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EXHIBIT 10.64
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CONSTRUCTION MANAGEMENT AGREEMENT
(PHASE V - IMPROVEMENTS)
BETWEEN
BNP LEASING CORPORATION
("BNPLC")
AND
NETWORK APPLIANCE, INC.
("NAI")
MARCH 1, 2000
(SUNNYVALE, CALIFORNIA)
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TABLE OF CONTENTS
Page
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RECITALS.....................................................................................1
CONSENT AND AUTHORIZATION....................................................................1
GENERAL TERMS AND CONDITIONS.................................................................1
1. Construction by NAI..................................................................1
(A) The Construction Project......................................................1
(1) Construction Approvals by BNPLC........................................1
(a) Preconstruction Approvals by BNPLC..............................1
(b) Definition of Scope Change......................................2
(c) Approval of Scope Changes.......................................2
(2) NAI's Right to Control and Responsibility for Construction.............2
(a) Performance of the Work.........................................3
(b) Third Party Contracts...........................................3
(c) Third Party Estoppels...........................................4
(d) Adequacy of Drawings, Specifications and Budgets................4
(e) Existing Condition of the Land and Improvements.................4
(f) Correction of Defective Work....................................5
(g) Clean Up........................................................5
(h) No Damage for Delays............................................5
(i) No Fee For Construction Management..............................5
(3) Quality of Work........................................................5
(B) Completion Notices............................................................5
2. Construction Advances................................................................5
(A) Costs Subject to Reimbursement Through Construction Advances..................5
(B) Exclusions From Reimbursable Construction-Period Costs........................7
(C) Conditions to NAI's Right to Receive Construction Advances....................8
(1) Construction Advance Requests..........................................8
(2) Amount of the Advances.................................................8
(a) Limit Dependent Upon the Maximum Construction Allowance.........8
(b) Limit Dependent Upon Costs Previously Incurred by NAI...........8
(c) Limit During CMA Suspension Period..............................9
(d) Restrictions Imposed for Administrative Convenience.............9
(3) No Advances After Certain Dates.......................................10
(D) Breakage Costs for Construction Advances Requested But Not Taken.............10
(E) No Third Party Beneficiaries.................................................10
(F) No Waiver....................................................................10
(G) Funding by Participants......................................................10
(i)
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3. Normal Tenant Improvements..........................................................12
(A) Definition of Normal Tenant Improvements.....................................12
(B) Advances for Normal Tenant Improvements......................................12
(C) Tenant's Obligation to Construct Normal Tenant Improvements..................12
4. Cost overruns.......................................................................12
(A) Definition of Projected Cost Overruns........................................12
(B) Notice of Projected Cost Overruns............................................12
(C) Election to Make a Voluntary NAI Construction Contribution...................13
5. Suspension and Termination..........................................................13
(A) CMA Suspension Events........................................................13
(1) Projection of Cost Overruns...........................................13
(2) Interruption of Construction..........................................13
(3) Failure of NAI to Correct Defective Work..............................14
(4) Failure of NAI to Provide Evidence of Costs and Expenses..............14
(B) FOCB Notices, Preemptive Notices and CMA Termination Events..................14
(C) Rights and Obligations of NAI During a CMA Suspension Period.................15
(D) Election by NAI to Terminate.................................................15
(E) BNPLC's Right to Terminate...................................................15
(F) Rights and Obligations Surviving Termination.................................16
(G) Cooperation by NAI Following any Termination.................................16
EXHIBITS
Exhibit A......................................................Legal Description
Exhibit B......Description of the Construction Project (With Site Plan Attached)
Exhibit C............................................Form of Contractor Estoppel
Exhibit D...................................Form of Design Professional Estoppel
Exhibit E................Notice Requesting Advance to Cover Insurance Deductible
Exhibit F......................................Construction Advance Request Form
Exhibit G.............................Notice of Voluntary NAI Funding Commitment
Exhibit H...............................................Preemptive Notice by NAI
Exhibit I...........................................Notice of Termination by NAI
(ii)
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CONSTRUCTION MANAGEMENT AGREEMENT
(PHASE V - IMPROVEMENTS)
This CONSTRUCTION MANAGEMENT AGREEMENT (PHASE V - IMPROVEMENTS) (this
"AGREEMENT"), by and between BNP LEASING CORPORATION, a Delaware corporation
("BNPLC"), and NETWORK APPLIANCE, INC., a California corporation ("NAI"), is
made and dated as of March 1, 2000, the Effective Date. ("EFFECTIVE DATE" and
other capitalized terms used and not otherwise defined in this Agreement are
intended to have the meanings assigned to them in the Common Definitions and
Provisions Agreement (Phase V - Improvements) executed by BNPLC and NAI
contemporaneously with this Agreement. By this reference, the Common Definitions
and Provisions Agreement (Phase V - Improvements) is incorporated into and made
a part of this Agreement for all purposes.)
RECITALS
Pursuant to the Lease Agreement (Phase V - Improvements) executed by
BNPLC and NAI contemporaneously the this Agreement (the "IMPROVEMENTS LEASE"),
which covers the Improvements on the Land described in Exhibit A, BNPLC is
leasing the Improvements and any appurtenances thereto to NAI.
In anticipation of the construction of new or additional Improvements
for NAI's use pursuant to the Improvements Lease, BNPLC and NAI have agreed upon
the terms and conditions upon which BNPLC is willing to authorize NAI to arrange
and manage such construction and upon which BNPLC is willing to provide funds
for such construction, and by this Agreement BNPLC and NAI desire to evidence
such agreement.
CONSENT AND AUTHORIZATION
Subject to the terms and conditions set forth in this Agreement and in
the Improvements Lease, BNPLC does hereby grant its consent and authorization to
NAI for the construction by NAI of the Construction Project on the Land and for
the management by NAI of such construction; provided, however, all rights of NAI
against BNPLC hereunder are expressly made subject and subordinate to the
Permitted Encumbrances and to any other claims or encumbrances affecting the
Land or the Property that may be asserted by third parties and that do not
constitute Liens Removable by BNPLC.
GENERAL TERMS AND CONDITIONS
1. Construction by NAI.
(A) The Construction Project.
(1) Construction Approvals by BNPLC.
(a) Preconstruction Approvals by BNPLC. NAI submitted and
obtained BNPLC's approval of the site plan and descriptions of
the Construction Project referenced in Exhibit B. Also set forth
in Exhibit B is a general
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description of the Construction Project. The Construction
Project, as constructed by NAI pursuant to this Agreement, and
all construction contracts and other agreements executed or
adopted by NAI in connection therewith, shall be not materially
inconsistent with the plans or other items referenced in Exhibit
B, except to the extent otherwise provided by any Scope Change
(as defined below) approved by BNPLC and except as otherwise
provided in subparagraph 6(d) of the Improvements Lease if BNPLC
should make a Landlord's Election to Continue Construction after
any termination of this Agreement.
(b) Definition of Scope Change. As used herein, "SCOPE
CHANGE" means a change to the Construction Project that, if
implemented, will make the quality, function or capacity of the
Improvements "materially different" (as defined below in this
subparagraph) than as described or inferred by site plan, plans
and renderings referenced in Exhibit B. The term "SCOPE CHANGE"
is not intended to include the mere refinement, correction or
detailing of the site plan, plans or renderings submitted to
BNPLC by NAI. As used in this subparagraph, a "material
difference" means a difference that could reasonably be expected
to (a) after completion of the Construction Project and the
funding of all Construction Advances required in connection
therewith, significantly reduce any excess of the market value of
the Property over Stipulated Loss Value or significantly increase
any excess of Stipulated Loss Value over the market value of the
Property, (b) change the general character of the Improvements
from that needed to accommodate the uses permitted by
subparagraph 2(a) of the Improvements Lease, or (c) result in
Projected Cost Overruns (as defined below).
(c) Approval of Scope Changes. Before making a Scope
Change, NAI shall provide to BNPLC a reasonably detailed written
description of the Scope Change, a revised construction budget
for the Construction Project and a copy of any changes to the
drawings, plans and specifications for the Improvements required
in connection therewith, all of which must be approved in writing
by BNPLC (or by any inspecting architect appointed by BNPLC from
time to time) before the Scope Change is implemented. BNPLC's
approval shall not in any event constitute a waiver of
subparagraph 1(A)(3) or of any other provision of this Agreement
or the Improvements Lease.
(2) NAI's Right to Control and Responsibility for Construction.
Subject to the terms and conditions set forth in this Agreement and in
the Improvements Lease, and prior to any termination of this Agreement
as provided in subparagraphs 5(D) and 5(E), NAI shall have the sole
right to control and the sole responsibility for the design and
construction of the Construction Project, including the means, methods,
sequences and procedures implemented to accomplish such design and
construction. Although title to all Improvements will pass directly to
BNPLC (as more particularly provided in Paragraph 7 of the Improvements
Lease), BNPLC's obligation with respect to the Construction Project
shall be limited to the making of advances under and subject to the
conditions set forth in this Agreement and in Paragraph 6 of the
Improvements Lease. Without limiting the foregoing, NAI acknowledges and
agrees that:
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(a) Performance of the Work. Except as provided in
subparagraphs 5(C) and 5(F), NAI must, using its best skill and
judgment and in an expeditious and economical manner not
inconsistent with the interests of BNPLC, perform or cause to be
performed all work required, and will provide or cause to be
provided all supplies and materials required, to design and
complete construction of the Construction Project (collectively
"WORK"). The Work will include obtaining all necessary building
permits and other governmental approvals required in connection
with the design and construction of the Construction Project,
including the design and construction of Normal Tenant
Improvements (as defined below), or required in connection with
the use and occupancy thereof (e.g., final certificates of
occupancy). The Work will also include any repairs or restoration
required because of damage to Improvements by fire or other
casualty prior to the Base Rent Commencement Date (a
"PRE-COMMENCEMENT CASUALTY"); however, the cost of any such
repairs or restoration will be subject to reimbursement not only
through Construction Advances made on and subject to the terms
and conditions of this Agreement, but also through the
application of Escrowed Proceeds as provided in the Improvements
Lease. NAI will carefully schedule and supervise all Work, will
check all materials and services used in connection with all Work
and will keep full and detailed accounts as may be necessary to
document expenditures made or expenses incurred for the Work.
Subject to delays beyond the reasonable control of NAI, NAI shall
cause all Work to be completed on or before the first Business
Day of September, 2001.
(b) Third Party Contracts.
