exv10w48



 





Exhibit 10.48



	


LEASE AGREEMENT




BETWEEN


NETWORK
APPLIANCE, INC.

(“NAI”)




AND




BNP PARIBAS LEASING CORPORATION

(“BNPPLC”)




December 14, 2006









 









 










TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	1            Term; Lease Obligations Deferred Until Completion of Initial Improvements; Termination Prior to Lease Commencement	 	 	2	 
	 
	 	(A)	 	Scheduled Term; Deferral of Obligations	 	 	3	 
	 
	 	(B)	 	Option of BNPPLC to Terminate	 	 	3	 
	 
	 	(C)	 	Automatic Termination	 	 	3	 
	 
	 	(D)	 	Extension of the Term	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	2	 	Use and Condition of the Property	 	 	4	 
	 
	 	(A)	 	Use	 	 	4	 
	 
	 	(B)	 	Condition of the Property	 	 	5	 
	 
	 	(C)	 	Consideration for and Scope of Waiver	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	3	 	Rent	 	 	6	 
	 
	 	(A)	 	Base Rent Generally	 	 	6	 
	 
	 	(B)	 	Calculation of and Due Dates for Base Rent	 	 	6	 
	 
	 	 	 	(1)     Determination of Payment Due Dates Generally	 	 	6	 
	 
	 	 	 	(2)     Special Adjustments to Base Rent Payment Dates and Periods	 	 	6	 
	 
	 	 	 	(3)     Base Rent Formula	 	 	7	 
	 
	 	 	 	(4)     Fixed Rate Lock	 	 	7	 
	 
	 	(C)	 	Early Termination of Fixed Rate Lock	 	 	8	 
	 
	 	(D)	 	Additional Rent	 	 	9	 
	 
	 	(E)	 	Administrative Fees	 	 	9	 
	 
	 	(F)	 	No Demand or Setoff	 	 	9	 
	 
	 	(G)	 	Default Interest and Order of Application	 	 	9	 
	 
	 	(H)	 	Calculations by BNPPLC Are Conclusive	 	 	9	 
	 
	 	 	 	 	 	 	 	 
	4	 	Nature of this Agreement	 	 	9	 
	 
	 	(A)	 	“Net” Lease Generally	 	 	9	 
	 
	 	(B)	 	No Termination	 	 	10	 
	 
	 	(C)	 	Characterization of this Lease	 	 	11	 
	 
	 	 	 	 	 	 	 	 
	5	 	Payment of Executory Costs and Losses Related to the Property	 	 	13	 
	 
	 	(A)	 	Local Impositions	 	 	13	 
	 
	 	(B)	 	Increased Costs; Capital Adequacy Charges	 	 	13	 
	 
	 	(C)	 	NAI’s Payment of Other Losses; General Indemnification	 	 	15	 
	 
	 	(D)	 	Exceptions and Qualifications to Indemnities	 	 	19	 
	 
	 	(E)	 	Refunds and Credits Related to Losses Paid by NAI	 	 	23	 
	 
	 	(F)	 	Reimbursement of Excluded Taxes Paid by NAI	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	6	 	Replacement of Participants	 	 	25	 
	 
	 	(A)	 	NAI’s Right to Substitute Participants	 	 	25	 






 









 








TABLE OF CONTENTS
(Continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	(B)	 	Conditions to Replacement of Participants	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	7	 	Items Included in the Property	 	 	26	 
	 
	 	(A)	 	Status of Property	 	 	26	 
	 
	 	(B)	 	Changes in the Land Covered by the Ground Lease	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	8	 	Environmental	 	 	27	 
	 
	 	(A)	 	Environmental Covenants by NAI	 	 	27	 
	 
	 	(B)	 	Right of BNPPLC to do Remedial Work Not Performed by NAI	 	 	27	 
	 
	 	(C)	 	Environmental Inspections and Reviews	 	 	28	 
	 
	 	(D)	 	Communications Regarding Environmental Matters	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	9	 	Insurance Required and Condemnation	 	 	30	 
	 
	 	(A)	 	Liability Insurance	 	 	30	 
	 
	 	(B)	 	Property Insurance	 	 	30	 
	 
	 	(C)	 	Failure to Obtain Insurance	 	 	31	 
	 
	 	(D)	 	Condemnation	 	 	31	 
	 
	 	(E)	 	Waiver of Subrogation	 	 	31	 
	 
	 	 	 	 	 	 	 	 
	10	 	Application of Insurance and Condemnation Proceeds	 	 	32	 
	 
	 	(A)	 	Collection and Application of Insurance and Condemnation Proceeds Generally	 	 	32	 
	 
	 	(B)	 	Advances of Escrowed Proceeds to NAI	 	 	32	 
	 
	 	(C)	 	Application of Escrowed Proceeds as a Qualified Prepayment	 	 	33	 
	 
	 	(D)	 	Right of NAI to Receive and Apply Remaining Proceeds Below a Certain Level	 	 	33	 
	 
	 	(E)	 	Special Provisions Applicable After a 97-10/Event or Event of Default	 	 	33	 
	 
	 	(F)	 	NAI’s Obligation to Restore	 	 	34	 
	 
	 	(G)	 	Takings of All or Substantially All of the Property on or after the Completion Date	 	 	34	 
	 
	 	(H)	 	If Remaining Proceeds Exceed the Lease Balance	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	11	 	Additional Representations, Warranties and Covenants of NAI Concerning the Property	 	 	34	 
	 
	 	(A)	 	Operation and Maintenance	 	 	34	 
	 
	 	(B)	 	Debts for Construction, Maintenance, Operation or Development	 	 	35	 
	 
	 	(C)	 	Repair, Maintenance, Alterations and Additions	 	 	36	 






(ii)









 





TABLE OF CONTENTS
(Continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	(D)	 	Permitted Encumbrances	 	 	37	 
	 
	 	(E)	 	Books and Records Concerning the Property	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	12	 	Assignment and Subletting by NAI	 	 	37	 
	 
	 	(A)	 	BNPPLC’s Consent Required	 	 	37	 
	 
	 	(B)	 	Standard for BNPPLC’s Consent to Assignments and Certain Other Matters	 	 	38	 
	 
	 	(C)	 	Consent Not a Waiver	 	 	39	 
	 
	 	 	 	 	 	 	 	 
	13	 	Assignment by BNPPLC	 	 	39	 
	 
	 	(A)	 	Restrictions on Transfers	 	 	39	 
	 
	 	(B)	 	Effect of Permitted Transfer or other Assignment by BNPPLC	 	 	39	 
	 
	 	 	 	 	 	 	 	 
	14	 	BNPPLC’s Right to Enter and to Perform for NAI 	 	 	39	 
	 
	 	(A)	 	Right to Enter	 	 	39	 
	 
	 	(B)	 	Performance for NAI	 	 	40	 
	 
	 	(C)	 	Building Security	 	 	40	 
	 
	 	 	 	 	 	 	 	 
	15	 	Remedies	 	 	40	 
	 
	 	(A)	 	Traditional Lease Remedies	 	 	40	 
	 
	 	(B)	 	Foreclosure Remedies	 	 	43	 
	 
	 	(C)	 	Notice Required So Long As the Purchase Option Continues Under the Purchase Agreement	 	 	43	 
	 
	 	(D)	 	Enforceability	 	 	43	 
	 
	 	(E)	 	Remedies Cumulative	 	 	44	 
	 
	 	 	 	 	 	 	 	 
	16	 	Default by BNPPLC	 	 	44	 
	 
	 	 	 	 	 	 	 	 
	17	 	Quiet Enjoyment	 	 	44	 
	 
	 	 	 	 	 	 	 	 
	18	 	Surrender Upon Termination	 	 	45	 
	 
	 	 	 	 	 	 	 	 
	19	 	Holding Over by NAI	 	 	45	 
	 
	 	 	 	 	 	 	 	 
	20	 	Recording Memorandum	 	 	45	 
	 
	 	 	 	 	 	 	 	 
	21	 	Independent Obligations Evidenced by Other Operative Documents	 	 	45	 
	 
	 	 	 	 	 	 	 	 
	22	 	Proprietary Information and Confidentiality	 	 	45	 






(iii)









 





TABLE OF CONTENTS
(Continued)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	(A)	 	Proprietary Information	 	 	46	 
	 
	 	(B)	 	Confidentiality	 	 	46	 






Exhibits and Schedules




			
	 	 	 
	Exhibit A
	 	Legal Description
	Exhibit B
	 	California Lien and Foreclosure Provisions







(iv)









 





LEASE AGREEMENT




     This LEASE AGREEMENT (this “Lease”), dated as of December 14, 2006 (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 Lease, 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 Lease
for all purposes. As used in this Lease, capitalized terms defined in the Common Definitions and
Provisions Agreement and not otherwise defined in this Lease 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 transactions contemplated in the other Operative
Documents, pursuant to the Ground Lease, BNPPLC is acquiring a leasehold estate in the Land
described in Exhibit A and any existing improvements on the Land from NAI contemporaneously
with the execution of this Lease.



     In anticipation of BNPPLC’s acquisition of the leasehold estate under the Ground Lease and
other property described below, BNPPLC and NAI have reached agreement as to the terms and
conditions upon which BNPPLC is willing to sublease the Land to NAI and to lease to NAI any
existing Improvements and the Improvements to be constructed on the Land as hereinafter provided,
and by this Lease BNPPLC and NAI desire to evidence such agreement.



GRANTING CLAUSES




     BNPPLC does hereby LEASE, DEMISE and LET unto NAI for the Term (as hereinafter defined) all
right, title and interest of BNPPLC, now owned or hereafter acquired, in and to:




     (1) the Land, including the leasehold estate in the Land acquired by BNPPLC under the
Ground Lease;




     (2) any and all Improvements;




     (3) all easements and other rights appurtenant to the leasehold estate created by the
Ground Lease or to the Improvements; and




     (4) (A) any land lying within the right-of-way of any street, open or proposed,
adjoining the Land, (B) any sidewalks and alleys adjacent to the Land, and (C) any strips



 









 







and gores between the Land and abutting land.


BNPPLC’s interest in all property described in clauses (1) through (4) above is hereinafter
referred to collectively as the “Real Property”.




     To the extent, but only to the extent, that assignable rights or interests in, to or under the
following have been or will be acquired by BNPPLC under the Ground Lease or as described in
subparagraph 7(A) below, BNPPLC also hereby grants and assigns to NAI for the term of this Lease
the right to use and enjoy (and, in the case of contract rights, to enforce) such rights or
interests of BNPPLC:




     (a) any goods, equipment, furnishings, furniture and other tangible personal property
of whatever nature that are located on the Real Property and all renewals or replacements of
or substitutions for any of the foregoing (collectively, the “Tangible Personal Property”);




     (b) the benefits, if any, conferred upon the owner of the Real Property by the
Permitted Encumbrances; and




     (c) any permits, licenses, franchises, certificates, and other rights and privileges
against third parties related to the Real Property, including warranties, if any, given by
vendors from whom any Tangible Personal Property was or may be acquired.


Such rights and interests of BNPPLC, whether now existing or hereafter arising, are hereinafter
collectively called the “Personal Property”. The Real Property and the Personal Property are
hereinafter sometimes collectively called the “Property.”




     However, the leasehold estate conveyed by this Lease and NAI’s rights hereunder are expressly
made subject and subordinate to the terms and conditions of this Lease and the Ground Lease, to the
matters listed in Exhibit B to the Closing Certificate and all other Permitted Encumbrances, and to
any other claims or encumbrances not constituting Liens Removable by BNPPLC.



GENERAL TERMS AND CONDITIONS




     The Property is leased by BNPPLC to NAI and is accepted and is to be used and possessed by NAI
upon and subject to the following terms and conditions:



1 Term; Lease Obligations Deferred Until Completion of Initial Improvements; Termination Prior
to Lease Commencement.



 



Lease Agreement — Page 2




 









 










     (A) Scheduled Term; Deferral of Obligations. The term of this Lease (the
"Term”) will not commence until a Completion Date occurs either (1) because of a Completion Notice
given by NAI to BNPPLC, as required by subparagraph 2(B) of the Construction Management
Agreement after NAI substantially completes the Construction Project, or (2) because of a
Completion Notice given by BNPPLC to NAI as described in subparagraph 8(C) of the
Construction Management Agreement, advising NAI (after an Owner’s Election to Complete
Construction) that construction of the Construction Project is substantially complete.



     The Term will begin on and include any such Completion Date (herein sometimes called the
"Lease Commencement Date”) and will end on the first Business Day of December, 2013, unless the
Term is extended as provided in subparagraph 1(D) or sooner terminated as expressly provided in
other provisions of this Lease.



     BNPPLC and NAI intend to be legally bound by this Lease when it is executed by them. They
also intend, however, that this Lease will not impose any payment obligations upon either of them
prior to the Lease Commencement Date. Accordingly, neither NAI nor BNPPLC will have any obligation
to make any payments under this Lease until the Lease Commencement Date, and if this Lease
terminates before the Lease Commencement Date pursuant to subparagraph 1(B) or subparagraph 1(C),
the Term will never commence and neither party will have any obligation for payments by reason of
this Lease following the termination.



     Nothing in this subparagraph 1(A) nor any other provision of this Lease will defer or
terminate the rights and obligations of the parties under the other Operative Documents. Unlike
this Lease, the other Operative Documents will, when executed, immediately impose payment
obligations upon BNPPLC and NAI.



     (B) Option of BNPPLC to Terminate. BNPPLC will have the option to terminate this
Lease, which BNPPLC may exercise by notice to NAI, at any time after any 97-10/Event or after
BNPPLC’s receipt of a Pre-lease Force Majeure Notice. Such option may be exercised by BNPPLC as it
deems appropriate in its sole and absolute discretion.



     (C) Automatic Termination. If NAI elects to accelerate the Designated Sale Date (as
provided in the definition thereof in the Common Definitions and Provisions Agreement) prior to the
Lease Commencement Date, or if a Termination of NAI’s Work occurs under and as provided in the
Construction Management Agreement before the Lease Commencement Date, then this Lease will
terminate automatically before the Term begins.



     (D) Extension of the Term. The Term may be extended at the option of NAI for up
to
two successive periods of five years each; provided, however, that prior to each such
extension the following conditions must have been satisfied: (A) NAI must have delivered a notice
of its election to exercise the option at least one hundred eighty days prior to the end of the
Term, and


 



Lease Agreement — Page 3





 









 







prior to the commencement of any such extension BNPPLC and NAI must have agreed in
writing upon, and received the written consent and approval of BNPPLC’s Parent and all Participants
(other than Participants being replaced at the request of NAI as provided in Paragraph 6) to, (1) a
corresponding extension of the date specified in clause (1) of the definition of Designated Sale
Date in the Common Definitions and Provisions Agreement and of the term of the Ground Lease, and
(2) an adjustment to the Rent that NAI will be required to pay during the extension, it being
expected that the Rent for the extension may be different than the Rent required for the original
Term or any prior extension, and it being understood that the Rent for any extension must in all
events be satisfactory to both BNPPLC and NAI, each in its sole and absolute discretion; (B) at the
time of NAI’s exercise of its option to extend, no Event of Default has occurred and is continuing,
and no Event of Default will result from the extension; (C) immediately prior to any such
extension, this Lease must then remain in effect; and (D) if this Lease has been assigned by NAI,
then NAI must have executed a guaranty (or confirmed an existing guaranty, if applicable),
guaranteeing NAI’s assignee’s obligations under the Operative Documents throughout such extended
Term. With respect to the condition that BNPPLC and NAI must have agreed upon the Rent required
for any extension of the Term, neither NAI nor BNPPLC is willing to submit itself to a risk of
liability or loss of rights hereunder for being judged unreasonable. Accordingly, NAI and BNPPLC
will each have sole and absolute discretion in making its determination, and both NAI and BNPPLC
hereby disclaim any obligation express or implied to be reasonable in negotiating the Rent for any
such extension. Subject to the changes to the Rent and satisfaction of the other conditions
listed in this subparagraph, if NAI exercises its option to extend the Term as provided in this
subparagraph, this Lease will continue in full force and effect, and the leasehold estate hereby
granted to NAI will continue without interruption and without any loss of priority over other
interests in or claims against the Property that may be created or arise after the Effective Date
and before the extension.




2 Use and Condition of the Property.




     (A) Use. Subject to the Permitted Encumbrances, NAI may use and occupy the Property
during the Term, but only for the following purposes and other lawful purposes incidental thereto:




     (1) construction and development of the Construction Project;




     (2) administrative and office space;




     (3) activities related to NAI’s research and development or production of products
that are of substantially the same type and character as those regularly sold by NAI in the
ordinary course of its business as of the Effective Date;




     (4) cafeteria and other support facilities that NAI may provide to its
employees;


 



Lease Agreement — Page 4





 









 








and

     (5) other lawful purposes (including NAI’s research and development or production of
products that are not of substantially the same type and character as those regularly sold
by NAI in the ordinary course of its business as of the Effective Date) approved in advance
and in writing by BNPPLC, which approval will not be unreasonably withheld after completion
of the Construction Project (but NAI acknowledges that BNPPLC’s withholding of such approval
shall be reasonable if BNPPLC determines in good faith that (1) giving the approval may
materially increase BNPPLC’s risk of liability for any existing or future environmental
problem, or (2) giving the approval is likely to substantially increase BNPPLC’s
administrative burden of complying with or monitoring NAI’s compliance with the requirements
of this Improvements Lease or other Operative Documents).



     (B) Condition of the Property. NAI acknowledges that it has carefully and fully
inspected the Property and accepts the Property in its present state, AS IS, and without
any representation or warranty, express or implied, as to the condition of such property or as to
the use which may be made thereof. NAI also accepts the Property without any covenant,
representation or warranty, express or implied, by BNPPLC or its Affiliates regarding the title
thereto or the rights of any parties in possession of any part thereof, except as expressly set
forth in Paragraph 17. BNPPLC will not be responsible for any latent or other defect or change of
condition in the Land, Improvements or other Property or for any violations with respect thereto of
Applicable Laws. Further, BNPPLC will not be required to furnish to NAI any facilities or services
of any kind, including water, phone, sewer, steam, heat, gas, air conditioning, electricity, light
or power.



