exv10w55





Exhibit
10.55





AMENDED AND RESTATED

GROUND LEASE
(RTP DATA CENTER)


BETWEEN


NETWORK APPLIANCE, INC.

(“NAI”)


AND


BNP PARIBAS LEASING CORPORATION

(“BNPPLC”)


November 29, 2007


 







 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	 	Page	 
	RECITALS
	 	 	1	 
	GRANTING CLAUSES
	 	 	1	 
	GENERAL TERMS AND CONDITIONS
	 	 	3	 
	 
	 	 	 	 
	1 Additional Definitions
	 	 	3	 
	“Common Elements”
	 	 	3	 
	“Condominium Declaration”
	 	 	3	 
	“Condominium Instruments”
	 	 	3	 
	“Condominium Map”
	 	 	3	 
	“Contingent Purchase Option”
	 	 	3	 
	“Fair Rental Value”
	 	 	3	 
	“Ground Lease Default”
	 	 	4	 
	“Ground Lease Rent”
	 	 	4	 
	“Ground Lease Term”
	 	 	4	 
	“Leasehold Mortgage”
	 	 	4	 
	“Leasehold Mortgagee”
	 	 	4	 
	“Owner”
	 	 	4	 
	“Plat”
	 	 	4	 
	“Turnover Date”
	 	 	4	 
	“Unit 4”
	 	 	4	 
	 
	 	 	 	 
	2 Ground Lease Term and Early Termination
	 	 	4	 
	 
	 	 	 	 
	3 Ground Lease Rent
	 	 	5	 
	 
	 	 	 	 
	4 Receipt and Application of Insurance and Condemnation Proceeds
	 	 	5	 
	 
	 	 	 	 
	5 No Lease Termination
	 	 	5	 
	 
	 	 	 	 
	6 The Lease and Other Operative Documents
	 	 	6	 
	 
	 	 	 	 
	7 Use of Leased Property
	 	 	6	 
	 
	 	 	 	 
	8 Assignment and Subletting; Pass Through of BNPPLC’s Liability Insurance and Indemnity
Rights
	 	 	6	 
	 
	 	 	 	 
	9 Estoppel Certificate
	 	 	7	 
	 
	 	 	 	 
	10 Leasehold Mortgages
	 	 	8	 
	 
	 	 	 	 
	11 Other Representations, Warranties and Covenants of NAI
	 	 	10	 
	(A) Condition of the Property
	 	 	10	 






 









 






TABLE OF CONTENTS

(Continued)




	 	 	 	 	 
	 	 	 	Page	 
	(B) Environmental Representations
	 	 	10	 
	(C) Current Status of Title to the Land
	 	 	11	 
	(D) Intentionally Deleted
	 	 	11	 
	(E) Title to Improvements
	 	 	11	 
	(F) Defense of Adverse Title Claims
	 	 	11	 
	(G) Prohibition Against Consensual Liens on
the Leased Property
	 	 	13	 
	(H) Compliance With Permitted Encumbrances
	 	 	13	 
	(I) Compliance With Laws
	 	 	13	 
	(J) Modification of Permitted Encumbrances
	 	 	13	 
	(K) Performance and Preservation of the Permitted Encumbrances for the Benefit of
BNPPLC
	 	 	13	 
	(L) Cooperation by NAI and its Affiliates
	 	 	14	 
	(M) Condominium Instruments
	 	 	15	 
	(N) Omissions
	 	 	16	 
	(O) Insurance and Casualty
	 	 	17	 
	(P) Condemnation
	 	 	17	 
	(Q) Further Assurances
	 	 	17	 
	 
	 	 	 	 
	12 Ground Lease Defaults
	 	 	17	 
	(A) Definition of Ground Lease Default
	 	 	17	 
	(B) Remedy
	 	 	18	 
	 
	 	 	 	 
	13 Quiet Enjoyment
	 	 	18	 
	 
	 	 	 	 
	14 Option to Purchase
	 	 	18	 
	 
	 	 	 	 
	15 Miscellaneous
	 	 	19	 
	(A) No Merger
	 	 	19	 
	(B) Recording; Memorandum of Lease
	 	 	19	 
	 
	 	 	 	 
	16 Certain Remedies Cumulative
	 	 	19	 
	 
	 	 	 	 
	17 Attorney’s Fees and Legal Expenses
	 	 	19	 
	 
	 	 	 	 
	18 Successors and Assigns
	 	 	19	 
	 
	 	 	 	 
	19 Amendment and Restatement of Prior ground Lease
	 	 	20	 






(ii)