1) NAI shall not enter into any construction
contract or other agreement with a third party concerning
the Work or the Construction Project (a "THIRD PARTY
CONTRACT") in the name of BNPLC or otherwise purport to
bind BNPLC to any obligation to any third party.
2) In any Third Party Contract between NAI and any
of its Affiliates (an "AFFILIATE'S CONTRACT") NAI shall
reserve the right to terminate the contract at any time,
without cause, and without subjecting NAI to liability for
any Termination Fee (as defined below). Further, NAI shall
not enter into any Affiliate's Contract that obligates NAI
to pay more than would be required under an arms-length
contract or that would require NAI to pay its Affiliate
any amount in excess of the sum of actual, out-of-pocket
direct costs and internal labor costs incurred by the
Affiliate to perform such contract.
3) As necessary to limit the total Reimbursable
Third Party Contract Termination Fees (as defined below)
for which BNPLC may be required to provide Construction
Advances to no more than $8,000,000 (the "MAXIMUM
PERMITTED TERMINATION FEES"), NAI shall reserve in every
significant Third Party Contract an absolute express right
to terminate such contract at any time, without cause.
Although any Third Party Contract (other than an
Affiliate's Contract) may require NAI to pay
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a specified Termination Fee in the event of such a
termination, the specified Termination Fee must not exceed
the difference computed by subtracting (I) the aggregate
of all Termination Fees that have been paid or would
become payable by NAI if NAI terminated all other Third
Party Contracts, from (II) the Maximum Permitted
Termination Fees. Without limiting the foregoing, NAI will
manage and administer all Third Party Contracts as
necessary to ensure that, at any point in time, NAI can
terminate all such contracts without becoming liable for
Termination Fees in excess of the Maximum Permitted
Termination Fees.
4) As used in this Agreement, "TERMINATION FEE"
means any amount, however denominated, for which NAI will
be obligated under a Third Party Contract as a result of
any election or decision by NAI to terminate such Third
Party Contract, including demobilization costs; provided,
however, amounts payable for Prior Work [as defined below]
as of the date any such termination are not intended to be
characterized as Termination Fees for purposes of this
Agreement. If, as described in the preceding paragraph,
NAI reserves an absolute express right in a Third Party
Contract to terminate such contract at any time, without
cause, for a specified dollar amount, such dollar amount
will constitute a Termination Fee. If no such right is
reserved in a Third Party Contract, the Termination Fee
applicable to such contract for purposes of this Agreement
will be the amount of damages that NAI could be required
to pay (in addition to payments required for Prior Work)
upon an anticipatory repudiation of the Third Party
Contract by NAI.
(c) Third Party Estoppels. If requested by BNPLC with
respect to any material general construction contract between NAI
and a third party contractor for any part of the Work, NAI shall
cause the contractor to execute and deliver to BNPLC an estoppel
letter substantially in the form of Exhibit C. Similarly, if
requested by BNPLC with respect to any material architectural or
engineering contract between NAI and a third party professional
or firm for any part of the Work, NAI shall cause the
professional or firm thereunder to execute and deliver to BNPLC
an estoppel letter substantially in the form of Exhibit D.
(d) Adequacy of Drawings, Specifications and Budgets.
BNPLC has made and will make no representations as to the
adequacy of any budgets, site plans, renderings, plans, drawings
or specifications for the Construction Project, and no
modification of any such budgets, site plans, renderings, plans,
drawings or specifications that may be required from time to time
will entitle NAI to any adjustment in the Construction Allowance.
(e) Existing Condition of the Land and Improvements. NAI
is familiar with the conditions of the Land and any existing
Improvements on the Land. NAI shall have no claim for damages
against BNPLC or for an increase in the Construction Allowance by
reason of any condition (concealed or otherwise) of or affecting
the Land or Improvements.
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(f) Correction of Defective Work. NAI will promptly
correct all Work performed prior to any termination of this
Agreement that does not comply with the requirements of this
Agreement or that is otherwise defective (in either case,
"DEFECTIVE WORK") at NAI's sole expense. If NAI fails to correct
any Defective Work or fails to carry out Work in accordance with
this Agreement, BNPLC may (but will not be required to) order NAI
to stop all Work until the cause for such failure has been
eliminated.
(g) Clean Up. Upon the completion of all Work, NAI will
remove all waste material and rubbish from and about the Land, as
well as all tools, construction equipment, machinery and surplus
materials. NAI will keep the Land and the Improvements thereon in
a reasonably safe and sightly condition as Work progresses.
(h) No Damage for Delays. NAI shall have no claim for
damages against BNPLC or for an increase in the Construction
Allowance by reason of any delay in the performance of any Work.
(i) No Fee For Construction Management. NAI shall have no
claim for any fee or other compensation or for any reimbursement
of internal administrative or overhead expenses of NAI under this
Agreement, it being understood that NAI is executing this
Agreement in consideration of the rights expressly granted to it
herein and in the Improvements Lease.
(3) Quality of Work. NAI shall cause the Work undertaken and
administered by it pursuant to this Agreement to be performed (a) in a
safe and good and workmanlike manner, (b) in accordance with Applicable
Laws, (c) in compliance with (i) the provisions of this Agreement and
the Improvements Lease, (ii) the material provisions of the Permitted
Encumbrances and (iii) the material provisions of the Development
Documents, and (d) in a manner that, taken as a whole, enhances the
value of the Property commensurate with any Construction Advances and
Carrying Costs added to the Outstanding Construction Allowance in
connection therewith.
(B) Completion Notices. NAI shall provide a notice (a "COMPLETION NOTICE
(BUILDING 4)") to BNPLC promptly after renovation of the portion of the
Improvements designated by NAI as "Building 4" are substantially complete and
ready for occupancy by NAI. Such notice will include a determination by NAI of
the amount of Stipulated Loss Value (Building 4), as defined in the Common
Definitions and Provisions Agreement, and of Stipulated Loss Value (Building
4/Land), as defined in the other Common Definitions and Provisions Agreement. In
addition, NAI shall provide a notice (a "COMPLETION NOTICE (BUILDING 4)") to
BNPLC promptly after construction of the Construction Project is substantially
complete, advising BNPLC of the substantial completion.
2. Construction Advances.
(A) Costs Subject to Reimbursement Through Construction Advances.
Subject to the terms and conditions set forth herein, NAI shall be entitled to a
Construction Allowance, from
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which BNPLC will make Construction Advances on Advance Dates from time to time
to pay or reimburse NAI for the following costs ("REIMBURSABLE
CONSTRUCTION-PERIOD COSTS") to the extent the following costs are not already
included in Transaction Expenses paid by BNPLC from the Initial Funding Advance:
(1) the actual costs and expenses incurred or paid by NAI for the
preparation, negotiation and execution of this Agreement and the other
Operative Documents;
(2) the cost of title insurance or other out of pocket expenses
described in subparagraph 5(c)(iii) of the Improvements Lease or of the
Other Lease Agreement to the extent paid by NAI prior to the Base Rent
Commencement Date;
(3) Commitment Fees;
(4) costs of the Work, including not only hard costs incurred for
the new Improvements described in Exhibit B, but also the following
costs to the extent reasonably incurred in connection with the
Construction Project:
- soft costs, such as architectural fees,
engineering fees and fees and costs paid in
connection with obtaining project permits and
approvals required by governmental authorities
or the Development Documents,
- site preparation costs, and
- costs of offsite and other public improvements
required as conditions of governmental approvals
for the Construction Project;
(5) the cost of maintaining insurance required by (and consistent
with the requirements of) the Improvements Lease and the Other Lease
Agreement prior to the Base Rent Commencement Date, and costs of
repairing any damage to the Improvements caused by a Pre-commencement
Casualty to the extent such costs are not covered by Escrowed Proceeds
made available to NAI as provided in the Improvements Lease and the
Other Lease Agreement prior to the Base Rent Commencement Date
("REIMBURSABLE RESTORATION COSTS");
(6) Impositions that accrue or become due under the Improvements
Lease or the Other Lease Agreement prior to the Base Rent Commencement
Date; and
(7) except as otherwise provided in subparagraph 2(B) below,
Termination Fees payable by NAI in connection with any Third Party
Contract between NAI and a Person not an Affiliate of NAI because of any
election by NAI to cancel or terminate such contract during a CMA
Suspension Period (as defined below).
In addition to other Construction Advances required by this subparagraph 2(A),
but subject to the other terms and conditions hereof, a Construction Advance
will be provided by BNPLC on the Base Rent Commencement Date in the form of
additional Escrowed Proceeds (to be held and applied like other Escrowed
Proceeds pursuant to the Improvements Lease) equal to any
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reduction in property insurance proceeds paid or payable with respect to the
Property because of a property insurance deductible permitted by Exhibit B
attached to the Improvements Lease, if:
(I) damage to the Improvements has been caused by a
Pre-commencement Casualty and, despite the exercise of reasonable
diligence by NAI, NAI has been unable to complete the repair of
such damage sufficiently in advance of the Base Rent Commencement
Date to allow the reimbursement to NAI hereunder of all
Reimbursable Restoration Costs attributable to such property
insurance deductible; and
(II) at least five Business Days before the Base Rent
Commencement Date, NAI has requested such additional Construction
Advance by a notice in the form attached hereto as Exhibit E.
(B) Exclusions From Reimbursable Construction-Period Costs.
Notwithstanding anything herein to the contrary, BNPLC shall not be required to
make any Construction Advance to pay or to reimburse or compensate NAI for any
of the following or any Absolute NAI Construction Obligations required because
of or in connection with or arising out of any of the following:
(1) Environmental Losses;
(2) Losses that would not have been incurred but for any act or
omission of NAI or of any NAI's contractors or subcontractors, which act
or omission is contrary in any material respect to the other terms and
conditions of this Agreement or to the terms and conditions of the other
Operative Documents, during the period that this Agreement remains in
force or during any other period that NAI remains in possession or
control of the Construction Project pursuant to the Improvements Lease
or otherwise;
(3) Losses that would not have been incurred but for any fraud,
misapplication of Construction Advances or other funds, illegal acts, or
willful misconduct on the part of the NAI or its employees or agents or
any other party for whom NAI is responsible;
(4) Losses that would not have been incurred but for any
bankruptcy proceeding involving NAI; and
(5) costs of Normal Tenant Improvements (as defined below),
except to the extent that BNPLC agrees to allow the reimbursement of
such costs from the Construction Allowance as provided in subparagraph
3(B).
