord fails to Substantially Complete the Phase II Improvements on or before the fifteenth (15th) day after the Phase II Date, Tenant shall receive one (1) day of free Base Rent and Tenant's Proportionate Share of CAM Charges for each day after such fifteenth (15th) day that the Independent Engineer Phase II Improvements are not Substantially Complete. Except as set forth in this subsection (b), no liability whatsoever shall have certified arise or accrue against Landlord by reason its failure to such effect to Substantially Complete the Administrative AgentPhase II Improvements on or before the Phase II Date. (c) For purposes hereof, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (andor any grammatical variation thereof) shall mean, with respect to the Phase I Improvements only, completion of construction of the Phase I Improvements, subject only to punchlist items to be identified by Landlord and Tenant in a joint inspection of the Phase I Improvements. For purposes hereof, Substantial Completion (or any grammatical variation thereof) shall mean, with respect to the Phase II Improvements only, completion of construction of the Phase II Improvements, subject only to punchlist items to be identified by Landlord and Tenant in a joint inspection of the Phase II Improvements, the completion of which will not materially affect Tenant's use and occupancy of the Premises, as established by the delivery by Landlord to Tenant of a certificate of occupancy for the Premises issued by the appropriate governmental authority. Notwithstanding anything to the contrary contained herein, if applicableSubstantial Completion of the Phase I Improvements and/or the Phase II Improvements (collectively, the Diablo Expansion "Tenant Improvements") is delayed beyond the Target Commencement Date as a result of Tenant Delay (as hereinafter defined), then, for purposes of determining the Commencement Date, Substantial Completion, and, if Completion of the EPC Option has been exercised, the Diablo Project Substantial Completion) Tenant Improvements shall be deemed to have occurred hereunder and under on the other Loan Documents if all date that Substantial Completion of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, Tenant Improvements would have occurred under but for such Tenant Delay. (d) For purposes hereof, Tenant Delay shall mean any delay in the relevant EPC Contract except for any conditions precedent relating to the failure completion of the applicable EPC Contractor Tenant Improvements attributable to pay liquidated damagesTenant, including, without limitation (i) Tenant's failure to meet any time deadlines specified herein, (ii) Change Orders, (iii) Tenant's requirements for special work or materials, finishes or installations other than Building standard, (iv) the performance of any other similar Dispute (as such term is defined work in the applicable EPC Contract) and Premises by any reasonably related Disputes person, firm or failures corporation employed by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including or on behalf of Tenant, or any failure by to complete or delay in completion of such work, (v) Landlord's inability to obtain an occupancy permit for the applicable EPC Contractor to deliver to Premises because of the relevant Project Company any waiver need for completion of all or release a portion of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined improvements being installed in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company Premises directly by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion DateTenant, and (Bvi) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)act or omission of Tenant.

Substantial Completion. Landlord and Tenant shall cause the General Contractor to Substantially Complete (defined below) the Tenant Improvements in accordance with the Approved Working Drawings within a commercially reasonable time with the intention to attempt to complete such improvements by the anticipated Commencement Date of the Lease as set forth in the Lease (the “Completion Date”), subject to delays due to (a) acts or events beyond its control including, but not limited to, acts of God, earthquakes, strikes, lockouts, boycotts, casualties, discontinuance of any utility or other service required for performance of the Tenant Improvements, moratoriums, governmental agencies, delays on the part of governmental agencies and weather, (b) the lack of availability or shortage of specialized materials used in the construction of the Tenant Improvements, (c) any matters beyond the control of Landlord, the General Contractor or any subcontractors, (d) any changes required by the fire department, building and/or planning department, building inspectors or any other agency having jurisdiction over the Building, and/or the Tenant Improvements (except to the extent such changes are directly attributable to Tenant’s use or Tenant’s specialized tenant improvements, in which event such delays are considered Tenant Delays) (the events and matters set forth in Subsections (a), (b), (c) and (d) are collectively referred to as “Force Majeure Delays”), or (e) any Tenant Delays (defined in Section 6 below). The Tenant Improvements shall be deemed substantially complete on the date that the building officials of the applicable governmental agency(s) issues its final approval of the construction of the Tenant Improvements whether in the form of the issuance of a final permit, certificate of occupancy or the written approval evidencing its final inspection on the building permit(s) (“Substantial Completion”, or “Substantially Completed”, or “Substantially Complete”). Tenant hereby acknowledges and agrees that the term “Substantial Completion” of the Tenant Improvements as used herein will not include the completion of any work associated with Tenant’s Installations, including without limitation, Tenant’s high-pile storage requirements, Tenant’s racking systems, and work related to any requirements of governmental and regulatory agencies with respect to any of Tenant’s Installations. Except as expressly provided to the contrary in the Lease, if the Tenant Improvements are not deemed to be Substantially Completed on or before the scheduled Completion Date, (i) Gateway Substantial Completion Landlord agrees to use reasonable efforts to Substantially Complete the Tenant Improvements as soon as practicable thereafter, (ii) the Lease shall remain in full force and effect, (iii) Landlord shall not be deemed to be in breach or default of the Lease or this document as a result thereof and Landlord shall have occurredno liability to Tenant as a result of any delay in occupancy (whether for damages, abatement of all or any portion of the Borrower and the Independent Engineer shall have certified to such effect to the Administrative AgentRent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completionor otherwise), and (iiiv) Diablo Substantial except in the event of any Tenant Delays, which will not affect the Commencement Date but will extend the Completion has occurred (and, if applicableDate without any penalty or liability to Landlord. Notwithstanding anything to the contrary contained in the Lease, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower Commencement Date and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all Expiration Date of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure Term of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute Lease (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has Lease) shall be extended commensurately by the amount of time attributable to Force Majeure Delays (but the Commencement Date and Expiration Date shall not occurred or (2) the Borrower has caused an amount equal be extended due to any Tenant Delays), and Landlord and Tenant shall execute a written amendment to the BorrowerLease evidencing such extensions of time. In the event that any punch list items remain after Substantial Completion has been achieved, Landlord, at Landlord’s good faithsole cost and expense, shall use reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect commercial efforts to all potential offsetscomplete, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) or cause to be on deposit completed, all such punch list items after they are identified to Landlord by Tenant in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)reasonable detail.

Substantial Completion. § 9.8.1 Substantial Completion is the latest of (ia) Gateway the stage in the progress of the Work when the Work or designated portion thereof (which the Owner shall have agreed to accept separately) is sufficiently complete in accordance with the Design-Build Documents so that the Owner can occupy or utilize the Work for its intended use, including without limitation issuance of a temporary certificate of occupancy or passage of any necessary governmental inspection; or (b) the date of the Certificate of Substantial Completion. The Work will not be considered not Substantially Complete if the Owner determines that the Work will not achieve Final Completion on the specified date , appropriate cleaning has not occurred, if all systems and parts are not commissioned and usable, including balancing of the HVAC system, if utilities are not connected and operating normally, if all required occupancy permits or inspections have not been issued and/or passed, or if the Work is not safely accessible by normal vehicular and pedestrian traffic routes. The fact that the Owner may occupy the Work or designated portion thereof does not indicate that the Work is Substantially Complete or is acceptable in whole or in part, nor does such occupation toll or change liquidated damages owed to the Owner. § 9.8.2 When the Design-Builder considers that the Work, or a portion thereof which the Owner agrees to accept separately, is substantially complete, the Design-Builder shall prepare and submit to the Owner a comprehensive list of items to be completed or corrected prior to final acceptance, to indicate the readiness level of that part of the Work for Substantial Completion. The Design-Builder will further provide a written request to have the Owner certify that this Work has reached Substantial Completion and is ready for use or occupancy as applicable. The Owner will then inspect this Work for acceptance as Substantially Complete, pending completion of all work items necessary for Final Completion. The Design-Builder shall then expeditiously complete all work items necessary in the judgment of the Owner to achieve Substantial Completion, after which the Owner, upon Substantial Completion, will issue a Certificate of Substantial Completion and the Owner may use and occupy this portion of the Work for his beneficial use. If the Owner determines that the Work or designated portion is not Substantially Complete, the Design-Builder shall expeditiously complete the Work or designated portion, again request an inspection, and pay the costs associated with the re-inspection. § 9.8.3 Once Substantial Completion of the Work has been certified, the Owner and Design-Builder will jointly tour all of the area of the Work and record items still remaining to be finished and/or corrected to achieve Final Completion. This list will be referred to as the Punchlist. The Design-Builder shall expeditiously complete the Punchlist items before the required Final Completion date. Any proposed Punchlist items that the Design-Builder does not agree is his work scope will be identified by the Design-Builder in writing on the Punchlist, which the parties shall endeavor to resolve by negotiation; alternatively, the Owner may remove the disputed items from the Punchlist or direct the Design-Builder to perform such disputed items, and the issue of whether the Design-Builder is entitled to additional compensation for the disputed items shall be subject to Claims resolution as provided in the Design-Build Documents. Any items missed by the inspection but required or necessary for Final Completion of the Contract shall be supplied and installed by the Design-Builder as a part of the Contract Sum, notwithstanding their not being recorded on the Punchlist. § 9.8.4 The Certificate of Substantial Completion issued by the Owner shall establish the date of Substantial Completion, shall establish responsibilities of the Owner and Design-Builder for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Design-Builder shall finish all items on the list accompanying the Certificate. Warranties required by the Contract Design-Build Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. Upon execution of the Certificate of Substantial Completion, the Design-Builder shall attach a list of each outstanding and unresolved Claim; any Claim not so attached and identified, other than retainage and the § 9.8.5 The Certificate of Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect be submitted to the Administrative Agent, and Design-Builder for their written acceptance of responsibilities assigned to them in such Certificate. Upon such written acceptance of the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Certificate of Substantial Completion and Diablo Substantial Completion (andconsent of surety, if applicableany, and upon the Design-Builder’s application, the Diablo Expansion Substantial Completion, and, if Owner shall make payment as provided in the EPC Option has been exercised, the Diablo Project Substantial Completion) Design-Build Documents. Such payment shall be deemed to have occurred hereunder and under adjusted for a value of 150% of Work that is incomplete or not in accordance with the other Loan Documents if all requirements of the conditions precedent to Gateway Substantial Design-Build Documents. No further payment will be due or owing until the payment at Final Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).