 






TABLE OF CONTENTS

(Continued)




Exhibits and Schedules




	 	 	 
	Exhibit A

	 	Legal Description
	 
	 	 
	Exhibit B

	 	Permitted Encumbrances List
	 
	 	 
	Exhibit C

	 	Contingent Purchase Option
	 
	 	 
	Exhibit D

	 	Determination of Fair Value






(iii)









 






AMENDED AND RESTATED

GROUND LEASE

(RTP DATA CENTER)




     This AMENDED AND RESTATED GROUND LEASE (RTP DATA CENTER) (this “Ground Lease”), dated as of
November 29, 2007 (the “Effective Date”), is made by and between BNP PARIBAS LEASING CORPORATION
(“BNPPLC”), a Delaware corporation, and NETWORK APPLIANCE, INC. (“NAI”), a Delaware corporation.



RECITALS




     Contemporaneously with the execution of this Ground Lease, BNPPLC and NAI are executing an
Amended and Restated Common Definitions and Provisions Agreement (RTP Data Center) 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 Ground Lease for all purposes. As used in this Ground
Lease, capitalized terms defined in the Common Definitions and Provisions Agreement and not
otherwise defined in this Ground 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, BNPPLC is executing this Ground Lease to acquire from NAI a leasehold estate of 99 years
in the Land described in Exhibit A attached hereto (the “Land”) and any existing
Improvements on the Land.



     Also contemporaneously with this Ground Lease, BNPPLC and NAI are executing an Amended and
Restated Construction Agreement (RTP Data Center) (the“Construction Agreement”) and an Amended and
Restated Lease Agreement (RTP Data Center) (the “Lease”). Pursuant to the Construction Agreement,
BNPPLC is agreeing to provide funding for the construction of new Improvements. When the term of
the Lease commences, the Lease will cover all Improvements on the Land.



     Pursuant to an Amended and Restated Purchase Agreement (RTP Data Center) dated as of the
Effective Date (the “Purchase Agreement”) between BNPPLC and NAI, NAI will have the right to
purchase, among other things, BNPPLC’s leasehold estate under this Ground Lease on and subject to
the terms and conditions set forth therein.



GRANTING CLAUSES




     In consideration of the rent to be paid and the covenants and agreements to be performed
by BNPPLC, as hereinafter set forth, NAI does hereby LEASE, DEMISE and LET unto BNPPLC for the
term hereinafter set forth the Land, together with:



 









 






     (A) all easements and rights-of-way now owned or hereafter acquired by NAI for
use in connection with the Land or any Improvements constructed thereon or as a means of
access thereto and any and all easements and rights appurtenant to the Land; and




     (B) all right, title and interest of NAI, now owned or hereafter acquired, in and to
(A) any land lying within the right-of-way of any street, open or proposed, adjoining the
Land, (B) any and all sidewalks and alleys adjacent to the Land and (C) any strips and gores
between the Land and abutting land not owned by NAI.


The Land and all of the property described in items (1) and (2) above are 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 NAI as the owner of any interest in the Real Property,
NAI also hereby grants and assigns to BNPPLC for the term of this Ground Lease the right to use and
enjoy (and, in the case of contract rights, to enforce) such rights or interests of NAI:




     (A) the Permitted Encumbrances; and




     (B) any general intangibles, permits, licenses, franchises, certificates, and other
rights and privileges related to the Real Property that BNPPLC (rather than NAI) would have
acquired if BNPPLC had itself acquired the fee estate in the Real Property (excluding,
however, the rights and privileges of NAI under this Ground Lease, the Construction
Agreement, the Lease, the Purchase Agreement and any other Operative Documents).