For purposes of this subparagraph, "acts and omissions" described in clause (2)
preceding shall include (i) any decision by NAI to make any Scope Change without
the prior approval of BNPLC, (ii) any failure of NAI to maintain insurance
required by the Improvements Lease, the Other Lease Agreement or this Agreement,
(iii) any decision of NAI not to continue or complete Work because of a change
in NAI's facility needs or in NAI's plans to meet its facility needs (such as,
for example, a decision by NAI to lease or acquire another less expensive
facility as an alternative to the Improvements), (iv) any failure by NAI to
reserve termination rights in Third Party Contracts as required by subparagraph
1(A)(2)(b), and (v) any other material breach by NAI of this Agreement.
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(C) Conditions to NAI's Right to Receive Construction Advances. BNPLC's
obligation to provide Construction Advances to NAI from time to time under this
Agreement shall be subject to the following terms and conditions, all of which
terms and conditions are intended for the sole benefit of BNPLC, and none of
which terms and conditions shall limit in any way the right of BNPLC to treat
costs or expenditures incurred or paid by or on behalf of it as Construction
Advances pursuant to subparagraph 6(d) of the Improvements Lease:
(1) Construction Advance Requests. NAI must make a written
request (a "CONSTRUCTION ADVANCE REQUEST") for any Construction Advance,
specifying the amount of such advance, at least five Business Days prior
to the Advance Date upon which the advance is to be paid. To be
effective for purposes of this Agreement, a Construction Advance Request
must be in substantially the form attached as Exhibit F. NAI shall not
submit more than one Construction Advance Request in any calendar month.
(2) Amount of the Advances.
(a) Limit Dependent Upon the Maximum Construction
Allowance. NAI shall not be entitled to require any Construction
Advance that would cause the Funded Construction Allowance to
exceed the Maximum Construction Allowance.
(b) Limit Dependent Upon Costs Previously Incurred by NAI.
NAI shall not be entitled to require any Construction Advance -
other than a final additional Construction Advance required on
the Base Rent Commencement Date because of a permitted property
insurance deductible related to a Pre-commencement Casualty as
described in subparagraph 2(A) above - that would cause the
aggregate of all Construction Advances to exceed the sum of:
(i) Reimbursable Construction-Period Costs that NAI has,
to the reasonable satisfaction of BNPLC, substantiated as having
been paid or incurred by NAI other than for Work (e.g.,
Impositions), plus
(ii) the Reimbursable Construction-Period Costs that NAI
has, to the reasonable satisfaction of BNPLC, substantiated as
having been paid or incurred for Prior Work as of the date of the
Construction Advance Request requesting the advance.
As used in this Agreement, "PRIOR WORK" means all labor and
services actually performed, and all materials actually delivered
to the construction site, in accordance with this Agreement prior
to the date in question as part of the Work, and "FUTURE WORK"
means labor and services performed or to be performed, and
materials delivered or to be delivered, after the date in
question as part of the Work. For purposes of this Agreement, NAI
and BNPLC intend to allocate Reimbursable Construction-Period
Costs between Prior Work and Future Work in a manner that is
generally consistent with the allocations expressed or implied in
construction-related contracts negotiated in good faith between
NAI and third
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parties not affiliated with NAI (e.g., a general contractor);
however, in order to verify the amount of Reimbursable
Construction-Period Costs actually paid or incurred by NAI and
the proper allocation thereof between Prior Work and Future Work,
BNPLC shall be entitled (but not required) to: (x) request,
receive and review copies of such agreements between NAI and
third parties and of draw requests, budgets or other supporting
documents provided to NAI in connection with or pursuant to such
agreements as evidence of the allocations expressed or implied
therein, (y) from time to time engage one or more independent
inspecting architects, certified public accountants or other
appropriate professional consultants and, absent manifest error,
rely without further investigation upon their reports and
recommendations, and (z) without waiving BNPLC's right to
challenge or verify allocations required with respect to future
Construction Advances, rely without investigation upon the
accuracy of NAI's own Construction Advance Requests.
(c) Limit During CMA Suspension Period. Without limiting
the other terms and conditions imposed by this Agreement for the
benefit of BNPLC with respect all Construction Advances, BNPLC
shall have no obligation to make any Construction Advance during
any CMA Suspension Period (as defined below) that would cause the
aggregate of all Construction Advances to exceed the sum of:
(i) Reimbursable Construction-Period Costs that NAI has,
to the reasonable satisfaction of BNPLC, substantiated as having
been paid or incurred by NAI other than for Work (e.g.,
Impositions), plus
(ii) the Reimbursable Construction-Period Costs that NAI
has, to the reasonable satisfaction of BNPLC, substantiated as
having been paid or incurred for Prior Work (as defined below) as
of the date the CMA Suspension Period commenced.
For purposes of computing the limits described in this
subparagraph 2(C)(2)(c), Reimbursable Construction-Period Costs
"other than for Work" shall include Termination Fees that qualify
as Reimbursable Construction-Period Costs pursuant to
subparagraph 2(A)(7) ("REIMBURSABLE THIRD PARTY CONTRACT
TERMINATION FEES"). NAI acknowledges, however, that Termination
Fees will not exceed the Maximum Permitted Termination Fees, so
long as NAI complies with the requirements of subparagraph
1(A)(2)(b). That is, but for an "act or omission of NAI" as such
phrase is used in subparagraph 2(B)(2), the aggregate of all
Termination Fees shall not exceed the Maximum Permitted
Termination Fees. Accordingly, if the aggregate of any
Termination Fees do exceed the Maximum Permitted Termination
Fees, the excess shall not qualify as Reimbursable Third Party
Contract Termination Fees.
(d) Restrictions Imposed for Administrative Convenience.
NAI shall not request any Construction Advance (other than the
final Construction Advance NAI intends to request) for an amount
less than $500,000.
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(3) No Advances After Certain Dates. BNPLC shall have no
obligation to make any Construction Advance (x) after the Base Rent
Commencement Date, (y) on or after the Designated Sale Date, or (z) on
or after the date of any termination of this Agreement pursuant to
subparagraph 5(D) or subparagraph 5(E).
(D) Breakage Costs for Construction Advances Requested But Not Taken. If
NAI requests but thereafter declines to accept any Construction Advance, or if
NAI requests a Construction Advance that it is not permitted to take because of
its failure to satisfy any of the conditions specified in subparagraph 2(C), NAI
shall pay upon demand any resulting Breakage Costs.
(E) No Third Party Beneficiaries. No contractor or other third party
shall be entitled to require BNPLC to make advances as a third party beneficiary
of this Agreement or of the Improvements Lease or otherwise.
(F) No Waiver. No funding of Construction Advances and no failure of
BNPLC to object to any Work proposed or performed by or for NAI shall constitute
a waiver by BNPLC of the requirements contained in this Agreement.
(G) Funding by Participants. NAI acknowledges that, as provided in the
Participation Agreement, each Participant has agreed to pay to BNPLC a
Percentage (under and as defined in the Participation Agreement) of the
Construction Advances required by this Agreement. NAI also acknowledges that
BNPLC will not be responsible to NAI for any failure of any Participant to
provide advances required by the Participation Agreement. So long as any
Participant fails to provide its Percentage of any requested Construction
Advance, then the amount of the Construction Advance for which BNPLC shall be
obligated hereunder shall be reduced by the amount that the Participant should
have provided, but failed to provide, in accordance with the Participation
Agreement. No such reduction, however, of BNPLC's obligation hereunder shall
release or impair the obligation of the Participant directly to NAI, created by
NAI's status as a third party beneficiary of the Participant's commitment under
the Participation Agreement to provide the Participant's Percentage of
Construction Advances. Further, any such failure shall excuse BNPLC's obligation
to provide the requested Construction Advance only to the extent of the funds
that the applicable Participant or Participants should have advanced (but did
not advance) to BNPLC, and in the event of any such failure:
(1) BNPLC will immediately notify NAI, but BNPLC will not in any
event be liable to NAI for BNPLC's failure to do so.
(2) BNPLC will to the extent possible postpone reductions of
Construction Advances because of the failure by any one or more
Participants ("DEFAULTING PARTICIPANTS") to make required advances under
the Participation Agreement (a "PARTICIPANT DEFAULT") by adjusting (and
readjusting from time to time, as required) the funding "Percentages" of
other Participants, and by requesting the other Participants to make
advances to BNPLC on the basis of such adjusted Percentages, in each
case as provided in the Participation Agreement; however, so long as a
Participant Default continues, no Construction Advance shall be required
that would cause the Outstanding Construction Allowance to exceed (1)
the Maximum Construction Allowance available
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under this Agreement, less (2) all amounts that should have been, but
because of a continuing Participant Default have not been, advanced by
any one or more of the Participants to BNPLC under the Participation
Agreement with respect to Construction Advances.
(3) Further, after a Participant Default, and so long as no CMA
Termination Event (as defined below) has occurred and no Event of
Default has occurred and is continuing, BNPLC shall do the following as
reasonably requested by NAI, provided that nothing in this provision
shall require BNPLC to take any action that would violate Applicable
Laws, that would constitute a breach of BNPLC's obligations under the
Participation Agreement, or that would require BNPLC to waive any rights
or remedies it has under this Agreement or other Operative Documents:
(a) BNPLC shall promptly make a written demand upon the
Defaulting Participants for the cure of the Participant Default
and
(b) BNPLC shall not unreasonably withhold its approval for
the substitution of any new participant proposed by NAI for
Defaulting Participants, if (A) the proposed substitution does
not require BNPLC to waive rights against the Defaulting
Participants, (B) the new participant will agree (by executing
supplement to the Participation Agreement as provided in the
Participation Agreement) to provide funds to replace the payments
that would otherwise be required of the Defaulting Participants
with respect to future Construction Advances, (C) the new
participant (or NAI) provides the funds (if any) needed to
terminate the Defaulting Participants' rights to receive payments
of "Net Cash Flow" (as defined in the Participation Agreement)
that BNPLC will be required to pay the new participant under the
terms of the substitution reasonably proposed by NAI, (D) the new
participant (or NAI) provides and agrees in writing to provide
funds needed to reimburse BNPLC for any and all Losses incurred
by BNPLC in connection with or because of the substitution of the
new participant for the Defaulting Participants, including any
cost of defending and paying any claim asserted by Defaulting
Participants because of the substitution (but not including any
liability of BNPLC to the Defaulting Participants for damages
caused by BNPLC's bad faith or gross negligence in the
performance of BNPLC's obligations to the Defaulting
Participants), (E) the obligations of BNPLC to the new
participant per dollar of the new participant's "investment" (it
being understood that such investment will be computed in a
manner consistent with the examples set forth in Exhibit A to the
Participation Agreement, but net of reimbursements to BNPLC under
clause (D) preceding) shall not exceed the obligations per dollar
of investment by the Defaulting Participants that BNPLC would
have had to the Defaulting Participants if there had been no
Participant Default, and (F) the new participant shall be a
reputable financial institution having a net worth of no less
than seven and one half percent (7.5%) of total assets and total
assets of no less than $10,000,000,000.00 (all according to then
recent audited financial statements).