Substantial Completion. ‌ (a) Subject to the occurrence of the FNTP Date, Seller shall cause the Work to achieve Substantial Completion. If and when Seller considers that the Work has achieved Substantial Completion, Seller shall certify the same to Buyer in writing by delivering a certificate substantially in the form of Exhibit Y (the “Substantial Completion Certificate”), which shall be signed by a duly authorized representative of Seller and, as provided in Section 7.6(a), shall include with such Substantial Completion Certificate a copy of its proposed Punchlist. Buyer shall, within ten (10) Business Days after receipt of such Substantial Completion Certificate, either (i) Gateway confirm in writing to Seller that it agrees that the Work has achieved Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and or (ii) Diablo Substantial Completion notify Seller in writing that it does not agree that the Work has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway achieved Substantial Completion and Diablo provide in reasonable detail an explanation of the basis for its disagreement. If Buyer provides Seller with a notice pursuant to clause (ii) immediately above, Seller shall address and resolve any and all deficiencies in the Work or that served as the basis for Xxxxx’s dispute of Seller’s determination that the Work has achieved Substantial Completion (and, if applicableand resubmit its Substantial Completion Certificate to Buyer. For all purposes of this Agreement, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Work shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion achieved Substantial Completion or Diablo Project on the earlier of (A) the date Buyer confirms in writing to Seller that it agrees the Work has achieved Substantial CompletionCompletion and (B) if within ten (10) Business Days after receipt of a Substantial Completion Certificate, as applicableBuyer has neither confirmed in writing that it agrees the Work has achieved Substantial Completion nor provided Seller a notice pursuant to clause (ii) above, have occurred under the relevant EPC Contract except tenth (10th) Business Day after Seller issues the Substantial Completion Certificate to Buyer in accordance with the requirements of this Agreement; provided, however, that, for any conditions precedent relating to the failure purposes of the applicable EPC Contractor determining Seller’s obligation to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contractdamages pursuant to Section 7.4(b) and any reasonably related Disputes or failures by the relevant EPC Contractor Buyer’s right to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor terminate this Agreement pursuant to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and recordsSection 7.4(c), so long the Work shall be deemed to have achieved Substantial Completion on (1) if Buyer does not dispute Seller’s Substantial Completion Certificate as (A)(1) provided above, the Termination Date under and as defined in the Equity Contribution Agreement has not occurred date Seller issues to Buyer such Substantial Completion Certificate, or (2) if Buyer disputes Seller’s Substantial Completion Certificate as provided above and, without resolving Buyer’s objections and resubmitting its Substantial Completion Certificate, Seller disputes Buyer’s objections, then the Borrower has caused an amount equal later of (x) the date Seller issued to Buyer such Substantial Completion Certificate or (y) the date that, according to the Borrower’s good faithfinal resolution of the Dispute (whether by agreement of the Parties or Expert determination pursuant to Section 26.10(b)), reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) is determined to be the date as of which all conditions to Substantial Completion were, and continued to be, satisfied. (b) If Substantial Completion is not achieved on deposit in or prior to the Construction Account on the Term Conversion Guaranteed Substantial Completion Date, and Seller shall pay to Buyer, as liquidated damages, [●] Dollars per day (B$[●]/day)50 for each day after the Guaranteed Substantial Completion Date that Substantial Completion is not achieved until the earliest of (i) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).date Seller achieves Substantial Completion,

Substantial Completion. The Contractor will commence the Work within   days after the Date of Commencement and will successfully achieve Substantial Completion of the Project within   days from the Date of Commencement, subject only to adjustments of the Contract Time as provided in the Contract Documents. 1.3.1 When the Contractor believes that the entire Project or a particular Conservation Measure has achieved Interim or Substantial Completion, the Contractor will submit a certificate of Interim or Substantial Completion and a Punch List to the Owner on a form agreed to by the Parties. If the Owner concurs that the described portion of the Work as performed has achieved Interim or Substantial Completion, the Owner will accept that Work by signing the certificate of Interim or Substantial Completion and the Punch List and returning both to the Contractor. If the Owner does not concur that the Work has achieved Interim or Substantial Completion and/or that the Punch List is not complete or correct, then the Owner shall notify the Contractor within ten (10) business days of any discrepancies. To the extent the Contractor does not dispute the discrepancies raised by the Owner, the Contractor shall (i) Gateway promptly and diligently correct the Work to conform to the description of the Work set forth herein, and resubmit the certificate of Interim or Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final CompletionOwner, and (ii) Diablo Substantial Completion has occurred (and, if applicablepromptly complete all items on the Punch List. If the Contractor disagrees with the discrepancies raised by the Owner, the Diablo Expansion Substantial Completion has occurred, and, if Contractor shall notify the EPC Option has been exercised, Owner of a dispute and such dispute shall be resolved in accordance with the Diablo Project Substantial Completion has occurred), provisions of Article 7 herein. If the Borrower and the Independent Engineer shall have certified to such effect Owner does not deliver written notice to the Administrative Agent, and Contractor within ten (10) business days of receiving the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway certificate of Interim or Substantial Completion and Diablo Substantial Completion (and, if applicablethe Punch List, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall Owner will be deemed to have occurred hereunder and under agreed to the other Loan Documents if all certificate of the conditions precedent to Gateway Interim or Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under but not the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Punch List.

Substantial Completion. Subject to Section 2.1 of the Lease, Landlord shall use best efforts to cause the General Contractor to Substantially Complete (defined below) the Tenant Improvements in compliance with applicable building permits and all applicable laws in effect at the time of construction, in good workmanlike manner, and in accordance with the Final Drawings, by August 23, 2002 (the “Completion Date”), subject to Force Majeure Delays (as defined in Section 2.1 of the Lease) and Tenant Delays (as defined in Section 7 below). The Tenant Improvements shall be deemed substantially complete on the date that is the earlier of (i) Gateway Substantial Completion shall have occurredthe date that the building officials of the applicable governmental agency(s) issues its final approval of the construction of the Tenant Improvements whether in the form of the issuance of a final permit, temporary or final certificate of occupancy or the Borrower and written approval evidencing its final inspection on the Independent Engineer shall have certified to such effect to the Administrative Agentbuilding permit(s), and the Independent Engineer shall date on which the architect that prepared the Final Drawings certifies that the Tenant Improvements have certified thatbeen constructed substantially in accordance therewith, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and or (ii) Diablo the date on which Tenant first takes occupancy of the Premises, whichever first occurs (“Substantial Completion”, or “Substantially Completed”, or “Substantially Complete”). If the Work is not deemed to be Substantially Completed on or before the scheduled Completion has occurred (andDate, if applicable, Landlord agrees to use reasonable efforts to Substantially Complete the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative AgentWork as soon as practicable thereafter, and the Independent Engineer other rights and obligations of the parties shall have certified that, be governed by Section 2.1 of the Lease. Subject to its knowledgethe provisions of Section 10.2 of the Lease, the Loan Parties have sufficient funds available Tenant Improvements shall belong to achieve Diablo Final Completion; provided that Gateway Substantial Completion Landlord and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under be incorporated into the other Loan Documents if Premises for all purposes of the conditions precedent Lease, unless Landlord, in writing, indicates otherwise to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Tenant. Within ten (10) business days after the Substantial Completion or Diablo Project Substantial Completionof the Tenant Improvements, representatives of Landlord and Tenant shall make a joint inspection of the Tenant Improvements and the results of such inspection shall be set forth in a written list specifying the incomplete items as well as those items for which corrections need to be made (the “Punchlist Items”). Landlord and Tenant shall promptly (by no later than ten (10) business days thereafter) and in good faith approve the written list of Punchlist Items. Landlord, at its sole cost and expense, shall use commercially reasonable efforts to cause the Punchlist Items to be promptly completed and/or corrected, as applicable. If Tenant fails to cooperate with the joint inspection or otherwise timely deliver to Landlord written notice of Punchlist Items within said ten (10) business day period, Landlord shall have occurred under no obligation to perform any such work thereafter except as otherwise provided by the relevant EPC Contract except for express terms of this Lease, including without limitation, Sections 11.2 and 11.3 of this Lease. Landlord shall assign to Tenant the right, together with Landlord, to concurrently enforce any conditions precedent relating warranties made by the General Contractor or material suppliers in favor of Landlord with respect to the failure construction of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Tenant Improvements.

Substantial Completion. (ia) Gateway Substantial Completion The Landlord’s Work shall have occurredbe deemed substantially complete on the first day as of which Landlord’s Work has been completed and Landlord has received a permanent or temporary certificate of occupancy (provided that in the event Landlord obtains a temporary certificate of occupancy, the Borrower and the Independent Engineer Landlord shall have certified satisfy all conditions required to such effect to the Administrative Agentobtain a permanent certificate of occupancy as promptly as reasonably possible), and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and except for (iia) Diablo Substantial Completion has occurred items of work (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option adjustment of equipment and fixtures) which can be completed after occupancy has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all taken without causing undue interference with Xxxxxx’s use of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute Premises (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a i.e. so-called “punch list or withhold drawings or other books and recordslist” items), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (Bb) items which, in accordance with good construction practice, should be performed after the performance of any tenant improvement work to be performed by Tenant (such date is hereinafter called the “Substantial Completion Date”); provided, however, that if substantial completion of Landlord’s Work is delayed as a result of any Tenant Delays described in Section 5 below of this Exhibit D, then the Substantial Completion Date shall be the date that Landlord’s Work would have been substantially completed but for such Tenant Delays. Subject to Tenant Delays and Force Majeure, Landlord will exercise commercially reasonable efforts to complete the “punch list” items as soon as conditions reasonably permit, and Tenant shall afford Landlord access to the Premises for such purposes. Landlord and Tenant shall, within three (3) days following the date Landlord informs Tenant that the Landlord’s Work is substantially complete, jointly inspect the Premises and agree upon the punch list. As of the date of this Lease, the estimated Substantial Completion Date is on or before July 1, 2009. (b) Notwithstanding the foregoing, (x) if the Landlord’s Work is not Substantially Complete by September 1, 2009, as extended on account of Force Majeure or Tenant Delay (“First Outside Date”), then Tenant shall be entitled to a one-day Base Rent credit against the Base Rent due under this Lease for each day after the First Outside Date until the earlier of (i) the Independent Engineer date on which the Landlord’s Work is Substantially Complete, or (ii) November 1, 2009, as extended on account of Force Majeure or Tenant Delay (“Final Outside Date”); and (y) if the Landlord’s Work is not Substantially Complete by the Final Outside Date, then Tenant shall have certified that, the option to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected terminate this Lease by delivering written notice to be sufficient to make payment Landlord of such Project Companytermination by the earlier of (i) the Business Day immediately preceding the date on which the Landlord’s reasonably anticipated liability in connection with Work is Substantially Complete, or (ii) the date which is thirty (30) days after the Final Outside Date; provided, however, that if Tenant is entitled to terminate this Lease after the Final Outside Date but elects not to do so, then no further rent abatements will accrue from and after such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Final Outside Date.