Such rights and interests of NAI, 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 “Leased Property.” The Leased Property and all
Improvements on the Land now or in the future (whether such Improvements are owned by BNPPLC or
NAI) are hereinafter sometimes called the “Improved Property”.




     However, the leasehold estate conveyed hereby and BNPPLC’s rights hereunder are expressly made
subject and subordinate to the Permitted Encumbrances listed on Exhibit B.



     Further, so long as any of the other Operative Documents remain in force, the
rights and obligations of NAI and BNPPLC hereunder will be subject to any contrary provisions
therein, including provisions in the Construction Agreement and the Lease that govern the
collection and application of condemnation and 



Amended and Restated Ground Lease (RTP Data Center) – Page 2




 









 





insurance proceeds in the event of any taking of or damage to the Improved Property.




GENERAL TERMS AND CONDITIONS




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


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





     “Common Elements” has the meaning assigned to it in the Condominium Declaration.




     “Condominium Declaration” means the Declaration of Condominium for NetApp RTP Phase I
Condominium recorded in Book 012647, Page 01310, Wake County, North Carolina Registry, as
such Declaration may be extended, supplemented, amended, restated or otherwise modified from
time to time in accordance with its terms and in accordance with the limitations and
requirements of this Ground Lease.




     “Condominium Instruments” has the meaning assigned to it in the Condominium
Declaration.




     “Condominium Map” means the map showing the units and common elements created by the
Condominium Declaration attached to and made a part of Exhibit A. (The Condominium
Map has also been filed in the Book of Maps CM2007, Page 444A1, Wake County, North Carolina
Registry.)




     “Contingent Purchase Option” means the option granted BNPPLC by NAI as provided in
Exhibit C attached to this Ground Lease.




     “Fair Rental Value” means (and all appraisers and other persons involved in the
determination of the Fair Rental Value will be so advised) the annual rent, as determined in
accordance with Exhibit D, that would be agreed upon between a willing tenant, under
no compulsion to lease, and a willing landlord, under no compulsion to lease, for



Amended and Restated Ground Lease (RTP Data Center) – Page 3




 









 






unimproved land (including appurtenances) comparable in size and location to the
Land, exclusive of any Improvements but assuming that there is no higher and better use for
such land than as a site for improvements of comparable size and utility to the
Improvements, at the time a determination is required under this Ground Lease and taking
into consideration the condition of the Land, the encumbrances affecting the title to the
Land and all applicable zoning, land use approvals and other governmental permits relating
to the Land at the time of such determination.




     “Ground Lease Default” has the meaning assigned to it in subparagraph 13(A) below.




     “Ground Lease Rent” means the rent payable by BNPPLC pursuant to Paragraph 3 below.




     “Ground Lease Term” has the meaning assigned to it in Paragraph 2 below.




     “Leasehold Mortgage” means any mortgage, deed of trust (with or without a private power
of sale), security agreement or assignment executed by BNPPLC to secure an obligation to
repay borrowed money or other voluntary obligations, which covers BNPPLC’s leasehold estate
hereunder or any part thereof or any rents or other charges to be paid to BNPPLC pursuant to
any sublease.




     “Leasehold Mortgagee” means any lender or other beneficiary of a Leasehold Mortgage
that has notified NAI of the existence such Leasehold Mortgage and of its address to which
notices should be delivered.




     “Owner” has the meaning assigned to it in the Condominium Declaration.




     “Plat” means the plat prepared by Barbara H. Mulkey Engineering, Inc., dated May 30,
2000, recorded in Book of Maps 2000, page
1300\, Wake County Registry.


     “Turnover Date” means the day which is thirty days after any Designated Sale Date upon
which, for any reason whatsoever, NAI does not purchase the Improved Property from BNPPLC
pursuant to the Purchase Agreement.


     “Unit 4” has the meaning assigned to it in the Condominium Declaration.



2 Ground Lease Term and Early Termination. The term of this Ground Lease (herein
called the “Ground Lease Term”) will commence on and include the Effective Date and
end on the last Business Day prior to the ninety-ninth (99th) anniversary of the Effective Date.
However, subject to the prior approval of any Leasehold Mortgagee, BNPPLC will have the right




Amended and Restated Ground Lease (RTP Data Center) – Page 4




 









 




to
terminate this Ground Lease by giving a notice to NAI stating that BNPPLC unequivocally elects to
terminate effective as of a date specified in such notice, which may be any date more than thirty
days after the notice and after the expiration or termination of the Lease pursuant to its terms.



