Sample Construction Contract

Exhibit 10.56

TABLE OF CONTENTS

		Page
ENGAGEMENT AND AUTHORIZATION			1
GENERAL TERMS AND CONDITIONS			2
1     Additional definitions			2
“97-10/Maximum Permitted Prepayment”			2
“97-10/Meltdown Event”			2
“97-10/Prepayment”			3
“97-10/Project Costs”			3
“97-10/Pronouncement”			4
“NAI’s Estimate of Force Majeure Delays”			4
“NAI’s Estimate of Force Majeure Excess Costs”			4
“Accrued Construction Period Interest Expense”			4
“Administrative Fee”			5
“Affiliate’s Contract”			5
“Arrangement Fee”			5
“Capital Adequacy Charges”			5
“Carrying Costs”			5
“Commitment Fee Rate”			5
“Commitment Fees”			6
“Complete Taking”			6
“Completion Date”			6
“Completion Notice”			6
“Construction Advances”			6
“Construction Advance Request”			6
“Construction Allowance”			7
“Construction Budget”			7
“Construction Project”			7
“Covered Construction Period Losses”			7
“Defective Work”			7
“FOCB Notice”			7
“Force Majeure Event”			8
“Funded Construction Allowance”			8
“Future Work”			8
“Ground Lease Rents”			8
“Increased Cost Charges”			8
“Increased Commitment”			8
“Increased Funding Commitment”			8
“Increased Time Commitment”			8
“Initial Advance”			8
“Maximum Construction Allowance”			8
“Notice of NAI’s Intent to Terminate”			8
“Notice of NAI’s Intent to Terminate Because of a Force Majeure Event”			8

TABLE OF CONTENTS
(Continued)

		Page
“Notice of Termination by NAI”			9
“Outstanding Construction Allowance”			9
“Owner’s Election to Continue Construction”			9
“Pre-lease Casualty”			9
“Pre-lease Force Majeure Delays”			9
“Pre-lease Force Majeure Event”			9
“Pre-lease Force Majeure Event Notice”			9
“Pre-lease Force Majeure Excess Costs”			9
“Pre-lease Force Majeure Losses”			9
“Prior Work”			10
“Projected Cost Overruns”			10
“Reimbursable Construction Period Costs”			11
“Remaining Proceeds”			11
“Scope Change”			11
“Target Completion Date”			11
“Termination of NAI’s Work”			11
“Third Party Contract”			11
“Third Party Contract/Termination Fees”			12
“Timing or Budget Shortfall”			12
“Work”			12
“Work/Suspension Event”			12
“Work/Suspension Notice”			13
“Work/Suspension Period”			13
2 Construction and Management of the Property by NAI			14
(A) The Construction Project			14
(1) Construction Approvals by BNPPLC			14
(a)Preconstruction Approvals by BNPPLC			14
(b)Approval of Scope Changes			14
(2) NAI’s Right to Possession and to Control Construction			14
(a)Performance of the Work			15
(b)Third Party Contracts			15
(c)Adequacy of Drawings, Specifications and Budgets			16
(d)Existing Condition of the Land and Improvements			16
(e)Correction of Defective Work			16
(f)Clean Up			16
(g)No Damage for Delays			16
(h)No Fee For Construction Management			17
(3) Quality of Work			17
(B) Completion Notice			17
(C) Status of Property Acquired With BNPPLC’s Funds			17

TABLE OF CONTENTS
(Continued)

		Page
(D) Insurance			18
(1) Liability Insurance			18
(2) Property Insurance			18
(3) Failure of NAI to Obtain Insurance			19
(4) Waiver of Subrogation			19
(E) Condemnation			19
(F) Additional Representations, Warranties and Covenants of NAI Concerning the Property			20
(1) Payment of Local Impositions			20
(2) Operation and Maintenance			21
(3) Debts for Construction, Maintenance, Operation or Development			22
(4) Permitted Encumbrances and the Ground Lease			22
(5) Books and Records Concerning the Property			22
(G) BNPPLC’s Right of Access			22
(1) Access Generally			22
(2) Failure of NAI to Perform			23
3 Amounts to be Added to the Lease Balance (in Addition to Construction Advances)			23
(A) Initial Advance			24
(B) Carrying Costs			25
(C) Commitment Fees			25
(D) Future Administrative Fees and Out-of-Pocket Costs			26
(E) Increased Cost Charges and Capital Adequacy Charges			26
(F) Ground Lease Payments			27
4 Construction Advances			27
(A) Costs Subject to Reimbursement Through Construction Advances			27
(B) Exclusions From Reimbursable Construction Period Costs			29
(C) Conditions to NAI’s Right to Receive Construction Advances			29
(1) Construction Advance Requests			29
(2) Amount of the Advances			30
(a) The Maximum Construction Allowance			30
(b) Costs Previously Incurred by NAI			30
(c) Limits During any Work/Suspension Period			31
(d) Restrictions Imposed for Administrative Convenience			31
(3) No Advances After Certain Dates			31
(D) Breakage Costs for Construction Advances Requested But Not Taken			31
(E) No Third Party Beneficiaries			32
(F) No Waiver			32
5 Application of Insurance and Condemnation Proceeds			32
(A) Collection and Application Generally			32

TABLE OF CONTENTS
(Continued)

		(B)		Advances of Escrowed Proceeds to NAI					33
		(C)		Status of Escrowed Proceeds After Commencement of the Term of the Lease					33
		(D)		Special Provisions Applicable After a 97-10/Meltdown Event or Event of Default					33
		(E)		NAI’s Obligation to Restore					33
		(F)		Special Provisions Concerning a Complete Taking					34
6		Notice of Cost Overruns and Pre-lease Force Majeure Events							34
		(A)		Notice of Projected Cost Overruns					34
		(B)		Pre-lease Force Majeure Event Events and Notices					34
7		Suspension and Termination of NAI’s Work							34
		(A)		Rights and Obligations During a Work/Suspension Period					34
		(B)		NAI’s Election to Terminate NAI’s Work					34
		(C)		BNPPLC’s Election to Terminate NAI’s Work					38
		(D)		Surviving Rights and Obligations					38
		(E)		Cooperation After a Termination of NAI’s Work					38
8		Continuation of Construction by BNPPLC							40
		(A)		Owner’s Election to Continue Construction					40
				(1)		Take Control of the Property			40
				(2)		Continuation of Construction			40
				(3)		Arrange for Turnkey Construction			41
				(4)		Suspension or Termination of Construction by BNPPLC			41
		(B)		Powers Coupled With an Interest					42
9		NAI’s Obligation for 97-10/Prepayments							42
10		Indemnity for Covered Construction Period Losses							43
		(A)		Covenant to Indemnify Against Covered Construction Period Losses					43
		(B)		Certain Losses Included or Excluded					44
				(1)		Environmental			44
				(2)		Failure to Maintain a Safe Work Site			44
				(3)		Failure to Complete Construction			45
				(4)		Fraud			45
				(5)		Excluded Taxes and Established Misconduct			45
		(C)		Express Negligence Protection					45
		(D)		Survival of Indemnity					46
		(E)		Due Date for Indemnity Payments					46
		(F)		Order of Application of Payments					46
		(G)		Defense of BNPPLC					46
				(1)		Assumption of Defense			46
				(2)		Indemnity Not Contingent			46
		(H)		Notice of Claims					47
		(I)		Withholding of Consent to Settlements Proposed by NAI					47
		(J)		Settlements Without the Prior Consent of NAI					47