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3. NORMAL TENANT IMPROVEMENTS.
(A) Definition of Normal Tenant Improvements. As used herein, "NORMAL
TENANT IMPROVEMENTS" shall mean any "below-ceiling" interior finishes and
special fixtures or equipment to be constructed for NAI within the Improvements
as part of the Construction Project, BUT WILL NOT INCLUDE (1) costs of
structural elements of the Construction Project, or (2) equipment that would be
necessary for the use of the Improvements by any lessee (e.g., HVAC equipment,
elevators, standard electrical wiring).
(B) Advances for Normal Tenant Improvements. Nothing herein shall be
construed as a commitment or an agreement by BNPLC to pay for Normal Tenant
Improvements, other than Normal Tenant Improvements contemplated in the
description of the Construction Project set forth in Exhibit B and the
attachments thereto. BNPLC does, however, acknowledge that incorporated into the
total Construction Allowance is an amount for contingencies (e.g., cost overruns
related to structural components of Improvements, HVAC equipment, elevators,
etc.), for which BNPLC shall be obligated to provide Construction Advances on
and subject to the terms and conditions set forth in Paragraph . To the extent,
if any, that NAI does not exhaust the Construction Allowance by using
Construction Advances for other costs (e.g., the actual costs incurred for
structural components of Improvements, HVAC equipment, elevators, etc.), BNPLC
will allow NAI to reimburse itself through Construction Advances funded on and
subject to the terms and conditions of Paragraph for the costs of any Normal
Tenant Improvements in addition to those contemplated in the description of the
Construction Project set forth in Exhibit B and the attachments thereto.
Otherwise, any such additional Normal Tenant Improvements will be paid for by
NAI.
(C) Tenant's Obligation to Construct Normal Tenant Improvements. NAI
shall construct all Normal Tenant Improvements in a good and workmanlike manner
and in accordance with the same standards and requirements imposed by this
Agreement for other Work.
4. COST OVERRUNS.
(A) Definition of Projected Cost Overruns. As used in this Agreement,
"PROJECTED COST OVERRUNS" shall mean the excess (if any), calculated as of the
date of each Construction Advance Request, of (1) the total of projected
Reimbursable Construction-Period Costs yet to be incurred or for which NAI has
yet to be reimbursed hereunder (including projected Reimbursable
Construction-Period Costs for Future Work), over (2) the sum of a) any Voluntary
Construction Contribution NAI has committed to pay as provided in subparagraph
4(C), but has yet to pay, plus b) the balance of the remaining Construction
Allowance then projected to be available to cover such costs. The balance of the
remaining Construction Allowance then projected to be available will equal (i)
the amount (if any) by which the Maximum Construction Allowance exceeds the
Funded Construction Allowance, less (ii) the sum of (a) projected future
Carrying Costs, plus (b) any funds that should have been but were not advanced
to BNPLC by any Defaulting Participants under (and as defined in) the
Participation Agreement.
(B) Notice of Projected Cost Overruns. If for any reason (including any
damage to the Property by fire or other casualty or any taking of any part of
the Property by condemnation)
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NAI believes (after taking into account any Voluntary NAI Construction
Contributions NAI has made or committed to make as provided in subparagraph
4(C)) that Projected Cost Overruns are more likely than not at the time NAI
submits any Construction Advance Request, NAI shall state such belief in the
Construction Advance Request and, if NAI can reasonably do so, NAI will estimate
the approximate amount of such Projected Cost Overruns.
(C) Election to Make a Voluntary NAI Construction Contribution. As used
in this Agreement, "VOLUNTARY NAI CONSTRUCTION CONTRIBUTION" shall mean a
voluntary, nonrefundable payment made to BNPLC by NAI prior to the Base Rent
Commencement Date and delivered with or pursuant to a notice in the form of
Exhibit G, confirming that a Voluntary NAI Construction Contribution is being
paid or will be paid pursuant to this subparagraph. To prevent the occurrence of
or to cure any CMA Suspension Event described in subparagraph 5(A)(1), NAI shall
be entitled (but not obligated) to make or commit to make a Voluntary NAI
Construction Contribution in addition to (and, except as provided in the
definition of Issue 97-10 Prepayment in the Common Definitions and Provisions
Agreement (Phase V - Improvements), without reducing or excusing) any other
amounts then due from NAI to BNPLC pursuant to the Operative Documents. Like
other Qualified Prepayments, any Voluntary NAI Construction Contribution will
reduce the Outstanding Construction Allowance as described in the definition
thereof in the Common Definitions and Provisions Agreement (Phase V -
Improvements). In contrast, however, to other Qualified Prepayments, Voluntary
NAI Construction Contributions will be subtracted for purposes of calculating
the Funded Construction Allowance and, thus, will effectively increase the
subsequent Construction Advances available under the limit established by
subparagraph 2(C)(2)(a).
5. SUSPENSION AND TERMINATION.
(A) CMA Suspension Events. Each of the following events shall be a "CMA
SUSPENSION EVENT" under this Agreement:
(1) Projection of Cost Overruns. Either (a) BNPLC shall receive
any Construction Advance Request stating that NAI believes Projected
Cost Overruns are more likely than not, as provided in subparagraph
4(B), or (b) (i) BNPLC shall otherwise determine in good faith that
significant Projected Cost Overruns are likely (taking into account any
failure of a Defaulting Participant to provide funds to BNPLC as
required by the Participation Agreement and any prior Voluntary NAI
Construction Contributions NAI has made or committed to make as provided
in subparagraph 4(C)), (ii) BNPLC shall notify NAI of such determination
and the basis therefor, and (iii) NAI shall fail to give any notice
pursuant to subparagraph 4(C) that, by committing NAI to make or
increase Voluntary NAI Construction Contributions, effectively
eliminates the likelihood of the Projected Cost Overruns on or before
five Business Days after BNPLC's notice to NAI of such determination.
(2) Interruption of Construction. The Construction Project shall,
for any reason after Work commences (including any damage to the
Property by fire or other casualty or any taking of any part of the
Property by condemnation), no longer be substantially progressing (and
shall not have progressed in any substantial way during the preceding
forty-five days), in a good and workmanlike manner and substantially in
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accordance with Applicable Laws, with Permitted Encumbrances, with
Development Documents and with the requirements of this Agreement.
(3) Failure of NAI to Correct Defective Work. NAI shall fail to
diligently pursue the correction of any Defective Work of which NAI has
received notice.
(4) Failure of NAI to Provide Evidence of Costs and Expenses.
BNPLC shall have requested, and NAI shall have failed to provide within
ten Business Days after receipt of the request, with respect to any
Construction Advance: (1) invoices, requests for payment from
contractors and other evidence reasonably establishing that the costs
and expenses for which NAI has requested or is requesting reimbursement
constitute actual Reimbursable Construction-Period Costs, and (2)
canceled checks, lien waivers and other evidence reasonably establishing
that all prior Construction Advances have been used by NAI to pay, and
only to pay, the Reimbursable Construction-Period Costs for which the
prior advances were requested and made.
(B) FOCB Notices, Preemptive Notices and CMA Termination Events.
(1) As used herein, "FOCB NOTICE" means a notice from BNPLC to
NAI that BNPLC is considering a termination of this Agreement pursuant
to subparagraph 5(E) below, provided that the notice is given prior to
BNPLC's receipt from NAI of a Completion Notice and is given when:
(a) any Event of Default has occurred and is continuing;
or
(b) any CMA Suspension Event shall have occurred, NAI
shall have received notice of such CMA Suspension Event (a "CMA
SUSPENSION NOTICE") and the CMA Suspension Event shall have
continued for thirty days after NAI's receipt of such notice; or
(c) NAI shall have failed to maintain the following
insurance, or to provide insurance certificates to BNPLC as
required by the Improvements Lease with respect to the following
insurance, and such failure shall have continued for a period of
five Business Days after any notice to NAI thereof:
1) property insurance as required by the
Improvements Lease, including builder's completed value
risk insurance as BNPLC may require to protect BNPLC's and
NAI's interests in the Improvements under construction
against risks of physical loss, such insurance to be
maintained by NAI at all times until completion of the
Construction Project; and
2) commercial general liability insurance as
required by the Improvements Lease.
(2) As used herein, "PREEMPTIVE NOTICE" means a notice from NAI
to BNPLC in the form attached hereto as Exhibit H, given after BNPLC has
given any FOCB Notice, but before NAI has made any Issue 97-10 Election,
that is sufficient and effective under clause (2) of the definition of
Designated Sale Date in the Common
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Definitions and Provisions Agreement (Phase V - Improvements) to
accelerate the Designated Sale Date to a date that is less than ninety
days after the date of BNPLC's FOCB Notice.
(3) For purposes of this Agreement and the other Operative
Documents, "CMA TERMINATION EVENT" shall mean:
(a) BNPLC's receipt of a Notice of NAI's Intent to
Terminate (as defined below); or
(b) A failure of NAI for any reason whatsoever to deliver
a duly executed, effective Preemptive Notice within thirty days
after NAI's receipt of an FOCB Notice.
(C) Rights and Obligations of NAI During a CMA Suspension Period. As
used herein, "CMA SUSPENSION PERIOD" shall mean any period (1) beginning with
the date of any CMA Suspension Notice, FOCB Notice or Notice of NAI's Intent to
Terminate, and (2) ending on the earlier of (a) the first date upon which (i) no
CMA Suspension Events shall be continuing, and (ii) no CMA Termination Events
shall have occurred, or (b) the effective date of any termination of this
Agreement as described in subparagraph 5(D) or subparagraph 5(E). During any CMA
Suspension Period, NAI shall have the right to suspend the Work; provided,
however, the obligations of NAI which are to survive any termination of this
Agreement shall also continue and survive during any such suspension of the
Work.