     (C) Consideration for and Scope of Waiver. The provisions of subparagraph 2(B)
have been negotiated by BNPPLC and NAI as being consistent with the Rent payable under this Lease,
and such provisions are intended to be a complete exclusion and negation of any representations or
warranties of BNPPLC or its Affiliates, express or implied, with respect to the Property that may
arise pursuant to any law now or hereafter in effect or otherwise, except as expressly set forth
herein.



     However, such exclusion of representations and warranties by BNPPLC is not intended to impair
any representations or warranties made by other parties, including any architects, engineers or
contractors engaged to work on the Construction Project, the benefit of which may pass to NAI
during the Term because of the definition of Personal Property and Property above.


 



Lease Agreement — Page 5




 









 





3 Rent.




     (A) Base Rent Generally. On each Base Rent Date through the end of the Term, NAI must
pay BNPPLC rent (“Base Rent”), calculated as provided below . Each payment of Base Rent must be
received by BNPPLC no later than 2:00 p.m. (Eastern time) on the date it becomes due; if received
after 2:00 p.m. (Eastern time) it will be considered for purposes of this Lease as received on the
next following Business Day. At least five days prior to any Base Rent Date upon which an
installment of Base Rent becomes due, BNPPLC will notify NAI in writing of the amount of each
installment, calculated as provided below. Any failure by BNPPLC to so notify NAI, however, will
not constitute a waiver of BNPPLC’s right to payment, but absent such notice NAI will not be in
default hereunder for any underpayment resulting therefrom if NAI, in good faith, reasonably
estimates the payment required, makes a timely payment of the amount so estimated and corrects any
underpayment within three Business Days after being notified by BNPPLC of the underpayment.



     (B) Calculation of and Due Dates for Base Rent. Payments of Base Rent will be
calculated and become due as follows:




     (1) Determination of Payment Due Dates Generally. For Base Rent Periods
subject to a LIBOR Period Election of six months, Base Rent will be payable in two
installments, with the first installment becoming due on the Base Rent Date that occurs on
the first Business Day of the third calendar month following the commencement of such Base
Rent Period, and with the second installment becoming due on the Base Rent Date upon which
the Base Rent Period ends. For all other Base Rent Periods, Base Rent will be due in one
installment on the Base Rent Date upon which the Base Rent Period ends.




     (2) Special Adjustments to Base Rent Payment Dates and Periods.
Notwithstanding the foregoing, if NAI or any Applicable Purchaser purchases BNPPLC’s
interest in the Property pursuant to the Purchase Agreement, any accrued unpaid Base Rent
and all outstanding Additional Rent will be due on the date of purchase in addition to the
purchase price and other sums due to BNPPLC under the Purchase Agreement.


 



Lease Agreement — Page 6




 









 






     (3) Base Rent Formula. Each installment of Base Rent payable for any Base Rent
Period will equal:




	 	•	 	the Lease Balance on the first day of such Base Rent Period, less Losses (if
any) that BNPPLC suffered or incurred prior to the Term and that qualify as Pre-lease
Force Majeure Losses (as defined in the Construction Management Agreement), times
	 
	 	•	 	the sum of the Effective Rate and the Spread, times
	 
	 	•	 	the number of days in the period from and including the preceding Base Rent
Date to but not including the Base Rent Date upon which the installment is due, divided
by
	 
	 	•	 	three hundred sixty.






     Only for the purpose of illustration, assume the following for a hypothetical Base Rent
Period: that prior to the first day of such Base Rent Period the Construction Allowance has
been fully funded, and no Pre-lease Force Majeure Losses have occurred, but Qualified
Prepayments have been received by BNPPLC, leaving a Lease Balance of $50,000,000; that the
Effective Rate for the Base Rent Period is 6%; that the Spread is one hundred fifty basis
points (150/100 of 1%); and that such Base Rent Period contains exactly thirty days. Under
such assumptions, the Base Rent for the hypothetical Base Rent Period will equal:


$50,000,000 x [6% + 1.50%] x 30/360 = $312,500.





     (4) Fixed Rate Lock. At any time during the Term, NAI may deliver a notice in
the form attached to the Common Definitions and Provisions Agreement as Annex 2 (a
“Fixed Rate Lock Notice”), requesting that BNPPLC establish a fixed rate for use in the
calculation of the Effective Rate hereunder (a “Fixed Rate Lock”) for all Base Rent Periods
commencing on or after a date specified in such notice, which date must be the first
Business Day of a calendar month (the “Fixed Rate Lock Date”). Promptly after receiving a
Fixed Rate Lock Notice, BNPPLC will enter into an Interest Rate Swap with BNP Paribas (the
“Fixed Rate Swap”); except that BNPPLC may decline to enter into the Fixed Rate Swap and to
establish a Fixed Rate Lock, if:




     (a) NAI does not deliver the Fixed Rate Lock Notice to BNPPLC at least ten
Business days prior to the Fixed Rate Lock Date specified therein;




     (b) NAI specifies a Fixed Rate Lock Date in the Fixed Rate Lock


 



Lease Agreement — Page 7





 









 









Notice that is prior to the end of any Base Rent Period which commenced before
BNPPLC receives the Fixed Rate Lock Notice;




     (c) any notice has been given to accelerate the Designated Sale Date as
provided in the definition thereof in the Common Definitions and Provisions
Agreement;




     (d) the estimate of the Fixed Rate (hereinafter defined) specified by NAI in
the Fixed Rate Lock Notice is for any reason less than the fixed rate available to
BNPPLC under any Interest Rate Swap proposed by BNP Paribas;




     (e) at the time the Fixed Rate Lock Notice is given, the Interest Rate Swap
requested thereby is contrary to any Applicable Laws or any interpretation thereof
by any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or any request or directive (whether or
not having the force of law) of any such authority, central bank or comparable
agency (including, without limitation, any such requirement imposed by the Board of
Governors of the United States Federal Reserve System); or




     (f) any event has occurred or circumstance exists that constitutes a Default,
an Event of Default or a 97-10/Event.




The notional principal amount of the Fixed Rate Swap will equal the Lease Balance on the
date such notice is given. The fixed rate used to calculate payments required of BNPPLC
under the Fixed Rate Swap, as the counterparty designated the fixed rate payor, will
constitute the “Fixed Rate” for purposes of this Lease.



     (C) Early Termination of Fixed Rate Lock. After a Fixed Rate Lock is
established, BNPPLC may cause or suffer a termination in whole or in part of the Fixed Rate Swap in
the event that (i) NAI fails to make any payment of Base Rent required hereunder on the Base Rent
Date when it first becomes due, (ii) the Designated Sale Date occurs before the date specified in
clause (1) of the definition thereof in the Common Definitions and Provisions Agreement, (iii) for
any reason a Qualified Prepayment is applied to reduce the Lease Balance, (iv) the Lease Balance on
the Fixed Rate Lock Date is less than the notional amount of the Fixed Rate Swap for any reason.
NAI must reimburse to BNPPLC any Fixed Rate Settlement Amount charged to BNPPLC in connection with
such a termination, and if the termination is a complete, rather than a partial, termination of the
Fixed Rate Swap then in effect, it will for purposes of this Lease constitute a termination of the
Fixed Rate Lock itself. Further, if BNPPLC is charged penalties or interest because of its failure
to make a timely payment required under the Fixed Rate Swap, and if BNPPLC’s failure to make the
timely payment was caused by NAI’s failure to make a


 



Lease Agreement — Page 8





 









 








timely payment of Base Rent or other amounts
due hereunder or under other Operative Documents, then
such penalties or interest will constitute Losses against which BNPPLC is entitled to be
indemnified pursuant to subparagraph 5(C). If a Fixed Rate Lock is terminated as provided in this
subparagraph, NAI shall have no right to require BNPPLC to enter into another Interest Rate Swap in
order to establish a new fixed rate.




     (D) Additional Rent. All amounts which NAI is required to pay to or on behalf of
BNPPLC pursuant to this Lease, together with every charge, premium, interest and cost set forth
herein which may be added for nonpayment or late payment thereof, will constitute rent (all such
amounts, other than Base Rent, are herein called “Additional Rent”; and, collectively, Base Rent
and Additional Rent are herein sometimes called “Rent”).



     (E) Administrative Fees. On each anniversary of the Effective Date after the
Completion Date and prior to the Designated Sale Date, NAI must pay BNPPLC an administrative agency
fee (an “Administrative Fee”) as provided in the Term Sheet. Each payment of an Administrative Fee
will represent Additional Rent for the first Base Rent Period during which it first becomes due.



     (F) No Demand or Setoff. Except as expressly provided herein, NAI must pay all Rent
without notice or demand and without counterclaim, deduction, setoff or defense.



     (G) Default Interest and Order of Application. All Rent will bear interest, if not
paid when first due, at the Default Rate in effect from time to time from the date due until paid;
provided, that nothing herein contained will be construed as permitting the charging or collection
of interest at a rate exceeding the maximum rate permitted under Applicable Laws. BNPPLC may apply
any amounts paid by or on behalf of NAI against any Rent then past due in the order the same became
due or in such other order as BNPPLC elects.



     (H) Calculations by BNPPLC Are Conclusive. All calculations by BNPPLC of Base Rent,
Additional Rent or any amount needed to calculate Base Rent (including the Effective Rate for any
Base Rent Period and the Lease Balance) or Additional Rent will, in the absence of clear and
demonstrable error, be conclusive and binding upon NAI.



4 Nature of this Agreement.




     (A) “Net” Lease Generally. Subject only to the exceptions listed in
subparagraph 5(D) below, it is the intention of BNPPLC and NAI that Base Rent and other payments
herein specified will be absolutely net to BNPPLC and that NAI must pay all costs, expenses and
obligations of every kind relating to the Property or this Lease which may arise or become due.
Further, it is understood that all amounts payable by NAI to BNPPLC under this Lease and the other
Operative Documents are expressed as minimum payments to be made net of any deduction


 



Lease Agreement — Page 9





 









 







or
withholding required under any Applicable Laws.




     (B) No Termination. Except as expressly provided in this Lease itself, this Lease will
not terminate, nor will NAI have any right to terminate this Lease, nor will NAI be entitled to any
abatement of or setoff against the Rent, nor will the obligations of NAI under this Lease be
excused, for any reason whatsoever, including any of the following: (i) any damage to or the
destruction of all or any part of the Property from whatever cause, (ii) the taking of the Property
or any portion thereof by eminent domain or otherwise for any reason, (iii) the prohibition,
limitation or restriction of NAI’s use or development of all or any portion of the Property or any
interference with such use by governmental action or otherwise, (iv) any eviction of NAI or of
anyone claiming through or under NAI, (v) any default on the part of BNPPLC under this Lease or any
of the other Operative Documents or any other agreement to which BNPPLC and NAI are parties, (vi)
the inadequacy in any way whatsoever of the design, construction, assembly or installation of any
improvements, fixtures or tangible personal property included in the Property (it being understood
that BNPPLC has not made, does not make and will not make any representation express or implied as
to the adequacy thereof), (vii) any latent or other defect in the Property or any change in the
condition thereof or the existence with respect to the Property of any violations of Applicable
Laws, (viii) NAI’s ownership of any interest in the Property, or (ix) any other cause, whether
similar or dissimilar to the foregoing, any existing or future law to the contrary notwithstanding.
It is the intention of the parties hereto that the obligations of NAI hereunder be separate and
independent of the covenants and agreements of BNPPLC, that Base Rent and all other sums payable by
NAI hereunder continue to be payable in all events and that the obligations of NAI hereunder
continue unaffected, unless the requirement to pay or perform the same have been terminated or
limited pursuant to an express provision of this Lease. Without limiting the foregoing, NAI waives
to the extent permitted by Applicable Laws, except as otherwise expressly provided herein, all
rights to which NAI may now or hereafter be entitled by law (including any such rights arising
because of any “warranty of suitability” or other warranties implied as a matter of law) (i) to
quit, terminate or surrender this Lease or the Property or any part thereof or (ii) to any
abatement, suspension, deferment or reduction of the Rent.



     However, nothing in this subparagraph 4(B) will be construed as a waiver by NAI of any right
NAI may have at law or in equity to the following remedies, whether because of BNPPLC’s failure to
remove a Lien Removable by BNPPLC or because of any other default by BNPPLC under this Lease: (i)
the recovery of monetary damages in the case of any default that continues beyond the period for
cure provided in Paragraph 16, (ii) injunctive relief in case of the violation, or attempted or
threatened violation, by BNPPLC of any of the express covenants, agreements, conditions or
provisions of this Lease which are binding upon BNPPLC (including the confidentiality provisions
set forth in subparagraph 22(B), 32, 32 below), or (iii) a decree compelling performance by BNPPLC
of any of the express covenants, agreements, conditions or provisions of this Lease which are
binding upon BNPPLC.


 



Lease Agreement — Page 10




 









 






     (C) Characterization of this Lease.




     (1) Both NAI and BNPPLC intend that (A) for the purposes of determining the proper
accounting for this Lease by NAI, BNPPLC will be treated as the owner and landlord of the
Property and NAI will be treated as the tenant of the Property, and (B) for income tax
purposes and real estate, commercial law (including bankruptcy) and regulatory purposes, (1)
this Lease and the other Operative Documents will be treated as a financing arrangement, (2)
BNPPLC will be deemed a lender making loans to NAI in the principal amount equal to the
Lease Balance, which loans are secured by the Property, and (3) NAI will be treated as the
owner of the Property and will be entitled to all tax benefits available to the owner of the
Property. Consistent with such intent, by the provisions set forth in Exhibit B, NAI
is granting to BNPPLC a lien upon and mortgaging and warranting title to the leasehold
estate in the Land created by the Ground Lease and the Improvements and all rights, titles
and interests of NAI in and to other Property, WITH POWER OF SALE, to secure all obligations
(monetary or otherwise) of NAI arising under or in connection with any of the Operative
Documents. Without limiting the generality of the foregoing, NAI and BNPPLC desire that
their intent as set forth in this subparagraph be given effect both in the context of any
bankruptcy, insolvency or receivership proceedings concerning NAI or BNPPLC and in other
contexts. Accordingly, NAI and BNPPLC expect that in the event of any bankruptcy, insolvency
or receivership proceedings affecting NAI or BNPPLC or any enforcement or collection actions
arising out of such proceedings, the transactions evidenced by this Lease and the other
Operative Documents will be characterized and treated as loans made to NAI by BNPPLC, as an
unrelated third party lender to NAI, secured by the Property.




     (2) Notwithstanding the foregoing, NAI acknowledges and agrees that none of BNPPLC or
the other Interested Parties has made, or will be deemed to have made, in the Operative
Documents or otherwise, any representations or warranties concerning how this Lease and the
other Operative Documents will be characterized or treated under applicable accounting
rules, income tax, regulatory, commercial or real estate law, bankruptcy, insolvency or
receivership law or any other rules or requirements concerning the tax, accounting or legal
characteristics of the Operative Documents. NAI further acknowledges and agrees that it is
sophisticated and knowledgeable regarding all such matters and that it has, as it deemed
appropriate, obtained from and relied upon its own professional accountants, counsel and
other advisors for such tax, accounting and legal advice concerning the Operative Documents.




     (3) In any event, NAI will be required by subparagraph 5(C) below to indemnify
and hold harmless BNPPLC from and against all actual additional taxes that may arise or
become due because of any refusal of taxing authorities to recognize and


 



Lease Agreement — Page 11





 









 






give effect to the intention of the parties as set forth in subparagraph 4(C)(1)
(“Unexpected Recharacterization Taxes”), including any actual, additional income or capital
gain tax that may become due because of payments to BNPPLC of the purchase price upon any
sale under the Purchase Agreement resulting from any insistence of such taxing authorities
that BNPPLC be treated as the “true owner” of the Property for tax purposes (a “Forced
Recharacterization”); provided, however, NAI will not be required to pay or reimburse
Unexpected Recharacterization Taxes to the extent that they are, in any given tax year,
eliminated or offset by actual savings to BNPPLC because of additional depreciation
deductions or other tax benefits available to BNPPLC in the same year only by reason of the
Forced Recharacterization (“Unexpected Tax Savings”). To the extent Unexpected
Recharacterization Taxes are eliminated or offset by Unexpected Tax Savings in a given tax
year, including the tax year in which any sale under the Purchase Agreement occurs (the
“Year of Sale”), such Unexpected Recharacterization Taxes will constitute Excluded Taxes as
provided in clause (D) of the definition thereof in the Common Definitions and Provisions
Agreement. Also, for purposes of this provision, it is understood that any depreciation
deductions first available to BNPPLC in tax years prior to the Year of Sale and resulting
from a Forced Recharacterization (“Prior Year Depreciation Deductions”) will be considered
“available to BNPPLC” in the Year of Sale (and thus will eliminate or offset any Unexpected
Recharacterization Taxes resulting from the recapture of such Prior Year Depreciation
Deductions upon a sale under the Purchase Agreement) to the extent that (A) such Prior Year
Depreciation Deductions are not otherwise used to generate Unexpected Tax Savings or
Unexpected Net Tax Benefits (as defined below), and (B) the tax laws and regulations
applicable in the Year of Sale effectively permit BNPPLC to carry over the Prior Year
Depreciation Deductions to the Year of Sale by allowing BNPPLC to carry over net operating
losses from the years in which the Prior Year Depreciation Deductions were first available
to BNPPLC to the Year of Sale.