Substantial Completion. Subject to the provisions of Section 35, Landlord shall use its reasonable efforts to “substantially complete” the Premises by the Target Date, provided that the Target Date shall be extended for the number of days that Tenant fails to satisfy its obligations under Section 35. “Substantially complete” means that: (i) Gateway Substantial Completion shall the construction of the improvements described in Section 35, including Building Systems, has been completed in accordance with the Approved Plans and Specifications (as defined in Section 35) so that Tenant can use the Premises for its intended purposes without material interference to Tenant conducting its ordinary business activities, (ii) the Premises have occurredbeen approved for occupancy by governmental authorities having jurisdiction, the Borrower and the Independent Engineer shall have certified to such effect (iii) Tenant has ready access to the Administrative Agent, Building and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final CompletionPremises, and (iiiv) Diablo Substantial Completion has occurred (andthe Premises are ready for installation of any equipment, if applicablefurniture, fixtures or decoration that Tenant will install. Landlord shall keep Tenant advised as to its progress with regard to “substantially completing” the Premises by the Target Date. Notwithstanding the foregoing, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion requirements of subsection (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completionii) shall be deemed to have occurred hereunder and under the other Loan Documents satisfied if all of the conditions precedent to Gateway Substantial Completionother subsections have been satisfied and the government approval is delayed solely as a result of either (x) the installation of furniture, Diablo Substantial Completion, Diablo Expansion Substantial Completion fixtures or Diablo Project Substantial Completion, as applicable, have occurred equipment which is not included within the scope of Landlord’s responsibilities under the relevant EPC Contract except for any conditions precedent relating to the failure Section 35 below or (y) certification of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute Secure Area (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in Section 54 below). If Landlord fails to Substantially Complete the Equity Contribution Agreement has Premises by May 1, 2009 (as extended by any Tenant Delays or force majeure events, as described in Section 27) (such date, the “Outside Completion Date”), then an abatement equal to one day of Base Rent for every day after the Outside Completion Date that Substantial Completion fails to occur. Notwithstanding the foregoing, if a Tenant Caused Delay (below defined) shall occur, and as a result thereof substantial completion of the Premises shall not occur by the Target Date, then and in such event the Commencement Date shall be deemed to be the date that substantial completion of the Premises would have occurred (but in no event prior to the Target Date or later than July 1, 2009) in the absence of the Tenant Caused Delay. For purposes hereof, a Tenant Caused Delay shall occur on a day for day basis for each day of delay in the substantial completion of the Premises resulting from (i) Tenant’s failure to provide Landlord with the information necessary for Landlord to prepare final (subject to modifications resulting by reason of county code review) construction design drawings for the Premises within thirty (30) days following the Effective Date of this Lease; (ii) Tenant’s failure to provide Landlord with its final finish selections within fifteen (15) days following receipt by Tenant of Landlord’s written approval of the final construction design drawings of the Premises; (iii) Tenant withholding its written authorization to proceed with a change order affecting the construction of the Premises or otherwise modifying the Tenant Improvements for more than three (3) business days after its receipt of a written request therefor; or (2iv) Tenant’s written direction to “stop-work” at the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Premises.

Substantial Completion. ‌ (a) Subject to the occurrence of the FNTP Date, Seller shall cause the Work to achieve Substantial Completion. If and when Seller considers that the Work has achieved Substantial Completion, Seller shall certify the same to Buyer in writing by delivering a certificate substantially in the form of Exhibit Z (the “Substantial Completion Certificate”), which shall be signed by a duly authorized representative of Seller and, as provided in Section 7.6(a), shall include with such Substantial Completion Certificate a copy of its proposed Punchlist. Buyer shall, within ten (10) Business Days after receipt of such Substantial Completion Certificate, either (i) Gateway confirm in writing to Seller that it agrees that the Work has achieved Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and or (ii) Diablo Substantial Completion notify Seller in writing that it does not agree that the Work has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway achieved Substantial Completion and Diablo provide in reasonable detail an explanation of the basis for its disagreement. If Buyer provides Seller with a notice pursuant to clause (ii) immediately above, Seller shall address and resolve any and all deficiencies in the Work or that served as the basis for Buxxx’s dispute of Seller’s determination that the Work has achieved Substantial Completion (and, if applicableand resubmit its Substantial Completion Certificate to Buyer. For all purposes of this Agreement, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Work shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion achieved Substantial Completion or Diablo Project on the earlier of (A) the date Buyer confirms in writing to Seller that it agrees the Work has achieved Substantial CompletionCompletion and (B) if within ten (10) Business Days after receipt of a Substantial Completion Certificate, as applicableBuyer has neither confirmed in writing that it agrees the Work has achieved Substantial Completion nor provided Seller a notice pursuant to clause (ii) above, have occurred under the relevant EPC Contract except tenth (10th) Business Day after Seller issues the Substantial Completion Certificate to Buyer in accordance with the requirements of this Agreement; provided, however, that, for any conditions precedent relating to the failure purposes of the applicable EPC Contractor determining Seller’s obligation to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contractdamages pursuant to Section 7.4(b) and any reasonably related Disputes or failures by the relevant EPC Contractor Buyer’s right to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor terminate this Agreement pursuant to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and recordsSection 7.4(c), so long the Work shall be deemed to have achieved Substantial Completion on (1) if Buyer does not dispute Seller’s Substantial Completion Certificate as (A)(1) provided above, the Termination Date under and as defined in the Equity Contribution Agreement has not occurred date Seller issues to Buyer such Substantial Completion Certificate, or (2) if Buyer disputes Seller’s Substantial Completion Certificate as provided above and, without resolving Buyer’s objections and resubmitting its Substantial Completion Certificate, Seller disputes Buyer’s objections, then the Borrower has caused an amount equal later of (x) the date Seller issued to Buyer such Substantial Completion Certificate or (y) the date that, according to the Borrower’s good faithfinal resolution of the Dispute (whether by agreement of the Parties or Expert determination pursuant to Section 26.10(b)), reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) is determined to be the date as of which all conditions to Substantial Completion were, and continued to be, satisfied. (b) If Substantial Completion is not achieved on deposit in or prior to the Construction Account on the Term Conversion Guaranteed Substantial Completion Date, and Seller shall pay to Buyer, as liquidated damages, [●] Dollars per day (B$[●]/day)51 for each day after the Guaranteed Substantial Completion Date that Substantial Completion is not achieved until the earliest of (i) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).date Seller achieves Substantial Completion,

Substantial Completion. (i) Gateway Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion “Substantial Completion, and, if the EPC Option ” shall occur upon notice from CHGE to Owner that CHGE has been exercised, the Diablo Project Substantial Completion) shall be deemed received evidence reasonably satisfactory to have occurred hereunder and under the other Loan Documents if CHGE of satisfaction of all of the following conditions. The Parties agree that review and approval of these conditions precedent may occur on an incremental basis as such conditions are satisfied: Owner has entered into, and complied in all material respects with its obligations under, the Interconnection Agreement; interconnection of the Project has been completed in accordance with the Interconnection Agreement, including installation of all metering and telemetry equipment required to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo deliver the Product in accordance with the NYISO Tariff; the Interconnection Facilities are sufficient to enable delivery of the installed capacity of the Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating up to the failure Contract Capacity; and the Interconnection Agreement remains in full force and effect; Owner shall have provided a certificate from an Independent and Actively Licensed New York State (NYS) Registered Professional Engineer that the Project has been mechanically and electrically completed in all material respects, excepting items that do not adversely affect the ability of the applicable EPC Contractor Project to pay liquidated damagesachieve Commercial Operation in accordance with the requirements of this Agreement; Owner has obtained all Permits necessary for Owner to perform its obligations under this Agreement and all such Permits are in final form and in full force and effect; Owner has obtained authority from FERC, any other similar Dispute pursuant to Section 205 of the Federal Power Act, 16 U.S.C. § 824d for wholesale sales of electric energy, capacity, and ancillary services at market-based rates (“Market-Based Rate Authority”); Owner is registered in NYISO as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) a market participant (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement NYISO Tariff) for the Project; Owner has not occurred or (2) registered the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit NYISO for use as a dispatchable energy storage resource operating in the Construction Account on NYISO Markets; Owner has completed all registrations with NERC (North American Electric Reliability Corporation) and NPCC (Northeast Power Coordinating Council) as applicable to Owner as the Term Conversion Date, owner and operator of the Project; the NYSERDA Agreement shall be in full force and effect and Owner shall not be in breach or default of any of its obligations thereunder; Owner has delivered to CHGE all insurance documents required under Section 14.7 (BInsurance) and all documented insurance shall be in full force and effect with all required premiums paid; the Independent Engineer Project shall not be subject to any Encumbrances other than Permitted Encumbrances; Owner shall have certified thatdelivered a final, comprehensive list of remaining tasks required for completion of the Project (“Punch List”) revised to its knowledge, such deposited amount (or amount reflect comments from CHGE on a draft Punch List provided by Owner; and Owner shall not be in default of available unused equity commitments any obligation under the Equity Contribution this Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).

Substantial Completion. (i) Gateway When the CONTRACTOR considers that the Work, or a portion thereof, which the OWNER agrees to accept separately, is Substantially Complete, the CONTRACTOR shall prepare and submit to the OWNER’S REPRESENTATIVE a comprehensive list of items to be completed and corrected. The CONTRACTOR shall proceed promptly to complete and correct items on the list. Failure to include an item on the list does not relieve the CONTRACTOR of the responsibility to complete all Work in accordance with the Contract Documents. Upon receipt of the CONTRACTOR's list, the OWNER’S REPRESENTATIVE will make an inspection, and with the approval of the OWNER, determine whether the Work, or designated portion thereof, is Substantially Complete. If the OWNER’S REPRESENTATIVE's inspection discloses any item, whether or not included on the CONTRACTOR's list, which is not in accordance with the requirements of the Contact Documents, the CONTRACTOR shall, before issuance of the Certificate of Substantial Completion, complete or correct such item upon notification by the OWNER’S REPRESENTATIVE. The CONTRACTOR may request additional inspections by the OWNER’S REPRESENTATIVE as may be reasonable to determine when Substantial Completion has been achieved. When the Work or designated portion thereof, is Substantially Complete, the OWNER’S REPRESENTATIVE will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion and shall establish responsibilities of the OWNER and CONTRACTOR for: Security Maintenance Water, sewer, electric and other utilities Damages to the Work; and Insurance Responsibilities The Certificate shall also establish the time within which the CONTRACTOR shall finish all items on the list of incomplete Work or corrections otherwise necessary to meet the requirements of the Contract Documents. Warranties required by the Contract Documents shall commence on the date of Substantial Completion, or designated portion thereof, unless otherwise provided in the Certificate of Substantial Completion. The Certificate of Substantial Completion shall have occurredbe submitted to the OWNER and CONTRACTOR for their written acceptance of responsibilities assigned to each. Upon Substantial Completion of the Work, or designated portion thereof, and upon application by the CONTRACTOR, certification by the OWNER’S REPRESENTATIVE, and approval by the OWNER, the Borrower and the Independent Engineer OWNER shall have certified to such effect to the Administrative Agentmake payment, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (andreflecting adjustment in retainage, if applicableany, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to for such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; Work or portion thereof as provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Contract Documents.