(D) Election by NAI to Terminate. NAI may elect to terminate this
Agreement at any time prior to the Base Rent Commencement Date when NAI has
determined that (1) the Construction Advances to be provided to it hereunder
will not be sufficient to cover all Reimbursable Construction-Period Costs,
whether because the cost of the Work exceeds budgeted expectations (resulting in
Projected Cost Overruns), because of damage to the Property by fire or other
casualty (other than damage that would not have occurred, or been uninsured or
under-insured, but for an act or omission of NAI), because of a taking of any
part of the Property by condemnation, or because NAI can no longer satisfy
conditions to BNPLC's obligation to provide Construction Advances herein, or (2)
the Construction Project cannot be substantially completed before the Base Rent
Commencement Date for reasons other than a breach by NAI of this Agreement. To
be effective, however, any such election to terminate this Agreement must be
made by giving BNPLC and the Participants a notice thereof prior to the Base
Rent Commencement Date in the form of Exhibit I (a "NOTICE OF NAI'S INTENT TO
TERMINATE"), stating that NAI intends to terminate this Agreement pursuant to
this subparagraph on a date specified therein, which date is not less than
thirty days after the date of such notice. Unless terminated sooner pursuant to
subparagraph 5(E), this Agreement will automatically terminate on the effective
date so specified in any Notice of NAI's Intent to Terminate.
(E) BNPLC's Right to Terminate. BNPLC shall be entitled to terminate
this Agreement at any time (x) more than ninety days after BNPLC has given an
FOCB Notice as described in subparagraph 5(B)(1) (regardless of whether at the
time of such termination by BNPLC an Event of Default or other event or
circumstance described in subparagraph 5(B)(1) is continuing), provided that
BNPLC shall not have received an effective Preemptive Notice within
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thirty days after its delivery of the FOCB Notice to NAI, (y) after the
Designated Sale Date, or (z) after BNPLC's receipt of a Notice of NAI's Intent
to Terminate.
(F) Rights and Obligations Surviving Termination. Following any
termination of this Agreement as provided in subparagraph 5(D) or in 5(E), NAI
shall have no obligation to continue or complete any Work; provided, however, no
termination of this Agreement shall reduce or excuse the following rights and
obligations of the parties, it being intended that all such rights and
obligations shall survive and continue after any such termination:
(1) the rights and obligations of NAI and BNPLC under the other
Operative Documents, including Absolute NAI Construction Obligations
imposed upon NAI by the Improvements Lease; and
(2) NAI's obligations described in the next subparagraph 5(G).
(G) Cooperation by NAI Following any Termination. After any termination
of this Agreement as provided in subparagraph 5(D) or subparagraph 5(E), NAI
shall comply with the following terms and conditions, all of which shall survive
any such termination:
(1) NAI shall promptly deliver copies to BNPLC of all Third Party
Contracts and purchase orders made by NAI in the performance of or in
connection with the Work, together with all plans, drawings,
specifications, bonds and other materials relating to the Work in NAI's
possession, including all papers and documents relating to governmental
permits, orders placed, bills and invoices, lien releases and financial
management under this Agreement. All such deliveries shall be made free
and clear of any liens, security interests, or encumbrances, except such
as may be created by the Operative Documents.
(2) Promptly after any request from BNPLC made with respect to
any Third Party Contract, NAI shall deliver a letter confirming: (i)
that NAI has not performed any act or executed any other instrument
which invalidates or modifies such contract in whole or in part (or, if
so, the nature of such modification); (ii) the extent to which such
contract is valid and subsisting and in full force and effect; (iii)
that there are no defaults or events of default then existing under such
contract and, to NAI's knowledge, no event has occurred which with the
passage of time or the giving of notice, or both, would constitute such
a default or event of default (or, if there is a default, the nature of
such default in detail); (iv) that the services and construction
contemplated by such contract is proceeding in a satisfactory manner in
all material respects (or if not, a detailed description of all
significant problems with the progress of the services or construction);
(v) in reasonable detail the then critical dates projected by NAI for
work and deliveries required by such contract; (vi) the total amount
received by the other party to such contract for work or services
provided by the other party through the date of the letter; (vii) the
estimated total cost of completing the services and work contemplated
under such contract as of the date of the letter, together with any
current draw or payment schedule for the contract; and (viii) any other
information BNPLC may reasonably request to allow it to decide what
steps it should take concerning the contract within BNPLC's rights under
this Agreement and the other Operative Documents.
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(3) NAI will make every reasonable effort, as and to the extent
requested by BNPLC, to secure the cancellation of any then existing
Third Party Contract upon terms satisfactory to BNPLC. NAI shall bear
any cancellation fees or other Losses resulting from any cancellation of
a Third Party Contract after the effective date of a termination of this
Agreement.
(4) NAI will make every reasonable effort, as and to the extent
requested by BNPLC, to secure any required consents or approvals for an
assignment of any then existing Third Party Contract to BNPLC or its
designee, upon terms satisfactory to BNPLC. To the extent assignable,
any Third Party Contract will be assigned by NAI to BNPLC upon request.
(5) If NAI has canceled any Third Party Contract before and in
anticipation of a termination of this Agreement, NAI shall make every
reasonable effort, as and to the extent requested by BNPLC, to secure a
reinstatement of such Third Party Contract in favor of BNPLC and upon
terms satisfactory to BNPLC.
(6) For a period not to exceed ten days after the termination,
NAI shall take such steps as are reasonably necessary to preserve and
protect Work completed and in progress and to protect materials,
equipment, and supplies at the Property or in transit.
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IN WITNESS WHEREOF, NAI and BNPLC have caused this Construction Management
Agreement to be executed effective as of March 1, 2000.
"NAI"
NETWORK APPLIANCE, INC.
By:
---------------------------------------
Xxxxxx X. Xxxxx, Chief Financial
Officer
22
[Continuation of signature pages to Construction Management Agreement
(Phase V - Improvements) dated to be effective March 1, 2000]
"BNPLC"
BNP LEASING CORPORATION
By:
---------------------------------------
Xxxxx Xxx, Vice President
23
Exhibit A
LEGAL DESCRIPTION
The real property located in the City of Sunnyvale, County of Santa Xxxxx, State
of California, described as follows:
All of Parcel 1 as shown upon that certain map entitled, "Parcel Map lying
within the City of Sunnyvale, being a resubdivision of Parcel 5, as shown on Map
recorded in Book 413 of Maps, at Page 53, Santa Xxxxx County Records, City of
Sunnyvale, Santa Xxxxx County, California," which Map was filed for record in
the office of the Recorder of the County of Santa Xxxxx, State of California on
July 18, 1978 in Book 423 of Maps, at Page 13.
Excepting therefrom, the following described property granted to the Santa Xxxxx
County Transit District March 28, 1997 under Series No. 13654560:
All of that certain real property situated in the City of Sunnyvale, County of
Santa Xxxxx, State of California, and being a portion of Parcel 1, as said
Parcel 1 is shown on that certain Parcel Map filed in Book 423 of Maps, Page 13,
Records of Santa Xxxxx County, California, and more particularly described as
follows:
Beginning at the point of intersection of the centerlines of Fair Oaks Avenue
and Xxxxxxxx Road as said Avenue and Road are shown on said Parcel Map; thence
Northerly along said centerline of Xxxxxxxx Road, North 18 degrees 37' 09" East
82.70 feet; thence Easterly at a right angle from said centerline of Xxxxxxxx
Road, 71 degrees 22' 51" East 54.89 feet to a point on a curve on the Easterly
line of said Xxxxxxxx Road; thence from a tangent bearing of South 9 degrees 32'
30" West along said Easterly line of Xxxxxxxx Road and along said curve concave
Easterly with a radius of 108.99 feet through a central angle of 11 degrees 34'
1" in an arc length of 22.00 feet the true point of this description; thence
continuing Southerly and Southeasterly along said Easterly line of Xxxxxxxx Road
the following four (4) described courses: (1) continuing along said curve (from
a tangent bearing of South 2 degrees 01' 41" East) concave Easterly with a
radius of 108.99 feet through a central angle of 23 degrees 25' 59" an arc
length of 44.58 feet; (2) South 25 degrees 27' 40" East 79.86 feet to a curve;
(3) Southeasterly along said curve concave Northeasterly with a radius of 108.99
feet, through a central angle of 9 degrees 00' 00" in an arc length of 17.12
feet; (4) South 34 degrees 27' 40" East 23.31 feet to the Northeasterly line of
said Fair Oaks Avenue; thence Southeasterly along said Northeasterly line of
Fair Oaks Avenue South 50 degrees 50' 59" East 139.04 feet; thence leaving said
Xxxxxxxxxxxxx xxxx xx Xxxx Xxxx Xxxxxx Xxxxx 00 degrees 36' 17" West 57.40 feet;
thence North 50 degrees 50' 13" West 32.20 feet; thence North 34 degrees 36' 17"
West 205.73 feet to the true point of beginning.
24
Exhibit B
DESCRIPTION OF THE CONSTRUCTION PROJECT
Subject to future Scope Changes, the Construction Project will be
substantially consistent with the general description set out in the excerpts
from an appraisal prepared for BNPLC which are attached to this Exhibit and with
the Site Plan which is attached to this Exhibit.
In addition to the Site Plan, the following summarizes excerpts taken
from an appraisal prepared for BNPLC which summarizes information about the
Improvements:
The improvements will consist of Phase V improvements, consisting of (a)
the renovation of an existing one two-story office/research and
development building, known as Building 4, containing approximately
95,169 square feet, and (b) the construction of one three-story office
building, known as Building 5, located on the northeast corner of
Xxxxxxxx Avenue and Java Drive, in the City of Sunnyvale, Santa Xxxxx
County, California, containing approximately 120,017 square feet,
together with related parking and other facilities.
25
Exhibit C
ESTOPPEL FROM CONTRACTOR
_________, 200__
BNP Leasing Corporation
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx
Re: Assignment of Construction Contract
Ladies and Gentlemen:
The undersigned hereby represents to BNP LEASING CORPORATION, a Delaware
corporation ("BNPLC"), and covenants with BNPLC as follows:
1. The undersigned has entered into that certain [Construction Contract]
(the "CONSTRUCTION CONTRACT") by and between the undersigned and Network
Appliance, Inc. ("NAI") dated , ____ for the construction of the improvements to
be constructed as part of NAI's Sunnyvale campus leased by NAI (the
"IMPROVEMENTS") on the land described in the Improvements Lease Documents
described below (the "LAND" and, together with the Improvements and any other
improvements now on or constructed in the future on the Land, the "PROJECT").