     (4)      After any Forced Recharacterization, BNPPLC will make a reasonable effort to
determine whether Unexpected Tax Savings exceed Unexpected Recharacterization Taxes in any
given tax year (any such excess being hereinafter called an “Unexpected Net Tax Benefit”);
and if BNPPLC does determine that an Unexpected Net Tax Benefit has been realized and the
amount thereof, BNPPLC will notify NAI of the same and either credit the amount thereof
against payments otherwise then due or to become due from NAI under this Lease or the other
Operative Documents or pay the amount of such Unexpected Net Tax Benefit to NAI. It is
understood, however, that the tax position of BNPPLC (and the consolidated tax group of
which it is a part) may, in any given tax year, be such that no Unexpected Net Tax Benefit
exists or can be determined with a reasonable effort on the part of BNPPLC. Therefore,
BNPPLC makes no representation that NAI will receive any credits or payments pursuant to
this provision after any Forced Recharacterization. Also, the determination by BNPPLC of
the amount



 




Lease Agreement — Page 12





 









 









of any Unexpected Net Tax Benefit will be conclusive absent clear and manifest error,
as will any determination by BNPPLC that the amount of any Unexpected Net Tax Benefit in a
given tax year cannot be calculated with a reasonable effort. If NAI is dissatisfied with
any such determination by BNPPLC prior to the Designated Sale Date, NAI will be entitled to
accelerate the Designated Sale Date (as provided in clause (2) of the definition thereof),
after which NAI may purchase or cause an Applicable Purchaser to purchase the Property on
the accelerated Designated Sale Date pursuant to the Purchase Agreement.




	5	 	Payment of Executory Costs and Losses Related to the Property.





     (A)      Local Impositions. Subject only to the exceptions listed in subparagraph 5(D)
below, NAI must pay or cause to be paid prior to delinquency all Local Impositions. If requested by
BNPPLC from time to time, NAI must furnish BNPPLC with receipts or other appropriate evidence
showing payment of all Local Impositions at least ten days 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 Lease 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 earliest 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 (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.



     (B)      Increased Costs; Capital Adequacy Charges. Subject only to the exceptions listed
in subparagraph 5(D) below:




            (1)      If there is any increase in the cost to BNPPLC’s Parent or any Participant
of agreeing to make or making, funding or maintaining advances to BNPPLC in connection with
the Property because of any Banking Rules Change, then NAI must from



 




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time to time (after receipt of a request from BNPPLC’s Parent or such Participant as
provided below) pay to BNPPLC for the account of BNPPLC’s Parent or such Participant, as the
case may be, additional amounts sufficient to compensate BNPPLC’s Parent or the Participant
for such increased cost. A certificate as to the amount of such increased cost, submitted
to BNPPLC and NAI by BNPPLC’s Parent or the Participant, will be conclusive and binding upon
NAI, absent clear and demonstrable error.




            (2)      BNPPLC’s Parent or any Participant may demand additional payments (“Capital
Adequacy Charges”) if BNPPLC’s Parent or the Participant determines that any Banking Rules
Change affects the amount of capital to be maintained by it and that the amount of such
capital is increased by or based upon the existence of advances made or to be made to or for
BNPPLC to permit BNPPLC to maintain BNPPLC’s investment in the Property. To the extent that
BNPPLC’s Parent or any Participant demands Capital Adequacy Charges as compensation for the
additional capital requirements reasonably allocable to such investment or advances, NAI
must pay to BNPPLC for the account of BNPPLC’s Parent or the Participant, as the case may
be, the amount so demanded.




            (3)      Notwithstanding the foregoing provisions of this subparagraph 5(B), NAI will not be
obligated to pay any claim for compensation pursuant to this subparagraph 5(B) that arises
or accrues (a) as a result of any change in the rating assigned to BNPPLC by rating agencies
or bank regulators in regard to BNPPLC’s creditworthiness, record keeping or failure to
comply with Applicable Laws (including U.S. banking regulations applicable to subsidiaries
of a bank holding company), or (b) more than nine months prior to the date NAI is notified
of the intent of BNPPLC’s Parent or a Participant to make a claim for such charges;
provided, that if the Banking Rules Change which results in a claim for compensation is
retroactive, then the nine month period will be extended to include the period of the
retroactive effect of such Banking Rules Change. Further, BNPPLC will cause BNPPLC’s Parent
and any Participant that is an Affiliate of BNPPLC to use commercially reasonable efforts to
reduce or eliminate any claim for compensation pursuant to this subparagraph 5(B), including
a change in the office of BNPPLC’s Parent or such Participant through which it provides and
maintains Funding Advances if such change will avoid the need for, or reduce the amount of,
such compensation and will not, in the reasonable judgment of BNPPLC’s Parent or such
Participant, be otherwise disadvantageous to it. It is understood that NAI may also request
similar commercial reasonable efforts on the part of any Participant that is not an
Affiliate of BNPPLC, but if a claim for additional compensation by any such Participant is
not eliminated or waived, then NAI may request that BNPPLC replace such Participant as
provided in Paragraph 6. Nothing in this subparagraph will be construed to require BNPPLC’s
Parent or any Participant to create any new office through which to make or maintain Funding
Advances.



 




Lease Agreement — Page 14




 









 









            (4)      Any amount required to be paid by NAI under this subparagraph 5(B) will be due ten
days after a notice requesting such payment is received by NAI from BNPPLC’s Parent or the
applicable Participant.



     (C)      NAI’s Payment of Other Losses; General Indemnification. Subject only to the
exceptions listed in subparagraph 5(D) below:




            (1)      Agreement to Indemnify. As directed by BNPPLC, NAI must pay, reimburse, indemnify,
defend, protect and hold harmless BNPPLC and all other Interested Parties from and against
all Losses (including Environmental Losses) asserted against or incurred or suffered by any
of them at any time and from time to time by reason of, in connection with, arising out of,
or in any way related to the following:




	 	l	 	the ownership or alleged ownership of any interest in
the Property or the Rents;
	 
	 	l	 	the purchase, design, construction, preparation,
installation, inspection, delivery, non-delivery, acceptance,
rejection, possession, use, operation, maintenance, management, rental,
lease, sublease, repossession, condition (including defects, whether or
not discoverable), destruction, repair, alteration, modification,
restoration, addition or substitution, storage, transfer of title,
redelivery, return, sale or other disposition of all or any part of or
interest in the Property;
	 
	 	l	 	the imposition of any Lien (or incurring of any
liability to refund or pay over any amount as a result of any Lien)
against all or any part of or interest in the Property;
	 
	 	l	 	any failure of the Property or NAI itself to comply
with Applicable Laws;
	 
	 	l	 	Permitted Encumbrances or any violation thereof;
	 
	 	l	 	Hazardous Substance Activities, including those
occurring prior to the Term;
	 
	 	l	 	the negotiation, administration or enforcement of the
Operative Documents or the Participation Agreement;
	 
	 	l	 	the making or maintenance of Funding Advances;





 




Lease Agreement — Page 15




 









 









	 	l	 	any Interest Rate Swap that BNPPLC enters into as described in
subparagraph 3(B)(4) of this Lease;
	 
	 	l	 	the breach by NAI of this Lease, any other Operative
Document or any other document executed by NAI pursuant to or in
connection with any Operative Document;
	 
	 	l	 	any obligations of BNPPLC under the Closing Certificate
or the Ground Lease; or
	 
	 	l	 	any bodily or personal injury or death or property
damage occurring in or upon or in the vicinity of the Property through
any cause whatsoever.






NAI’s obligations under this indemnity will apply whether or not any Interested Party is
also indemnified as to the applicable Loss by another Interested Party and whether or not
the Loss arises or accrues because of any condition of the Property or other circumstance
concerning the Property prior to the Effective Date.




Further, in the event, for income tax purposes, an Interested Party must include in
its taxable income any payment or reimbursement from NAI which is required by this indemnity
(in this provision, the “Original Indemnity Payment”), and yet the Interested Party is not
entitled during the same taxable year to a corresponding and equal deduction from its
taxable income for the Loss paid or reimbursed by such Original Indemnity Payment (in this
provision, the “Corresponding Loss”), then NAI must also pay to such Interested Party on
demand the additional amount (in this provision, the “Additional Indemnity Payment”) needed
to gross up the Original Indemnity Payment for any and all resulting additional income
taxes. That is, NAI must pay an Additional Indemnity Payment as is needed so that the
Corresponding Loss (computed net of the reduction, if any, of the Interested Party’s income
taxes because of credits or deductions that are attributable to the Interested Party’s
payment or deemed payment of the Corresponding Loss and that are recognized for tax purposes
in the same taxable year during which the Interested Party must recognize the Original
Indemnity Payment as income) will not exceed the difference computed by subtracting (i) all
income taxes (determined for this purpose based on the highest marginal income tax rate
applicable to corporations for the relevant period or periods and the highest applicable
state or local marginal rates of such taxing authority applicable to corporations for the
relevant period or periods) imposed upon the Interested Party with respect to the Original
Indemnity Payment and the Additional Indemnity Payment, from (ii) the sum of the Original
Indemnity Payment and the Additional Indemnity Payment. (With regard to any payment or
reimbursement of an Original Indemnity Payment, “After Tax Basis” means that such payment or



 




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reimbursement is or will be made together with the additional amount needed to gross up such
Original Indemnity Payment as described in this provision.)




     (2)      Scope of Indemnities and Releases. Every indemnity and release provided
in this Lease and the other Operative Documents for the benefit of BNPPLC or other
Interested Parties, including the indemnity set forth in subparagraph 5(C)(1), will apply
even if and when the subject matter of the indemnity or release arises out of or results
from the negligence or strict liability of BNPPLC or any other Interested Party.
Further, all such indemnities and releases will apply even if insurance obtained by NAI or
required of NAI by this Lease or the other Operative Documents is not adequate to cover
Losses against or for which the indemnities and releases are provided. (However, NAI’s
liability for any failure to obtain insurance required by this Lease or the other Operative
Documents will not be limited to Losses against which indemnities are provided, it being
understood that the parties have agreed upon insurance requirements for reasons that extend
beyond providing a source of payment for Losses against which BNPPLC and other Interested
Parties may be indemnified by NAI.)




     (3)      Nonexclusive List of Costs Covered by Indemnity. Costs and expenses for which NAI
is responsible on an After Tax Basis pursuant to this subparagraph 5(C) will include all of
the following, except to the extent that the following are included in the Initial Advance
or in the calculation of any Break Even Price or Make Whole Amount paid to BNPPLC pursuant
to the Purchase Agreement:




	 	l	 	appraisal fees;
	 
	 	l	 	Uniform Commercial Code search fees;
	 
	 	l	 	filing and recording fees;
	 
	 	l	 	inspection fees and expenses;
	 
	 	l	 	brokerage fees and commissions;
	 
	 	l	 	survey fees;
	 
	 	l	 	title policy premiums and escrow fees;





 




Lease Agreement — Page 17




 









 









	 	l	 	any Breakage Costs or Fixed Rate Settlement Amount;
	 
	 	l	 	Attorneys’ Fees incurred by BNPPLC with respect to the
drafting, negotiation, administration or enforcement of this Lease or
the other Operative Documents; and
	 
	 	l	 	all taxes (except Excluded Taxes) related to the
Property or to the transactions contemplated in the Operative
Documents.






Such costs and expenses will also include all rent or other payments required of
BNPPLC under the Ground Lease, so long as this Lease remains in force or NAI remains
in possession of the Property or is entitled to possession by this Lease. (It is
understood, however, that with respect to payments which are required by the Ground
Lease from BNPPLC to NAI and for which NAI is required to reimburse BNPPLC, such
payments and the corresponding reimbursements will be offset and deemed paid by
offsetting book entries rather than by an actual transfer of funds back and forth
between the parties.)




(4)      Defense and Settlement of Indemnified Claims.




          (a)      By notice to NAI BNPPLC may direct NAI to assume on behalf of BNPPLC or any
other Interested Party and to conduct with due diligence and in good faith the
defense of and the response to any claim, proceeding or investigation included in or
concerning any Loss for which NAI is responsible pursuant to subparagraph 5(C)(1).
NAI must promptly comply with any such direction using counsel selected by NAI and
reasonably satisfactory to BNPPLC to represent BNPPLC or the applicable Interested
Party. In the event NAI fails to promptly comply with any such direction from
BNPPLC, BNPPLC or any other affected Interested Party may contest or settle the
claim, proceeding or investigation using counsel of its own selection at NAI’s
expense, subject to subparagraph 5(D)(3) if that subparagraph is applicable.




          (b)      Also, although subparagraphs 5(D)(3) and 5(D)(4) will apply to tort
claims asserted against any Interested Party related to the Property, the right of
an Interested Party to be indemnified pursuant to this subparagraph 5(C) for taxes
or other payments made to satisfy governmental requirements (“Government Mandated
Payments”) will not be conditioned in any way upon NAI having consented to or
approved of, or having been provided with an opportunity to defend against or
contest, such Government Mandated Payments. In all cases, however, including those
which may involve Government Mandated Payments, the rights of each Interested Party
to be indemnified will be subject to subparagraph 5(D)(5).



 




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            (5)      Payments Due. Any amount to be paid by NAI under this subparagraph 5(C) will be
due ten days after a notice requesting such payment is given to NAI, subject to any
applicable contest rights expressly granted to NAI by other provisions of this Lease.




            (6)      Survival. NAI’s obligations under this subparagraph 5(C) will survive the
termination or expiration of this Lease with respect to Losses suffered by any Interested
Party on or prior to, or by reason of any actual or alleged occurrence or circumstances on
or prior to, the later of the dates upon which (a) this Lease terminates or expires, or (b)
NAI surrenders possession and control of the Property.




(D)      Exceptions and Qualifications to Indemnities.




            (1)      Exceptions. BNPPLC acknowledges and agrees that nothing in Paragraph 4 or the
preceding subparagraphs of this Paragraph 5 will be construed to require NAI to pay or
reimburse:




                l       Excluded Taxes; or




                l      Losses incurred or suffered by any Interested Party that are proximately
caused by (and attributed by any applicable principles of comparative fault to) the
Established Misconduct of that Interested Party; or




                l      Losses that result from any Liens Removable by BNPPLC; or




                l      Losses incurred or suffered by any of the Participants in connection with the
negotiation or execution of the Participation Agreement (or supplements making them
parties thereto) or in connection with any due diligence Participants may undertake
before entering into the Participation Agreement; or




                l      Local Impositions or other Losses contested, if and so long as they are
contested, by NAI in accordance with any of the provisions of this Lease or other
Operative Documents which expressly authorize such contests; or




                l      transaction expenses or other Losses caused by or necessary to accomplish any
conveyance by BNPPLC to BNPPLC’s Parent or a Qualified Affiliate which constitutes a
Permitted Transfer only by reason of clause (3) of the definition of Permitted
Transfer in the Common Definitions and Provisions Agreement ; or



 




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                l      any amount which may from time to time be payable by BNPPLC
to any Participant representing the excess of “Base Rent” as defined in the
Participation Agreement over Base Rent as defined in and calculated pursuant to this
Lease and the Common Definitions and Provisions Agreement; or




                l      any decline in the value of the Property solely by reason of decline in
general market conditions and not because of any breach of this Lease or other
Operative Documents by NAI.




Further, without limiting BNPPLC’s rights (as provided in other provisions of this Lease and
other Operative Documents) to include the following in the calculation of the Lease Balance,
the Break Even Price and the Make Whole Amount (as applicable) or to collect Base Rent, a
Supplemental Payment and other amounts, the calculation of which depends upon the Lease
Balance, BNPPLC acknowledges and agrees that nothing in Paragraph 4 or the preceding
subparagraphs of this Paragraph 5 will be construed to require NAI to pay or reimburse an
Interested Party for costs paid by BNPPLC with the proceeds of the Initial Advance as part
of the Transaction Expenses or with Construction Advances.




     (2)      Notice of Claims. If an Interested Party receives a written notice of a claim for
taxes or a claim alleging a tort or other unlawful conduct that the Interested Party
believes is covered by the indemnity in subparagraph 5(C)(1), then such Interested Party
will be expected to promptly furnish a copy of such notice to NAI. The failure to so
provide a copy of the notice will not excuse NAI from its obligations under subparagraph
5(C)(1); except that if such failure continues for more than fifteen days after the notice
is received by such Interested Party and NAI is unaware of the matters described in the
notice, with the result that NAI is unable to assert defenses or to take other actions which
could minimize its obligations, then NAI will be excused from its obligation to indemnify
such Interested Party (and any Affiliate of such Interested Party) against Losses, if any,
which would not have been incurred or suffered but for such failure. For example, if BNPPLC
fails to provide NAI with a copy of a notice of an overdue tax obligation covered by the
indemnity set out in subparagraph 5(C)(1) and NAI is not otherwise already aware of such
obligation, and if as a result of such failure BNPPLC becomes liable for penalties and
interest covered by the indemnity in excess of the penalties and interest that would have
accrued if NAI had been promptly provided with a copy of the notice, then NAI will be
excused from any obligation to BNPPLC (or any Affiliate of BNPPLC) to pay the excess.




     (3)      Withholding of Consent to Settlements Proposed by NAI. With regard to any
tort claim against an Interested Party for which NAI undertakes to defend the Interested
Party as provided in subparagraph 5(C)(4)(a), if the Interested Party unreasonably refuses
to consent to a settlement of the claim which is proposed by NAI



 




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and which will meet the
conditions listed in the next sentence, NAI’s liability for the cost of
continuing the defense and for any other amounts payable in respect of the claim will
be limited to the total cost for which the settlement proposed by NAI would have been
accomplished but for the unreasonable refusal to consent. Any such settlement proposed by
NAI must meet the following conditions: (A) at the time of the settlement by NAI, NAI must
pay all amounts required to release the Interested Party and its property interests from any
further obligation for or liens securing the applicable claim and from any interest,
penalties and other related liabilities, and (B) the settlement or compromise must not
involve an admission of fraud or criminal wrongdoing or result in some other material
adverse consequence to the Interested Party.




     (4)      Settlements Without the Prior Consent of NAI.