TABLE OF CONTENTS
(Continued)

		Page
(1)  Election to Pay Reasonable Settlement Costs in Lieu of Actual			47
(2)  Conditions to Election			48
(3)  Indemnity Survives Settlement			48
(K) No Authority to Admit Wrongdoing on the Part of NAI			48
(L) Refunds of Covered Construction Period Losses Paid by NAI			49
(1)  Payment by BNPPLC After Refund			49
(2)  Meaning of Refund			49
(3)  Conditions to Payment			50

Exhibits and Schedules

Exhibit A		Legal Description
Exhibit B		Description of the Construction Project and Budget
Exhibit C		Construction Advance Request Form
Exhibit D		Pre-lease Force Majeure Event Notice
Exhibit E		Notice of Termination by NAI's Work
Exhibit F		Notice of NAI's Intent to Terminate
Exhibit G		Notice of Increased Funding Commitment by BNPPLC
Exhibit H		Notice of Increased Time Commitment by BNPPLC
Exhibit I		Notice of Rescission of NAI's Intent to Terminate

CONSTRUCTION AGREEMENT

     This CONSTRUCTION AGREEMENT (this “ Agreement ”), dated as of July 17, 2007 (the “ Effective Date ”), is made by and between BNP PARIBAS LEASING CORPORATION (“ BNPPLC ”), a Delaware corporation, and NETWORK APPLIANCE, INC. (“ NAI ”), a Delaware corporation.

RECITALS

     Contemporaneously with the execution of this Agreement, BNPPLC and NAI are executing a Common Definitions and Provisions Agreement dated as of the Effective Date (the “ Common Definitions and Provisions Agreement ”), which by this reference is incorporated into and made a part of this Agreement for all purposes. As used in this Agreement, capitalized terms defined in the Common Definitions and Provisions Agreement and not otherwise defined in this Agreement are intended to have the respective meanings assigned to them in the Common Definitions and Provisions Agreement.

     At the request of NAI and to facilitate the transaction contemplated in the other Operative Documents, contemporaneously with this Agreement BNPPLC is executing and accepting a Ground Lease from NAI (the “ Ground Lease ”), pursuant to which BNPPLC is acquiring a leasehold estate in the Land described in Exhibit A and any existing Improvements on such Land.

     Also contemporaneously with this Agreement, BNPPLC and NAI are executing a Lease Agreement (the “ Lease ”), pursuant to which the parties expect that NAI will lease the Improvements on the Land described in Exhibit A from BNPPLC for a lease term that will commence on the Completion Date (as defined below).

     In anticipation of the construction of new or additional Improvements for NAI’s use pursuant to the Lease, BNPPLC and NAI have agreed upon the terms and conditions upon which BNPPLC is willing to authorize NAI to arrange and manage such construction and upon which BNPPLC is willing to provide funds for such construction, and by this Agreement BNPPLC and NAI desire to evidence such agreement.

ENGAGEMENT AND AUTHORIZATION

     Subject to the terms and conditions set forth in this Agreement, BNPPLC does hereby engage and authorize NAI — and NAI does hereby accept such engagement and authorization, as an independent contractor for BNPPLC — to construct the Construction Project on the Land and to manage such construction for BNPPLC. As more particularly provided in subparagraph 2(A)(2) below, NAI will take possession and control of the Land and all

Improvements on the Land to accomplish such construction. However, the rights and authority granted to NAI by this Agreement are expressly made subject and subordinate to the terms and condition hereinafter set forth and to the Ground Lease, to the Permitted Encumbrances and to any other claims or encumbrances affecting the Land or the Property that may be asserted by third parties other than Liens Removable by BNPPLC.

GENERAL TERMS AND CONDITIONS

1 Additional definitions . As used in this Agreement, capitalized terms defined above will have the respective meanings assigned to them above; as indicated above, capitalized terms that are defined in the Common Definitions and Provisions Agreement and that are used but not defined herein will have the respective meanings assigned to them in the Common Definitions and Provisions Agreement; and, the following terms will have the following respective meanings:

“ 97-10/Maximum Permitted Prepayment ” as of any date means the amount equal to eighty-nine and nine-tenths of one percent (89.9%) of the aggregate of all 97-10/Project Costs paid or incurred on or prior to such date.

“ 97-10/Meltdown Event ” means any of the following:

     (a) NAI gives a Notice of NAI’s Intent to Terminate and thereafter (i) fails to rescind the same as described in subparagraph 7(B)(7) within ten days after BNPPLC responds with any Increased Commitment, or (ii) gives a Notice of Termination by NAI as provided in subparagraph 7(B)(1); or

     (b) NAI gives a notice to terminate its Supplemental Payment Obligation under the Purchase Agreement as described in subparagraph 6(B) of the Purchase Agreement; or

     (c) BNPPLC gives notice to NAI as described in subparagraph 7(C) to cause a Termination of NAI’s Work; or

     (d) NAI fails for any reason whatsoever to substantially complete the Construction Project and give a Completion Notice to BNPPLC prior to the Target Completion Date; or

     (e) for any reason whatsoever (including the accrual of Carrying Costs), the Funded Construction Allowance exceeds the Maximum Construction Allowance.

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“ 97-10/Prepayment ” means any payment to BNPPLC required by Paragraph 9, which in each case will equal (A) the 97-10/Maximum Permitted Prepayment, computed as of the date on which the payment becomes due, less (B) the sum of (1) the accreted value of any prior payments actually received by BNPPLC from NAI constituting 97-10/Prepayments, and (2) amounts (if any) then owed by BNPPLC to NAI pursuant to this Agreement as reimbursements for Reimbursable Construction Period Costs paid by NAI and not theretofore reimbursed. For purposes of the preceding sentence, “accreted value” of a payment means the amount of the payment plus an amount equal to the interest that would have accrued on the payment if it bore interest at the Effective Rate plus the Spread.

