CONSTRUCTION MANAGEMENT AGREEMENTConstruction Agreement |
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NETWORK APPLIANCE INC | BNP PARIBAS LEASING CORPORATION. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 10.4
CONSTRUCTION MANAGEMENT AGREEMENT
BETWEEN
NETWORK APPLIANCE, INC.
(“NAI”)
AND
BNP PARIBAS LEASING CORPORATION
(“BNPPLC”)
December 15, 2005
TABLE OF CONTENTS
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ENGAGEMENT AND AUTHORIZATION |
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1 |
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GENERAL TERMS AND CONDITIONS |
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2 |
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1
Additional definitions |
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2 |
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“97-10/Event” |
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2 |
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“97-10/Maximum
Permitted Prepayment” |
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2 |
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“97-10/Prepayment” |
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3 |
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“97-10/Project
Costs” |
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3 |
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“97-10/Pronouncement” |
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4 |
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“NAI’s
Estimate of Force Majeure Delays” |
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4 |
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“NAI’s
Estimate of Force Majeure Excess Costs” |
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4 |
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“Accrued
Construction Period Interest Expense” |
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4 |
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“Affiliate’s
Contract” |
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5 |
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“Arrangement
Fee” |
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5 |
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“Administrative
Fee” |
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5 |
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“Capital
Adequacy Charges” |
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5 |
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“Carrying
Costs” |
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5 |
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“Commitment
Fees” |
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5 |
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“Complete
Taking” |
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5 |
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“Completion
Date” |
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5 |
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“Completion
Notice” |
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5 |
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“Construction
Advances” |
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5 |
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“Construction
Advance Request” |
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6 |
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“Construction
Allowance” |
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6 |
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“Construction
Budget” |
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6 |
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“Construction
Project” |
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6 |
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“Covered
Construction Period Losses” |
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6 |
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“Defective
Work” |
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6 |
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“FOCB
Notice” |
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6 |
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“Force
Majeure Event” |
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7 |
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“Funded
Construction Allowance” |
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7 |
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“Future
Work” |
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7 |
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“Ground
Lease Rents” |
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7 |
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“Increased
Cost Charges” |
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7 |
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“Increased
Commitment” |
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7 |
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“Increased
Funding Commitment” |
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7 |
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“Increased
Time Commitment” |
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7 |
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“Initial
Advance” |
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7 |
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“Integral
Equipment” |
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7 |
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TABLE OF CONTENTS
(Continued)
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“Maximum
Construction Allowance” |
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8 |
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“Notice
of NAI’s Intent to Terminate” |
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8 |
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“Notice
of NAI’s Intent to Terminate Because of a Force Majeure Event” |
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8 |
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“Notice
of Termination By NAI” |
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8 |
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“Outstanding
Construction Allowance” |
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8 |
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“Owner’s
Election to Continue Construction” |
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8 |
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“Participant
Default” |
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8 |
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“Pre-lease
Casualty” |
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8 |
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“Pre-lease
Force Majeure Delays” |
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8 |
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“Pre-lease
Force Majeure Event” |
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8 |
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“Pre-lease
Force Majeure Event Notice” |
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8 |
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“Pre-lease
Force Majeure Excess Costs” |
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8 |
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“Pre-lease
Force Majeure Losses” |
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9 |
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“Prior
Work” |
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10 |
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“Projected
Cost Overruns” |
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10 |
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“Projected
Economic Depreciation of Equipment” |
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10 |
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“Reimbursable
Construction Period Costs” |
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10 |
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“Remaining
Proceeds” |
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10 |
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“Scope
Change” |
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10 |
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“Target
Completion Date” |
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11 |
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“Termination
of NAI’s Work” |
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11 |
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“Third
Party Contract” |
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11 |
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“Third
Party Contract/Termination Fees” |
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11 |
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“Work” |
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11 |
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“Work/Suspension
Event” |
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11 |
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“Work/Suspension
Notice” |
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12 |
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“Work/Suspension
Period” |
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12 |
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2
Construction and Management of the
Property by NAI |
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12 |
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(A) The
Construction Project |
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12 |
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(1) Construction
Approvals by BNPPLC |
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12 |
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(a) Preconstruction
Approvals by BNPPLC |
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12 |
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(b) Approval
of Scope Changes |
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13 |
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(2) NAI’s
Right to Possession and to Control Construction |
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13 |
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(c) Adequacy
of Drawings, Specifications and Budgets |
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14 |
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(d) Existing
Condition of the Land and Improvements |
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14 |
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(e) Correction
of Defective Work |
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15 |
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(f) Clean
Up |
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15 |
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(g) No
Damage for Delays |
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15 |
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(ii)
TABLE OF CONTENTS
(Continued)
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(h) No
Fee For Construction Management |
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15 |
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(3) Quality
of Work |
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16 |
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(B) Completion
Notice |
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16 |
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(C) Status
of Property Acquired With BNPPLC’s Funds |
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16 |
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(D) Insurance |
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17 |
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(1) Liability
Insurance |
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17 |
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(2) Property
Insurance |
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17 |
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(3) Failure
of NAI to Obtain Insurance |
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17 |
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(4) Waiver
of Subrogation |
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18 |
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(E) Condemnation |
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18 |
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(F) Additional
Representations, Warranties and Covenants of NAI Concerning the Property |
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19 |
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(1) Payment
of Local Impositions |
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19 |
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(2) Operation
and Maintenance |
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19 |
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(3) Debts
for Construction, Maintenance, Operation or Development |
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20 |
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(4) Permitted
Encumbrances and the Ground Lease |
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20 |
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(5) Books
and Records Concerning the Property |
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21 |
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(G) BNPPLC’s
Right of Access |
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21 |
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(1) Access
Generally |
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21 |
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(4) Failure
of NAI to Perform |
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21 |
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3
Amounts to be Added to the Lease
Balance (in Addition to Construction Advances) |
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22 |
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(A) Initial
Advance |
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22 |
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(B) Carrying
Costs |
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23 |
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(C) Commitment
Fees |
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23 |
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(D) Future
Administrative Fees and Out-of-Pocket Costs |
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24 |
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(E) Increased
Cost Charges and Capital Adequacy Charges |
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24 |
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(F) Ground
Lease Payments |
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25 |
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4
Construction Advances |
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25 |
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(A) Costs
Subject to Reimbursement Through Construction Advances |
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25 |
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(B) Exclusions
From Reimbursable Construction Period Costs |
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27 |
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(C) Conditions
to NAI’s Right to Receive Construction Advances |
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27 |
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(1) Construction
Advance Requests |
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