            (a)      Except as otherwise provided in subparagraph 5(D)(4)(b), if any Interested
Party settles any tort claim for which it is entitled to be indemnified by NAI
without NAI’s consent, then NAI may, by notice given to the Interested Party no
later than ten days after NAI is notified of the settlement, elect to pay Reasonable
Settlement Costs to the Interested Party in lieu of a payment or reimbursement of
actual settlement costs. (With respect to any tort claim asserted against an
Interested Party, “Reasonable Settlement Costs” means the maximum amount that a
prudent Person in the position of the Interested Party, but able to pay any amount,
might reasonably agree to pay to settle the tort claim, taking into account the
nature and amount of the claim, the relevant facts and circumstances known to such
Interested Party at the time of settlement and the additional Attorneys Fees’ and
other costs of defending the claim which could be anticipated but for the
settlement.) After making an election to pay Reasonable Settlement Costs with
regard to a particular tort claim and a particular Interested Party, NAI will have
no right to rescind or revoke the election, despite any subsequent determination
that Reasonable Settlement Costs exceed actual settlement costs. It is understood
that Reasonable Settlement Costs may be more or less than actual settlement costs
and that a final determination of Reasonable Settlement Costs may not be possible
until after NAI must decide between paying Reasonable Settlement Costs or paying
actual settlement costs.




            (b)      Notwithstanding the foregoing, NAI will have no right to elect to pay
Reasonable Settlement Costs in lieu of actual settlement costs if an Interested
Party settles claims without NAI’s consent at any time when an Event of Default has
occurred and is continuing or after a failure by NAI to conduct with due diligence
and in good faith the defense of and the response to any claim, proceeding or
investigation as provided in subparagraph 5(C)(4)(a).



 




Lease Agreement — Page 21




 









 









            (c)      Except as provided in this subparagraph 5(D)(4), no settlement by
any Interested Party of any claim made against it will excuse NAI from any
obligation to indemnify the Interested Party against the settlement costs or other
Losses suffered by reason of, in connection with, arising out of, or in any way
related to such claim.




     (5)      No Authority to Admit Wrongdoing by NAI or to Bind NAI to any Settlement. No
Interested Party will under any circumstances have any authority to bind NAI to an admission
of wrongdoing or responsibility to any third party claimant with regard to matters for which
such Interested Party claims a right to indemnification from NAI under this Lease.




Further, nothing herein contained, including the foregoing provisions concerning settlements
by Interested Parties of indemnified Losses, will be construed as authorizing any Interested
Party to bind NAI to do or refrain from doing anything to satisfy a third party claimant.
If, for example, a claim is made by a Governmental Authority that NAI must refrain from some
particular conduct on or about the Land in order to comply with Applicable Laws, BNPPLC
cannot bind NAI (and will not purport to bind NAI) to any agreement to refrain from such
conduct or otherwise prevent NAI from continuing to contest the claim by reason of any
provision set forth herein.




Moreover, so long as this Lease continues, no Interested Party may settle any claim
involving the Property by executing any agreement (including any consent decree proposed by
any Governmental Authority) which purports to prohibit, limit or impose conditions upon any
use of the Property by NAI without the prior written consent of NAI. In the case of any
proposed settlement of a claim asserted by a Governmental Authority against BNPPLC, NAI will
not unreasonably withhold such consent. However, for purposes of determining whether it is
reasonable for NAI to withhold such consent, any diligent ongoing undertaking by NAI to
contest such the claim on behalf of BNPPLC will be relevant.




Subject to the foregoing provisions in this subparagraph 5(D)(5), any Interested Party may
agree for itself (and only for itself) to act or refrain from doing anything as demanded or
requested by a third party claimant; provided, however, in no event will such an agreement
impede NAI from continuing to exercise its rights to operate its business on the Property or
elsewhere in any lawful manner deemed appropriate by NAI, nor will any such agreement limit
or impede NAI’s right to contest claims raised by any third party claimants (including
Governmental Authorities) that NAI is not complying or has not complied with Applicable
Laws.




     (6)      Defense of Tax Claims. This Lease does not grant to NAI any right to



 




Lease Agreement — Page 22




 









 









control the defense of or contest any tax claim for which an Interested Party may have a
right to indemnity under subparagraph 5(C), other than the right to contest Local
Impositions as provided in subparagraph 5(A), nor does this Lease grant to NAI the right to
inspect the income tax returns, books or records of any Interested Party. Nevertheless, if
a tax claim is asserted against BNPPLC for which it is entitled to be indemnified pursuant
to subparagraph 5(C), BNPPLC will consider in good faith any defenses and strategies
proposed by NAI with regard to such claim, provided that NAI has delivered to BNPPLC at
NAI’s expense an opinion of reputable tax counsel to the effect that there is a reasonable
basis (as defined in ABA Formal Opinion 85-532) for contesting such claim. Further, if any
such tax claim is asserted against BNPPLC which involves assertions that apply not only to
the transactions contemplated by this Lease, but also to other similar transactions in which
BNPPLC has participated, then BNPPLC will not settle the claim on a basis that results in a
disproportionately greater tax burden with respect to the transactions contemplated herein
than with respect to such other similar transactions. For example, if taxing authorities
assert that both this Lease and other comparable lease agreements made by BNPPLC are not
financing arrangements as intended by the parties thereto, and on the basis of such
assertions the taxing authorities claim that BNPPLC owes income taxes which are not Excluded
Taxes, then BNPPLC will not settle the claim in a manner that would cause NAI’s liability
under subparagraph 5(C) to be disproportionately greater than the indemnity obligation of
another similarly situated tenant of BNPPLC under another lease agreement with an indemnity
provision comparable to subparagraph 5(C). Also, BNPPLC will not grant to another tenant
the right to dictate to BNPPLC the tax position BNPPLC must take in regard to the Property
or the Operative Documents, except that BNPPLC may include provisions comparable to the
foregoing in other leases to assure other tenants against a disproportionately greater
burden than NAI will bear in regard to any settlement of a tax claim by BNPPLC.




            (7)      Indemnified Parties Other than Landlord. As a condition to making any indemnity
payment for Losses directly to any Interested Party other than BNPPLC itself, NAI may
require the Interested Party to confirm and agree in writing that it will be obligated to
make the payments to NAI as provided in subparagraph 5(E) in the event the Interested Party
subsequently receives a refund of the Losses covered by such indemnity payment.




(E)      Refunds and Credits Related to Losses Paid by NAI.




            (1)      If BNPPLC receives a refund of any Losses paid, reimbursed or advanced by
NAI pursuant to this Paragraph 5 that has not already been accounted for in the After Tax
Basis calculation described in subparagraph 5(C)(1), BNPPLC will promptly pay to NAI the
amount of such refund, plus or minus any net tax benefits or detriments realized by BNPPLC
as a result of the refund and such payment to NAI; provided, that the amount



 




Lease Agreement — Page 23




 









 









payable to NAI
will not exceed the amount of the indemnity payment in respect of such
refunded Losses that was made by NAI. If it is subsequently determined that BNPPLC was
not entitled to the refund, the portion of the refund that is repaid or recaptured will be
treated as a Loss for which NAI must indemnify BNPPLC pursuant to this Paragraph 5 without
regard to subparagraph 5(D). If, in connection with any such refund, BNPPLC also receives
an amount representing interest on such refund, BNPPLC will promptly pay to NAI the amount
of such interest, plus or minus any net tax benefits or detriments realized by BNPPLC as a
result of the receipt or accrual of the interest and as a result of such payment to NAI;
provided, that BNPPLC will not be required to make any such payment in respect of the
interest (if any) that is fairly attributable to a period for which NAI had not yet paid,
reimbursed or advanced the Losses refunded to BNPPLC.




            (2)      If any Interested Party (other than BNPPLC itself) receives a refund of any Loss
paid, reimbursed or advanced by NAI pursuant to this Paragraph 5 that has not already been
accounted for in the After Tax Basis calculation described in subparagraph 5(C)(1), NAI may
demand (and enforce the demand pursuant to any agreement previously delivered by the
Interested Party as provided in subparagraph 5(D)(7)) that such Interested Party promptly
pay to NAI the amount of such refund, plus or minus any net tax benefits or detriments
realized by such Interested Party as a result of the refund and such payment to NAI;
provided, that the amount payable to NAI will not exceed the amount of the indemnity payment
in respect of such refunded Losses that was made by NAI. If it is subsequently determined
that such Interested Party was not entitled to the refund, the portion of the refund that is
repaid or recaptured will be treated as a Loss for which NAI must indemnify such Interested
Party pursuant to this Paragraph 5 without regard to subparagraph 5(D). If, in connection
with any such refund, such Interested Party also receives an amount representing interest on
such refund, NAI may demand that such Interested Party promptly pay to NAI the amount of
such interest, plus or minus any net tax benefits or detriments realized by such Interested
Party as a result of the receipt or accrual of the interest and as a result of such payment
to NAI; provided, that such Interested Party will not be required to make any such payment
in respect of the interest (if any) which is fairly attributable to a period before NAI
paid, reimbursed or advanced the Losses refunded to such Interested Party.




            (3)      With respect to Losses incurred or suffered by an Interested Party and paid or
reimbursed by NAI on an After Tax Basis, if taxes of such Interested Party which are not
subject to indemnification by NAI are reduced because of such Losses (whether by reason of a
deduction, credit or otherwise) and such reduction was not taken into account in the
calculation of the required reimbursement or payment by NAI, then for purposes of this
subparagraph 5(E) such reduction will be considered a “refund”.




            (4)      Notwithstanding the foregoing, in no event will BNPPLC or any other



 




Lease
Agreement — Page 24


 









 









Interested Party be required to make any payment to NAI pursuant to this
subparagraph 5(E) when an Event of Default has occurred and is continuing.



     (F)      Reimbursement of Excluded Taxes Paid by NAI. If NAI is ever required (by laws
imposing withholding tax obligations or otherwise) to pay Excluded Taxes that any Interested Party
should have paid, but failed to pay when due, in connection with this Lease, such Interested Party
must reimburse NAI for such Excluded Taxes (together with any additional amount required to
preserve for NAI the full amount of such reimbursement after related taxes are considered,
calculated in the same manner that an Additional Indemnity Payment would be calculated under
subparagraph ? in the case of a reimbursement owed by NAI to an Interested Party) within 30 days
after such Interested Party’s receipt of a written demand for such reimbursement by NAI.




	6	 	Replacement of Participants.





     (A)      NAI’s Right to Substitute Participants. So long as no Event of Default exists,
and subject to the terms and conditions set forth in subparagraph 6(B), if any Participant which is
not an Affiliate of BNPPLC (in this Paragraph, the “Unrelated Participant”) (1) declines to approve
the Rent for an extension of this Lease under subparagraph 1(D), or (2) makes a demand for
compensation under subparagraph 5(B), NAI may request that BNPPLC execute Participation Agreement
Supplements (as defined in the Participation Agreement) as needed to transfer the rights of the
Unrelated Participant thereunder to one or more new Participants (in this subparagraph, whether one
or more, the “New Participants”) designated by NAI who are willing and able to accept such
interests and to make Funding Advances as necessary to terminate the Unrelated Participant’s right
to payments in respect of Base Rent and the Lease Balance under the Operative Documents. BNPPLC
will execute such Participation Agreement Supplements within ten Business Days of the later to
occur of such request by NAI and satisfaction of all conditions set forth in subparagraph 6(B).



     (B)      Conditions to Replacement of Participants. NAI and BNPPLC, working
together, will endeavor in good faith to identify New Participants that are willing to replace any
Unrelated Participant described in the preceding subparagraph and that are acceptable to both NAI
and BNPPLC. (The term New Participants may include new parties to the Participation Agreement and
it may include existing Participants that increase their Funding Advances as needed to replace the
Unrelated Participant.) However, nothing contained herein will be construed to require BNPPLC
itself to increase its Percentage (as defined in the Participation Agreement) to replace an
Unrelated Participant, and nothing herein contained will be construed to require BNPPLC itself to
provide or to obtain from its Affiliates Funding Advances to replace the Funding Advances that an
Unrelated Participant has provided or agreed to provide. Also, New Participants will be subject to
the approval of BNPPLC; provided, that BNPPLC must not unreasonably withhold its approval for the
substitution of any New Participant proposed by NAI



 




Lease Agreement — Page 25





 









 







for any Unrelated Participant so long as (i) no
Event of Default has occurred and is continuing, (ii) BNPPLC
determines it can give such approval without violating Applicable Laws, without breaching its
obligations under the Participation Agreement, and without waiving rights or remedies it has under
this Lease or the other Operative Documents, (iii) BNPPLC or BNPPLC’s Parent is not involved in any
material litigation adverse to the New Participant in any pending lawsuit or other legal
proceeding, and (iv) all of the conditions listed in the next sentence are satisfied. Any
substitution of New Participants for an Unrelated Participant as provided in this Paragraph will be
subject to the following conditions:





     (1) the proposed substitution does not include a waiver of rights by BNPPLC against any
Unrelated Participant or require BNPPLC to pay any amounts out-of-pocket that is not
reimbursed concurrently by NAI or the New Participants;




     (2) the New Participants must become parties to the Participation Agreement (by
executing supplements to that agreement as provided therein) and must provide all funds due
to the Unrelated Participant being replaced because of the termination of the Unrelated
Participant’s rights to receive payments in respect of Net Cash Flow and Net Sales Proceeds
(both as defined in the Participation Agreement); and




     (3) the obligations of BNPPLC to the New Participants must not exceed the obligations
that BNPPLC would have had to the Unrelated Participant if there had been no substitution,
other than those for which NAI is liable.


Upon consummation of any such substitution NAI must pay to the replaced Participant Breakage Costs,
if any, incurred by the replaced Participant because of the substitution.





	7	 	Items Included in the Property





     (A)      Status of Property. All Improvements on the Land from time to time will
constitute “Property” covered by this Lease. Further, as provided in the Construction Management
Agreement, to the extent heretofore or hereafter acquired by NAI (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 deemed to have been acquired on behalf of BNPPLC by NAI and will constitute
“Property” covered by this Lease, as will all renewals or replacements of or substitutions for any
such Property. Upon request of BNPPLC, but not more often than once in any period of twelve
consecutive months, NAI will deliver to BNPPLC an inventory describing all significant items of
Personal Property (and, in the case of tangible personal property, showing the make, model, serial
number and location thereof) other than Improvements, with a certification by NAI that such
inventory is true and complete and that all



 




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items specified in the inventory are covered by this
Lease free and clear of any Lien other than the Permitted Encumbrances or Liens
Removable by BNPPLC.




     (B)      Changes in the Land Covered by the Ground Lease. Upon any amendment of the
definition of the “Land” covered by the Ground Lease, the “Land” as defined in and covered by this
Lease and the other Operative Documents will also be so amended.




	8	 	Environmental.





     (A)       Environmental Covenants by NAI.




                    (1)      NAI will not conduct or permit others to conduct Hazardous Substance Activities on
the Property, except Permitted Hazardous Substance Use and Remedial Work.




                    (2)      NAI will 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 (i) storm water runoff, (ii) waste water discharges through a
publicly owned treatment works, (iii) discharges that are a necessary part of any Remedial
Work, and (iv) other similar discharges consistent with the definition herein 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.




                    (3)      Following any discovery that Remedial Work is required by Environmental Laws or is
otherwise reasonably believed by BNPPLC to be required, and to the extent not inconsistent
with the other provisions of this Lease, NAI must promptly perform and diligently and
continuously pursue such Remedial Work.




                    (4)      If requested by BNPPLC in connection with any Remedial Work required by this
subparagraph, NAI must retain environmental consultants reasonably acceptable to BNPPLC to
evaluate any significant new information generated during NAI’s implementation of the
Remedial Work and to discuss with NAI whether such new information indicates the need for
any additional measures that NAI should take to protect the health and safety of persons
(including employees, contractors and subcontractors and their employees) or to protect the
environment. NAI must implement any such additional measures to the extent required with
respect to the Property by Environmental Laws or otherwise reasonably believed by BNPPLC to
be required.



     (B)      Right of BNPPLC to do Remedial Work Not Performed by NAI. If NAI’s failure
to perform any Remedial Work required as provided in subparagraph 8(A) continues beyond the



 




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Environmental Cure Period (as defined below), BNPPLC may, in addition to any other remedies
available to it, conduct all or any part of the Remedial Work. To the extent that Remedial Work is
done by BNPPLC pursuant to the preceding sentence (including any removal of Hazardous Substances),
the cost thereof will be a demand obligation owing by NAI to BNPPLC. As used in this subparagraph,
“Environmental Cure Period” means the period ending on the earliest of: (1) ninety days after NAI
is notified of the breach which must be cured within such period or, if during such ninety days NAI
initiates the Remedial Work and diligently and continuously pursues it in accordance with a
timetable accepted and approved by applicable Governmental Authorities (which may include delays
waiting for permits or other authorizations), the date by which such Remedial Work is to be
completed according to such timetable, (2) the date that any writ or order is issued for the levy
or sale of any property owned by BNPPLC (including the Property) because of such breach, (3) the
date that any criminal action is instituted or overtly threatened against BNPPLC or any of its
directors, officers or employees because of such breach, or (4) 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 net 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.




     (C)      Environmental Inspections and Reviews. BNPPLC reserves the right to retain
environmental consultants to review any report prepared by NAI or to conduct BNPPLC’s own
investigation to confirm whether NAI is complying with the requirements of this Paragraph 8. NAI
grants to BNPPLC and to BNPPLC’s agents, employees, consultants and contractors the right to enter
upon the Property during reasonable hours and after reasonable notice to inspect the Property and
to perform such tests as BNPPLC deems reasonably necessary or appropriate to review or investigate
Hazardous Substances in, on, under or about the Property or any discharge or reasonably suspected
discharge of Hazardous Substances into groundwater or surface water from the Property. NAI must
promptly reimburse BNPPLC for the fees of its environmental consultants and the costs of any such
inspections and tests; provided, however, BNPPLC’s right to reimbursement for the fees of any
consultant engaged as provided in this subparagraph or for the costs of any inspections or test
undertaken as provided in this subparagraph will be limited to the following circumstances: (1) an
Event of Default has occurred and is continuing at the time of such engagement, tests or
inspections; (2) NAI has not exercised the Purchase Option and BNPPLC has retained the consultant
to establish the condition of the Property prior to any conveyance thereof pursuant to the Purchase
Agreement or to the expiration of this Lease; (3) BNPPLC has retained the consultant to satisfy any
regulatory requirements applicable to BNPPLC or its Affiliates; (4) BNPPLC has retained the
consultant because it has reason to believe, and does in good faith believe, that a significant
violation of Environmental Laws concerning the Property has occurred; or (5) BNPPLC has retained
the consultant because BNPPLC has been notified of a possible violation of Environmental Laws
concerning the Property by any Governmental Authority having jurisdiction.