“ 97-10/Project Costs ” means the following:

     (a) costs incurred for 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 any Permitted Encumbrance,
	•		site preparation costs, and
	•		costs of offsite and other public improvements required as conditions of governmental approvals for the Construction Project or required by any Permitted Encumbrances;

     (b) costs incurred to maintain insurance required by (and consistent with the requirements of) this Agreement prior to the Completion Date;

     (c) Local Impositions that have accrued or become due prior to the Completion Date;

     (d) Accrued Construction Period Interest Expense; and

     (e) any costs in addition to those described in clauses (a) through (d) preceding that GAAP (as it exists on the Effective Date) would allow BNPPLC to capitalize as part of the cost of the Property or that the 97-10/Pronouncement would allow BNPPLC to characterize as project costs, including: (1) cancellation or termination

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fees or other compensation payable by NAI or BNPPLC pursuant to any contract concerning the Construction Project made by NAI or BNPPLC with any general contractor, architect, engineer or other third party because of any election by NAI or BNPPLC to cancel or terminate such contract, and (2) any costs that BNPPLC incurs and is allowed to capitalize to continue or complete the Construction Project after any Owner’s Election to Continue Construction as provided in subparagraph 8(A).

However, notwithstanding the foregoing, 97-10/Project Costs will not include Pre-lease Force Majeure Losses, Administrative Fees, the Arrangement Fee or any legal fees which are included in Transaction Expenses.

“ 97-10/Pronouncement ” means the pronouncement issued by the Emerging Issues Task Force of the Financial Accounting Standards Board in 1998 titled “ EITF 97-10: The Effect of Lessee Involvement in Asset Construction ”, which provides that certain kinds of involvement by a lessee in pre-lease commencement construction will cause the lessee to be considered as the owner of the leased property during the construction period and then will require application of the appropriate sale and leaseback accounting rules.

“ NAI’s Estimate of Force Majeure Delays ” has the meaning indicated in subparagraph 7(B)(4).

“ NAI’s Estimate of Force Majeure Excess Costs ” has the meaning indicated in subparagraph 7(B)(3).

“ Accrued Construction Period Interest Expense ” means interest that has accrued and that BNPPLC has paid or is obligated to pay on Funding Advances for any period prior to the Completion Date. Such interest will include a percentage, equal to the aggregate Percentages of all Participants (under and as defined in the Participation Agreement), of Carrying Costs and Commitment Fees that accrue after the execution of any Participation Agreement and that are added to the Outstanding Construction Allowance as provided in this Agreement, it being understood that the additional amounts BNPPLC must pay to the Participants under the Participation Agreement because of the accrual of Carrying Costs and Commitment Fees effectively constitute construction period interest on advances the Participants make to BNPPLC under the Participation Agreement. Accrued Construction Period Interest Expense will also include any interest and other finance charges that accrue prior to the Completion Date because of Funding Advances provided to BNPPLC by BNPPLC’s Parent in the form of loans, regardless of whether BNPPLC’s obligation in respect of such loans is limited to BNPPLC’s interest in the Property. However, any such interest and other finance charges accruing on Funding Advances provided by BNPPLC’s Parent and included in Accrued Construction Period Interest Expense will not exceed the Carrying Costs attributable to the portion of the Lease Balance funded or maintained by

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such Funding Advances. Further, Accrued Construction Period Interest will not include any portion of Carrying Costs included in Pre-lease Force Majeure Losses (as set forth in the definition thereof below) or interest or finance charges that BNPPLC must pay to the Participants under the Participation Agreement because of the accrual of such portion of Carrying Costs.

“ Administrative Fee ” has the meanings indicated in subparagraph 3(A) and subparagraph 3(D).

“ Affiliate’s Contract ” has the meaning indicated in subparagraph 2(A)(2)(b)2).

“ Arrangement Fee ” has the meaning indicated in subparagraph 3(A).

“ Capital Adequacy Charges ” has the meaning indicated in subparagraph 3(E)(1).

“ Carrying Costs ” has the meaning indicated in subparagraph 3(B).

“ Commitment Fee Rate ” means, for each Construction Period, the amount established as of the date (in this definition, the “ CFR Test Date ”) that is two Business Days prior to such period by reference to the pricing grid below, based upon the ratio calculated by dividing (1) Adjusted EBITDA for the then latest Rolling Four Quarters Period that ended prior to (and for which NAI has reported earnings as necessary to compute Adjusted EBITDA) into (2) the Total Debt of NAI and its Subsidiaries (determined on a consolidated basis) as of the end of such Rolling Four Quarters Period. In each case, the Commitment Fee Rate will be established at the Level in the pricing grid below which corresponds to such ratio; provided , that promptly after earnings are reported by NAI for the latest quarter in any Rolling Four Quarters Period, NAI must notify BNPPLC of any resulting change in the Commitment Fee Rate under this definition, and no reduction in the Commitment Fee Rate from one period to the next will be effective for purposes of this Agreement unless, prior to the CFR Test Date for the next period, NAI shall have provided BNPPLC with a written notice setting forth and certifying the calculation under this definition that justifies the reduction.

Levels		Ratio of Total Debt to Adjusted EBITDA		Spread
Level I		less than 0.5		8.0 basis points
Level II		greater than or equal to 0.5, but less than 1.0		10.0 basis points

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Levels		Ratio of Total Debt to Adjusted EBITDA		Spread
Level III		greater than or equal to 1.0, but less than 1.5		12.5 basis points
Level IV		greater than or equal to 1.5		15.0 basis points

All determinations of the Spread by BNPPLC will, in the absence of clear and demonstrable error, be binding and conclusive for purposes of the Operative Documents. Further BNPPLC may, but will not be required, to rely on the determination of the Spread set forth in any notice delivered by NAI as described above in clause (a) of this definition..

“ Commitment Fees ” has the meaning indicated in subparagraph 3(C).

“ Complete Taking ” means a taking by eminent domain prior to the Completion Date over NAI’s objection of all of the Land or the Property, or so much thereof as to make it impossible to complete the Construction Project for its intended uses on the Land regardless of any Scope Changes BNPPLC may be willing to approve or any Increased Commitment that BNPPLC may be willing to provide.

“ Completion Date ” means the date upon which NAI gives the notice to BNPPLC which is required by subparagraph 2(B), after having substantially completed the Construction Project and having obtained any certificate of occupancy or other permit (temporary or permanent) required for the commencement of NAI’s use of the Improvements.

“ Completion Notice ” means the notice required by subparagraph 2(B) from NAI to BNPPLC, advising BNPPLC that NAI has substantially completed construction of the Construction Project and has obtained any certificate of occupancy or other permit (temporary or permanent) required for the commencement of NAI’s use of the Improvements.

“ Construction Advances ” means (1) actual advances of funds made by or on behalf of BNPPLC to or on behalf of NAI as provided in Paragraph 4, which sets forth NAI’s rights to receive advances for Reimbursable Construction Period Costs, and (2) other amounts paid or incurred by BNPPLC that subparagraph 8(A) or other provisions of this Agreement allow BNPPLC to characterize as Construction Advances. The term “Construction Advances” will not, however, include advances of insurance proceeds, condemnation proceeds or other Escrowed Proceeds to pay or reimburse costs of repairs or restoration.

“ Construction Advance Request ” has the meaning indicated in subparagraph 4(C)(1).