Substantial Completion. As used herein, "Substantial Completion" shall mean (and each floor of the Premises shall be deemed "Substantially Complete") when (i) Gateway Substantial Completion shall have installation of Building Standard Improvements and Tenant Extra Improvements in such portion of the Premises has occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agentextent such improvements can, and in Landlord's reasonable judgment, be installed within the Independent Engineer shall have certified thattimeframe for completion of Building Standard Improvements, (ii) Tenant has direct access to its knowledgethe elevator lobby on the floor (or floors) where the Premises are located, the Loan Parties have sufficient funds (iii) Basic Services are available to achieve Gateway Final Completionthe Premises, and (iiiv) Diablo the City of Bellevue has issued a temporary or permanent certificate of occupancy permitting Tenant to occupy such portion of the Premises for the Permitted Use or has taken such other action as may be customary to permit occupancy or use thereof for the Permitted Use. Notwithstanding the foregoing, Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under on the other Loan Documents if all date on which Xxxxxx takes occupancy of the conditions precedent Premises and commences to Gateway do business therein. Substantial CompletionCompletion shall be deemed to have occurred even if a "punch-list" or similar corrective work remains to be completed. Within ten (10) days after Landlord delivers possession of the Premises to Tenant, Diablo Substantial CompletionLandlord, Diablo Expansion Tenant, and the Landlord's Architect shall prepare a "punch-list" which shall consist of the items that have not been, but should have been, finished or furnished prior to such date or which do not conform to the TI Working Drawings or the Base Building Drawings (but only to the extent that the Base Building Improvements were not complete at the time of Tenant's inspection under Paragraph 8 above). ----------- Landlord shall complete and furnish all punch-list items within thirty (30) days after Substantial Completion or Diablo Project Substantial Completionas soon thereafter as is possible with the exercise of due diligence. The cost thereof shall be borne by the General Contractor under its contract to construct the Base Building Improvements or Upgrades, or the TI Contractor under the TI Construction Contract, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)case may be.

Substantial Completion. For purposes of this Sublease, the terms “Substantially Complete” and “Substantial Completion” (ior any variation thereof) Gateway shall mean completion of construction of the Sublessor’s Work in accordance with the Approved Plans as modified by any change orders approved by Sublessee, subject only to Punchlist items established pursuant to Section 4.4 above, evidence of payment by Sublessor of all costs in connection with such construction, including without limitation final lien release and waivers from each contractor, subcontractor, material supplier and labor supplier providing services and materials to the Subleased Premises for the Sublessor’s Work, final inspection of the Sublessor’s Work by the governmental authority having jurisdiction; recordation of a Notice of Completion and the lapse of thirty-five (35) days from the date of recording the Notice; issuance of permanent certificates of occupancy if required for Sublessee to legally occupy the Subleased Premises and each Phase thereof; and the delivery to Sublessee copies of all construction warranties and guarantees in connection with the Sublessor’s Work which Sublessee is required to maintain under the terms of this Sublease and the delivery by Sublessor to Sublessee of a Certificate of Substantial Completion shall have occurredfor the Improvements on Standard AIA Form G-704 certified by Sublessor’s architect. In the event Substantial Completion is delayed because of a change order approved by Sublessee which also resulted in a delay of the date set for Substantial Completion as advised by Sublessor prior to Sublessee’s approval of the change order (“Sublessee Delay”), then for the Borrower purpose of establishing the First Phase Delivery Date or Second Phase Delivery Date and the Independent Engineer shall have certified to such effect any other date tied to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion date of Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Completion shall be deemed to have occurred hereunder and under mean the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion date when Substantial Completion or Diablo Project Substantial Completion, as applicable, would have occurred under the relevant EPC Contract except been achieved but for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Sublessee Delay.

Substantial Completion. (a) The Concessionaire will achieve Substantial Completion on or before the Guaranteed Substantial Completion Date, subject to adjustment in accordance with this Agreement; provided that failure to achieve Substantial Completion by the Guaranteed Substantial Completion Date, in and of itself, will not result in a default under Section 19.01, except as set forth in Section 19.01(e). (b) The Department will issue a written certificate of Substantial Completion at such time as Substantial Completion occurs. If the Department approves the issuance of a Substantial Completion Certificate, the Department will provide with its Substantial Completion Certificate a Punch List of items to be completed to achieve Final Acceptance. (c) Substantial Completion will have been achieved when each of the following conditions have occurred for the entire Project Assets: (i) Gateway Substantial Completion shall have occurredall lanes of traffic (including ramps, interchanges, overpasses, underpasses, and other crossings) set forth in the Borrower Construction Documentation are in their final configuration and available for normal and safe use and operation; (ii) all major safety features are installed and functional, including, as required, shoulders, guard rails, striping and delineations, concrete traffic barriers, bridge railings, cable safety systems, metal beam guard fences, safety end treatments, terminal anchor sections and crash attenuators; (iii) all required illumination for normal and safe use and operation is installed and functional in accordance with the Independent Engineer shall have certified Technical Requirements; (iv) all required signs and signals for normal and safe use and operation are installed and functional in accordance with the Technical Requirements; (v) the need for temporary traffic controls or for lane closures at any time has ceased (except for any then required for routine maintenance, and except for temporary 60 DMEAST #27287336 v26 lane closures in accordance with and as permitted by a Department-approved traffic management plan solely in order to such effect to complete Punch List items); (vi) the Administrative AgentConcessionaire has completed the toll commissioning process described in the Technical Requirements, and the Independent Engineer shall have certified thatETTM System is completed, has passed all demonstration and performance testing in accordance with the Construction Documentation and the Technical Requirements, including demonstration of interoperability with E-ZPass or any successor to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final CompletionE-ZPass then utilized on State Highways, and is ready for normal operation unless the foregoing conditions have been previously satisfied under Section 9.02(a)(viii); (iivii) Diablo Substantial Completion the TMS (if any) and safety features for TMS components are installed and functional; and (viii) the Concessionaire has occurred otherwise completed the Work in accordance with this Agreement, including the Technical Requirements, and with the Construction Documentation, such that the Project Assets are in a physical condition that it can be used for normal and safe vehicular travel in all lanes and at all points of entry and exit, subject only to Punch List items. (and, if applicable, d) The parties will disregard the Diablo Expansion status of the landscaping and aesthetic features included in the Construction Documentation in determining whether Substantial Completion has occurred, and, if except to the EPC Option has been exercised, extent that its later completion will affect public safety or satisfaction of the Diablo Project criterion in Section 8.08(c). (e) The Concessionaire will provide the Department with written notice of anticipated Substantial Completion at least 21 Days prior to the anticipated Substantial Completion Date. The parties will comply with the submittal and review procedures set forth in Section 10.05 in the determination of whether Substantial Completion has occurredbeen achieved; provided that the deemed approval provisions of Section 10.05(e) will not apply to the determination of whether Substantial Completion has been achieved. During such 21-Day period, the Concessionaire and the Department will meet, confer and exchange information on a regular basis with the goal being the Department’s orderly, timely inspection of the Project Assets and review of the final Construction Documentation and the Department’s issuance of a Substantial Completion Certificate. In addition, the Department will conduct an inspection of the Project Assets and review of the final Construction Documentation, and such other matters as may be necessary to determine whether Substantial Completion is achieved and, not later than the expiration of such 21-Day period, will deliver a written report of findings and recommendations to the Concessionaire. The Department will provide the Concessionaire with a determination of whether or not Substantial Completion has been achieved (and if not, an explanation with reasonable specificity as to the reasons therefor) within such 21-Day period. (f) If the Department has not notified the Concessionaire of such approval or disapproval within 21 Days after such Concessionaire notice (or 10 Days with respect to any resubmittal of the notice), and if the Borrower delay is not a result of a Concessionaire Party action or inaction, then such delay will constitute a Delay Event and the Independent Engineer shall have certified to such effect to the Administrative Agenta Compensation Event, and the Independent Engineer shall have certified that, Concessionaire will be entitled to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (andConcessionaire Damages, if applicableany, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed pursuant to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).Section 14.01. 00 XXXXXX #00000000 x00

Substantial Completion. (i) Gateway SUBSTANTIAL COMPLETION" shall occur when each of the following conditions is satisfied: the Improvements are substantially completed in accordance with the Drawings as certified by the architect preparing the Shell Plans utilizing AIA document G704, Certificate of Substantial Completion; the Premises may be lawfully occupied; and Landlord has tendered to Tenant physical possession thereof. Substantial Completion shall have occurredoccurred even though minor details of construction, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agentdecoration, landscaping, and the Independent Engineer mechanical adjustments remain to be completed by Landlord. Tenant shall have certified thatprepare and deliver to Landlord a punch list of incomplete, to its knowledgeminor, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and detail items within thirty (ii30) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway days after Substantial Completion and Diablo Landlord shall use all reasonable efforts to complete such items within thirty (30) days thereafter, except as to such items that, by their nature, will take a longer period to complete as set forth in the punch list. The "TARGET DATE" for Substantial Completion of the Improvements is May 19, 2000. If Substantial Completion is delayed because of (anda) any acts of a Tenant Party, if applicable(b) changes requested by Tenant to any submitted Drawings that relate to matters other than changes necessary to conform such drawings to the Outline Specification or to comply with Law, or (c) changes requested by Tenant in the Diablo Expansion approved Drawings other than changes necessary to conform such drawings with Law, then the Commencement Date shall not be extended, but rather shall start on the date which it would have occurred but for such event. Each day of delay in Substantial Completion caused by the events described in clauses (a), (b) or (c) of the preceding sentence or by a Tenant Party is herein called a "TENANT DELAY DAY". If the actual date of Substantial Completion is delayed beyond the Target Date, then Landlord shall have no liability therefor and the date of Substantial Completion shall be extended by the period of any such delay. This Lease shall remain in full effect notwithstanding any delay in Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).