2. The undersigned has been advised that, by a Lease Agreement (Phase II
- Improvements) and a Construction Management Agreement (Phase II -
Improvements), both dated as of March 1, 2000 (collectively, the "IMPROVEMENTS
LEASE DOCUMENTS"), BNPLC is leasing the Project to NAI and has agreed, subject
to the terms and conditions of the Improvements Lease Documents, to provide a
construction allowance for the design and construction of the Improvements. The
undersigned has also been advised that the Improvements Lease Documents
expressly provide that third parties (including the undersigned) are not
intended as beneficiaries of the Improvements Lease Documents and, thus, will
have no standing to enforce any obligations of NAI or BNPLC under the
Improvements Lease Documents, including any such obligation that BNPLC may have
to provide the construction allowance. The undersigned understands that the
Improvements Lease Documents expressly provide that NAI is not authorized to
enter into any construction contract or other agreement with any third party in
the name of BNPLC or to otherwise bind BNPLC to any contract with a third party.
3. A complete and correct copy of the Construction Contract is attached
to this letter. The Construction Contract is in full force and effect and has
not been modified or amended, except as provided in any written modifications or
amendments which are also attached to this letter.
26
BNP Leasing Corporation
_______________, 200___
Page 2
4. The undersigned has not sent or received any notice of default or any
other notice for the purpose of terminating the Construction Contract, nor does
the undesigned have knowledge of any existing circumstance or event which, but
for the elapse of time or otherwise, would constitute a default by the
undersigned or by NAI under the Construction Contract.
The undersigned acknowledges and agrees that:
a) Title to all Improvements shall, when constructed on the Land, pass
directly to BNPLC, not to NAI. BNPLC shall not, however, be held liable for, and
the undersigned shall not assert, any claims, demands or liabilities against
BNPLC arising under or in any way relating to the Construction Contract;
provided, this paragraph will not (1) be construed as a waiver of any statutory
mechanic's or materialmen's liens against the interests of NAI in and to the
Land or the improvements thereon that may otherwise exist or arise in favor of
the undersigned, or (2) prohibit the undersigned from asserting any claims or
making demands against BNPLC under the Construction Contract if BNPLC elects in
writing, pursuant to paragraph b) below, to assume the Construction Contract in
the event NAI's right to possession of the Land is terminated, it being
understood that in the event of such an assumption BNPLC shall be liable for the
unpaid balance of the contract sum due for the work of the undersigned, payable
pursuant to (and subject to the terms and conditions set forth for the benefit
of the owner in) the Construction Contract, but in no event shall BNPLC
otherwise be personally liable for any acts or omissions on the part of NAI.
b) Upon any termination of NAI's right to possession of the Project
under the Improvements Lease Documents, including any eviction of NAI resulting
from an Event of Default (as defined in the Improvements Lease Documents), BNPLC
shall be entitled (but not obligated), by notice to the undersigned and without
the necessity of the execution of any other document, to assume NAI's rights and
obligations under the Construction Contract, cure any defaults by NAI thereunder
and enforce the Construction Contract and all rights of NAI thereunder. Within
ten days of receiving notice from BNPLC that NAI's right to possession has been
terminated, the undersigned shall send to BNPLC a written estoppel letter
stating: (i) that the undersigned has not performed any act or executed any
other instrument which invalidates or modifies the Construction Contract in
whole or in part (or, if so, the nature of such modification); (ii) that the
Construction Contract is valid and subsisting and in full force and effect;
(iii) that there are no defaults or events of default then existing under the
Construction Contract and no event has occurred which with the passage of time
or the giving of notice, or both, would constitute such a default or event of
default (or, if there is a default, the nature of such default in detail); (iv)
that the construction contemplated by the Construction Contract is proceeding in
a satisfactory manner in all material respects (or if not, a detailed
description of all significant problems with the progress of construction); (v)
a reasonably detailed report of the then critical dates projected by the
undersigned for work and deliveries required to complete the Project; (vi) the
total amount received by the undersigned for construction through the date of
the letter; (vii) the estimated total cost of completing the undersigned's work
as of the date of the letter, together with a current draw schedule; and (viii)
any other information BNPLC may request to allow it to
Exhibit C - Page 2
27
BNP Leasing Corporation
_______________, 200___
Page 3
decide whether to assume the Construction Contract. BNPLC shall have seven days
from receipt of such written certificate containing all such requested
information to decide whether to assume the Construction Contract. If BNPLC
fails to assume the Construction Contract within such time, the undersigned
agrees that BNPLC shall not be liable (and the undersigned shall not assert or
bring any action against BNPLC, except to enforce statutory lien rights, if any,
of the undersigned against the Land or improvements on the Land) for any damages
or other amounts resulting from the breach or termination of the Construction
Contract or under any other theory of liability of any kind or nature, but
rather the undersigned shall look solely to NAI (and statutory lien rights, if
any, of the undersigned against the Land and any improvements thereon) for the
recovery of any such damages or other amounts.
c) If BNPLC notifies the undersigned that BNPLC shall not assume the
Construction Contract pursuant to the preceding paragraph following the
termination of NAI's right to possession of the Project under the Improvements
Lease Documents, the undersigned shall immediately discontinue the work under
the Construction Contract and remove its personnel from the Project, and BNPLC
shall be entitled to take exclusive possession of the Project. The undersigned
shall also, upon request by BNPLC, deliver and assign to BNPLC all plans and
specifications and other contract documents previously delivered to the
undersigned (except that the undersigned may keep an original set of the
Construction Contract and other contract documents executed by NAI), all other
material relating to the work which belongs to BNPLC or NAI, and all papers and
documents relating to governmental permits, orders placed, bills and invoices,
lien releases and financial management under the Construction Contract.
Notwithstanding the undersigned's receipt of any notice from BNPLC that BNPLC
declines to assume the Construction Contract, the undersigned shall for a period
not to exceed fifteen days after receipt of such notice take such steps, at
BNPLC's expense, as are reasonably necessary to preserve and protect work
completed and in progress and to protect materials, equipment and supplies at
the site or in transit.
d) If the Construction Contract is terminated by NAI before BNPLC is
given the opportunity to elect whether or not to assume the Construction
Contract as provided herein, BNPLC shall nonetheless have the right hereunder to
assume the Construction Contract, as if it had not been terminated, upon any
termination of NAI's right to possession of the Project under the Improvements
Lease Documents; provided, however, that if the work of the undersigned under
the Construction Contract has been disrupted because of NAI's termination of the
Construction Contract, the undersigned shall be entitled to an equitable
adjustment to the price of the Construction Contract, following any assumption
thereof by BNPLC, for the additional costs incurred by the undersigned
attributable to the disruption; and, provided further, that if BNPLC does assume
the Construction Contract, BNPLC shall receive a credit against the price of the
Construction Contract for any consideration paid to the undersigned by NAI
because of NAI's prior termination of the Construction Contract (whether such
consideration is designated a termination fee, settlement payment or otherwise).
Exhibit C - Page 3
28
BNP Leasing Corporation
_______________, 200___
Page 4
e) No action taken by BNPLC or the undersigned with respect to the
Construction Contract shall prejudice any other rights or remedies of BNPLC or
the undersigned provided by law, by the Improvements Lease Documents, by the
Construction Contract or otherwise against NAI.
f) The undersigned agrees promptly to notify BNPLC of any material
default or claimed material default by NAI under the Construction Contract of
which the undersigned is aware, describing with particularity the default and
the action the undersigned believes is necessary to cure the same. The
undersigned will send any such notice to BNPLC prominently marked "URGENT -
NOTICE OF NAI'S DEFAULT UNDER CONSTRUCTION AGREEMENT WITH NETWORK APPLIANCE,
INC. - SUNNYVALE, CALIFORNIA" at the address specified for notice below (or at
such other addresses as BNPLC shall designate in notice sent to the
undersigned), by certified or registered mail, return receipt requested.
Following receipt of such notice, the undersigned will permit BNPLC or its
designee to cure any such default within the time period reasonably required for
such cure, but in no event less than thirty days. If it is necessary or helpful
to take possession of all or any portion of the Project to cure a default by NAI
under the Construction Contract, the time permitted by the undersigned for cure
by BNPLC will include the time necessary to terminate NAI's right to possession
of the Project and evict NAI, provided that BNPLC commences the steps required
to exercise such right within sixty days after it is entitled to do so under the
terms of the Improvements Lease Documents and applicable law. If the undersigned
incurs additional costs due to the extension of the aforementioned cure period,
the undersigned shall be entitled to an equitable adjustment to the price of the
Construction Contract for such additional costs.
g) Any notice or communication required or permitted hereunder shall be
given in writing, sent by (a) personal delivery or (b) expedited delivery
service with proof of delivery or (c) United States mail, postage prepaid,
registered or certified mail or (d) telegram, telex or telecopy, addressed as
follows:
To the undersigned:
------------------- ------------------------------
------------------------------
------------------------------
Telecopy: (___) ___-_____
To BNPLC: BNP Leasing Corporation
-------- 00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx
Telecopy: (000) 000-0000
Exhibit C - Page 4
29
BNP Leasing Corporation
_______________, 200___
Page 5
A copy of any such notice or communication will also be sent to NAI by (a)
personal delivery or (b) expedited delivery service with proof of delivery or
(c) United States mail, postage prepaid, registered or certified mail or (d)
telegram, telex or telecopy, addressed as follows:
Network Appliance, Inc.
Attn: Corporate Secretary
0000 Xxx Xxxxxx Xxxxxxxxxx
Xxxxx Xxxxx, XX 00000
Telecopy: (___) ___-____
h) The undersigned acknowledges that it has all requisite authority to
execute this letter. The undersigned further acknowledges that BNPLC has
requested this letter, and is relying on the truth and accuracy of the
representations made herein, in connection with BNPLC's decision to advance
funds for construction under the Improvements Lease Documents with NAI.
Very truly yours,
-------------------------------------
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
NAI joins in the execution of this letter solely for the purpose of
evidencing its consent hereto, including its consent to the provisions that
would allow, but not require, BNPLC to assume the Construction Contract in the
event NAI is evicted from the Project.
Network Appliance, Inc.
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
Exhibit C - Page 5
30
Exhibit D
ESTOPPEL FROM DESIGN PROFESSIONALS
_________, 200__
BNP Leasing Corporation
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx
Re: Assignment of [Architect's Agreement/Engineering Contract]
Ladies and Gentlemen:
The undersigned hereby represents to BNP LEASING CORPORATION, a Delaware
corporation ("BNPLC"), and covenants with BNPLC as follows:
1. The undersigned has entered into that certain [Architect's
Agreement/Engineering Contract] (the "AGREEMENT") by and between the undersigned
and Network Appliance, Inc. ("NAI") dated _______, ____ for the
[design/engineering] of the improvements to be constructed as part of NAI's
Sunnyvale campus leased by NAI (the "IMPROVEMENTS") on the land described in the
Improvements Lease Documents described below (the "LAND" and, together with the
Improvements and any other improvements now on or constructed in the future on
the Land, the "PROJECT").