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“ Construction Allowance ” means the allowance to be provided by BNPPLC for the design and construction of the Construction Project, against which and from which Carrying Costs, Construction Advances and other amounts will be or may be charged and paid as provided in various provisions of this Agreement (including Paragraphs 3, 4 and 8).

“ Construction Budget ” means the budget for the Construction Project set forth in Exhibit B .

“ Construction Project ” means the new buildings or other substantial Improvements to be constructed, or the alteration of existing Improvements, as described generally in Exhibit B .

“ Covered Construction Period Losses ” has the meaning indicated in subparagraph 10(A).

“ Defective Work ” has the meaning indicated in subparagraph 2(A)(2)(e).

“ FOCB Notice ” means a notice from BNPPLC to NAI advising NAI of any of the following events or circumstances, and also advising NAI that because of any of the following events or circumstances BNPPLC will be entitled to make the election described in subparagraph 7(C), which will constitute a Termination of NAI’s Work and a 97-10/Meltdown Event:

     (1) NAI has taken action to cancel or terminate or reduce the coverage available to BNPPLC under the builder’s risk insurance obtained for the Construction Project as required by this Agreement, or NAI has otherwise failed to maintain any insurance or to provide insurance certificates to BNPPLC as required by this Agreement and not cured such failure within ten days after receiving notice thereof, or

     (2) NAI has given any Pre-lease Force Majeure Event Notice to BNPPLC, or

     (3) an Event of Default has occurred and is continuing; or

     (4) a Work/Suspension Event has occurred and continued for more than thirty consecutive days after NAI’s receipt of a Work/Suspension Notice advising NAI of such Work/Suspension Event, and subsequent to such thirty day period the Work/Suspension Event has not been rectified by NAI.

“ Force Majeure Event ” means (A) any taking of any part of the Property by eminent domain prior to the Completion Date, and (B) any damage to the Improvements or

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disruption of the Work that occurs prior to the Completion Date and that is caused by fire or acts of God (such as flood, lightning, earthquake or hurricane), war, strikes and other labor disputes, or riot or similar civil disturbance, but only to the extent such damage or disruption (i) is beyond the control of and not caused in whole or in part by negligence, illegal acts or willful misconduct on the part of NAI or of its employees or of any other party acting under NAI’s control or with the approval or authorization of NAI, and (ii) could not have been avoided or overcome by the exercise of due diligence or reasonable foresight on the part of NAI or of any other such party.

“ Funded Construction Allowance ” means on any day the Outstanding Construction Allowance on that day, including all Construction Advances and Carrying Costs added to the Outstanding Construction Allowance on or prior to that day, plus the amount of any Qualified Prepayments deducted on or prior to that day in the calculation of such Outstanding Construction Allowance.

“ Future Work ” has the meaning indicated in subparagraph 4(C)(2)(b).

“ Ground Lease Rents ” has the meaning indicated in subparagraph 3(F).

“ Increased Cost Charges ” has the meaning indicated in subparagraph 3(E)(1).

“ Increased Commitment ” has the meaning indicated in subparagraph 7(B)(6).

“ Increased Funding Commitment ” has the meaning indicated in subparagraph 7(B)(6)(a).

“ Increased Time Commitment ” has the meaning indicated in subparagraph 7(B)(6)(b).

“ Initial Advance ” has the meaning indicated in subparagraph 3(A).

“ Maximum Construction Allowance ” means an amount equal to the difference computed by subtracting the Initial Advance from $61,000,000, as such amount may be increased from time to time by any Increased Funding Commitment made by BNPPLC as provided in subparagraph 7(B)(6).

“ Notice of NAI’s Intent to Terminate ” has the meaning indicated in subparagraph 7(B)(2).

“ Notice of NAI’s Intent to Terminate Because of a Force Majeure Event ” has the meaning indicated in subparagraph 7(B)(5).

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“ Notice of Termination by NAI ” has the meaning indicated in subparagraph 7(B)(1).

“ Outstanding Construction Allowance ” means, as of any date, the difference (but not less than zero) of (A) the total Construction Advances made by or on behalf of BNPPLC on or prior to such date in question, plus (B) all Carrying Costs, Commitment Fees, Administrative Fees, Increased Cost Charges and Capital Adequacy Charges added on or prior to the date as provided in Paragraph 3, less (C) any funds received and applied as Qualified Prepayments on or prior to such date.

“ Owner’s Election to Continue Construction ” has the meaning indicated in subparagraph 8(A).

“ Pre-lease Casualty ” has the meaning indicated in subparagraph 2(A)(2)(a).

“ Pre-lease Force Majeure Delays ” means delays in the completion of the Work to the extent (but only to the extent) caused solely by a Pre-lease Force Majeure Event.

“ Pre-lease Force Majeure Event ” means a Force Majeure Event that occurs prior to the Completion Date; provided, however, that if NAI does not notify BNPPLC of any such Force Majeure Event by the delivery of a Pre-lease Force Majeure Event Notice within thirty days after the Force Majeure Event first occurs or commences, then such Force Majeure Event will not qualify as a “Pre-lease Force Majeure Event” for purposes of this Agreement or the other Operative Documents.

“ Pre-lease Force Majeure Event Notice ” has the meaning indicated in subparagraph 6(B).

“ Pre-lease Force Majeure Excess Costs ” means the amount (if any) by which the increases in the costs of the Work resulting directly and solely from a Pre-lease Force Majeure Event (such as, for example, the costs of repairing damage to the Improvements caused by a Pre-lease Force Majeure Event) exceed the amounts available to pay or reimburse NAI for such increased costs. Amounts available to pay or reimburse such increased costs will include (a) insurance proceeds or any recovery from a third party (including any Escrowed Proceeds held by BNPPLC), and (b) any part of the Construction Allowance (including any unused contingency amount in the Construction Budget) not used or needed to cover other Reimbursable Construction Period Costs.

“ Pre-lease Force Majeure Losses ” means any of the following Losses that BNPPLC suffers by reason of any taking or damage to the Improvements which constitutes a Pre-lease Force Majeure Event:

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     (a) the costs of repairing any such damage to the extent that such costs have, as of the date of any required determination of Pre-lease Force Majeure Losses, been paid or reimbursed from a Construction Advance (and thus are included in the Lease Balance as of that date), to be distinguished from costs of repairs paid or reimbursed from insurance proceeds or from any recovery from a third party;

     (b) any diminution in the value of the Improvements resulting from any such taking or resulting from any such damage that has not, as of the date of the required determination of Pre-lease Force Majeure Losses, been repaired;

     (c) any increase in the total amount of Carrying Costs, Commitment Fees, Administrative Fees, Increased Cost Charges, Capital Adequacy Charges and Ground Lease Rents (and any other amounts) added to the Lease Balance as provided in Paragraph 3 solely by reason of Pre-lease Force Majeure Delays; and

     (d) to the extent not already included in the increase described in the preceding clause, all increases in Carrying Costs that are attributable to the amounts included in Pre-lease Force Majeure Losses pursuant to the preceding clause (a);

but in each case such amounts will constitute Pre-lease Force Majeure Losses only to the extent, if any, that they are not offset by condemnation or insurance proceeds which are (1) paid by reason of such Pre-lease Force Majeure Event (including insurance proceeds paid to compensate BNPPLC or NAI for increased financing costs, the lost time value of BNPPLC’s investment in the Project or business interruption) and (2) applied as a Qualified Prepayment to reduce the Lease Balance.