      



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     (D)      Communications Regarding Environmental Matters.




          (1)      NAI must promptly advise BNPPLC and Participants of (i) any discovery known to NAI
of any event or circumstance which would render any of the representations of NAI herein or
in any of the other Operative Documents concerning environmental matters materially
inaccurate or misleading if made at the time of such discovery and assuming that NAI was
aware of all relevant facts, (ii) any Remedial Work (or change in Remedial Work) required or
undertaken by NAI or its Affiliates in response to any (A) discovery of any Hazardous
Substances on, under or about the Property other than Permitted Hazardous Substances or (B)
any claim for damages resulting from Hazardous Substance Activities, (iii) any discovery
known to NAI of any occurrence or condition on any real property adjoining or in the
vicinity of the Property which would or could reasonably be expected to cause the Property
or any part thereof to be subject to any ownership, occupancy, transferability or use
restrictions under Environmental Laws, or (iv) any investigation or inquiry known to NAI of
any failure or alleged failure by NAI to comply with Environmental Laws affecting the
Property by any Governmental Authority responsible for enforcing Environmental Laws. In
such event, NAI will deliver to BNPPLC within thirty days after BNPPLC’s request, a
preliminary written environmental plan setting forth a general description of the action
that NAI proposes to take with respect thereto, if any, to bring the Property into
compliance with Environmental Laws or to correct any breach by NAI of this Paragraph 8,
including any proposed Remedial Work, the estimated cost and time of completion, the name of
the contractor and a copy of the construction contract, if any, and such additional data,
instruments, documents, agreements or other materials or information as BNPPLC may
reasonably request.




          (2)      NAI will provide BNPPLC and Participants with copies of all material written
communications with Governmental Authorities relating to the matters listed in the preceding
clause (1). NAI will also provide BNPPLC and Participants with copies of any correspondence
from third Persons which threaten litigation over any significant failure or alleged
significant failure of NAI to maintain or operate the Property in accordance with
Environmental Laws.




          (3)      Prior to NAI’s submission of a communication to any regulatory agency or
third party which causes, or potentially could cause (whether by implementation of or
response to said communication), a material change in the scope, duration, or nature of any
Remedial Work, NAI must, to the extent practicable, deliver to BNPPLC and Participants a
draft of the proposed submission (together with the proposed date of submission), and in
good faith assess and consider any comments of BNPPLC regarding the same. Promptly after
BNPPLC’s request, NAI will meet with BNPPLC to discuss the submission, will provide any
additional information reasonably requested by BNPPLC



      



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and will provide a written explanation
to BNPPLC addressing the issues raised by comments (if any) of BNPPLC regarding the
submission.



9      Insurance Required and Condemnation.




     (A)      Liability Insurance. Throughout the Term 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. NAI must deliver and maintain
with BNPPLC for each liability insurance policy required by this Lease 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.



     (B)      Property Insurance.




          (1)      Throughout the Term NAI must 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 Lease 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)      If any of the Property is destroyed or damaged by fire, explosion, windstorm, hail
or by any other casualty against which insurance is required hereunder, (a) BNPPLC may, but
will not be obligated to, make proof of loss if not made promptly by NAI after notice from
BNPPLC, (b) each insurance company concerned is hereby authorized and directed to make
payment for such loss directly to BNPPLC (or, if so instructed by BNPPLC, to NAI) for
application as required by Paragraph 10, and (c) BNPPLC will be entitled, in its own name or
in the name of NAI or in the name of both, to settle, adjust or compromise any and all
claims for loss, damage or destruction under any policy or policies of insurance; except
that, if any such claim is for less than $1,000,000, if no 97-10/Event has occurred and if
no Event of Default has occurred and is continuing, NAI alone will have the right to settle,
adjust or compromise the claim as NAI deems appropriate; and, except that, so long as no
97-10/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.




          (3)      BNPPLC will not in any event or circumstances be liable or responsible



      



Lease Agreement — Page 30




 









 






for failure to collect, or to exercise diligence in the collection of, any insurance proceeds.




          (4)      If any casualty results in damage to or loss or destruction of the Property, NAI
must give prompt notice thereof to BNPPLC and Paragraph 10 will apply.



     (C)      Failure to Obtain Insurance. If NAI fails to obtain any insurance or to provide
confirmation of any such insurance as required by this Lease, 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 require NAI to reimburse BNPPLC for the cost of such insurance
and to pay interest thereon computed at the Default Rate from the date such cost was paid by
BNPPLC until the date of reimbursement by NAI.



     (D)      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 will promptly notify the other (provided, however, BNPPLC will have
no liability for its failure to provide such notice) of the pendency of such proceedings. (As used
herein, “condemnation of the Property” or words of like effect will include any indirect
condemnation by means of a taking of the Land or the Existing Appurtenant Easements or any part
thereof.) NAI must, at its expense, diligently prosecute any such proceedings and must consult
with BNPPLC, its attorneys and experts and cooperate with them as reasonably requested in the
carrying on or defense of any such proceedings. BNPPLC is hereby authorized, in its own name or in
the name of NAI or in the name of both, at any time after a 97-10/Event or when an Event of Default
has occurred and is continuing, but not otherwise without NAI’s prior consent, to execute and
deliver valid acquittances for, and to appeal from, any such judgment, decree or award concerning
condemnation of any of the Property. 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.



     Notwithstanding the foregoing provisions of this subparagraph, if condemnation proceeds
totaling not more than $1,000,000 are to be recovered as a result of a taking of less than all or
substantially all of the Property, NAI may directly receive and hold such proceeds so long as no
Event of Default has occurred and is continuing and so long as NAI applies such proceeds as
required herein.



     (E)      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 to recover
Losses for which NAI is compensated by insurance or would be compensated by the insurance
contemplated in this Lease, but for any deductible or self-insured retention maintained under



      



Lease Agreement — Page 31




 









 




such
insurance or but for a failure of NAI to maintain the insurance as required by this Lease. 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.




10      Application of Insurance and Condemnation Proceeds.




     (A)      Collection and Application of Insurance and Condemnation Proceeds Generally. This
Paragraph 10 will govern the application of proceeds received by BNPPLC or NAI during the Term from
any third party (1) under any property insurance policy as a result of damage to the Property
(including proceeds payable under any insurance policy covering the Property which is maintained by
NAI), (2) as compensation for any restriction placed upon the use or development of the Property or
for the condemnation of the Property or any portion thereof, or (3) because of any judgment, decree
or award for injury or damage to the Property (e.g.,damage resulting from a third party’s release
of Hazardous Materials onto the Property); excluding, however, any funds
paid to BNPPLC by BNPPLC’s Parent, by an Affiliate of BNPPLC or by any Participant that is
made to compensate BNPPLC for any Losses BNPPLC may suffer or incur in connection with this Lease
or the Property. Except as provided in subparagraph 10(D), NAI must promptly pay over to BNPPLC
any insurance, condemnation or other proceeds covered by this Paragraph 10 which NAI may receive
from any insurer, condemning authority or other third party. All proceeds covered by this Paragraph
10, including those received by BNPPLC from NAI or third parties, will be applied as follows:




     (1)      First, proceeds covered by this Paragraph 10 will be used to reimburse BNPPLC for
any reasonably costs and expenses, including Attorneys’ Fees, that BNPPLC incurred to
collect the proceeds.




     (2)      Second, the proceeds remaining after such reimbursement to BNPPLC (hereinafter, the
“Remaining Proceeds”) will be applied, as hereinafter more particularly provided, either as
a Qualified Prepayment or to reimburse NAI or BNPPLC for the actual out-of-pocket costs of
repairing or restoring the Property. Until, however, any Remaining Proceeds received by
BNPPLC are applied by BNPPLC as a Qualified Prepayment or applied by BNPPLC to reimburse
costs of repairs to or restoration of the Property pursuant to this Paragraph 10, BNPPLC
will hold and maintain such Remaining Proceeds as Escrowed Proceeds in an interest bearing
account, and all interest earned on such account will be added to and made a part of such
Escrowed Proceeds.



     (B)      Advances of Escrowed Proceeds to NAI. Except as otherwise provided below in
this Paragraph 10, BNPPLC will advance all Remaining Proceeds held by it as Escrowed Proceeds to
reimburse NAI for the actual out-of-pocket cost to NAI of repairing or restoring the Property in
accordance with the requirements of this Lease and the other Operative Documents as the applicable
repair or restoration, progresses and upon compliance by NAI with such terms,



      



Lease Agreement — Page 32




 









 




conditions and
requirements as may be reasonably imposed by BNPPLC to assure the completion of such repair or
restoration with available funds. So long as any Lease Balance remains outstanding, however, BNPPLC
will not be required to pay Escrowed Proceeds to NAI in excess of the actual out-of-pocket cost to
NAI of the applicable repair or restoration, as evidenced by invoices or other documentation
reasonably satisfactory to BNPPLC, it being understood that BNPPLC may retain and, after NAI has
completed the applicable repair or restoration and been reimbursed for the out-of-pocket cost
thereof, apply any such excess (or so much thereof as is needed to reduce the Lease Balance to
zero) as a Qualified Prepayment.




     (C)      Application of Escrowed Proceeds as a Qualified Prepayment. Provided no
97-10/Event has occurred and no Event of Default has occurred and is continuing, BNPPLC will apply
any Remaining Proceeds paid to it (or other amounts available for application as a Qualified
Prepayment) as a Qualified Prepayment on any date that BNPPLC is directed to do so by a notice from
NAI; however, if such a notice from NAI specifies an effective date for a Qualified Prepayment that
is less than five Business Days after BNPPLC’s actual receipt of the notice, BNPPLC may postpone
the date of the Qualified Prepayment to any date not later than five Business Days after BNPPLC’s
receipt of the notice. In any event, BNPPLC may deduct Breakage Costs or any Fixed Rate Settlement
Amount incurred in connection with any Qualified
Prepayment from the Remaining Proceeds or other amounts available for application as the
Qualified Prepayment, and NAI must reimburse BNPPLC upon request for any such Breakage Costs or
Fixed Rate Settlement Amount that BNPPLC incurs but does not deduct.



     (D)      Right of NAI to Receive and Apply Remaining Proceeds Below a Certain Level. If,
after the Completion Date, any condemnation of any portion of the Property or any casualty
resulting in the diminution, destruction, demolition or damage to any portion of the Property will
(in the good faith judgment of BNPPLC) reduce the then current “AS IS” market value by less than
$1,000,000 and (in the good faith estimation of BNPPLC) be unlikely to result in Remaining Proceeds
of more than $1,000,000, and if no 97-10/Event has occurred and no Event of Default has occurred
and is continuing, then BNPPLC will, upon NAI’s request, instruct the condemning authority or
insurer, as applicable, to pay the Remaining Proceeds resulting therefrom directly to NAI. NAI must
apply any such Remaining Proceeds to the repair or restoration of the Property to a safe and secure
condition and to a value of no less than the value before taking or casualty.



     (E)      Special Provisions Applicable After a 97-10/Event or Event of Default.
Notwithstanding the foregoing, after any 97-10/Event, and when any Event of Default has occurred
and is continuing, BNPPLC will be entitled to receive and collect all insurance, condemnation or
other proceeds governed by this Paragraph 10 and to apply all Remaining Proceeds, when and to the
extent deemed appropriate by BNPPLC in its sole discretion, either (A) to the reimbursement of NAI
or BNPPLC for the out-of-pocket cost of repairing or restoring the Property, or (B) as Qualified
Prepayments.



      



Lease Agreement — Page 33




 









 





     (F)      NAI’s Obligation to Restore. Regardless of the adequacy of any Remaining
Proceeds available to NAI hereunder, if on or after the Completion Date, the Property is damaged by
fire or other casualty or less than all or substantially all of the Property is taken by
condemnation, NAI must promptly restore or improve the Property or the remainder thereof to a value
no less than the Lease Balance and to a reasonably safe and sightly condition. If for some reason
NAI is unable to restore the Property or remainder thereof to a value of no less than the Lease
Balance, then NAI must nevertheless promptly restore the Property or remainder thereof to a
reasonably safe and sightly condition and pay to BNPPLC for application as a Qualified Prepayment
the amount (if any), as determined by BNPPLC, needed to reduce the Lease Balance to no more than
the then current “AS IS” market value of the Property or remainder thereof.



     (G)      Takings of All or Substantially All of the Property on or after the Completion
Date. In the event of any taking of all or substantially all of the Property on or after the
Completion Date, BNPPLC will be entitled to apply all Remaining Proceeds (or so much thereof as is
required to reduce the Lease Balance to zero) as a Qualified Prepayment. Any taking of so much of
the Property as, in BNPPLC’s good faith judgment, makes it impracticable to restore or improve the
remainder thereof as required by part (1) of the preceding subparagraph will be considered a taking
of substantially all the Property for purposes of this Paragraph 10.



     (H)      If Remaining Proceeds Exceed the Lease Balance. Notwithstanding the various
provisions of this Lease authorizing BNPPLC to apply Remaining Proceeds received by it during the
Term as a Qualified Prepayment, in the event any such Remaining Proceeds exceed the sum of
(i) all payments thereof to NAI, (ii) any application thereof to cover the costs of repairing
or restoring the Property and (iii) the Lease Balance, then the excess will not be applied as a
Qualified Prepayment, but rather will constitute Escrowed Proceeds which must, if NAI exercises
the Purchase Option pursuant to the Purchase Agreement, be delivered to NAI as provided therein.



11      Additional Representations, Warranties and Covenants of NAI Concerning the Property. NAI
represents, warrants and covenants as follows:




     (A)      Operation and Maintenance. 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 due 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 will not use or occupy, or allow the use or occupancy of, the Property
in any manner which violates any Applicable Laws or which



      



Lease Agreement — Page 34




 









 




constitutes a public or private nuisance
or which makes void, voidable or cancelable any insurance then in force with respect to the
Property. To the extent that any of the following would, individually or in the aggregate, increase
the likelihood of a 97-10/Event or materially and adversely affect the value of the Property or the
use of the Property for purposes permitted by this Lease, NAI will 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 will 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 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.




     Notwithstanding the foregoing, NAI may in good faith, by appropriate proceedings, contest the
validity and applicability of any Applicable Law with respect to the Property, and pending such
contest NAI will not be deemed in default hereunder because of the violation of such Applicable
Law, if NAI diligently prosecutes such contest to completion in a manner reasonably satisfactory to
BNPPLC, and if NAI promptly causes the Property to comply with any such Applicable Law upon a final
determination by a court of competent jurisdiction that the same is valid and applicable to the
Property; provided, however, in any event such contest must be concluded and the violation of such
Applicable Law must be corrected by NAI and any claims asserted against BNPPLC or the Property
because of such violation must be paid by NAI, all prior
to the earliest of (i) the date that any criminal prosecution is instituted or overtly
threatened against BNPPLC or any of its directors, officers or employees because of such violation,
(ii) the date that any action is taken or overtly threatened by any Governmental Authority against
BNPPLC or any property owned by BNPPLC (including the Property) because of such violation, or (iii)
a 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.



     (B)      Debts for Construction, Maintenance, Operation or Development. NAI must cause all
debts and liabilities incurred in the construction, maintenance, operation or development of the
Property, including invoices for labor, material and equipment and all debts and charges for
utilities servicing the Property, to be promptly paid.



      



Lease Agreement — Page 35




 









 





     Notwithstanding the foregoing, NAI may in good faith, by appropriate proceedings,
contest the validity, applicability or amount of any asserted statutory liens in the nature of
contractors’, mechanics’ or materialmens’ liens, and pending such contest NAI will not be deemed in
default under this subparagraph because of the contested lien if (1) within thirty days after being
asked to do so by BNPPLC, NAI bonds over to BNPPLC’s reasonable satisfaction all such contested
liens against the Property alleged to secure an amount in excess of $1,000,000 (individually or in
the aggregate), (2) NAI diligently prosecutes such contest to completion in a manner reasonably
satisfactory to BNPPLC, and (3) NAI promptly causes to be paid any amount adjudged by a court of
competent jurisdiction to be due, with all costs and interest thereon, promptly after such judgment
becomes final; provided, however, that in any event each such contest must be concluded and the
lien, interest and costs must be paid by NAI prior to the earliest 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, (ii) the date that any writ or order is issued
under which the Property or any other property in which BNPPLC has an interest may be seized or
sold or any other action is taken or overtly threatened against BNPPLC or any property in which
BNPPLC has an interest because of the nonpayment thereof, or (iii) a 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.



     (C)      Repair, Maintenance, Alterations and Additions. NAI must keep the Property in good
order, operating condition and appearance and must cause all necessary repairs, renewals and
replacements to be promptly made. NAI will not allow any of the Property to be materially misused,
abused or wasted, and NAI will promptly replace any worn-out fixtures and tangible Personal
Property with fixtures and personal property comparable to the replaced items when new. NAI will
not, without the prior consent of BNPPLC, (i) remove from the Property any fixture or Personal
Property having significant value except such as are replaced by NAI by fixtures or Personal
Property of equal suitability and value, free and clear of any lien or security
interest (and for purposes of this clause “significant value” will mean any fixture or
Personal Property that has a value of more than $100,000 or that, when considered together with all
other fixtures and Personal Property removed and not replaced by NAI by items of equal suitability
and value, has an aggregate value of $500,000 or more) or (ii) make material new Improvements or
alter Improvements in any material respect following completion of the Work contemplated in the
Construction Management Agreement.