Substantial Completion. (a) Subject to the occurrence of the FNTP Date, Seller shall cause the Work to achieve Substantial Completion. If and when Seller considers that the Work has achieved Substantial Completion, Seller shall certify the same to Buyer in writing by delivering a certificate substantially in the form of Exhibit Y (the “Substantial Completion Certificate”), which shall be signed by a duly authorized representative of Seller and, as provided in Section 7.6(a), shall include with such Substantial Completion Certificate a copy of its proposed Punchlist. Buyer shall, within ten (10) Business Days after receipt of such Substantial Completion Certificate, either (i) Gateway confirm in writing to Seller that it agrees that the Work has achieved Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and or (ii) Diablo Substantial Completion notify Seller in writing that it does not agree that the Work has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway achieved Substantial Completion and Diablo provide in reasonable detail an explanation of the basis for its disagreement. If Buyer provides Seller with a notice pursuant to clause (ii) immediately above, Seller shall address and resolve any and all deficiencies in the Work or that served as the basis for Xxxxx’s dispute of Seller’s determination that the Work has achieved Substantial Completion (and, if applicableand resubmit its Substantial Completion Certificate to Buyer. For all purposes of this Agreement, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Work shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion achieved Substantial Completion or Diablo Project on the earlier of (A) the date Buyer confirms in writing to Seller that it agrees the Work has achieved Substantial CompletionCompletion and (B) if within ten (10) Business Days after receipt of a Substantial Completion Certificate, as applicableBuyer has neither confirmed in writing that it agrees the Work has achieved Substantial Completion nor provided Seller a notice pursuant to clause (ii) above, have occurred under the relevant EPC Contract except tenth (10th) Business Day after Seller issues the Substantial Completion Certificate to Buyer in accordance with the requirements of this Agreement; provided, however, that, for any conditions precedent relating to the failure purposes of the applicable EPC Contractor determining Seller’s obligation to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contractdamages pursuant to Section 7.4(b) and any reasonably related Disputes or failures by the relevant EPC Contractor Buyer’s right to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor terminate this Agreement pursuant to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and recordsSection 7.4(c), so long the Work shall be deemed to have achieved Substantial Completion on (1) if Buyer does not dispute Seller’s Substantial Completion Certificate as (A)(1) provided above, the Termination Date under and as defined in the Equity Contribution Agreement has not occurred date Seller issues to Buyer such Substantial Completion Certificate, or (2) if Buyer disputes Seller’s Substantial Completion Certificate as provided above and, without resolving Buyer’s objections and resubmitting its Substantial Completion Certificate, Seller disputes Buyer’s objections, then the Borrower has caused an amount equal later of (x) the date Seller issued to Buyer such Substantial Completion Certificate or (y) the date that, according to the Borrower’s good faithfinal resolution of the Dispute (whether by agreement of the Parties or Expert determination pursuant to Section 26.10(b)), reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) is determined to be the date as of which all conditions to Substantial Completion were, and continued to be, satisfied. (b) If Substantial Completion is not achieved on deposit in or prior to the Construction Account on the Term Conversion Guaranteed Substantial Completion Date, and Seller shall pay to Buyer, as liquidated damages, [●] Dollars per day (B$[●]/day)49 for each day after the Guaranteed Substantial Completion Date that Substantial Completion is not achieved until the earliest of (i) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).date Seller achieves Substantial Completion,

Substantial Completion. Except for Tenant Extensions, the Initial Improvements and the Expansion Space, as the case may be, shall be deemed to be "Substantially Complete" or be deemed to have achieved "Substantial Completion" on the date on which: (i) Gateway Substantial Completion shall have occurredthe improvements in question are completed in compliance with all applicable laws (except as provided in Section 2.3 hereof) and in conformity in all material respects with the Final Plans (or the Expansion Plans, as the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, case may be); and (ii) Diablo when the Village (or other governmental authority having jurisdiction) has issued a certificate of occupancy (or other consent to or approval of Tenant's use and occupancy as may be necessary) of the Initial Improvements (or Expansion Space). In the event of any disagreement between Landlord and Tenant on the issue of whether Substantial Completion has occurred been achieved under clause (andi) above, Tenant and the Initial Architect shall appoint an independent third party architect (the "Independent Architect") to make such determination and the decision of the Independent Architect shall be binding on the parties. The issuance of a certificate of occupancy (or other consent or approval, as aforesaid, if necessary) by the Village (or other governmental authority having jurisdiction) which is temporary or conditional on the subsequent completion of weather-sensitive work, if any, or completion of minor Punch List Items (as defined in Section 2.9) which do not interfere with Tenant's use and occupancy of the Demised Premises, shall nevertheless fulfill the requirement of clause (ii) above. In the instance of the occurrence of Tenant Extensions, Substantial Completion of the Initial Improvements (or the Expansion Space, if applicable, ) shall be the Diablo date on which the improvements in question would have been completed in compliance with all applicable Laws (except as provided in Section 2.3 hereof) and in conformity in all material respects with the Final Plans (or the Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (andPlans, if applicable, ) and the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial CompletionVillage (or other governmental authority having jurisdiction) shall be deemed to would have occurred hereunder and under the issued a certificate of occupancy (or other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion consent or Diablo Project Substantial Completionapproval, as applicableaforesaid, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and recordsmay be necessary), so long as (A)(1) but for the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate occurrence of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)a Tenant Extension.

Substantial Completion. The ESCO will commence the Work within ten (10) days after the Date of Commencement and will successfully achieve Substantial Completion of the Project within [XXXXXXXXX] days from the Date of Commencement ("Substantial Completion Date"), subject only to adjustments of this Contract Time as provided in the Contract Documents. 1.3.1 When the ESCO believes that the ECM has achieved Substantial Completion, the ESCO will submit a certificate of Substantial Completion and a Punch List to the Customer on a form agreed to by the Parties. If the Customer concurs that the described portion of the Work as performed has achieved Substantial Completion, the Customer will accept that Work by signing the certificate of Substantial Completion and the Punch List and returning both to the ESCO. If the Customer does not concur that the Work has achieved Substantial Completion and/or that the Punch List is not complete or correct, then the Customer shall notify the ESCO within ten (10) business days of any discrepancies. To the extent the ESCO does not dispute the discrepancies raised by the Customer, the ESCO shall (i) Gateway promptly and diligently correct the Work to conform to the description of the Work set forth herein, and resubmit the certificate of Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final CompletionCustomer, and (ii) Diablo Substantial Completion has occurred (and, if applicablepromptly complete all items on the Punch List. If the ESCO disagrees with the discrepancies raised by the Customer, the Diablo Expansion Substantial Completion has occurred, and, if ESCO shall notify the EPC Option has been exercised, Customer of a dispute and such dispute shall be resolved in accordance with Section 1.3.2 herein. If the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect Customer does not deliver written notice to the Administrative Agent, and ESCO within thirty (30) days of receiving the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway certificate of Substantial Completion and Diablo Substantial Completion (and, if applicablethe Punch List, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall Customer will be deemed to have occurred hereunder agreed to, signed and under returned the other Loan Documents if all certificate of Substantial Completion and the Punch List. 1.3.2 Any disputes concerning the Substantial Completion of the conditions precedent Work will be resolved by submitting the issue to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion a third party professional engineering firm reasonably acceptable to both the ESCO and the Customer ("Engineer Neutral"). The Engineer Neutral shall be authorized to make determinations and bind the Parties on issues related solely to interpretations or adequacy of the Design & Engineering Documents or the execution and/or completion of the Work embodied in the Design & Engineering Documents as it relates to the Substantial Completion Date. The Engineer Neutral shall not have the authority to render determinations regarding delay claims, payment disputes or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC other Contract except for any conditions precedent relating to the failure disputes that do not involve or arise out of the applicable EPC Contractor content of the Design & Engineering Documents and/or the quality of the execution of the Work. All disputes beyond the authority of the Engineer Neutral shall be resolved pursuant to pay liquidated damages, any other similar Dispute (as Article 7 herein. The determination of the Engineer Neutral with respect to Substantial Completion will be final and binding upon the Parties. The ESCO and the Customer shall share equally the costs or fees for such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent firm in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)dispute resolution process.

Substantial Completion. (i) Gateway Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion “Substantial Completion, and, if the EPC Option ” shall occur upon notice from RG&E to Owner that RG&E has been exercised, the Diablo Project Substantial Completion) shall be deemed received evidence reasonably satisfactory to have occurred hereunder and under the other Loan Documents if RG&E of satisfaction of all of the following conditions. The Parties agree that review and approval of these conditions precedent may occur on an incremental basis as such conditions are satisfied: Owner has entered into, and complied in all material respects with its obligations under, the Interconnection Agreement; interconnection of the Project has been completed in accordance with the Interconnection Agreement, including installation of all metering and telemetry equipment required to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo deliver the Product in accordance with the NYISO Tariff; the Interconnection Facilities are sufficient to enable delivery of the installed capacity of the Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating up to the failure Contract Capacity; and the Interconnection Agreement remains in full force and effect; Owner shall have provided a certificate from an Independent and Actively Licensed New York State (NYS) Registered Professional Engineer that the Project has been mechanically and electrically completed in all material respects, excepting items that do not adversely affect the ability of the applicable EPC Contractor Project to pay liquidated damagesachieve Commercial Operation in accordance with the requirements of this Agreement; Owner has obtained all Permits necessary for Owner to perform its obligations under this Agreement and all such Permits are in final form and in full force and effect; Owner has obtained authority from FERC, any other similar Dispute pursuant to Section 205 of the Federal Power Act, 16 U.S.C. § 824d for wholesale sales of electric energy, capacity, and ancillary services at market-based rates (“Market-Based Rate Authority”); Owner is registered in NYISO as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) a market participant (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement NYISO Tariff) for the Project; Owner has not occurred or (2) registered the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit NYISO for use as a dispatchable energy storage resource operating in the Construction Account on NYISO Markets; Owner has completed all registrations with NERC (North American Electric Reliability Corporation) and NPCC (Northeast Power Coordinating Council) as applicable to Owner as the Term Conversion Date, owner and operator of the Project; the NYSERDA Agreement shall be in full force and effect and Owner shall not be in breach or default of any of its obligations thereunder; Owner has delivered to RG&E all insurance documents required under Section 14.7 (BInsurance) and all documented insurance shall be in full force and effect with all required premiums paid; the Independent Engineer Project shall not be subject to any Encumbrances other than Permitted Encumbrances; Owner shall have certified thatdelivered a final, comprehensive list of remaining tasks required for completion of the Project (“Punch List”) revised to its knowledge, such deposited amount (or amount reflect comments from RG&E on a draft Punch List provided by Owner; and Owner shall not be in default of available unused equity commitments any obligation under the Equity Contribution this Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).