Also, for purposes of this definition, the diminution in the value of the Improvements, as described in the preceding clause (b), because of any damage that constitutes a Pre-lease Force Majeure Event will not exceed the amount thereof estimated in good faith by any independent appraiser or insurance adjuster engaged by BNPPLC to determine such amount after BNPPLC has received a Pre-lease Force Majeure Event Notice as provided in subparagraph 6(B), nor will it exceed the cost of repairing the damage as estimated in good faith by any such independent insurance adjuster or as indicated by any bona fide written bid to make the repairs that BNPPLC obtains from a reputable contractor capable of making the repairs.

“ Prior Work ” has the meaning indicated in subparagraph 4(C)(2)(b).

“ Projected Cost Overruns ” means the excess (if any), calculated as of the date of each Construction Advance Request, of (1) the total of projected Reimbursable Construction

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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 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, plus (ii) any Escrowed Proceeds then available or expected to be available to cover costs of repairs and restoration that NAI will perform as part of the Work after a casualty or condemnation, less (iii) all projected future Carrying Costs, Commitment Fees, Administrative Fees and other amounts to be added to the Outstanding Construction Allowance as provided in Paragraph 3.

“ Reimbursable Construction Period Costs ” has the meaning indicated in subparagraph 4(A).

“ Remaining Proceeds ” has the meaning indicated in subparagraph 5(A).

“ 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 the site plan or 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 BNPPLC by NAI. As used in this definition, a “material difference” means a difference that could reasonably be expected to (a) cause the Lease Balance to exceed the fair market value of the Property when the Construction Project is completed and all Construction Advances required in connection therewith have been funded, or significantly increase any such excess, (b) change the general character of the Improvements from that needed to accommodate the uses to be permitted by subparagraph 2(A) of the Lease, or (c) cause or exacerbate Projected Cost Overruns.

“ Target Completion Date ” means the date which is last day of the 18th calendar month following the Effective Date, as such date may be extended from time to time by any Increased Time Commitment made by BNPPLC as provided in subparagraph 7(B)(6).

“ Termination of NAI’s Work ” means a termination of NAI’s rights and obligations to continue the Work because of an election to terminate made by NAI pursuant to subparagraph 7(B) or because of an election by BNPPLC made pursuant to subparagraph 7(C).

“ Third Party Contract ” has the meaning indicated in subparagraph 2(A)(2)(b)1).

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“ Third Party Contract/Termination Fees ” means any amounts, 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 only by reason of Prior Work as of the date of any such termination will not be characterized as Third Party Contract/Termination Fees. If NAI reserves an absolute express right in a Third Party Contract to terminate such contract at any time, without cause, for a specified U.S. dollar amount, such amount will constitute a Third Party Contract/Termination Fee. If no such right is reserved in a Third Party Contract, the amount of damages that NAI is required to pay (in addition to payments required for Prior Work) upon a repudiation of the Third Party Contract by NAI will qualify as a “Third Party Contract/Termination Fee” applicable to such contract for purposes of this Agreement.

“ Timing or Budget Shortfall ” means that, as of any time prior to the Completion Date, (i) the remaining available Construction Allowance will not be sufficient to cover Reimbursable Construction Period Costs yet to be paid or reimbursed from Construction Advances (x) because the cost of the Work exceeds budgeted expectations (resulting in Projected Cost Overruns) through no fault of NAI or its employees or any other party acting under NAI’s control or with the approval or authorization of NAI, (y) because of any Pre-lease Force Majeure Event or (z) because NAI can no longer satisfy conditions to BNPPLC’s obligation to provide further Construction Advances, or (ii) the Work will not be substantially completed prior to the Target Completion Date through no fault of NAI or its employees or any other party acting under NAI’s control or with the approval or authorization of NAI. As used in this definition with respect to any party, the term “fault” will not include inadequate estimation of time or dollars unless shown to be caused by the negligence or wilful misconduct of that party.

“ Work ” has the meaning indicated in subparagraph 2(A)(2)(a).

“ Work/Suspension Event ” means any of the following:

     (1) Projected Cost Overruns have become more likely than not, in BNPPLC’s good faith judgment (taking into account any notices or Construction Draw Requests from NAI indicating that a Pre-lease Force Majeure Event may result in Projected Cost Overruns), and BNPPLC has notified NAI of such judgement and the reasons therefor.

     (2) Delays in the Work (including any delays resulting from damage to the Property by fire or other casualty or from any taking of any part of the Property by condemnation) have made it substantially unlikely, in BNPPLC’s good faith judgment, that NAI will be able to complete the Construction Project in accordance with the requirements of this Agreement prior to the Target Completion Date using only the funds

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available to NAI under this Agreement, and BNPPLC has notified NAI of such judgement and the reasons therefor.

     (3) BNPPLC has requested with respect to any Construction Advance, but NAI has failed to provide within thirty days after receipt of the request: (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 or other evidence reasonably establishing that all prior Construction Advances paid to NAI have been used by NAI to pay the Reimbursable Construction Period Costs for which the prior advances were requested and made.

“ Work/Suspension Notice ” means a notice from BNPPLC to NAI advising NAI of any event or circumstances that constitute a Work/Suspension Event and advising NAI that (1) before the Work/Suspension Event is rectified BNPPLC may limit Construction Advances to NAI as permitted by this Agreement, and (2) unless NAI does rectify the Work/Suspension Event within thirty days after NAI’s receipt of such notice, BNPPLC may elect to send an FOCB Notice in anticipation of a Termination of NAI’s Work.

“ Work/Suspension Period ” means any period (1) beginning with the date of any Work/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 Work/Suspension Events are continuing, (ii) all previous FOCB Notices and Notices of NAI’s Intent to Terminate (if any) have been rescinded, and (iii) no 97-10/Meltdown Events have occurred, or (b) the effective date of any Termination of NAI’s Work as described in subparagraph 7(B) or subparagraph 7(C).

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2 Construction and Management of the Property by NAI .

     (A)  The Construction Project .

     (1) Construction Approvals by BNPPLC .

     (a) Preconstruction Approvals by BNPPLC . NAI has submitted and obtained BNPPLC’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 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, must not be inconsistent in any material respect with the plans or other items referenced in Exhibit B , except to the extent otherwise provided by any Scope Change approved by BNPPLC and except as otherwise provided in subparagraph 8(A) if BNPPLC should make an Owner’s Election to Continue Construction after any Termination of NAI’s Work.