2. The undersigned has been advised that, by a Lease Agreement
(Phase V - Improvements) and a Construction Management Agreement (Phase V -
Improvements), both dated as of March 1, 2000 (collectively, the "IMPROVEMENTS
LEASE DOCUMENTS"), BNPLC is leasing the Project to NAI and has agreed, subject
to the terms and conditions of the Improvements Lease Documents, to provide a
construction allowance for the design and construction of the Improvements. The
undersigned has also been advised that the Improvements Lease Documents
expressly provide that third parties (including the undersigned) are not
intended as beneficiaries of the Improvements Lease Documents and, thus, will
have no standing to enforce any obligations of NAI or BNPLC under the
Improvements Lease Documents, including any such obligation that BNPLC may have
to provide the construction allowance. The undersigned understands that the
Improvements Lease Documents expressly provide that NAI is not authorized to
enter into any Agreement or other agreement with any third party in the name of
BNPLC or to otherwise bind BNPLC to any contract with a third party.
3. A complete and correct copy of the Agreement is attached to this
letter. The Agreement is in full force and effect and has not been modified or
amended, except as provided in any written modifications or amendments which are
also attached to this letter.
4. The undersigned has not sent or received any notice of default or any
other notice for the purpose of terminating the Agreement, nor does the
undesigned have knowledge of any
31
BNP Leasing Corporation
_______________, 200___
Page 2
existing circumstance or event which, but for the elapse of time or otherwise,
would constitute a default by the undersigned or by NAI under the Agreement.
The undersigned acknowledges and agrees that:
a) BNPLC shall not be liable for, and the undersigned shall not assert,
any claims, demands or liabilities against BNPLC arising under or in any way
relating to the Agreement; provided, this paragraph will not (1) be construed as
a waiver of any statutory mechanic's or materialmen's liens against the
interests of NAI in and to the Land or the improvements thereon that may
otherwise exist or arise in favor of the undersigned, or (2) prohibit the
undersigned from asserting any claims or making demands against BNPLC under the
Agreement if BNPLC elects in writing, pursuant to paragraph b) below, to assume
the Agreement in the event NAI's right to possession of the Land is terminated,
it being understood that in the event of such an assumption BNPLC shall be
liable for the unpaid balance of the fees for services of the undersigned,
payable pursuant to (and subject to the terms and conditions set forth for the
benefit of the owner in) the Agreement, but in no event shall BNPLC otherwise be
personally liable for any acts or omissions on the part of NAI.
b) Upon any termination of NAI's right to possession of the Project
under the Improvements Lease Documents, including any eviction of NAI resulting
from an Event of Default (as defined in the Improvements Lease Documents), BNPLC
shall be entitled (but not obligated), by notice to the undersigned and without
the necessity of the execution of any other document, to assume NAI's rights and
obligations under the Agreement, cure any defaults by NAI thereunder and enforce
the Agreement and all rights of NAI thereunder. Within ten days of receiving
notice from BNPLC that NAI's right to possession has been terminated, the
undersigned shall send to BNPLC a written estoppel letter stating: (i) that the
undersigned has not performed any act or executed any other instrument which
invalidates or modifies the Agreement in whole or in part (or, if so, the nature
of such modification); (ii) that the Agreement is valid and subsisting and in
full force and effect; (iii) that there are no defaults or events of default
then existing under the Agreement and no event has occurred which with the
passage of time or the giving of notice, or both, would constitute such a
default or event of default (or, if there is a default, the nature of such
default in detail); (iv) that the services contemplated by the Agreement are
proceeding in a satisfactory manner in all material respects (or if not, a
detailed description of all significant problems with the progress of services);
(v) a reasonably detailed report of the then critical dates projected by the
undersigned for services required to complete the Project; (vi) the total amount
received by the undersigned for services through the date of the letter; (vii)
the estimated total cost of completing such services as of the date of the
letter, together with a current payment schedule; and (viii) any other
information BNPLC may request to allow it to decide whether to assume the
Agreement. BNPLC shall have seven days from receipt of such written certificate
containing all such requested information to decide whether to assume the
Agreement. If BNPLC fails to assume the Agreement within such time, the
undersigned agrees that BNPLC shall not be liable (and the undersigned shall not
assert or bring any action against BNPLC or, except to enforce statutory lien
rights, if any, of the undersigned
Exhibit D - Page 2
32
BNP Leasing Corporation
_______________, 200___
Page 3
against the Land or improvements on the Land) for any damages or other amounts
resulting from the breach or termination of the Agreement or under any other
theory of liability of any kind or nature, but rather the undersigned shall look
solely to NAI (and statutory lien rights, if any, of the undersigned against the
Land and any improvements thereon) for the recovery of any such damages or other
amounts.
c) If BNPLC notifies the undersigned that BNPLC shall not assume the
Agreement pursuant to the preceding paragraph following the termination of NAI's
right to possession of the Project under the Improvements Lease Documents, the
undersigned shall immediately deliver and assign to BNPLC the following: (1)
copies of all plans and specifications for the Project or any component thereof
previously generated by or delivered to the undersigned, (2) any other contract
documents previously delivered to the undersigned (except that the undersigned
may keep an original set of the Agreement and other contract documents executed
by NAI), (3) any other material relating to the services provided under the
Agreement, and (4) to the extent available to the undersigned all papers and
documents relating to governmental permits, orders placed, bills and invoices,
lien releases and financial management under the Agreement. Notwithstanding the
undersigned's receipt of any notice from BNPLC that BNPLC declines to assume the
Agreement, the undersigned shall for a period not to exceed thirty days after
receipt of such notice take such steps, at BNPLC's expense, as are reasonably
necessary to preserve the utility and value of services completed and in
progress and to protect plans and specifications and other materials described
in the preceding sentence.
d) If the Agreement is terminated by NAI before BNPLC is given the
opportunity to elect whether or not to assume the Agreement as provided herein,
BNPLC shall nonetheless have the right hereunder to assume the Agreement, as if
it had not been terminated, upon any termination of NAI's right to possession of
the Project under the Improvements Lease Documents; provided, however, that if
the services of the undersigned under the Agreement has been disrupted because
of NAI's termination of the Agreement, the undersigned shall be entitled to an
equitable adjustment to the price of the Agreement, following any assumption
thereof by BNPLC, for the additional costs incurred by the undersigned
attributable to the disruption; and, provided further, that if BNPLC does assume
the Agreement, BNPLC shall receive a credit against the price of the Agreement
for any consideration paid to the undersigned by NAI because of NAI's prior
termination of the Agreement (whether such consideration is designated a
termination fee, settlement payment or otherwise).
e) No action taken by BNPLC or the undersigned with respect to the
Agreement shall prejudice any other rights or remedies of BNPLC or the
undersigned provided by law, by the Improvements Lease Documents, by the
Agreement or otherwise against NAI.
f) The undersigned agrees promptly to notify BNPLC of any material
default or claimed material default by NAI under the Agreement of which the
undersigned is aware, describing with particularity the default and the action
the undersigned believes is necessary to cure the same. The undersigned will
send any such notice to BNPLC prominently marked
Exhibit D - Page 3
33
BNP Leasing Corporation
_______________, 200___
Page 4
"URGENT - NOTICE OF NAI'S DEFAULT UNDER DESIGN AGREEMENT WITH NETWORK APPLIANCE,
INC. - SUNNYVALE, CALIFORNIA" at the address specified for notice below (or at
such other addresses as BNPLC shall designate in notice sent to the
undersigned), by certified or registered mail, return receipt requested.
Following receipt of such notice, the undersigned will permit BNPLC or its
designee to cure any such default within the time period reasonably required for
such cure, but in no event less than thirty days.
g) Any notice or communication required or permitted hereunder shall be
given in writing, sent by (a) personal delivery or (b) expedited delivery
service with proof of delivery or (c) United States mail, postage prepaid,
registered or certified mail or (d) telegram, telex or telecopy, addressed as
follows:
To the undersigned:
------------------- ------------------------------
------------------------------
------------------------------
Telecopy: (___) ___-_____
To BNPLC: BNP Leasing Corporation
--------- 00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx
Telecopy: (000) 000-0000
A copy of any such notice or communication will also be sent to NAI by (a)
personal delivery or (b) expedited delivery service with proof of delivery or
(c) United States mail, postage prepaid, registered or certified mail or (d)
telegram, telex or telecopy, addressed as follows:
Network Appliance, Inc.
Attn: Corporate Secretary
0000 Xxx Xxxxxx Xxxxxxxxxx
Xxxxx Xxxxx, XX 00000
Telecopy: (___) ___-____
Exhibit D - Page 4
34
BNP Leasing Corporation
_______________, 200___
Page 5
h) The undersigned acknowledges that it has all requisite authority to
execute this letter. The undersigned further acknowledges that BNPLC has
requested this letter, and is relying on the truth and accuracy of the
representations made herein, in connection with BNPLC's decision to advance
funds for design services under the Improvements Lease Documents with NAI.
Very truly yours,
--------------------------------------
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
NAI joins in the execution of this letter solely for the purpose of
evidencing its consent hereto, including its consent to the provisions that
would allow, but not require, BNPLC to assume the Agreement in the event NAI is
evicted from the Project.
Network Appliance, Inc.
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
Exhibit D - Page 5
35
Exhibit E
NOTICE REQUESTING ADVANCE TO COVER PROPERTY INSURANCE DEDUCTIBLE
BNP Leasing Corporation
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx
Re: Construction Management Agreement (Phase V - Improvements) dated
as of March 1, 2000 (the "CONSTRUCTION MANAGEMENT AGREEMENT"),
between Network Appliance, Inc. ("NAI") and BNP Leasing
Corporation ("BNPLC")
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Construction Management Agreement or in the Common
Definitions and Provisions Agreement (Phase V - Improvements) referenced in the
Construction Management Agreement. This letter shall constitute a request made
pursuant to subparagraph 2(A) of the Construction Management Agreement for a
final additional Construction Advance in the form of an addition to Escrowed
Proceeds equal to:
$______________________,
on the Base Rent Commencement Date, which will occur on:
______________, 200_.
To induce BNPLC to make such Construction Advance, NAI represents and
warrants as follows: (x) the dollar amount specified above equals the property
insurance deductible permitted under the insurance requirements set forth in the
Lease, (y) a Pre-commencement Casualty has resulted in damage to the
Improvements, for which the cost of repairs will because of such deductible -
exceed the Escrowed Proceeds paid or payable in connection with such damage
under the property insurance maintained by NAI in accordance with the insurance
requirements in the Improvements Lease, and (z) NAI has not and will not
otherwise receive a Construction Advance to reimburse such excess costs prior to
the expiration of BNPLC's obligation to make further Construction Advances as
provided in subparagraph 2(C)(3) of the Construction Management Agreement.