Substantial Completion. (i) Gateway Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) If Landlord shall be deemed to have occurred hereunder and under delayed in substantial completion as a result of Tenant Delays, then the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Commencement Date, and (B) Tenant’s obligation to begin paying Base Rent and Additional Charges, shall be adjusted to reflect what the Independent Engineer Commencement Date would have been if there had been no Tenant Delays. Notwithstanding the foregoing, if Tenant Delays occur and, as a result thereof, Landlord reasonably anticipates that Substantial Completion will not occur on or before the Scheduled Commencement Date, then at Landlord’s sole election and in addition to any other remedies that may be available to Landlord under the Lease or at law or in equity, at Landlord’s written request Tenant shall have certified thatcommence payment of Base Rent and Additional Charges on the date one month following the Scheduled Commencement Date. If Landlord makes such election, then the Installment of Base Rent, and any installments of any components of Additional Charges, that are first due after Substantial Completion occurs shall be adjusted to reflect the actual Commencement Date. Landlord’s election, as set forth above, shall not constitute a waiver of any default by Tenant or any other remedy available to Landlord as a result thereof, to its knowledge, such deposited amount (the extent the circumstances giving rise to a Tenant Delay constitute a default by Tenant hereunder or amount of available unused equity commitments under the Equity Contribution AgreementLease. Within seven (7) is reasonably expected days after written request of Landlord, Tenant agrees to be sufficient give Landlord a letter confirming the Commencement Date and certifying that Tenant has accepted delivery of the Premises and that the condition of the Premises complies with Landlord’s obligations hereunder. The plans and specifications related to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsetsTwo Circle Star Way as drawn or assembled by Kxxxxxx Xxxxxxxxx & Partners, retainageInc. as called out below: GENERAL A0.0 COVER SHEET 1/22/98 A0.1 GENERAL INFORMATION SHEET/ TITLE 24 ENERGY COMPLIANCE 1/22/98 CIVIL C0.2 C1.l STORM WATER POLLUTION PREVENTION PLAN LAYOUT AND PAVING PLAN 11/14/97 Cl.2 LAYOUT AND PAVING PLAN 12/19/97 C2.1 GRADING PLAN 11/14/97 C2.2 GRADING PLAN 11/14/97 C3.1 UTILITY PLAN 11/14/97 C3.2 UTILITY PLAN 11/14/97 C4.1 DETAILS 11/14/97 C4.2 DETAILS 11/14/97 C4.3 DETAILS 12/19/97 ARCHITECTURAL A2.1 BUILDING ONE FIRST FLOOR PLAN 2/26/98 A2.2 BUILDING ONE SECOND FLOOR PLAN 1/22/98 A2.3 BUILDING ONE THIRD FLOOR PLAN 1/22/98 A2.4 BUILDING ONE FOURTH FLOOR PLAN 1/22/98 A2.5 ENLARGED CORE PLAN 1/22/98 A2.6 ENLARGED BATHROOM PLANS 1/22/98 A3.1 BUILDING ONE ROOF PLAN 1/22/98 A4.1 BUILDING ONE ELEVATIONS 2/26/98 A4.2 BUILDING ONE ELEVATIONS 1/22/98 A5.1 BUILDING SECTION 1/22/98 A5.2 TYPICAL WALL SECTIONS 1/22/98 A7.1 REFLECTED CEILING PLANS 3/5/97 A7.2 ENLARGED STAIR PLANS AND SECTIONS 1/22/98 A7.3 ENLARGED ELEVATOR PLANS AND SECTIONS 1/22/98 A7.4 DOOR AND HARDWARE SCHEDULE/ ROOM FINISH SCHEDULE 3/11/98 A8.1 EXTERIOR DETAILS 1/22/98 A8.2 DOOR/ WINDOW DETAILS 1/22/98 A8.3 ROOF DETAILS 1/22/98 A9.1 WALL TYPES 1/22/98 A9.2 INTERIOR DETAILS 1/22/98 A9.3 UL ASSEMBLIES 11/14/97 STRUCTURAL S0.l GENERAL NOTES 10/6/97 S2.1 BUILDING ONE FOUNDATION/ FIRST FLOOR FRAMING PLAN 10/6/97 S2.2 BUILDING ONE 2ND FLR. FRAMING PLAN 10/6/97 S2.3 BUILDING ONE 3RD FLR. FRAMING PLAN 10/6/97 S2.4 BUILDING ONE 4TH FLR. FRAMING PLAN 10/6/97 S2.5 BUILDING ONE ROOF FRAMING PLAN 10/6/97 S2.5A BUILDING ONE ROOF SCREEN/ SLAB REINFORCING PLAN 10/6/97 S3.1 TYPICAL CONCRETE DETAILS 7/23/97 S3.2 CONCRETE DETAILS NO. 1 10/6/97 S3.3 CONCRETE DETAILS NO. 2 10/6/97 S3.4 CONCRETE DETAILS NO. 3 10/6/97 S5.1 TYPICAL METAL DECK DETAILS NO. 1 10/6/97 S5.2 TYPICAL METAL DECK DETAILS NO. 2 10/6/97 S5.3 TYPICAL STEEL DETAILS 10/6/97 S5.4 COLUMN SCHEDULE AND DETAILS 10/6/97 S5.5 BRACED FRAME ELEVATIONS AND DETAILS 10/6/97 S5.6 STEEL DETAILS NO. 1 10/6/97 S5.7 STEEL DETAILS NO. 2 10/6/97 S9.1 PRECAST PANEL SUPPORT PLAN 10/6/97 S9.2 PRECAST PANEL SUPPORT PLAN 7/30/97 S9.3 PRECAST PANEL SUPPORT DETAILS 10/6/97 LANDSCAPE L-l PHASE ONE NOTES AND LEGEND 2/6/98 L-2 PHASE ONE LAYOUT AND GRADING PLAN 2/6/98 L-3 PHASE ONE PLATING PLAN 2/6/98 L-4 PHASE ONE IRRIGATION 2/6/98 L-5 PHASE ONE DETAILS 7/28/97 L-6 PHASE ONE DETAILS 11/26/97 L-7 PHASE ONE DETAILS 2/6/98 MECHANICAL AC0.01 TITLE 24, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).DRAWING SCHEDULE, MANDATORY 3/10/98 MEASURES, AND GENERAL NOTES 3/10/98 AC0.02 EQUIPMENT SCHEDULE 3/10/98 AC1.01 FIRST FLOOR HVAC PLAN 3/10/98 AC1.02 SECOND FLOOR HVAC PLAN 3/10/98 AC1.03 THIRD FLOOR HVAC PLAN 3/10/98 AC1.04 FOURTH FLOOR HVAC PLAN 3/10/98 AC1.05 ROOF PLAN 3/10/98 AC1.06 ROOF COORDINATION PLAN 3/10/98 AC2.01 PIPING SCHEMATICS AND DETAILS 3/10/98 AC7.01 WIRING AND CONTROLS 3/10/98 ELECTRICAL CIR-E0 COVER SHEET 7/23/97 CIR-SE1 SITE LIGHTING PLAN 7/23/97 CIR-SE2 SITE LIGHTING PLAN 7/23/97 CIR-E1 FIRST FLOOR LIGHTING PLAN 7/23/97 CIR-E2 SECOND FLOOR LIGHTING PLAN 7/23/97 CIR-E3 THIRD FLOOR LIGHTING PLAN 7/23/97 CIR-E4 FOURTH FLOOR LIGHTING PLAN 7/23/97 CIR-E5 FIRST FLOOR POWER PLAN 7/23/97 CIR-E6 SECOND FLOOR POWER PLAN 7/23/97 CIR-E7 THIRD FLOOR POWER PLAN 7/23/97 CIR-E8 FOURTH FLOOR POWER PLAN 7/23/97 CIR-E9 FIRST FLOOR MECHANICAL PLAN 7/23/97 CIR-E10 SECOND FLOOR MECHANICAL PLAN 7/23/97 CIR-E11 THIRD FLOOR MECHANICAL PLAN 7/23/97 CIR-E12 FOURTH FLOOR MECHANICAL PLAN 7/23/97 CIR-E13 ROOF MECHANICAL PLAN 7/23/97 CIR-E14 SINGLE LINE DIAGRAM 11/24/97 CIR-E15 PANEL SCHEDULES 7/23/97 CIR-E16 PANEL SCHEDULES 7/23/97 CIR-E17 TITLE 24 7/23/97 PLUMBING P0X 0XX XXXXX XXXXX XXXXX 00/00/00 X0X 0XX XXXXX ABOVE GRADE 12/18/97 P2 2ND FLOOR 12/18/97 P0 0XX XXXXX 00/00/00 X0 0XX XXXXX 12/18/97 P5 ROOF PLAN 12/18/97 FIRE ALARM SYSTEM FA-1 FIRST FLOOR BUILDING ONE 12/5/97 FA-2 SECOND FLOOR BUILDING ONE 12/5/97 FA-3 THIRD FLOOR BUILDING ONE 10/0/00 XX-0 XXXXXX XXXXX BUILDING ONE 12/5/97 FA-5 ROOF PLAN BUILDING ONE 12/5/97

Substantial Completion. ‌ (a) Subject to the occurrence of the FNTP Date, Seller shall cause the Work to achieve Substantial Completion. If and when Seller considers that the Work has achieved Substantial Completion, Seller shall certify the same to Buyer in writing by delivering a certificate substantially in the form of Exhibit Y (the “Substantial Completion Certificate”), which shall be signed by a duly authorized representative of Seller and, as provided in Section 7.6(a), shall include with such Substantial Completion Certificate a copy of its proposed Punchlist. Buyer shall, within ten (10) Business Days after receipt of such Substantial Completion Certificate, either (i) Gateway confirm in writing to Seller that it agrees that the Work has achieved Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and or (ii) Diablo Substantial Completion notify Seller in writing that it does not agree that the Work has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway achieved Substantial Completion and Diablo provide in reasonable detail an explanation of the basis for its disagreement. If Buyer provides Seller with a notice pursuant to clause (ii) immediately above, Seller shall address and resolve any and all deficiencies in the Work or that served as the basis for Xxxxx’s dispute of Seller’s determination that the Work has achieved Substantial Completion (and, if applicableand resubmit its Substantial Completion Certificate to Buyer. For all purposes of this Agreement, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Work shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion achieved Substantial Completion or Diablo Project on the earlier of (A) the date Buyer confirms in writing to Seller that it agrees the Work has achieved Substantial CompletionCompletion and (B) if within ten (10) Business Days after receipt of a Substantial Completion Certificate, as applicableBuyer has neither confirmed in writing that it agrees the Work has achieved Substantial Completion nor provided Seller a notice pursuant to clause (ii) above, have occurred under the relevant EPC Contract except tenth (10th) Business Day after Seller issues the Substantial Completion Certificate to Buyer in accordance with the requirements of this Agreement; provided, however, that, for any conditions precedent relating to the failure purposes of the applicable EPC Contractor determining Seller’s obligation to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contractdamages pursuant to Section 7.4(b) and any reasonably related Disputes or failures by the relevant EPC Contractor Buyer’s right to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor terminate this Agreement pursuant to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and recordsSection 7.4(c), so long the Work shall be deemed to have achieved Substantial Completion on (1) if Buyer does not dispute Seller’s Substantial Completion Certificate as (A)(1) provided above, the Termination Date under and as defined in the Equity Contribution Agreement has not occurred date Seller issues to Buyer such Substantial Completion Certificate, or (2) if Buyer disputes Seller’s Substantial Completion Certificate as provided above and, without resolving Buyer’s objections and resubmitting its Substantial Completion Certificate, Seller disputes Buyer’s objections, then the Borrower has caused an amount equal later of (x) the date Seller issued to Buyer such Substantial Completion Certificate or (y) the date that, according to the Borrower’s good faithfinal resolution of the Dispute (whether by agreement of the Parties or Expert determination pursuant to Section 26.10(b)), reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) is determined to be the date as of which all conditions to Substantial Completion were, and continued to be, satisfied. (b) If Substantial Completion is not achieved on deposit in or prior to the Construction Account on the Term Conversion Guaranteed Substantial Completion Date, and Seller shall pay to Buyer, as liquidated damages, [●] Dollars per day (B$[●]/day)51 for each day after the Guaranteed Substantial Completion Date that Substantial Completion is not achieved until the earliest of (i) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor).date Seller achieves Substantial Completion,