     (b) Approval of Scope Changes . Before making a Scope Change, NAI must provide to BNPPLC a reasonably detailed written description of the Scope Change, a revised Construction Budget 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 BNPPLC before the Scope Change is implemented. After receiving such items, BNPPLC will endeavor in good faith to respond promptly (and in any event no later than thirty days after such receipt) to any request by NAI for approval of the Scope Change. BNPPLC will not, however, be liable for any failure to provide a prompt response. Further, BNPPLC’s approval will not in any event constitute a waiver of subparagraph 2(A)(3) or of any other provision of this Agreement or other Operative Documents.

     (2) NAI’s Right to Possession and to Control Construction . Subject to the terms and conditions set forth in this Agreement, and prior to any Termination of NAI’s Work as provided in subparagraphs 7(B) and 7(C), NAI will have possession of the Land and all Improvements on the Land to the exclusion of BNPPLC and will 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 vest in BNPPLC (as more particularly provided in subparagraph 2(C)), BNPPLC’s obligation with respect to the Construction Project will be limited to the making of advances under and subject to the conditions set forth in this

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Agreement. Without limiting the foregoing, NAI acknowledges and agrees that:

     (a) Performance of the Work . Except as provided in subparagraphs 7(A) and 7(D), NAI must, using its best skill and judgment and in an expeditious and economical manner not inconsistent with the interests of BNPPLC, perform or cause to be performed all work required, and must provide or cause to be provided all supplies and materials required, to design and complete construction of the Construction Project (collectively, the “ Work ”) no later than the Target Completion Date. 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, or required in connection with the use and occupancy thereof ( e.g., 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 Completion Date (a “ Pre-lease Casualty ”); provided, however , the cost of any such repairs or restoration will be subject to reimbursement not only through Construction Advances made to NAI on and subject to the terms and conditions of this Agreement, but also through the application of Escrowed Proceeds as provided in Paragraph 5; and, provided further , like other Work, any such repairs and restoration to be provided by NAI will be subject to subparagraphs 7(A) and 7(B), which establish certain rights of NAI to suspend or discontinue any Work. 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.

     (b) Third Party Contracts .

     1) NAI will 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 BNPPLC or otherwise purport to bind BNPPLC 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 must reserve the right to terminate such contract at any time, without cause, and without subjecting NAI to liability for any Third Party Contract/Termination Fee. Further, NAI must 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.

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     (c) Adequacy of Drawings, Specifications and Budgets . BNPPLC has not made and will not make any representations as to the adequacy of the Construction Budget or any other budget or any 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.

     (d) Existing Condition of the Land and Improvements . NAI is familiar with the conditions of the Land and any existing Improvements on the Land. NAI will have no claim for damages against BNPPLC or for an increase in the Construction Allowance or for an extension of the deadline specified in subparagraph 2(A)(2)(a) for completing the Work by reason of any condition (concealed or otherwise) of or affecting the Land or Improvements.

     (e) Correction of Defective Work . NAI will promptly correct all Work performed prior to any Termination of NAI’s Work that does not comply with the requirements of this Agreement for any reason other than a Pre-lease Casualty (“ Defective Work ”). If NAI fails to correct any Defective Work or fails to carry out Work in accordance with this Agreement, BNPPLC may (but will not be required to) order NAI to stop all Work until the cause for such failure has been eliminated.

     (f) 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.

     (g) No Damage for Delays . NAI will have no claim for damages against BNPPLC or for an increase in the Construction Allowance by reason of any delay in the performance of any Work. Nor will NAI have any claim for an extension of the deadline specified in subparagraph 2(A)(2)(a) for completing the Work because of any such period of delay, except that (i) in the case of any Pre-lease Force Majeure Delays, NAI will have certain rights as set forth in subparagraph 7(B) and other provisions of this Agreement, and (ii) in the event of intentional interference with the Work by BNPPLC itself for which NAI provides written notice to cease, NAI will be entitled to an extension of the deadline specified in subparagraph 2(A)(2)(a) as needed because of any delays resulting from such intentional interference. It is also understood that any such intentional

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interference by BNPPLC will constitute a Force Majeure Event. In no event, however, will BNPPLC’s exercise of its rights and remedies permitted under this Agreement or the other Operative Documents be construed as intentional interference with NAI’s performance of any Work; and thus neither BNPPLC’s exercise of its right to withhold Construction Advances at any time when NAI has failed to satisfy all conditions herein to such advances, nor BNPPLC’s exercise of its right to terminate Work by NAI as provided in subparagraph 7(C), be considered as intentional interference with the Work or a Pre-lease Force Majeure Event.

     (h) No Fee For Construction Management . NAI will have no claim under this Agreement for any fee or other compensation or for any reimbursement of internal administrative or overhead expenses (other than the out-of-pocket overhead expenses properly included in the Construction Budget, if any), it being understood that NAI is executing this Agreement in consideration of the rights expressly granted to it herein and in the other Operative Documents.

     (3) Quality of Work . NAI will 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, and (c) in compliance with the provisions of this Agreement and the material provisions of the Permitted Encumbrances.

     (B)  Completion Notice . Within fifteen Business Days after NAI substantially completes construction of the Construction Project and obtains any certificate of occupancy or other permit (temporary or permanent) required by Applicable Laws for the commencement of NAI’s use and occupancy of the Improvements, NAI must provide a notice (a “ Completion Notice ”) to BNPPLC, advising BNPPLC thereof, and thereby establish the Completion Date. For purposes of this Agreement and the other Operative Documents, BNPPLC will be entitled to rely without investigation upon any such notice given by NAI as evidence that NAI has, in fact, substantially completed the Construction Project and has obtained any certificate of occupancy or other permit (temporary or permanent) required for the commencement of NAI’s use of the Improvements, and after giving any such notice NAI will be estopped from later claiming that the Completion Date has not occurred.

     (C)  Status of Property Acquired With BNPPLC’s Funds . All Improvements constructed on the Land as provided in this Agreement will constitute “Property” for purposes of the Lease and other Operative Documents. Further, to the extent heretofore or hereafter acquired (in whole or in part) with any portion of the Initial Advance or with any Construction Advances or with other funds for which NAI receives reimbursement from the Initial Advance or Construction Advances, all furnishings, furniture, chattels, permits, licenses, franchises, certificates and other personal property of whatever nature will be considered as having been

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acquired on behalf of BNPPLC by NAI and will constitute “Property” for purposes of the Lease and other Operative Documents, as will all renewals or replacements of or substitutions for any such Property. The parties intend that title to the Improvements and to any other such Property will vest in BNPPLC without passing through NAI or NAI’s Affiliates before it is transferred to BNPPLC from contractors, suppliers, vendors or other third Persons, but with the understanding that all such Property will be accepted by BNPPLC subject to the terms and conditions of the other Operative Documents, including subparagraph 4(C)(1) of the Lease (concerning the characterization of the Lease and other Operative Documents for tax and certain other purposes). Although nothing herein constitutes authorization of NAI by BNPPLC to bind BNPPLC to any construction contract or other agreement with a third Person, any construction contract or other agreement executed by NAI for the acquisition or construction of Improvements or other components of the Property may, as NAI deems appropriate, provide for the direct transfer of title to BNPPLC as described in the preceding sentence.