3 Ground Lease Rent. The rent required by this Ground Lease (herein called “Ground Lease
Rent”) will equal the Fair Rental Value, determined as provided in Exhibit D, and be paid
as follows:




     Prior to the Completion Date, BNPPLC must pay Ground Lease Rent to NAI on the first Business
Day of every calendar month for the preceding month. Consistent with the agreement of the parties
in Exhibit D that the initial Fair Rental Value is $81,000 per annum, and each such
required monthly payment prior to the Completion Date is $6750. (Notwithstanding the forgoing, as
was agreed by the parties for administrative convenience at the time of the execution of the Prior
Ground Lease, BNPPLC has already prepaid all of the Ground Lease Rent expected to accrue prior to
the Completion Date, rather than pay it monthly on the first Business Day of each month.)



     After the Completion Date, Ground Lease Rent will be paid annually in arrears on each
anniversary of the Effective Date. So long as the Lease continues, each such payment by BNPPLC
may be offset against the reimbursement for such payment required of NAI by the Lease. After the
Lease expires or terminates, however, BNPPLC’s obligation for the payment of Ground Lease will
continue so long as this Ground Lease continues, on and subject to the terms and conditions set
forth herein.


4 Receipt and Application of Insurance and Condemnation Proceeds. All insurance and
condemnation proceeds payable with respect to any damage to or taking of the Leased Property will
be payable to and become the property of BNPPLC; provided, however, NAI will be entitled to receive
condemnation proceeds awarded for the value of NAI’s remainder interest in the Land exclusive of
the Improvements. BNPPLC is authorized to take all action necessary on behalf of both BNPPLC and
NAI (as lessor under this Ground Lease) to collect insurance and condemnation proceeds.



5 No Lease Termination. Except as expressly provided herein, this Ground Lease
will not terminate, nor will NAI have any right to terminate this Ground Lease nor will the
obligations of NAI under this Ground Lease be excused, for any reason whatsoever, including without
limitation any of the following: (i) any damage to or the destruction of all or any part of the
Leased Property from whatever cause, (ii) the taking of the Leased Property or any portion
thereof by eminent domain or otherwise for any reason, (iii) any default on the part of BNPPLC
under this Ground Lease or under any other agreement to which NAI and BNPPLC are parties, or (iv)
any other cause whether similar or dissimilar to the foregoing, any existing or future law to




Amended and Restated Ground Lease (RTP Data Center) – Page 5




 









 




the contrary notwithstanding. Notwithstanding the foregoing, after any purchase by NAI of BNPPLC’s
interest in the Improved Property pursuant to the Purchase Agreement and payment to BNPPLC of the
purchase price required by the Purchase Agreement and all other sums dues under any of the other
Operative Documents, NAI (as the holder of both the lessor’s and lessee’s interests hereunder) may
elect to terminate this Ground Lease; and after a purchase by BNPPLC of the Land because of BNPPLC
exercise of the Contingent Purchase Option, BNPPLC (as the holder of both the lessor’s and lessee’s
interests hereunder) may elect to terminate this Ground Lease. It is the intention of the parties
hereto that the obligations of NAI hereunder will be separate and independent of the covenants and
agreements of BNPPLC. However, nothing in this Paragraph will be construed as a waiver by NAI of
any right NAI may have at law or in equity to recover monetary damages for any default under this
Ground Lease by BNPPLC.



6 The Lease and Other Operative Documents. Nothing contained in this Ground Lease will
limit, modify or otherwise affect any of NAI’s or BNPPLC’s respective rights and obligations under
the other Operative Documents, which rights and obligations are intended to be separate,
independent and in addition to, and not in lieu of, the obligations established by this Ground
Lease. In the event of any inconsistency between the terms and provisions of the other Operative
Documents and the terms and provisions of this Ground Lease, the terms and provisions of the other
Operative Documents will control.