     However, provided that no 97-10/Event has occurred, and so long as no Event of Default
has occurred and is continuing, BNPPLC will not unreasonably withhold a consent requested by NAI
pursuant to the preceding sentence for the construction or alteration of Improvements. NAI
acknowledges, however, that BNPPLC’s refusal or failure to give such consent will be deemed



      



Lease Agreement — Page 36




 









 




reasonable if BNPPLC believes in good faith that the construction or alteration for which NAI is
requesting consent could have a material adverse impact upon the value of the Property (taken as
whole), or if NAI has not provided BNPPLC with adequate information to allow BNPPLC to properly
evaluate such impact on value.




     Without limiting the foregoing, NAI must notify BNPPLC before making any significant
alterations to the Improvements after the completion of the Construction Project, regardless of the
impact on the value of the Property expected to result from such alterations.



     (D)      Permitted Encumbrances. 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. Without limiting the foregoing, NAI must cause all amounts to be paid
when due, the payment of which is secured by any Lien against the Property created by the Permitted
Encumbrances. Without the prior consent of BNPPLC, NAI will not 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
which would encumber BNPPLC’s interest in the Property or be binding upon BNPPLC itself. (Whether
BNPPLC must give any such consent requested by NAI during the Term of this Lease will be governed
by subparagraph 4(C) of the Closing Certificate.)



     (E)      Books and Records Concerning the Property. NAI must keep books and records that
are accurate and complete in all material respects for the Property and, subject to Paragraph 22,
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 during normal business hours. (BNPPLC will not
over the objection of NAI inspect or copy such materials more than once in any twelve month period
unless BNPPLC believes in good faith that more frequent inspection and copying is required to
determine whether a Default or an Event of Default has occurred and is continuing or to assess the
effect thereof or to properly exercise remedies with respect thereto.) This subparagraph will not
be construed as requiring NAI to regularly maintain separate books and records relating exclusively
to the Property, but NAI will as reasonably requested from time to time by BNPPLC construct or
abstract from its regularly maintained books and records information required by this subparagraph
relating to the Property.



     12      Assignment and Subletting by NAI.



     (A)      BNPPLC’s Consent Required. Without the prior consent of BNPPLC, NAI will not
assign, transfer, mortgage, pledge or hypothecate this Lease or any interest of NAI hereunder and
will not sublet all or any part of the Property, by operation of law or otherwise, except as
follows:



      



Lease Agreement — Page 37




 









 






     (1)      So long as no 97-10/Event has occurred and no Event of Default has occurred
and is continuing, NAI may sublet (a) to Affiliates of NAI, or (b) no more than thirty-three
percent (33%) (computed on the basis of square footage) of the useable space in then
existing and completed building Improvements to Persons who are not NAI’s Affiliates,
subject to the conditions that (i) any such sublease by NAI must be made expressly subject
and subordinate to the terms hereof, (ii) the sublease must have a term equal to or less
than the remainder of the then effective Term of this Lease, and (iii) the use permitted by
the sublease must be expressly limited to uses consistent with subparagraph 2(A) or other
uses approved in advance by BNPPLC as uses that will not present any extraordinary risk of
uninsured environmental or other liability.




     (2)      So long as no 97-10/Event has occurred and no Event of Default has occurred and is
continuing, NAI may assign all of its rights under this Lease and the other Operative
Documents to an Affiliate of NAI, subject to the conditions that (a) the assignment must be
in writing and must unconditionally provide that the Affiliate assumes all of NAI’s
obligations hereunder and thereunder, and (b) NAI must execute an unconditional guaranty of
the obligations assumed by the Affiliate in form satisfactory to BNPPLC, confirming (x) that
notwithstanding the assignment NAI will remain primarily liable for all of the obligations
undertaken by NAI under the Operative Documents, (y) that such guaranty is a guaranty of
payment and not merely of collection, and (z) that NAI waives to the extent permitted by
Applicable Law all defenses otherwise available to guarantors or sureties.



     (B)      Standard for BNPPLC’s Consent to Assignments and Certain Other Matters. Consents
and approvals of BNPPLC which are required by this Paragraph 12 will not be unreasonably withheld,
but NAI acknowledges that BNPPLC’s withholding of such consent or approval will be reasonable if
BNPPLC determines in good faith that (1) giving the approval may increase BNPPLC’s risk of
liability for any existing or future environmental problem, (2) giving the approval is likely to
substantially increase BNPPLC’s administrative burden of complying with or monitoring NAI’s
compliance with the requirements of this Lease, or (3) any transaction for which NAI has requested
the consent or approval would negate NAI’s representations in the Operative Documents regarding
ERISA or cause any of the Operative Documents (or any exercise of BNPPLC’s rights thereunder) to
constitute a violation of any provision of ERISA. Further, NAI acknowledges that BNPPLC may
reasonably require, as a condition to giving its consent to any assignment by NAI, that NAI execute
an unconditional guaranty providing that NAI will remain primarily liable for all of the tenant’s
obligations hereunder and under other Operative Documents. Any such guaranty must be a guaranty of
payment and not merely of collection, must provide that NAI waives to the extent permitted by
Applicable Law all defenses otherwise available to guarantors or sureties, and must otherwise be in
a form satisfactory to BNPPLC.



      



Lease Agreement — Page 38




 









 





     (C)      Consent Not a Waiver. No consent by BNPPLC to a sale, assignment, transfer,
mortgage, pledge or hypothecation of this Lease or NAI’s interest hereunder, and no assignment or
subletting of the Property or any part thereof in accordance with this Lease or otherwise with
BNPPLC’s consent, will release NAI from liability hereunder; and any such consent will apply only
to the specific transaction thereby authorized and will not relieve NAI from any requirement of
obtaining the prior consent of BNPPLC to any further sale, assignment, transfer, mortgage, pledge
or hypothecation of this Lease or any interest of NAI hereunder.



13      Assignment by BNPPLC.




     (A)      Restrictions on Transfers. Except by a Permitted Transfer, BNPPLC will not
assign, transfer, mortgage, pledge, encumber or hypothecate this Lease or the other Operative
Documents or any interest of BNPPLC in and to the Property during the Term without the prior
consent of NAI, which consent NAI may withhold in its sole discretion. Further, notwithstanding
anything to the contrary herein contained, if withholding taxes are imposed on the Rents payable to
BNPPLC hereunder because of BNPPLC’s assignment of this Lease to any citizen of, or any corporation
or other entity formed under the laws of, a country other than the United States, NAI will not be
required to compensate BNPPLC or any such assignee for the withholding tax.



     (B)      Effect of Permitted Transfer or other Assignment by BNPPLC. If by a Permitted
Transfer BNPPLC sells or otherwise transfers the Property and assigns to the transferee all of
BNPPLC’s rights under this Lease and under the other Operative Documents, and if the transferee
expressly assumes all of BNPPLC’s obligations under this Lease and under the other Operative
Documents, then BNPPLC will thereby be released from any obligations arising after such assumption
under this Lease or under the other Operative Documents (other than any liability for a breach of
any continuing obligation to provide Construction Advances under the Construction Management
Agreement), and NAI must look solely to each successor in interest of BNPPLC for performance of
such obligations.



14      BNPPLC’s Right to Enter and to Perform for NAI .




     (A)      Right to Enter. BNPPLC and BNPPLC’s representatives may, subject to subparagraph
14(C), enter the Property for the purpose of making inspections or performing any work BNPPLC is
authorized to undertake by the next subparagraph or for the purpose of confirming whether NAI has
complied with the requirements of this Lease or the other Operative Documents. So long as no Event
of Default has occurred and is continuing and no apparent emergency exists which would justify
immediate entry, BNPPLC will give NAI at least two Business Days notice before making any such
entry over the objection of NAI and will limit any such entry to normal business hours.



      



Lease Agreement — Page 39




 









 





     (B)      Performance for NAI. If NAI fails to perform any act or to take any action
required of it by this Lease or the Closing Certificate, or to pay any money which NAI is required
by this Lease or the Closing Certificate 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. Any expenses so incurred by BNPPLC, and any money so paid by BNPPLC, will be a
demand obligation owing by NAI to BNPPLC. Further, upon making such payment, BNPPLC 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 Lease NAI may be required to perform, and the performance thereof by BNPPLC will
not constitute a waiver of NAI’s default. BNPPLC may during the progress of any such work by BNPPLC
keep and store upon the Property all necessary materials, tools, and equipment. BNPPLC will not in
any event be liable for inconvenience, annoyance, disturbance, loss of business, or other damage to
NAI or the subtenants or invitees of NAI by reason of the performance of any such work, or on
account of bringing materials, supplies and equipment into or through the Property during the
course of such work, and the obligations of NAI under this Lease will not thereby be excused in any
manner.



     (C)      Building Security. So long as NAI remains in possession of the Property, BNPPLC
or BNPPLC’s representative will, before making any inspection or performing any work on the
Property authorized by this Lease, do the following




     (1)      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




     (2)      if then requested to do so by NAI in order to maintain NAI’s 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 Lease.



15      Remedies.




     (A)      Traditional Lease Remedies. At any time after an Event of Default and after
BNPPLC has given any notice required by subparagraph 15(C), BNPPLC will be entitled at



      



Lease Agreement — Page 40




 









 




BNPPLC’s
option (and without limiting BNPPLC in the exercise of any other right or remedy BNPPLC may have,
and without any further demand or notice except as expressly described in this subparagraph 15(A)),
to exercise any one or more of the following remedies:





     (1)      By notice to NAI, BNPPLC may terminate NAI’s right to possession of the Property.
However, only a notice clearly and unequivocally confirming that BNPPLC has elected to
terminate NAI’s right of possession will be effective for purposes of this
provision.




     (2)      Upon termination of NAI’s right to possession as provided in the immediately
preceding subsection (1) and without further demand or notice, BNPPLC may re-enter the
Property in any manner not prohibited by Applicable Laws and take possession of all
improvements, additions, alterations, equipment and fixtures thereon and remove any persons
in possession thereof. Any personal property on the Land may be removed and stored in a
warehouse or elsewhere, and in such event the cost of any such removal and storage will be
at the expense and risk of and for the account of NAI.




     (3)      Upon termination of NAI’s right to possession as provided in the immediately
preceding subsection (1), this Lease will terminate and BNPPLC may recover from NAI damages
which include the following:




     (a)      the worth at the time of award of the unpaid Rent which had been earned at
the time of termination;




     (b)      costs and expenses actually incurred by BNPPLC to repair damage to the
Property that NAI was obligated to (but failed to) repair prior to the termination;




     (c)      the sum of the following (“Lease Termination Damages”):




     1)      the worth at the time of award of the amount by which the unpaid
Rent which would have been earned after termination until the time of award
exceeds the amount of such rental loss that NAI proves could have been
reasonably avoided;




     2)      the worth at the time of award of the amount by which the unpaid
Rent for the balance of the scheduled Term after the time of award exceeds
the amount of such rental loss that NAI proves could be reasonably avoided;




     3)      any other amount necessary to compensate BNPPLC for all



      



Lease Agreement — Page 41




 









 






the detriment proximately caused by NAI’s failure to perform NAI’s obligations
under this Lease or which in the ordinary course of things would be likely
to result therefrom, including the costs and expenses of preparing and
altering the Property for reletting and all other costs and expenses of
reletting (including Attorneys’ Fees, advertising costs and brokers’
commissions), and




     (d)      such other amounts in addition to or in lieu of the foregoing as may be
permitted from time to time by applicable California law.




The “worth at the time of award” of the amounts referred to in
subparagraph 15(A)(3)(a) and subparagraph 15(A)(3)(c)1) will be computed by allowing
interest at the Default Rate. The “worth at the time of award” of the amount referred to in
subparagraph 15(A)(3)(c)2) will be computed by discounting such amount at the discount rate
of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%).




Notwithstanding the foregoing, the total Lease Termination Damages which BNPPLC may recover
from NAI will be limited in amount to the extent required, if any, to prevent the sum of
recoverable Lease Termination Damages, plus any Supplemental Payment that BNPPLC has
received or remains entitled to recover pursuant to the Purchase Agreement, from being more
than the Maximum Remarketing Obligation; provided, however, if a Supplemental Payment is
owed to BNPPLC according to the Purchase Agreement, but NAI fails to pay it, this limitation
upon BNPPLC’s right to recover Lease Termination Damages will be of no effect. For
purposes of this provision, “Maximum Remarketing Obligation” is intended to have the meaning
assigned to it in the Purchase Agreement and is intended to be computed as of the date any
award of Lease Termination Damages to BNPPLC as if such date was the Designated Sale Date.




     (4)      Even after a breach of this Lease or abandonment of the Property by NAI, BNPPLC may
continue this Lease in force and recover Rent as it becomes due. Accordingly, despite any
breach or abandonment by NAI, this Lease will continue in effect for so long as BNPPLC does
not terminate NAI’s right to possession, and BNPPLC may enforce all of BNPPLC’s rights and
remedies under this Lease, including the right to recover the Rent as it becomes due under
this Lease. NAI’s right to possession will not be deemed to have been terminated by BNPPLC
except pursuant to subparagraph 15(A)(1) hereof. The following will not constitute a
termination of NAI’s right to possession:




          (a)      Acts of maintenance or preservation or efforts to relet the Property;




          (b)      The appointment of a receiver upon the initiative of BNPPLC to



      



Lease Agreement — Page 42




 









 






protect BNPPLC’s interest under this Lease; or




          (c)      Reasonable withholding of consent to an assignment or subletting, or
terminating a subletting or assignment by NAI.



     (B)      Foreclosure Remedies. At any time when an Event of Default has occurred and is
continuing, BNPPLC may notify NAI of BNPPLC’s intent to pursue remedies described in Exhibit
B, and at any time thereafter, regardless of whether the Event of Default is continuing, if NAI
has not already purchased the Property or caused an Applicable Purchaser to purchase the Property
pursuant to the Purchase Agreement, (i) BNPPLC will have the power and authority, to the extent
provided by law, after proper notice and lapse of such time as may be required by law, to sell or
arrange for a sale to foreclose\ its lien and security interest granted in Exhibit B, and
(ii) BNPPLC, in lieu of or in addition to exercising any power of sale granted in Exhibit
B, may proceed by a suit or suits in equity or at law, whether for a foreclosure or sale of the
Property, or against NAI for the Lease Balance, or for the specific performance of any covenant or
agreement
herein contained or in aid of the execution of any power herein granted, or for the
appointment of a receiver pending any foreclosure or sale of the Property, or for the enforcement
of any other appropriate legal or equitable remedy.



     (C)      Notice Required So Long As the Purchase Option Continues Under the Purchase
Agreement. After the Term actually commences and so long as NAI remains in possession of the
Property and there has been no termination of the Purchase Option as provided in Paragraph
6(B) of the Purchase Agreement, BNPPLC’s right to exercise remedies provided in subparagraph
15(A) or to complete any foreclosure sale as provided in subparagraph 15(B) will be subject to the
condition precedent that BNPPLC has notified NAI, at a time when an Event of Default has occurred
and is continuing and no less than thirty days prior to exercising such remedies or completing such
a sale, of BNPPLC’s intent to do so. The condition precedent is intended to provide NAI with an
opportunity to exercise the Purchase Option before losing possession of the Property because of the
remedies enumerated in subparagraph 15(A) or because of a sale authorized by subparagraph 15(B).
The condition precedent is not, however, intended to extend any period for curing an Event of
Default. Accordingly, if an Event of Default has occurred, and regardless of whether any Event of
Default is then continuing, BNPPLC may proceed immediately to exercise remedies provided in
subparagraph 15(A) or complete a sale authorized by subparagraph 15(B) at any time after the
earliest of (i) thirty days after BNPPLC has given such a notice to NAI, (ii) any date upon which
NAI relinquishes possession of the Property, or (iii) any termination of the Purchase Option.



     (D)      Enforceability. This Paragraph 15 will be enforceable to the maximum extent not
prohibited by Applicable Laws, and the unenforceability of any provision in this Paragraph will not
render any other provision unenforceable.



      



Lease Agreement — Page 43




 









 





     (E)      Remedies Cumulative. No right or remedy herein conferred upon or reserved
to BNPPLC is intended to be exclusive of any other right or remedy, and each and every such right
and remedy will be cumulative and in addition to any other right or remedy given to BNPPLC
hereunder or now or hereafter existing in favor of BNPPLC under Applicable Laws, except as
otherwise expressly provided in this subparagraph ?. In addition to other remedies provided in this
Lease, BNPPLC will be entitled, to the extent permitted by Applicable Law or in equity, to
injunctive relief in case of the violation, or attempted or threatened violation, of any of the
covenants, agreements, conditions or provisions of this Lease, or to a decree compelling
performance of any of the other covenants, agreements, conditions or provisions of this Lease to be
performed by NAI, or to any other remedy allowed to BNPPLC at law or in equity. Nothing contained
in this Lease will limit or prejudice the right of BNPPLC to prove for and obtain in proceedings
for bankruptcy or insolvency of NAI by reason of the termination of this Lease, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time when, and governing the
proceedings in which, the damages are to be proved, whether or not the amount be greater, equal to,
or less than the amount of the loss or damages referred to above. Without limiting the generality
of the foregoing, nothing contained herein will modify, limit or impair any of the rights and
remedies of BNPPLC under the Purchase Agreement, and BNPPLC will not be required to give the thirty
day notice described in subparagraph 15(C) as a condition precedent to any acceleration of the
Designated Sale Date or to taking any action to enforce the
Purchase Agreement. However, to prevent a double recovery, BNPPLC acknowledges that BNPPLC’s
right to recover Lease Termination Damages may be limited by the last provision of subparagraph
15(A)(3) above in the event BNPPLC collects or remains entitled to collect a Supplemental Payment
as provided in the Purchase Agreement.


16      Default by BNPPLC. If BNPPLC should default in the performance of any of its obligations
under this Lease, BNPPLC will have the time reasonably required, but in no event less than thirty
days, to cure such default after receipt of notice from NAI specifying such default and specifying
what action NAI believes is necessary to cure the default.