     (D) Insurance .

     (1) Liability Insurance . Throughout the period prior to any Termination of NAI’s Work, NAI must maintain commercial general liability insurance against claims for bodily and personal injury, death and property damage occurring in or upon or resulting from any occurrence in or upon the Property under one or more insurance policies that satisfy the Minimum Insurance Requirements, which are set forth in an exhibit to the Common Definitions and Provisions Agreement. NAI must deliver and maintain with BNPPLC for each liability insurance policy required by this Agreement written confirmation of the policy and the scope of the coverage provided thereby issued by the applicable insurer or its authorized agent, which confirmation must also satisfy the Minimum Insurance Requirements.

     (2) Property Insurance . Throughout the period prior to any Termination of NAI’s Work, NAI must also keep all Improvements (including all alterations, additions and changes made to the Improvements) insured against fire and other casualty under one or more property insurance policies that satisfy the Minimum Insurance Requirements. NAI must deliver and maintain with BNPPLC for each property insurance policy required by this Agreement written confirmation of the policy and the scope of the coverage provided thereby issued by the applicable insurer or its authorized agent, which confirmation must also satisfy the Minimum Insurance Requirements. If any of the Property is destroyed or damaged by fire, explosion, windstorm, hail or by any other casualty against which insurance has been required hereunder, (i) BNPPLC may, but will not be obligated to, make proof of loss if not made promptly by NAI after notice from BNPPLC, (ii) each insurance company concerned is hereby authorized and directed to make payment for such loss directly to BNPPLC for application as required by Paragraph 5, and (iii) BNPPLC may settle, adjust or compromise any and all claims for

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loss, damage or destruction under any policy or policies of insurance (provided, that so long as no 97-10/Meltdown Event has occurred and no Event of Default has occurred and is continuing, BNPPLC must provide NAI with at least forty-five days notice of BNPPLC’s intention to settle any such claim before settling it unless NAI has already approved of the settlement by BNPPLC). BNPPLC will not in any event or circumstances be liable or responsible for failure to collect, or to exercise diligence in the collection of, any insurance proceeds. If any casualty results in damage to or loss or destruction of the Property, NAI must give prompt notice thereof to BNPPLC and Paragraph 5 will apply.

     (3) Failure of NAI to Obtain Insurance . If NAI fails to obtain any insurance or to provide confirmation of any insurance as required by this Agreement, BNPPLC will be entitled (but not required) to obtain the insurance that NAI has failed to obtain or for which NAI has not provided the required confirmation and, without limiting BNPPLC’s other remedies under the circumstances, BNPPLC may charge the cost of such insurance against the Construction Allowance as if it were a Construction Advance paid to NAI as hereinafter provided.

     (4) Waiver of Subrogation . NAI, for itself and for any Person claiming through it (including any insurance company claiming by way of subrogation), waives any and every claim which arises or may arise in its favor against BNPPLC or any other Interested Party for any and all Losses, to the extent that NAI is compensated by insurance or would be compensated by the insurance policies contemplated in this Agreement, but for any deductible or self-insured retention maintained under such insurance or but for a failure of NAI to maintain the insurance as required by this Agreement. NAI agrees to have such insurance policies properly endorsed so as to make them valid notwithstanding this waiver, if such endorsement is required to prevent a loss of insurance.

     (E)  Condemnation . Immediately upon obtaining knowledge of the institution of any proceedings for the condemnation of the Property or any portion thereof, or any other similar governmental or quasi-governmental proceedings arising out of injury or damage to the Property or any portion thereof, each party must promptly notify the other (provided, however, BNPPLC will have no liability for its failure to provide such notice) of the pendency of such proceedings. Prior to any Termination of NAI’s Work, NAI must, if requested by BNPPLC, diligently prosecute any such proceedings and consult with BNPPLC, its attorneys and experts and cooperate with them as reasonably requested in the carrying on or defense of any such proceedings. All proceeds of condemnation awards or proceeds of sale in lieu of condemnation with respect to the Property and all judgments, decrees and awards for injury or damage to the Property will be paid to BNPPLC as Escrowed Proceeds, and all such proceeds will be applied as provided in Paragraph 5. BNPPLC is hereby authorized, in its own name or in the name of

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NAI or in the name of both, to settle and deliver valid acquittances for, or to challenge and to appeal from, any such judgment, decree or award concerning condemnation of any of the Property (provided, that so long as no 97-10/Meltdown Event has occurred and no Event of Default has occurred and is continuing, BNPPLC must provide NAI with at least forty-five days notice of BNPPLC’s intention to settle any such claim before settling it unless NAI has already approved of the settlement by BNPPLC). BNPPLC will not in any event or circumstances be liable or responsible for failure to collect, or to exercise diligence in the collection of, any such proceeds, judgments, decrees or awards.

     (F)  Additional Representations, Warranties and Covenants of NAI Concerning the Property . Without limiting the rights granted to NAI by other provisions of this Agreement to be reimbursed from Construction Advances for the cost of complying with the following, NAI represents, warrants and covenants as follows:

     (1) Payment of Local Impositions . Throughout the period prior to any Termination of NAI’s Work, NAI must pay or cause to be paid prior to delinquency all ad valorem taxes assessed against the Property and other Local Impositions. If requested by BNPPLC from time to time, NAI will furnish BNPPLC with receipts or other appropriate evidence showing payment of all Local Impositions prior to the applicable delinquency date therefor.

Notwithstanding the foregoing, NAI may in good faith, by appropriate proceedings, contest the validity, applicability or amount of any asserted Local Imposition, and pending such contest NAI will not be deemed in default under any of the provisions of this Agreement because of the Local Imposition if (1) NAI diligently prosecutes such contest to completion in a manner reasonably satisfactory to BNPPLC, and (2) NAI promptly causes to be paid any amount adjudged by a court of competent jurisdiction to be due, with all costs, penalties and interest thereon, promptly after such judgment becomes final; provided, however, in any event each such contest must be concluded and the contested Local Impositions must be paid by NAI prior to the earlier of (i) the date that any criminal prosecution is instituted or overtly threatened against BNPPLC or its directors, officers or employees because of the nonpayment thereof, or (ii) the date any writ or order is issued under which any property owned or leased by BNPPLC (including the Property) may be seized or sold or any other action is taken or overtly threatened against BNPPLC or against any property owned or leased by BNPPLC because of the nonpayment thereof, or (iii) any Designated Sale Date upon which, for any reason, NAI or an Affiliate of NAI or any Applicable Purchaser does not purchase BNPPLC’s interest in the Property pursuant to the Purchase Agreement for a price to BNPPLC (when taken together with any Supplemental Payment paid by NAI pursuant to the Purchase Agreement, in the case of a purchase by an Applicable Purchaser) equal to the Break Even Price.