Substantial Completion. (i) Gateway The terms “Substantial Completion of Additional Expansion Premises” or “Substantially Completed” shall have occurredmean that state of completion of the Additional Expansion Work which will, except for any improvements or work to be performed by Tenant, allow Tenant to utilize the Borrower and the Independent Engineer shall have certified to such effect Additional Expansion Premises for its intended purpose without material interference to the Administrative Agentcustomary business activities of Tenant by reason of the completion of any work being performed by Landlord, and provided Substantial Completion of the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds Additional Expansion Premises cannot occur unless there is available to achieve Gateway Final Completion, the Additional Expansion Premises: (1) reasonable quantities of those utility services required to be furnished by Landlord under the terms of the Lease and (ii2) Diablo reasonable access through a ground floor entranceway of the Building and that portion of the lobby area of the Building leading from such entranceway to the Additional Expansion Premises. Substantial Completion has occurred (and, if applicable, of the Diablo Additional Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Premises shall be deemed to have occurred hereunder and under notwithstanding that minor or insubstantial details of construction, decoration or mechanical adjustment remain to be performed. Landlord presently anticipates that the other Loan Documents if all date of Substantial Completion of the conditions precedent Additional Expansion Premises will be on or about the ninetieth (90th) day after the date on which Landlord receives of all permits necessary to Gateway Substantial Completion, Diablo Substantial Completion, Diablo complete the Expansion Work. The term “Date of Substantial Completion of the Additional Expansion Premises” shall mean the earlier of (i) the date on which the Additional Expansion Work is Substantially Completed or Diablo Project Substantial Completion, as applicable, (ii) the date that the Additional Expansion Work would have occurred under the relevant EPC Contract except been Substantially Completed but for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Additional Expansion Premises Tenant Delay.

Substantial Completion. (a) Developer shall give Mall II Buyer quarterly updates of the progress of construction of the Mall Improvements and the Palazzo Casino Resort and monthly updates for the six (6) months immediately preceding the date on which Developer expects to achieve Substantial Completion. Developer shall achieve Substantial Completion by the date that is the earlier of (i) Gateway Substantial Completion shall have occurred, thirty-six (36) months after the Borrower and the Independent Engineer shall have certified date on which sufficient permits are received to such effect allow Developer to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, begin construction in compliance with Legal Requirements and (ii) Diablo March 1, 2008, as the same may be extended due to Force Majeure, Construction Delays or Buyer Delays (the "OUTSIDE SUBSTANTIAL COMPLETION DATE"). In the event that, despite Developer's diligent efforts, Substantial Completion has not occurred by the Outside Substantial Completion Date and Developer shall nevertheless be endeavoring diligently to complete the Mall Improvements, then so long as Mall II Buyer is not in default of any obligations under this Agreement, Mall II Buyer shall be entitled to liquidated damages (and, if applicable, the Diablo Expansion "INTERIM LIQUIDATED DAMAGES") in the amount of $5,000 per day for each day after the Outside Substantial Completion Date on which Substantial Completion has occurred, and, if not occurred up to and including the EPC Option has been exercised, date that is six (6) months after the Diablo Project Outside Substantial Completion Date and $10,000 per day for each day from and after said date to and including the date that is one (1) year after the Outside Substantial Completion Date on which Substantial Completion has not occurred). During the one year period during which Interim Liquidated Damages are payable, the Borrower Developer shall also reimburse Mall II Buyer for actual out-of-pocket damages incurred and the Independent Engineer shall have certified paid to such effect to the Administrative AgentTenants under said Tenant's Leases (including any reduced rent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo rent abatements or other rent concessions under said Tenant's Leases) resulting from Developer's delay in achieving Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion"LEASE DAMAGES"). (b) shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion If Substantial Completion has not occurred on or Diablo Project before the date that is one (1) year after the Outside Substantial CompletionCompletion Date, subject to extension for Force Majeure, Construction Delays and Buyer Delays, then Mall II Buyer and Developer agree that it would be impracticable and extremely difficult to ascertain the actual damage to Mall II Buyer as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to a result of the failure of Developer to achieve Substantial Completion by such date and that the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term Buyer Liquidated Damages Amount is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment damages which Mall II Buyer will incur as a result of such Project Company’s reasonably anticipated liability failure and, in connection with such Dispute(s) an event, Developer shall pay to Mall II Buyer the Buyer Liquidated Damages Amount and Developer shall be responsible to pay the Lease Damages. The "BUYER LIQUIDATED DAMAGES AMOUNT" as used in this Agreement shall mean one hundred million dollars (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor$100,000,000).

Substantial Completion. (i) Gateway If the Building Shell Improvements are not Substantially Completed by the Estimated Substantial Completion Date, then the Lease Commencement Date shall be one hundred eighty (180) days following the date the Building Shell Improvements would have occurredbeen Substantially Completed but for any Tenant Delay, subject to the provisions of Section 2.02 above. Tenant agrees that any Tenant Delay shall be cumulative and shall not cause the Lease Commencement Date to be extended beyond what it otherwise would have been in the absence of any Tenant Delay. For purposes of this Lease, the Borrower Building Shell Improvements shall be Substantially Completed when (a) all of such improvements are completed, except for minor items of work (e.g., pick-up, "punch list" work, etc.) that can be completed with only minor interference with construction and installation of the Independent Engineer Tenant Improvements, which shall have certified to such effect to be itemized on a punch list and completed by Landlord within sixty (60) days following the Administrative Agentdate of Substantial Completion of the Building Shell Improvements, (b) the Clark County Building Department has conducted its final inspection xx xxl Building Shell Improvements, has provided its approval thereof, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completionhas issued a Certificate of Completion therefor, and (iic) Diablo Substantial upon written notice from Landlord to Tenant of the foregoing, accompanied by a copy of such Certificate of Completion has occurred and expressly granting Tenant possession and occupancy of the Building Shell Improvements (and"SUBSTANTIALLY COMPLETED" or "SUBSTANTIAL COMPLETION" of the Building Shell Improvements, if applicableor similar phrase). For purposes of this Lease , the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) Tenant Improvements shall be deemed to have occurred hereunder and under the other Loan Documents if Substantially Completed when (a) all of the conditions precedent to Gateway Substantial Completionsuch improvements are completed, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to minor items of work (e.g., pick-up, "punchlist work," etc.) that can be completed with only minor interference with Tenant's conduct of business at the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion DateProperty, and (Bb) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount issuance of available unused equity commitments under a final unconditional Certificate of Occupancy for the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Property.

Substantial Completion. Sublandlord shall use reasonable efforts to cause Sublandlord’s Work to be Substantially Completed (as defined in Section 3(B) of the Sublease), subject to delays caused by Force Majeure (as defined below) and Subtenant Delays (as defined in Paragraph 6 below), on or before March 15, 2016 (the “Anticipated Substantial Completion Date”). If Sublandlord’s Work is not Substantially Completed on or before the Anticipated Substantial Completion Date (as extended), the Sublease shall remain in full force and effect; provided: (i) Gateway Substantial Completion The Sublease Term Commencement Date shall have occurrednot occur until Sublandlord’s Work is Substantially Completed, the Borrower and the Independent Engineer shall have certified except as set forth in Section 6 with respect to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and a Subtenant Delay, (ii) Diablo Substantial Completion has occurred If Sublandlord does not deliver the Subleased Premises to Subtenant in the Delivery Condition with the Sublandlord Work Substantially Completed by April 15, 2016 (the “First Outside Date”) and such failure to so deliver is not the result of Force Majeure or Subtenant Delay, then for each day thereafter until such time as the Subleased Premises are delivered to Subtenant in the Delivery Condition with the Sublandlord’s Work Substantially Completed, Subtenant shall receive a rent credit equal to one day’s Base Rent at the highest rental rate payable during the first Lease Year and after the initial ninety (90) days thereof which reflects a reduced rental rate; and (iii) In the event that Sublandlord does not deliver the Subleased Premises to Subtenant in the Delivery Condition with the Sublandlord’s Work Substantially Completed by July 12, if applicable, 2016 (the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred“Final Outside Date”), and such failure to so deliver is not the Borrower and result of Force Majeure (but the Independent Engineer extension on account of Force Majeure shall not exceed 30 days) or Subtenant Delay, then Subtenant shall have certified the right to such effect terminate this Sublease by written notice to Sublandlord at any time after the Final Outside Date but prior to the Administrative Agent, date that Sublandlord actually Substantially Completes the Sublandlord’s Work and delivers the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute (as such term is defined Premises in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Delivery Condition.

Substantial Completion. The Landlord shall notify the Tenant when "Substantial Completion" (ias defined in Section 1.1) Gateway has occurred. Any such notice delivered to the Tenant pursuant to the preceding sentence (a "Substantial Completion shall have occurred, the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial CompletionNotice") shall (a) specify the date the Landlord claims to be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project date on which Substantial Completion, as applicablethe case may be, have occurred under the relevant EPC Contract except for any conditions precedent relating occurred, (b) with respect to the failure that portion of the applicable EPC Contractor Landlord's Work and Tenant Improvements delivered, set forth the Landlord's position regarding the respective responsibilities of the Landlord and the Tenant for security, maintenance, heat, utilities, damage to pay liquidated damagessuch work and insurance, any other similar Dispute (as such term is defined in c) with respect to that portion of the applicable EPC Contract) Landlord's Work and any reasonably related Disputes Tenant Improvements delivered, set forth a list of items remaining to be completed or failures by the relevant EPC Contractor to satisfy an applicable condition precedent corrected in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Datesuch, and (Bd) specify the Independent Engineer date or dates by which each of the remaining items referred to in clause (c) above shall be completed or corrected, not to exceed thirty (30) calendar days from the date of Substantial Completion (unless the punchlist item involves a long lead time item in which case such work shall be completed within ten (10) days after receipt of such long lead item, but in any event within ninety (90) calendar days of Substantial Completion. Should Landlord fail to complete or correct any such items within the timeframe set forth above, Tenant may, upon ten (10) calendar days written notice to Landlord, make such correction and have certified thatthe option, at the sole discretion of the Tenant, to its knowledgededuct said amount as an offset against Rent due by Tenant or to accept such amount in cash from the Landlord. If the Tenant shall agree with the date of Substantial Completion, as the case may be, specified in such deposited amount Substantial Completion Notice, the Tenant shall confirm such date in a written notice delivered to the Landlord within five (5) business days from receipt of the Substantial Completion Notice. If the Tenant shall disagree with the date of Substantial Completion, as the case may be, specified in such Substantial Completion Notice, the Tenant shall so notify the Landlord within such five (5) business day period, setting forth with reasonable specificity the Tenant's basis for asserting that one or amount more of available unused equity commitments under the Equity Contribution Agreementcriteria for Substantial Completion, as the case may be, have not been satisfied. The Landlord and Tenant shall then work together for a period of ten (10) is reasonably expected calendar days in an effort to resolve their differences with respect to Substantial Completion. Should Landlord and Tenant be sufficient unable to make payment resolve their disputes regarding Substantial Completion, the dispute shall be resolved by the appropriate court of such Project Company’s reasonably anticipated liability jurisdiction in connection Hillsborough County, Florida. Tenant's obligation to pay Rent shall commence on the date of Substantial Completion specified in the Substantial Completion Notice, regardless of whether Tenant disagrees with such Dispute(sthe date of Substantial Completion and elects to follow the procedure set forth in this subjection (d) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)resolve the disagreement.