17      Quiet Enjoyment. Provided NAI pays the Base Rent and all Additional Rent payable
hereunder as and when due and payable and keeps and fulfills all of the terms, covenants,
agreements and conditions to be performed by NAI hereunder, BNPPLC will not during the Term disturb
NAI’s peaceable and quiet enjoyment of the Property; however, such enjoyment will be subject to the
terms and conditions of this Lease, to the Ground Lease, to Permitted Encumbrances and to any other
claims not constituting Liens Removable by BNPPLC. If any Lien Removable by BNPPLC is established
against the Property, BNPPLC will remove the Lien Removable by BNPPLC promptly. Any breach by
BNPPLC of this Paragraph will render BNPPLC liable to NAI for any monetary damages proximately
caused thereby, but as more specifically provided in subparagraph 4(B) above, no such breach will
entitle NAI to terminate this Lease or excuse NAI from its obligation to pay Rent.




      



Lease Agreement — Page 44




 









 




18      Surrender Upon Termination. Unless NAI or an Applicable Purchaser is purchasing
or has purchased BNPPLC’s entire interest in the Property pursuant to the terms of the Purchase
Agreement, NAI must, upon the termination of NAI’s right to occupancy, surrender to BNPPLC the
Property, including Improvements constructed by NAI and fixtures and furnishings included in the
Property, free of all Hazardous Substances (including Permitted Hazardous Substances) and tenancies
and with all Improvements in substantially the same condition as of the date the same were
initially completed, excepting only (i) ordinary wear and tear that occurs between the maintenance,
repairs and replacements required by other provisions of this Lease, and (ii) demolition,
alterations and additions which are expressly permitted by the terms of this Lease and which have
been completed by NAI in a good and workmanlike manner in accordance with all Applicable Laws. Any
movable furniture or movable personal property belonging to NAI or any party claiming under NAI, if
not removed at the time of such termination and if BNPPLC so elects, will be deemed abandoned and
become the property of BNPPLC without any payment or offset therefor. If BNPPLC does not so elect,
BNPPLC may remove such property from the Property and store it at NAI’s risk and expense. NAI must
bear the expense of repairing any damage to the Property caused by such removal by BNPPLC or NAI.



19      Holding Over by NAI. Should NAI not purchase BNPPLC’s right, title and interest in the
Property as provided in the Purchase Agreement, but nonetheless continue to hold the Property after
the termination of this Lease without objection by BNPPLC, whether such termination occurs by lapse
of time or otherwise, such holding over will constitute and be construed as a tenancy from day to
day only on and subject to all of the terms, provisions, covenants and agreements on the part of
NAI hereunder. No payments of money by NAI to
BNPPLC after the termination of this Lease will reinstate, continue or extend the Term of this
Lease and no extension of this Lease after the termination thereof will be valid unless and until
the same is reduced to writing and signed by both BNPPLC and NAI.



20      Recording Memorandum. Contemporaneously with the execution of this Lease, the parties
will execute and record a memorandum of this Lease for purposes of effecting constructive notice to
all Persons of NAI’s rights hereunder.



21      Independent Obligations Evidenced by Other Operative Documents. NAI acknowledges and
agrees that nothing contained in this Lease will limit, modify or otherwise affect any of NAI’s
obligations under the other Operative Documents, which obligations are intended to be separate,
independent and in addition to, and not in lieu of, the obligations set forth herein. Further, in
the event of any inconsistency between the express terms and provisions of the Purchase Agreement
and the express terms and provisions of this Lease, the express terms and provisions of the
Purchase Agreement will control.



22      Proprietary Information and Confidentiality.




      



Lease Agreement — Page 45




 









 





     (A)      Proprietary Information. NAI will have no obligation to provide proprietary
information (as defined in the next sentence) to BNPPLC, except and to the extent (1) expressly
required by other terms and conditions of the Operative Documents, or (2) requested by BNPPLC in
connection with any inspection of the Property pursuant to the various provisions hereof and, in
BNPPLC’s reasonably determination, required to allow BNPPLC to accomplish the purposes of such
inspection. (Before NAI delivers any such proprietary information in connection with any
inspection of the Property, NAI may require that BNPPLC confirm and ratify the confidentiality
agreements covering such proprietary information set forth herein.) For purposes of this Lease and
the other Operative Documents, “proprietary information” means NAI’s intellectual property, trade
secrets and other confidential information of value to NAI (including, among other things,
information about NAI’s manufacturing processes, products, marketing and corporate strategies) that
(1) is received by any representative of BNPPLC at the time of any on-site visit to the Property or
(2) otherwise delivered to BNPPLC by or on behalf of NAI and labeled “proprietary” or
“confidential” or by some other similar designation to identify it as information which NAI
considers to be proprietary or confidential.



     (B)      Confidentiality. BNPPLC will endeavor in good faith to use reasonable
precautions to keep confidential any proprietary information that BNPPLC may receive from NAI or
otherwise discover with respect to NAI or NAI’s business in connection with the administration of
this Lease or any investigation by BNPPLC hereunder. This provision will not, however, render
BNPPLC liable for any disclosures of proprietary information made by it or its employees or
representatives, unless the disclosure is intentional and made for no reason other than to damage
NAI’s business. Also, this provision will not apply to disclosures: (i) specifically and previously
authorized in writing by NAI; (ii) to any assignee of BNPPLC as to any interest in the Property so
long as such assignee has agreed in writing to use its reasonable efforts to keep such information
confidential in accordance with the terms of this paragraph; (iii) to legal counsel, accountants,
auditors, environmental consultants and other professional advisors to BNPPLC so long as
BNPPLC informs such persons in writing (if practicable) of the confidential nature of such
information and directs them to treat such information confidentially; (iv) to regulatory officials
having jurisdiction over BNPPLC or BNPPLC’s Parent (although the disclosing party will request
confidential treatment of the disclosed information, if practicable); (v) as required by legal
process (although the disclosing party will request confidential treatment of the disclosed
information, if practicable); (vi) of information which has previously become publicly available
through the actions or inactions of a person other than BNPPLC not, to BNPPLC’s knowledge, in
breach of an obligation of confidentiality to NAI; (vii) to any Participant so long as the
Participant is bound by and has not repudiated a confidentiality provision concerning NAI’s
proprietary information set forth in the Participation Agreement; or (vii) that are reasonably
believed by BNPPLC to be necessary or helpful to the determination or enforcement of any
contractual or other rights which BNPPLC has or may have against NAI or its Affiliates or which
BNPPLC has or may have concerning the Property (provided, that BNPPLC must cooperate with NAI as
NAI may reasonably request to mitigate any risk that such



      



Lease Agreement — Page 46




 









 




disclosures will result in subsequent
disclosures of proprietary information which are not necessary or helpful to any such determination
or enforcement; such cooperation to include, for example, BNPPLC’s agreement not to oppose a motion
by NAI to seal records containing proprietary information in any court proceeding initiated because
of a dispute between the parties over the Property or the Operative Documents).



Further, notwithstanding any other contrary provision contained in this Lease or the other
Operative Documents, BNPPLC and NAI (and each of their respective employees, representatives or
other agents) may disclose, without limitation of any kind, the tax treatment and tax structure of
the transactions contemplated by this Lease and all materials of any kind (including opinions or
other tax analyses) that are provided to such party relating to such tax treatment and tax
structure, other than any information for which non-disclosure is reasonably necessary in order to
comply with applicable securities laws and other than any information the disclosure of which would
waive the attorney-client privilege, the tax advisor privilege under Section 7525 of the Internal
Revenue Code, or similar privileges.




[The signature pages follow.]




      



Lease Agreement — Page 47





 










 





     IN WITNESS WHEREOF, this Lease is executed to be effective as of December 14, 2006.



	 	 	 	 	 	 	 
	 	 	BNP PARIBAS LEASING CORPORATION, a	 	 
	 	 	Delaware corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Lloyd G. Cox	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Lloyd G. Cox, Managing Director	 	 






 




Lease Agreement — Signature Page




 









 





     [Continuation of signature pages for Lease dated as of December 14, 2006]



	 	 	 	 	 	 	 
	 	 	NETWORK APPLIANCE, INC., a Delaware	 	 
	 	 	corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ingemar Lanevi	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Ingemar Lanevi, Vice President and Corporate	 	 
	 

	 	 	 	Treasurer	 	 






 




Lease Agreement — Signature Page




 









 





Exhibit A




Legal Description



Proposed Parcel 8, and (except to the extent within a different platted Parcel as currently shown
in the Map Records of the County of Santa Clara, California) proposed Parcel 12, and the Additional
Leased Premises as defined below, (collectively, the “2006 Ground Lease Premises”) as shown on
that certain Vesting Tentative Parcel Map provided to BNP Paribas Leasing Corporation (“BNPPLC”) by
Network Appliance, Inc. (“NAI”) attached hereto and made a part hereof (the “Tentative Map”), which
has received preliminary approval from the City of Sunnyvale, California, but not yet been filed
for record in the office of the recorder of the County of Santa Clara, State of California. As
used herein, “Additional Leased Premises” means the parking lots, driveways and other areas shaded
in gray on the Tentative Map attached hereto within the larger area designated as Common Lot A
(consisting of 30.46 Acres, more or less) on the Tentative Map. The southern boundary of the
Additional Leased Premises is a line that runs North 75 degrees, 07 minutes, 58 seconds equidistant
from the southern boundary of Parcel 8 and the northern boundary of Parcel 7, both as shown on the
Tentative Map. The eastern boundary of the Additional Leased Premises runs along the same line as
the eastern boundary of Common Lot A, as shown on the Tentative Map. The western boundary of the
Additional Leased Premises runs along the same line as the western boundary of Parcel 8 and Parcel
7, as shown on the Tentative Map. The northern boundary of the Additional Leased Premises runs
along the center of an existing or proposed driveway which is situated between Parcel 8 and Parcel
9, as shown on the Tentative Map.



TOGETHER WITH, easements appurtenant to the 2006 Ground Lease Premises as described in Exhibit
A attached to the Ground Lease.





 









 









	SUBSTITUTE A COPY OF
THE TENTATIVE PARCEL MAP
FOR THIS PAGE





 




Exhibit A to Lease Agreement —  Page 2




 









 





Exhibit B




California Foreclosure Provisions



Without limiting any of the provisions set forth in the body of this Lease or other attachments to
this Lease, the following provisions are included in and made a part of this Lease for all
purposes:




GRANT OF LIEN AND SECURITY INTEREST.




     NAI, for and in consideration of the sum of Ten Dollars ($10.00) to NAI in hand paid by
Lloyd G. Cox, Trustee, of Dallas County, Texas (in this Exhibit called the “Trustee”), in order to
secure the recovery of the Lease Balance by BNPPLC and the payment of all of the other obligations,
covenants, agreements and undertakings of NAI under this Lease or other Operative Documents (in
this Exhibit called the “Secured Obligations”), does hereby irrevocably GRANT, BARGAIN, SELL,
CONVEY, TRANSFER, ASSIGN and SET OVER to the Trustee, IN TRUST WITH POWER OF SALE, for the benefit
of BNPPLC, the leasehold interest in the Land created by the Ground Lease, together with (i) all
the buildings and other improvements now on or hereafter located thereon; (ii) all materials,
equipment, fixtures or other property whatsoever now or hereafter attached or affixed to or
installed in said buildings and other improvements, including, but not limited to, all heating,
plumbing, lighting, water heating, refrigerating, incinerating, ventilating and air conditioning
equipment, utility lines and equipment (whether owned individually or jointly with others),
sprinkler systems, fire extinguishing apparatus and equipment, water tanks, engines, machines,
elevators, motors, cabinets, shades, blinds, partitions, window screens, screen doors, storm
windows, awnings, drapes, and floor coverings, and all fixtures, accessions and appurtenances
thereto, and all renewals or replacements of or substitutions for any of the foregoing, all of
which are hereby declared to be permanent fixtures and accessions to the freehold and part of the
realty conveyed herein as security for the obligations mentioned hereinabove; (iii) all easements
and rights of way now and at any time hereafter used in connection with any of the foregoing
property or as a means of ingress to or egress from the Land or for utilities to said property;
(iv) all interests of NAI in and to any streets, ways, alleys and/or strips of land adjoining said
land or any part thereof; (v) all rents, issues, profits, royalties, bonuses, income and other
benefits derived from or produced by the Land or Improvements; (vi) all leases or subleases of the
Land or Improvements or any part thereof now or hereafter in effect, including all security or
other deposits, advance or prepaid rents, and deposits or payments of similar nature; (vii) all
options to purchase or lease the Land or Improvements or any part thereof or interest therein, and
any greater estate in the Land or Improvements now owned or hereafter acquired by NAI; (viii) all
right, title, estate and interest of every kind and nature, at law or in equity, which NAI now has
or may hereafter acquire in the Land or Improvements; and (ix) all other claims and demands with
respect to the Land or Improvements or the Collateral (as hereinafter defined), including all
claims or demands to all proceeds of all insurance now or hereafter in effect with respect to the
Land, Improvements or Collateral, all awards made for the taking by condemnation or the power of
eminent domain, or by any proceeding or purchase in lieu thereof, of the Land, Improvements or
Collateral, or any part thereof, or any damage or injury thereto, all awards resulting from a
change of grade of



 









 







streets, and all awards for severance damages; and (vi) all rights, estates,
powers and privileges appurtenant or incident to the foregoing.



     TO HAVE AND TO HOLD the foregoing property (in this Exhibit called the “Mortgaged Property”)
unto the Trustee, IN TRUST, and his successors or substitutes in this trust and to his or their
successors and assigns upon the terms, provisions and conditions herein set forth for the benefit
of BNPPLC.



     In order to secure the Secured Obligations, NAI also hereby grants to BNPPLC a security
interest in: all components of the Property which constitute personalty, whether owned by NAI now
or hereafter, and all fixtures, accessions and appurtenances thereto, and all renewals or
replacements of or substitutions for any of the foregoing (including all building materials and
equipment now or hereafter delivered to said premises and intended to be installed or in or
incorporated as part of the Improvements); all rents and other amounts from and under leases of all
or any part of the Property; all issues, profits and proceeds from all or any part of the Property;
all proceeds (including premium refunds) of each policy of insurance relating to the Property; all
proceeds from the taking of the Property or any part thereof or any interest therein or right or
estate appurtenant thereto by eminent domain or by purchase in lieu thereof; all permits, licenses,
franchises, certificates, and other rights and privileges obtained in connection with the Property;
all plans, specifications, maps, surveys, reports, architectural, engineering and construction
contracts, books of account, insurance policies and other documents, of whatever kind or character,
relating to the use, construction upon, occupancy, leasing, sale or operation of the Property; all
proceeds and other amounts paid or owing to NAI under or pursuant to any and all contracts and
bonds relating to the construction, erection or renovation of the Property; and all oil, gas and
other hydrocarbons and other minerals produced from or allocated to the Property and all products
processed or obtained therefrom, the proceeds thereof, and all accounts and general intangibles
under which such proceeds may arise, together with any sums of money that may now or at any time
hereafter become due and payable to NAI by virtue of any and all royalties, overriding royalties,
bonuses, delay rentals and any other amount of any kind or character arising under any and all
present and future oil, gas and mining leases covering the Property or any part thereof (all of the
property described in this section are collectively called the “Collateral” in this Exhibit) and
all proceeds of the Collateral. (The Mortgaged Property and the Collateral are in this Exhibit
sometimes collectively called the “Security”.)


FORECLOSURE BY POWER OF SALE




     Upon the occurrence of any Event of Default, the Trustee, its successor or substitute,
and/or BNPPLC is authorized and empowered to execute all written notices then required by law to
cause the Security to be sold under power of sale to satisfy the Secured Obligations. Trustee
shall give and record such notices as the law then requires as a condition precedent to a trustee’s
sale. When the minimum period of time required by law after giving all required notices has
elapsed, Trustee, without notice to or demand upon NAI except as otherwise required by law,



 




Exhibit B to Lease Agreement —  Page 2




 









 




shall
sell the Security at the time and place of sale fixed by it in the notice of sale, at one or
several sales, either as a whole or in separate parcels and in such manner and order, all as BNPPLC
or Trustee in its sole discretion may determine, at public auction to the highest bidder for cash,
in lawful money of the United States, payable at the time of sale (the obligations hereby secured
being the equivalent of
cash for purposes of said sale). NAI shall have no right to direct the order in which the
Security is sold or to require that the Security be sold in separate lots or parcels or items. The
sale by the Trustee of less than the whole of the Mortgaged Property shall not exhaust the power of
sale herein granted, and the Trustee is specifically empowered to make successive sale or sales
under such power until the whole of the Mortgaged Property shall be sold; and, if the proceeds of
such sale of less than the whole of the Mortgaged Property shall be less than the aggregate of the
indebtedness secured hereby and the expense of executing this trust as provided herein, the rights
and remedies of BNPPLC hereunder and the lien hereof shall remain in full force and effect as to
the unsold portion of the Mortgaged Property just as though no sale or sales had been made;
provided, however, that NAI shall never have any right to require the sale of less than the whole
of the Mortgaged Property but BNPPLC shall have the right, at its sole election, to request the
Trustee to sell less than the whole of the Mortgaged Property. Subject to requirements and limits
imposed by law, including California Civil Code § 2924g, Trustee may postpone sale of all or any
portion of the Security by public announcement at such time and place of sale and from time to time
may postpone the sale by public announcement at the time and place fixed by the preceding
postponement. Any person or entity, including Trustee, NAI or BNPPLC, may purchase at the sale,
and NAI hereby covenants to warrant and defend the title of such purchaser or purchasers. Trustee
shall deliver to the purchaser at such sale a deed conveying the Security or portion thereof so
sold, but without any covenant or warranty, express or implied. At any such sale (i) NAI hereby
agrees, in its behalf and in behalf of its heirs, executors, administrators, successors, personal
representatives and assigns, that any and all recitals made in any deed of conveyance given by
Trustee of any matters or facts stated therein, including without limitation, the identity of
BNPPLC, the occurrence or existence of any default, the acceleration of the maturity of any of the
Secured Obligations, the request to sell, the notice of sale, the giving of notice to all debtors
legally entitled thereto, the time, place, terms, and manner of sale, and receipt, distribution and
application of the money realized therefrom, and the due and proper appointment of a substitute
Trustee and any other act or thing duly done by BNPPLC or by Trustee hereunder, shall be taken by
all courts of law and equity as prima facie evidence that the statement or recitals state facts and
are without further question to be so accepted as conclusive proof of the truthfulness thereof, and
NAI hereby ratifies and confirms every act that Trustee or any substitute Trustee hereunder may
lawfully do in the premises by virtue hereof; and (ii) the purchaser may disaffirm any easement
granted, or rental, lease or other contract made, in violation of any provision of any of the
Operative Documents, and may take immediate possession of the Security free from, and despite the
terms, of, such grant of easement and rental or lease contract.