NAI ACKNOWLEDGES THAT IF ANY REPRESENTATION ABOVE IS NOT TRUE, THEN NAI'S
OBLIGATION TO INDEMNIFY AGAINST LOSSES SUSTAINED BY BNPLC OR ANY OTHER
INTERESTED PARTY BECAUSE OF ITS RELIANCE ON THIS LETTER SHALL CONSTITUTE
ABSOLUTE NAI CONSTRUCTION OBLIGATIONS UNDER THE CONSTRUCTION MANAGEMENT
AGREEMENT AND THE IMPROVEMENTS LEASE.
36
Executed this _____ day of ______________, 20___.
NETWORK APPLIANCE, INC.
Name:
---------------------------------
Title:
--------------------------------
[cc all Participants]
Exhibit E - Page 2
37
Exhibit F
CONSTRUCTION ADVANCE REQUEST FORM
BNP Leasing Corporation
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx
Re: Construction Management Agreement (Phase V - Improvements) dated
as of March 1, 2000 (the "CONSTRUCTION MANAGEMENT AGREEMENT"),
between Network Appliance, Inc. ("NAI") and BNP Leasing
Corporation ("BNPLC")
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Construction Management Agreement or in the Common
Definitions and Provisions Agreement (Phase V - Improvements) referenced in the
Construction Management Agreement. This letter shall constitute a Construction
Advance Request, requesting a Construction Advance of:
$_____________________,
on the Advance Date that will occur on:
___________, 200 .
Such total amount can be properly allocated between what we call "Building 4"
and "Building 5" as follows:
Building 4.................................................... $_____________
Building 5.................................................... $_____________
Total (as set forth above)....... $_____________
To induce BNPLC to make such Construction Advance, NAI represents and
warrants as follows:
I. CALCULATION OF LIMIT IMPOSED BY SUBPARAGRAPH 2(C)(2)(b) OF THE
CONSTRUCTION MANAGEMENT AGREEMENT:
(1) NAI has paid or incurred bona fide Reimbursable Construction-Period Costs
other than for Work (e.g., property taxes) of no less than.............. $____________
38
(2) NAI has paid or incurred bona fide Reimbursable Construction-Period Costs
for Prior Work of no less than.......................................... $____________
(3) NAI has received prior Construction Advances of no more than........ $____________
LIMIT (1 + 2 - 3)...................................... $____________
II. PROJECTED COST OVERRUNS:
NAI [CHECK ONE: _ DOES / _ DOES NOT ] believe that Projected Construction
Overruns are more likely than not. [If NAI does believe that Projected Cost
Overruns are more likely than not, and if NAI believes that the amount of such
Projected Construction Overruns can be reasonably estimated, NAI estimates the
same at $___________.]
NOTE: The Construction Management Agreement defines Projected
Construction Overruns as the excess, if any, of (1) the total of
projected Reimbursable Construction-Period Costs yet to be incurred or
for which NAI has yet to be reimbursed hereunder (including projected
Reimbursable Construction-Period Costs for Future Work), over (2) the
balance of the remaining Construction Allowance projected to be
available to cover such costs.
III. ABSENCE OF CERTAIN CMA SUSPENSION EVENTS:
A. The Construction Project is progressing without significant
interruption in a good and workmanlike manner and substantially in accordance
with Applicable Laws, with Permitted Encumbrances, with Development Documents
and with the requirements of the Construction Management Agreement, except as
follows: (IF THERE ARE NO EXCEPTIONS, INSERT "NO EXCEPTIONS")
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
B. If NAI has received notice of any Defective Work, NAI has promptly
corrected or is diligently pursuing the correction of such Defective Work,
except as follows: (IF THERE ARE NO EXCEPTIONS, INSERT "NO EXCEPTIONS")
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
NAI ACKNOWLEDGES THAT IF ANY REPRESENTATION ABOVE IS NOT TRUE, THEN NAI'S
OBLIGATION TO INDEMNIFY AGAINST LOSSES SUSTAINED BY BNPLC OR ANY OTHER
INTERESTED PARTY BECAUSE OF ITS RELIANCE ON THIS LETTER SHALL CONSTITUTE
ABSOLUTE NAI CONSTRUCTION
Exhibit F - Page 2
39
OBLIGATIONS UNDER THE CONSTRUCTION MANAGEMENT AGREEMENT AND THE IMPROVEMENTS
LEASE.
Executed this _____ day of ______________, 20___.
NETWORK APPLIANCE, INC.
Name:
--------------------------------
Title:
-------------------------------
[cc all Participants]
Exhibit F - Page 3
40
Exhibit G
NOTICE OF VOLUNTARY NAI CONSTRUCTION CONTRIBUTION
BNP Leasing Corporation
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx
Re: Construction Management Agreement (Phase V - Improvements) dated
as of March 1, 2000 (the "CONSTRUCTION MANAGEMENT AGREEMENT"),
between Network Appliance, Inc. ("NAI") and BNP Leasing
Corporation ("BNPLC")
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Construction Management Agreement or in the Common
Definitions and Provisions Agreement (Phase V - Improvements) referenced in the
Construction Management Agreement. This letter shall constitute notice, given as
described in subparagraph 4(C) of the Construction Management Agreement, that
NAI is paying with this letter, or unconditionally and irrevocably committing to
pay as described below, a Voluntary NAI Construction Contribution in the amount
of $_____________________.
Such payment by NAI will be in addition to any Voluntary NAI
Construction Contributions required by other notices given by NAI as described
in subparagraph 4(C) of the Construction Management Agreement.
Further, if the Voluntary NAI Construction Contribution required by this
letter is not being delivered to BNPLC by NAI contemporaneously with this
letter, then at such time as BNPLC's obligation to fund additional Construction
Advances is excused by any of the terms and conditions set forth in the
Construction Management Agreement, NAI shall be obligated to deliver such
Voluntary NAI Construction Contribution as required to eliminate (or reduce to
the maximum extent possible) Projected Cost Overruns, including any Projected
Cost Overruns caused by the accrual of Carrying Costs under and as described in
the Improvements Lease referenced in the Construction Management Agreement.
Executed this _____ day of ______________, 20___.
NETWORK APPLIANCE, INC.
Name:
--------------------------------
Title:
-------------------------------
[cc all Participants]
41
Exhibit H
PREEMPTIVE NOTICE BY NAI
BNP Leasing Corporation
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx
Re: Construction Management Agreement (Phase V - Improvements) dated
as of March 1, 2000 (the "CONSTRUCTION MANAGEMENT AGREEMENT"),
between Network Appliance, Inc. ("NAI") and BNP Leasing
Corporation ("BNPLC")
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Construction Management Agreement or in the Common
Definitions and Provisions Agreement (Phase V - Improvements) referenced in the
Construction Management Agreement. This letter is intended to constitute a
Preemptive Notice, given as described in subparagraph 5(B) of the Construction
Management Agreement. As provided in clause (2) of the definition of Designated
Sale Date in the Common Definitions and Provisions Agreement (Phase V -
Improvements), this letter shall constitute notice, given in accordance with
clause (2) of the definition of Common Definitions and Provisions Agreement
(Phase V - Improvements), that NAI designates the following date as the
Designated Sale Date:
----------------, ----.
NAI acknowledges, however, that this notice will not be effective as a
Preemptive Notice if (1) such date is sooner than thirty days after the date of
this notice or later than ninety days after the date of any FOCB Notice
previously given by BNPLC under the Construction Management Agreement, or (2)
NAI has previously made any Issue 97-10 Election.
NAI hereby unconditionally, unequivocally and irrevocably: (1) waives
any right to make any Issue 97-10 Election under any of the Operative Documents,
and (2) acknowledges and agrees that for purposes of calculating the
Supplemental Payment required by the Purchase Agreement, the Maximum Remarketing
Obligation will equal the Break Even Price under the Purchase Agreement.
Executed this _____ day of ______________, 20___.
NETWORK APPLIANCE, INC.
Name:
--------------------------------
Title:
-------------------------------
[cc all Participants]
42
Exhibit I
NOTICE OF TERMINATION BY NAI
BNP Leasing Corporation
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx
Re: Construction Management Agreement (Phase V - Improvements) dated
as of March 1, 2000 (the "CONSTRUCTION MANAGEMENT AGREEMENT"),
between Network Appliance, Inc. ("NAI") and BNP Leasing
Corporation ("BNPLC")
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Construction Management Agreement referenced above or in
the Common Definitions and Provisions Agreement (Phase V - Improvements)
referenced in the Construction Management Agreement.
NAI has determined that (1) the Construction Advances to be provided to
it under the Construction Management Agreement will not be sufficient to cover
all Construction-Period Reimbursable Costs, whether because the cost of the Work
exceeds budgeted expectations (resulting in Projected Cost Overruns) or because
NAI can no longer satisfy conditions to BNPLC's obligation to provide
Construction Advances in the Construction Management Agreement, or (2) the
Construction Project cannot be substantially completed before the Base Rent
Commencement Date for reasons other than a breach by NAI of the Construction
Management Agreement. Accordingly, this letter shall constitute a Notice of
NAI's Election to Terminate the Construction Management Agreement, given as
provided in subparagraph 5(D) of the Construction Management Agreement.
NAI irrevocably and unconditionally elects to terminate the Construction
Management Agreement effective as of the following date (which, as required by
subparagraph 5(D) thereof is a date not less than thirty days after the date
this notice is given):
_________, 200__
NAI ACKNOWLEDGES THAT THE ELECTION MADE BY NAI DESCRIBED ABOVE
CONSTITUTES AN ISSUE 97-10 ELECTION UNDER AND AS DEFINED IN THE OPERATIVE
DOCUMENTS.
Executed this _____ day of ______________, 20___.
NETWORK APPLIANCE, INC.
Name:
--------------------------------
Title:
-------------------------------
[cc all Participants]