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     (2) Operation and Maintenance . Throughout the period prior to any Termination of NAI’s Work, NAI must operate and maintain the Property in a good and workmanlike manner and in compliance with Applicable Laws in all material respects and pay or cause to be paid all fees or charges of any kind in connection therewith. (If NAI does not promptly correct any failure of the Property to comply with Applicable Laws that is the subject of a written complaint or demand for corrective action given by any Governmental Authority to NAI, or to BNPPLC and forwarded by it to NAI, then for purposes of the preceding sentence, NAI will be considered not to have maintained the Property “in compliance with all Applicable Laws in all material respects” whether or not the noncompliance would be material in the absence of the complaint or demand.) NAI must not use or occupy, or allow the use or occupancy of, the Property in any manner which violates any Applicable Law or which constitutes a public or private nuisance or which makes void, voidable or cancelable any insurance then in force with respect thereto. Without limiting the generality of the foregoing, NAI must not conduct or permit others to conduct Hazardous Substance Activities on the Property, except Permitted Hazardous Substance Use and Remedial Work; and NAI must not discharge or permit the discharge of anything (including Permitted Hazardous Substances) on or from the Property that would require any permit under applicable Environmental Laws, other than (1) storm water runoff, (2) fume hood emissions, (3) waste water discharges through a publicly owned treatment works, (4) discharges that are a necessary part of any Remedial Work, and (5) other similar discharges consistent with the definition of Permitted Hazardous Substance Use which do not significantly increase the risk of Environmental Losses to BNPPLC, in each case in strict compliance with Environmental Laws. To the extent that any of the following would, individually or in the aggregate, increase the likelihood of a 97-10/Meltdown Event or materially and adversely affect the value of the Property or the use of the Property for purposes permitted by this Agreement, NAI must not, without BNPPLC’s prior consent: (i) initiate or permit any zoning reclassification of the Property; (ii) seek any variance under existing zoning ordinances applicable to the Property; (iii) use or permit the use of the Property in a manner that would result in such use becoming a nonconforming use under applicable zoning ordinances or similar laws, rules or regulations; (iv) execute or file any subdivision plat affecting the Property; or (v) consent to the annexation of the Property to any municipality. NAI will not cause or permit any drilling or exploration for, or extraction, removal or production of, minerals from the surface or subsurface of the Property, and NAI must not do anything that could reasonably be expected to significantly reduce the market value of the Property. If NAI receives a notice or claim from any federal, state or other governmental authority that the Property is not in compliance with any Applicable Law, or that any action may be taken against BNPPLC because the Property does not comply with any Applicable Law, NAI must promptly furnish a copy of such notice or claim to BNPPLC.

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     (3) Debts for Construction, Maintenance, Operation or Development . NAI must promptly pay or cause to be paid all debts and liabilities incurred by it or its contractors or subcontractors in the construction, maintenance, operation or development of the Property. Such debts and liabilities will include those incurred for labor, material and equipment and all debts and charges for utilities servicing the Property.

     (4) Permitted Encumbrances and the Ground Lease . NAI must comply with and will cause to be performed all of the covenants, agreements and obligations imposed upon the owner of any interest in the Property by the Permitted Encumbrances or the Ground Lease throughout the period prior to any Termination of NAI’s Work. NAI must not, without the prior consent of BNPPLC, create any new Permitted Encumbrance or enter into, initiate, approve or consent to any modification of any Permitted Encumbrance that would create or expand or purport to create or expand obligations or restrictions encumbering BNPPLC’s interest in the Property. (Whether BNPPLC must give any such consent requested by NAI prior to the Completion Date will be governed by subparagraph 4(C) of the Closing Certificate.)

     (5) Books and Records Concerning the Property . NAI must keep books and records that are accurate and complete in all material respects for NAI’s construction and management of the Property as contemplated in this Agreement and must permit all such books and records (including all contracts, statements, invoices, bills and claims for labor, materials and services supplied for the construction and operation of any Improvements) to be inspected and copied by BNPPLC.

     (G)  BNPPLC’s Right of Access .

     (1) Access Generally . BNPPLC and BNPPLC’s representatives may enter the Property at any time for the purpose of making inspections or performing any work BNPPLC is authorized to undertake by the next subparagraph or for the purpose confirming whether NAI has complied with the requirements of this Agreement or the other Operative Documents. However, prior to any Termination of NAI’s Work, BNPPLC or BNPPLC’s representative will, before making any entry upon the Property or performing any work on the Property authorized by this Agreement, do the following

     (a) BNPPLC will give NAI at least 24 hours notice, unless BNPPLC believes in good faith that an emergency may exist or a Default has occurred and is continuing, because of which significant damage to the Property or other significant Losses may be sustained if BNPPLC delays entry to the Property; and

     (b) if then requested to do so by NAI in order to maintain NAI’s

Construction Agreement - Page 22

security, BNPPLC or its representative will: (i) sign in at NAI’s security or information desk if NAI has such a desk on the premises, (ii) wear a visitor’s badge or other reasonable identification, (iii) permit an employee of NAI to observe such inspection or work, and (iv) comply with other similar reasonable nondiscriminatory security requirements of NAI that do not, individually or in the aggregate, significantly interfere with inspections or work of BNPPLC authorized by this Agreement.

     (2) Failure of NAI to Perform . If NAI fails to perform any act or to take any action required of it by this Agreement or other Operative Documents, or to pay any money which NAI is required by this Agreement or other Operative Documents to pay, and if such failure or action constitutes an Event of Default or renders BNPPLC or any director, officer, employee or Affiliate of BNPPLC at risk of criminal prosecution or renders BNPPLC’s interest in the Property or any part thereof at risk of forfeiture by forced sale or otherwise, then in addition to any other remedies specified herein or otherwise available, BNPPLC may, perform or cause to be performed such act or take such action or pay such money. (To the extent that expenses so incurred by BNPPLC, or money so paid by BNPPLC, qualify as a Covered Construction Period Losses, NAI must pay the same to BNPPLC upon demand. If any such expenses incurred or money paid do not qualify as Covered Construction Period Losses, but do constitute 97-10/Project Costs, BNPPLC may treat them as Construction Advances hereunder. To the extent that any such expenses incurred or money paid do not qualify as Covered Construction Period Losses and do constitute 97-10/Project Costs, they will be included — with interest — in the Balance of Unpaid Covered Construction Period Losses under and as defined in the Purchase Agreement.) Further, BNPPLC, upon making such payment, will be subrogated to all of the rights of the person, corporation or body politic receiving such payment. But nothing herein will imply any duty upon the part of BNPPLC to do any work which, under any provision of this Agreement or otherwise, NAI m