     BNPPLC may elect to cause the Security or any part thereof to be sold under the power
of sale herein granted in any manner permitted by applicable law. In connection with any sale or
sales



 




Exhibit B to Lease Agreement —  Page 3




 









 





hereunder, BNPPLC may elect to treat any portion of the Security which consists of a right in
action or which is property that can be severed from the Security without causing structural damage
thereto as if the same were personal property, and dispose of the same in accordance with
applicable law, separate and apart from the sale of the real property. Any sale of any personal
property hereunder shall be conducted in any manner permitted by the California Uniform Commercial
Code (in this Exhibit called the “Code”). Where any portion of the Security consists
of real property and personal property or fixtures, whether or not such personal property is
located on or within the real property, BNPPLC may elect in its discretion to exercise its rights
and remedies against any or all of the real property, personal property and fixtures, in such order
and manner as is now or hereafter permitted by applicable law. Without limiting the generality of
the foregoing, BNPPLC may, in its sole and absolute discretion and without regard to the adequacy
of its security, elect to proceed against any or all of the real property, personal property and
fixtures in any manner permitted by the Code; and if BNPPLC elects to sell both personal property
and real property together as permitted by the Code, the power of sale herein granted shall be
exercisable with respect to all or any of the real property, personal property and fixtures covered
hereby, as designated by BNPPLC, and Trustee is hereby authorized and empowered to conduct any such
sale of any real property, personal property and fixtures in accordance with the procedures
applicable to real property. Where any portion of the Security consists of real property and
personal property, any reinstatement of the Secured Obligations, following default and an election
by BNPPLC to accelerate the maturity of said obligations, which is made by NAI or any other person
or entity permitted to exercise the right of reinstatement under § 2924c of the California Civil
Code or any successor statute, shall, in accordance with the terms of Code, not prohibit BNPPLC or
Trustee from conducting a sale or other disposition of any personal property or fixtures or from
otherwise proceeding against or continuing to proceed against any personal property or fixtures in
any manner permitted by the Code, nor shall any such reinstatement invalidate, rescind or otherwise
affect any sale, disposition or other proceeding held, conducted or instituted with respect to any
personal property or fixtures prior to such reinstatement or pending at the time of such
reinstatement. Any sums paid to BNPPLC in effecting any reinstatement pursuant to § 2924c of the
California Civil Code shall be applied to the indebtedness secured hereby, and to BNPPLC’s
reasonable costs and expenses in the manner required by § 2924c. Should BNPPLC elect to sell any
portion of the Security which is real property, or which is personal property or fixtures that
BNPPLC has elected to sell together with the real property in accordance with the laws governing a
sale of real property, BNPPLC or Trustee shall give such notice of default and election to sell as
may then be required by law, and without the necessity of any demand on NAI, Trustee, at the
time(s) and place(s) specified in the notice of sale, shall sell said real property, and all
estate, right, title, interest, claim and demand therein, and equity and right of redemption
thereof, at such times and places as required or permitted by law, upon such terms as BNPPLC or
Trustee may fix and specify in the notice of sale or as may be required by law. If the Security
consists of several lots, parcels or items of property, BNPPLC may: (i) designate the order in
which such lots, parcels or items shall be offered for sale or sold, or (ii) elect to sell such
lots, parcels or items through a single sale, or through two or more successive sales, or in any
other manner BNPPLC deems in



 




Exhibit B to Lease Agreement —  Page 4




 









 




its best interest. Should BNPPLC desire that more than one sale or
other disposition of the Mortgaged Property be conducted, BNPPLC may, at its option, cause the same
to be conducted simultaneously, or successively, on the same day, or on such different days or
times and in such order as BNPPLC may deem to be in its best interests, and no such sale shall
exhaust the power of sale herein granted or terminate or otherwise affect the lien granted by NAI
herein on, or the security interests of BNPPLC in, any part of the Security not sold, until all of
the indebtedness secured hereby has been fully paid and satisfied. In the event BNPPLC elects to
dispose of the Security through more than one sale, NAI agrees to pay the costs and expenses of
each such sale and of any judicial proceedings wherein the same may be made, including reasonable
compensation to BNPPLC and Trustee, their agents and counsel, and to pay all expenses, liabilities
and advances made or incurred by BNPPLC and Trustee (or either of them) in connection with such
sale or sale, together with interest on all such advances made by BNPPLC and Trustee (or either of
them) at the Default Rate.



JUDICIAL FORECLOSURE




     This instrument shall be effective as a mortgage as well as a deed of trust and upon the
occurrence of an Event of Default may be foreclosed as to any of the Security in any manner
permitted by the laws of the State of California or of any other state in which any part of the
Security is situated, and any foreclosure suit may be brought by the Trustee or by BNPPLC. In the
event a foreclosure hereunder shall be commenced by the Trustee, or his substitute or successor,
BNPPLC may at any time before the sale of the Security direct the said Trustee to abandon the sale,
and may then institute suit for the collection of the Secured Obligations and for the judicial
foreclosure of this instrument. It is agreed that if BNPPLC should institute a suit for the
collection of the Secured Obligations and for the foreclosure of this instrument, BNPPLC may at any
time before the entry of a final judgment in said suit dismiss the same, and require the Trustee,
his substitute or successor to exercise the power of sale granted herein to sell the Security in
accordance with the provisions of this instrument.



BNPPLC AS PURCHASER




     BNPPLC shall have the right to become the purchaser at any sale held by any Trustee or
substitute or successor or by any receiver or public officer, and any BNPPLC purchasing at any such
sale shall have the right to credit upon the amount of the bid made therefor, to the extent
necessary to satisfy such bid, the outstanding Lease Balance and other Secured Obligations owing to
such BNPPLC.



UNIFORM COMMERCIAL CODE REMEDIES




     Upon the occurrence of an Event of Default, BNPPLC may exercise its rights of
enforcement with respect to the Collateral under the California Uniform Commercial Code, as



 




Exhibit B to Lease Agreement —  Page 5




 









 




amended, and in conjunction with, in addition to or in substitution for those rights and remedies:





     (a)      BNPPLC may enter upon the Land to take possession of, assemble and collect the
Collateral or to render it unusable; and




     (b)      BNPPLC may require NAI to assemble the Collateral and make it available at a place
BNPPLC designates which is mutually convenient to allow BNPPLC to take possession or dispose
of the Collateral; and




     (c)      written notice mailed to NAI as provided herein ten (10) days prior to the date of
public sale of the Collateral or prior to the date after which private sale of the
Collateral will be made shall constitute reasonable notice; and




     (d)      any sale made pursuant to the provisions of this section shall be deemed to have
been a public sale conducted in a commercially reasonable manner if held contemporaneously
with the sale of the Mortgaged Property under power of sale as provided herein upon giving
the same notice with respect to the sale of the Collateral hereunder as is required for such
sale of the Mortgaged Property under power of sale; and




     (e)      in the event of a foreclosure sale, whether made by the Trustee exercising the
power of sale granted herein, or under judgment of a court, the Collateral and the Mortgaged
Property may, at the option of BNPPLC, be sold as a whole; and




     (f)      it shall not be necessary that BNPPLC take possession of the Collateral or any part
thereof prior to the time that any sale pursuant to the provisions of this section is
conducted and it shall not be necessary that the Collateral or any part thereof be present
at the location of such sale; and




     (g)      prior to application of proceeds of disposition of the Collateral to the Secured
Obligations, such proceeds shall be applied to the reasonable expenses of retaking, holding,
preparing for sale or lease, selling, leasing and the like and the reasonable attorney’s
fees and legal expenses incurred by BNPPLC; and




     (h)      any and all statements of fact or other recitals made in any bill of sale or
assignment or other instrument evidencing any foreclosure sale hereunder as to nonpayment of
the Secured Obligations or as to the occurrence of any Event of Default, or as to BNPPLC
having declared any of the Secured Obligations to be due and payable, or as to notice of
time, place and terms of sale and of the properties to be sold having been duly given, or as
to any other act or thing having been duly done by BNPPLC, shall be taken as prima facie
evidence of the truth of the facts so stated and recited; and




     (i)      BNPPLC may appoint or delegate any one or more persons as agent to



 




Exhibit B to Lease Agreement —  Page 6




 









 






perform any act or acts necessary or incident to any sale held by BNPPLC, including the sending of
notices and the conduct of the sale, but in the name and on behalf of BNPPLC.



APPOINTMENT OF A RECEIVER




     In addition to all other remedies herein provided for, if any Event of Default occurs or
continues after the Designated Sale Date, BNPPLC shall as a matter of right be entitled to the
appointment of a receiver or receivers for all or any part of the Security, whether such
receivership be incident to a proposed sale of such property or otherwise, and without regard to
the adequacy of the security or the value of the Security or the solvency of any person or persons
liable for the payment of the Secured Obligations, and NAI does hereby irrevocably consent to the
appointment
of such receiver or receivers, waives any and all defenses to such appointment and agrees not
to oppose any application therefor by BNPPLC, but nothing herein is to be construed to deprive
BNPPLC of any other right, remedy or privilege it may now have under the law to have a receiver
appointed. Any such receiver or receivers shall have all of the usual powers and duties of
receivers in like or similar cases and shall continue as such and exercise all such powers until
the date of confirmation of sale of the Security unless such receivership is sooner terminated.
Any money advanced by BNPPLC in connection with any such receivership shall be a demand obligation
owing by NAI to BNPPLC and shall bear interest from the date of making such advancement by BNPPLC
until paid at the Default Rate and shall be a part of the Secured Obligations and shall be secured
by this lien and by any other instrument securing the Secured Obligations.



PROVISIONS CONCERNING THE TRUSTEE




     Trustee accepts this trust when a Short Form Lease or memorandum referencing the provisions of
this Exhibit, duly executed and acknowledged, is made a public record as provided by law. The
trust hereby created shall be irrevocable by NAI.



     In the event the Trustee takes any action pursuant to the provisions of this Exhibit, NAI
shall pay to Trustee reasonable compensation for services rendered in the administration of this
trust, which shall be in addition to any required reimbursement for Attorney’s Fees or other
expenses.



     BNPPLC may appoint a substitute to replace and act as the Trustee hereunder in any
manner now or hereafter provided by law, or in lieu thereof, BNPPLC may from time to time, by an
instrument in writing, appoint substitutes as successor or successors to any Trustee named herein
or acting hereunder, which instrument, executed and acknowledged by BNPPLC and recorded in the
Office of the Recorder of the county in which the Property is located, shall be conclusive proof of
proper substitution of such successor Trustee or Trustees, who shall thereupon and without
conveyance from the predecessor Trustee, succeed to all its title, estate,



 




Exhibit B to Lease Agreement —  Page 7




 









 





rights, powers and
duties. Such instrument must contain the name of the original NAI, Trustee and BNPPLC hereunder,
the instrument number of this Deed of Trust, and the name and address of the successor Trustee. In
the event the Secured Obligations are at any time owned by more than one person or entity, the
holder or holders of not less than a majority in the amount of such Secured Obligations shall have
the right and authority to make the appointment of a successor or substitute trustee provided for
in the preceding sentences. Such appointment and designation by BNPPLC or by the holder or holders
of not less than a majority of the Secured Obligations shall be full evidence of the right and
authority to make the same and of all facts therein recited. If BNPPLC is a corporation and such
appointment is executed in its behalf by an officer of such corporation, such appointment shall be
conclusively presumed to be executed with authority and shall be valid and sufficient without proof
of any action by the board of directors or any superior officer of the corporation. Upon the
making of any such appointment and designation, all of the estate and title of the Trustee in the
Security shall vest in the named successor or substitute trustee and he shall thereupon succeed to
and shall hold, possess and execute all the rights, powers, privileges, immunities and
duties herein conferred upon the Trustee; but nevertheless, upon the written request of BNPPLC
or of the successor or substitute Trustee, the Trustee ceasing to act shall execute and deliver an
instrument transferring to such successor or substitute Trustee all of the estate and title in the
Security of the Trustee so ceasing to act, together with all the rights, powers, privileges,
immunities and duties herein conferred upon the Trustee, and shall duly assign, transfer and
deliver any of the properties and moneys held by said Trustee hereunder to said successor or
substitute Trustee. All references herein to the Trustee shall be deemed to refer to the Trustee
(including any successor or substitute appointed and designated as herein provided) from time to
time acting hereunder. NAI hereby ratifies and confirms any and all acts which the herein named
Trustee or his successor or successors, substitute or substitutes, in this trust, shall do lawfully
by virtue hereof.



     THE TRUSTEE SHALL NOT BE LIABLE FOR ANY ERROR OF JUDGMENT OR ACT DONE BY THE TRUSTEE IN
GOOD FAITH, OR BE OTHERWISE RESPONSIBLE OR ACCOUNTABLE UNDER ANY CIRCUMSTANCES WHATSOEVER
(INCLUDING THE TRUSTEE’S NEGLIGENCE), EXCEPT FOR THE TRUSTEE’S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT. The Trustee shall have the right to rely on any instrument, document or signature
authorizing or supporting any action taken or proposed to be taken by him hereunder, believed by
him in good faith to be genuine. All moneys received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were received, but need not be
segregated in any manner from any other moneys (except to the extent required by law), and the
Trustee shall be under no liability for interest on any moneys received by him hereunder. NAI WILL
REIMBURSE THE TRUSTEE FOR, AND INDEMNIFY AND SAVE HIM HARMLESS AGAINST, ANY AND ALL LIABILITY AND
EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) WHICH MAY BE INCURRED BY HIM IN THE PERFORMANCE OF
HER DUTIES HEREUNDER (INCLUDING ANY LIABILITY AND EXPENSES RESULTING FROM THE TRUSTEE’S OWN
NEGLIGENCE). The foregoing indemnity shall not terminate upon release, foreclosure or



 




Exhibit B to Lease Agreement —  Page 8




 









 




other termination of this instrument.




MISCELLANEOUS




     BNPPLC may resort to any security given by this instrument or to any other security now
existing or hereafter given to secure the payment of the Secured Obligations, in whole or in part,
and in such portions and in such order as may seem best to BNPPLC in its sole and uncontrolled
discretion, and any such action shall not in anywise be considered as a waiver of any of the
rights, benefits, liens or security interests evidenced by this instrument.



     To the full extent NAI may do so, NAI agrees that NAI will not at any time insist upon, plead,
claim or take the benefit or advantage of any law now or hereafter in force pertaining to the
rights and remedies of sureties or redemption, and NAI, for NAI and NAI’s successors and assigns,
and for any and all persons ever claiming any interest in the Security, to the extent permitted by
law, hereby waives and releases all rights of redemption, valuation, appraisement, stay of
execution, notice of intention to mature or declare due the whole of the Secured Obligations,
notice of election to mature or declare due the whole of the Secured Obligations and all rights to
a marshaling of the assets of NAI, including the Security, or to a sale in inverse order
of alienation in the event of foreclosure of the liens and security interests hereby created.
NAI shall not have or assert any right under any statute or rule of law pertaining to the
marshaling of assets, sale in inverse order of alienation, the exemption of homestead, the
administration of estates of decedents or other matters whatever to defeat, reduce or affect the
right of BNPPLC under the terms of this instrument to a sale of the Security for the collection of
the Secured Obligations without any prior or different resort for collection, or the right of
BNPPLC under the terms of this instrument to the payment of the Secured Obligations out of the
proceeds of sale of the Security in preference to every other claimant whatever. If any law
referred to in this section and now in force, of which NAI or NAI’s successors and assigns and such
other persons claiming any interest in the Security might take advantage despite this provision,
shall hereafter be repealed or cease to be in force, such law shall not thereafter be deemed to
preclude the application of this provision.



     In the event there is a foreclosure sale hereunder and at the time of such sale NAI or NAI’s
successors or assigns or any other persons claiming any interest in the Security by, through or
under NAI are occupying or using the Security, or any part thereof, each and all shall immediately
become the tenant of the purchaser at such sale. Such tenancy shall be a tenancy from day-to-day,
terminable at the will of either landlord or tenant, at a reasonable rental per day based upon the
value of the property occupied, such rental to be due daily to the purchaser. In the event the
tenant fails to surrender possession of said property upon demand, the purchaser shall be entitled
to institute and maintain an action to obtain possession in any court of competent jurisdiction in
California.



     NAI agrees to pay BNPPLC for each statement of BNPPLC (as beneficiary) regarding the



 




Exhibit B to Lease Agreement —  Page 9




 









 




obligations secured hereby the maximum fee allowed by law or, if there is no maximum fee, such
reasonable fee as is then charged by BNPPLC for rendering such statement.




     Notwithstanding any contrary provisions regarding the giving of notices in the Common
Definitions or Provisions Agreement or other Operative Documents, any service of a notice required
by California Civil Code §2924 shall be considered complete when the requirements of that statute
are met.



     All rights of action under this Exhibit be enforced by BNPPLC or Trustee without the
possession of any instruments secured hereby and without the production thereof or of this Lease or
other Operative Documents at any trial or other proceeding relative thereto.



 






Exhibit B to Lease Agreement —  Page 10