Substantial Completion. Substantial Completion" shall occur when each of the following conditions is satisfied: (ia) Gateway the Improvements are substantially completed in accordance with the Drawings as certified by the Space Planner and in accordance with all applicable Laws and codes and regulations; (b) Landlord has tendered to Tenant physical possession of the Premises; (c) Building standard utility and electrical services are available to the Premises; (d) a certificate of occupancy (or a temporary permit, as applicable) has been issued by the applicable governmental authority which allows Tenant the legal right to occupy and conduct its day-to-day business in the Premises; and (e) the Premises have been thoroughly cleaned and all debris and construction materials have been removed. Substantial Completion shall have occurredoccurred even though minor details of construction, the Borrower decoration, landscaping, and the Independent Engineer mechanical adjustments remain to be completed by Landlord. Tenant shall have certified prepare and deliver to Landlord a punch list of incomplete, minor, detail items within thirty (30) days after Substantial Completion and Landlord shall use all reasonable efforts to complete such items within thirty (30) days thereafter, except as to such effect items that, by their nature, will take a longer period to complete as set forth in the punch list with respect to which Landlord shall complete such items within a reasonable time. In the event that the Improvements are not Substantially Complete by November 15, 2008 (which date shall be extended to a later date by one day for each day of force majeure or Tenant Delay, and one day for each day after August 1, 2008, this Lease is fully executed (such extension being referred to as the “SC Extension”)) for any reason, then as Tenant’s sole remedies: (i) Landlord shall reimburse Tenant for the holdover portion of rent Tenant pays in connection with its existing leased premises to Tenant’s existing landlord, not to exceed $834.57 per day (the “Holdover Reimbursement”) for each day that the Improvements were not Substantially Complete after November 15, 2008 (subject to the Administrative AgentSC Extension, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, if any); and (ii) Diablo at such time as Base Rent is payable under this Lease, Tenant’s Base Rent shall be abated one day for each day that the Improvements were not Substantially Complete after November 15, 2008 (subject to the SC Extension, if any); and (iii) if the Improvements are not Substantially Complete by February 15, 2009 (subject to the SC Extension, if any), then Tenant shall have the right to terminate this Lease upon written notice to Landlord given at any time thereafter and prior to Substantial Completion has occurred of the Improvements. If Tenant elects the termination remedy in subsection (andiii) above, if applicable, then Landlord’s obligation to pay the Diablo Expansion Substantial Completion has occurred, and, if Holdover Reimbursement shall cease effective as of the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower date of termination (provided that Landlord’s obligation to pay any accrued Holdover Reimbursement shall survive such termination) and the Independent Engineer Tenant shall have certified no right to such effect to recover the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all value of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable, have occurred abated rent under the relevant EPC Contract except for any conditions precedent relating to the failure of the applicable EPC Contractor to pay liquidated damages, any other similar Dispute subsection (as such term is defined in the applicable EPC Contractii) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver to the relevant Project Company any waiver or release of liens, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement has not occurred or (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)above.

Substantial Completion. Landlord shall use its reasonable efforts to “substantially complete” the Premises by the Phase I Target Date and the Phase II Target Date, respectively, provided that such dates shall be extended for the number of days that Tenant fails to satisfy its obligations under Section 35. “Substantially complete” means that: (i) Gateway Substantial Completion shall have occurredthe construction of the improvements described in Section 35 has been completed so that Tenant can use the Phase I Premises or Phase II Premises, the Borrower and the Independent Engineer shall have certified as applicable, for its intended purposes without material interference to such effect to the Administrative AgentTenant conducting its ordinary business activities, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo Substantial Completion has occurred (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if Phase I Premises or the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion Substantial Completion, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial CompletionPhase II Premises, as applicable, have occurred under been approved for occupancy by governmental authorities having jurisdiction and a certificate of occupancy or temporary certificate of occupancy has been issued for the relevant EPC Contract except for any conditions precedent relating Phase I Premises or the Phase II Premises, as applicable, (iii) Tenant has ready access to the failure Building and the Phase I Premises or the Phase II Premises, as applicable, through the lobby, hallways and elevators, (iv) the Phase I Premises or the Phase II Premises, as applicable, are ready for installation of any equipment, furniture, fixtures or decoration that Tenant will install, and (v) the Phase I Premises tenant finish work or the Phase II Premises tenant finish work, as applicable, has been installed and completed in a good and workmanlike manner and in compliance with all laws, rules, regulations and ordinances. Landlord shall keep Tenant advised as to its progress with regard to “substantially completing” the Phase I Premises by the Phase I Target Date and with regard to “substantially completing” the Phase II Premises by the Phase II Target Date. Notwithstanding the foregoing, the requirements of subsection (ii) shall be deemed satisfied if all of the applicable EPC Contractor to pay liquidated damagesother subsections have been satisfied and the government approval is delayed as a result of the installation of furniture, any other similar Dispute (as such term fixtures or equipment which is defined not included and is a part of Tenant’s responsibilities under Section 35 below. Notwithstanding anything in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure by the applicable EPC Contractor to deliver this Lease to the relevant Project Company any waiver or release of lienscontrary, a punch list or withhold drawings or other books and records), so long as (A)(1) the Termination Date under and as defined in the Equity Contribution Agreement if substantial completion has not occurred for the Phase I Premises on or before the date that is 165 days following the Effective Date (2) the Borrower has caused an amount equal to the Borrower’s good faith, reasonable estimate of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion “Required Phase I Delivery Date”), and such delay is not a result of a Tenant Caused Delay (Bas defined herein) or for any reason listed in Section 27 of this Lease, then Tenant will receive a day for day rent credit following the Independent Engineer shall have certified thatPhase I Commencement Date for each day that the Phase I Commencement Date is delayed beyond the Required Phase I Delivery Date. For example, to its knowledgeif the Required Phase I Delivery Date is June 15, such deposited amount (or amount of available unused equity commitments under 2007, and the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsetsPhase I Commencement Date occurs on July 20, retainage2007, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)then Tenant will receive a 35 day rent credit following the Phase I Rent Commencement Date.

Substantial Completion. (ia) Gateway After completing the Guaranteed Performance Tests in accordance with Section 10.03, when the Contractor determines that all of the requirements for Substantial Completion have been completed, Contractor shall provide written notice thereof to Owner and the Owner’s Engineer. Except as provided in Section 10.04(b), the date specified by Contractor on which the Guaranteed Performance Tests had successfully been started for achieving Substantial Completion in its notice to Owner of Substantial Completion shall have occurred, be the Borrower and the Independent Engineer shall have certified to such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Gateway Final Completion, and (ii) Diablo “Substantial Completion has occurred Date”. (and, if applicable, the Diablo Expansion Substantial Completion has occurred, and, if the EPC Option has been exercised, the Diablo Project Substantial Completion has occurred), the Borrower and the Independent Engineer shall have certified to b) Within five (5) Business Days following receipt by Owner of such effect to the Administrative Agent, and the Independent Engineer shall have certified that, to its knowledge, the Loan Parties have sufficient funds available to achieve Diablo Final Completion; provided that Gateway Substantial Completion and Diablo Substantial Completion (and, if applicable, the Diablo Expansion notice of Substantial Completion, andOwner shall notify Contractor in writing whether or not Owner, if and Owner’s Engineer believes that Contractor has fulfilled the EPC Option has been exercised, the Diablo Project Substantial Completion) shall be deemed to have occurred hereunder and under the other Loan Documents if all requirements of the conditions precedent to Gateway Substantial Completion, Diablo Substantial Completion, Diablo Expansion Substantial Completion or Diablo Project Substantial Completion, as applicable. If Owner determines that Contractor has not fulfilled such requirements for Substantial Completion, Owner shall specify in such notice to Contractor in reasonable detail the reasons for determining that the requirements for Substantial Completion have occurred under the relevant EPC Contract except for any conditions precedent relating not been met. Contractor shall promptly act to the failure of the applicable EPC Contractor correct such deficiencies so as to pay liquidated damages, any other similar Dispute achieve Substantial Completion as soon as possible (as such term is defined in the applicable EPC Contract) and any reasonably related Disputes or failures by the relevant EPC Contractor to satisfy an applicable condition precedent in connection with such Dispute(s) (including any failure no later than by the applicable EPC Guaranteed Substantial Completion Date if such date has not already passed). Following any such remedial action, Contractor to shall deliver to Owner, and Owner’s Engineer a new notice of Substantial Completion and the relevant Project Company any waiver or release provisions of liens, a punch list or withhold drawings or other books and records)this Section 10.04(b) shall apply with respect to such new Substantial Completion notice in the same manner as they applied to the original Substantial Completion notice. The foregoing procedure shall be repeated as often as necessary, so long as Contractor is paying when due Schedule Liquidated Damages and/or Performance Liquidated Damages (A)(1as applicable), until the earlier of (i) the Termination Date under Owner, and as defined in the Equity Contribution Agreement Owner’s Engineer no longer reject Contractor’s Substantial Completion notice and Owner provides its own notice to Contractor that Substantial Completion has not occurred been achieved, or (2ii) termination of this Agreement. The date upon which the Borrower has caused an amount equal last successful Guaranteed Performance Test was commenced shall be deemed the Substantial Completion Date. In the event of a dispute with respect to the Borrower’s good faithforegoing determination, reasonable estimate such dispute may be settled pursuant to Article XVII. (c) If Contractor fails to achieve Substantial Completion by the Guaranteed Substantial Completion Date, Contractor shall pay to Owner the Schedule Liquidated Damages pursuant to Article XI. The dates upon which such liquidated damages are paid shall not affect the Substantial Completion Date. Payment of such Project Company’s reasonably anticipated damages shall not relieve Contractor from its obligations hereunder to achieve Substantial Completion and Final Acceptance, subject to the limitations of liability set forth in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor) to be on deposit in the Construction Account on the Term Conversion Date, and (B) the Independent Engineer shall have certified that, to its knowledge, such deposited amount (or amount of available unused equity commitments under the Equity Contribution Agreement) is reasonably expected to be sufficient to make payment of such Project Company’s reasonably anticipated liability in connection with such Dispute(s) (after giving effect to all potential offsets, retainage, counterclaims and any other amounts payable to such Project Company by such EPC Contractor)Article XVIII.