7 Use of Leased Property. Subject to the Permitted Encumbrances and the terms hereof,
BNPPLC may use and occupy the Leased Property for any purpose permitted by Applicable Laws and may
construct, modify, renovate, replace and remove any Improvements on the Land from time to time,
subject only to the constraints that Applicable Laws would impose upon the owner of the Land if the
owner were constructing, modifying, renovating, replacing or removing Improvements. To provide NAI
an opportunity to file any applicable statutory notice of nonresponsibility, BNPPLC will, before
commencing the construction any major Improvements upon the Land after the Turnover Date, endeavor
to notify NAI that BNPPLC intends to commence such construction; provided, however, BNPPLC will
have no liability for its failure to provide such a notice.



8 Assignment and Subletting; Pass Through of BNPPLC’s Liability Insurance and Indemnity
Rights. BNPPLC may sublet or assign this Ground Lease without the consent of NAI or any of
its Affiliates, subject only to limitations set forth in the Lease for the benefit of NAI so long
as those limitations remain in force.




     To the extent that BNPPLC may from time to time after the Turnover Date require any
subtenant to agree to maintain liability insurance against claims of third parties and agree
to make BNPPLC an additional or named insured under such insurance, BNPPLC will also require the
subtenant to agree to make NAI an additional or named insured. However, BNPPLC will have no
liability to NAI for a breach by the subtenant of any such agreements, and to the extent



Amended and Restated Ground Lease (RTP Data Center) – Page 6




 









 




that
BNPPLC’s rights as an additional or named insured are subject to exceptions or limitations
concerning BNPPLC’s own acts or omissions or the acts or omissions of anyone other than the
subtenant, so too may NAI’s rights as an additional or named insured be subject to exceptions or
limitations concerning NAI’s own acts or omissions or the acts or omissions of anyone other than
the subtenant.




     To the extent that BNPPLC may itself from time to time after the Turnover Date maintain
liability insurance against claims of third parties which may arise because of any occurrence on or
alleged to have occurred on or about the Leased Property, BNPPLC will cause NAI to be an additional
or named insured under such insurance, provided NAI pays or reimburses BNPPLC for any additional
insurance premium required to have NAI made an insured.



     To the extent that BNPPLC may from time to time after the Turnover Date require any subtenant
to agree to indemnify BNPPLC against Environmental Losses or other Losses concerning the Leased
Property, BNPPLC will also require the subtenant to agree to indemnify NAI. However, BNPPLC will
have no liability to NAI for a breach by the subtenant of any such agreement, and to the extent
that BNPPLC’s rights as an indemnitee of the subtenant are subject to exceptions or limitations
concerning BNPPLC’s own acts or omissions or the acts or omissions of anyone other than the
subtenant, so too may NAI’s rights as an indemnitee be subject to exceptions or limitations
concerning NAI’s own acts or omissions or the acts or omissions of anyone other than the subtenant.


9 Estoppel Certificate. NAI and BNPPLC will from time to time, within ten days after
receipt of request by the other party hereto, deliver a statement in writing to such other party or
other Person(s) designated by such party certifying:




     (A) that this Ground Lease is unmodified and in full force and effect (or if modified that
this Ground Lease as so modified is in full force and effect);



     (B) that to the knowledge of the party providing such certificate, the other party has not
previously assigned or hypothecated its rights or interests under this Ground Lease, except as is
described in such statement with as much specificity as the party so certifying is able to provide;



     (C) the term of this Ground Lease and the Ground Lease Rent then in effect and any additional
charges;



     (D) that to the knowledge of the party providing such certificate, the other party is not in
default under any provision of this Ground Lease (or if in default, the nature thereof in detail)
and, in any certificate provided by NAI, a statement as to any outstanding obligations on the part
of NAI or BNPPLC; and



Amended and Restated Ground Lease (RTP Data Center) – Page 7




 









 





     (E) in any certificate provided by NAI, such other factual matters concerning the
Leased Property or BNPPLC’s rights and obligations under this Ground Lease as are requested by
BNPPLC.


NAI’s failure to deliver such statement within such time will constitute an admission by NAI (i)
that this Ground Lease is in full force and effect, without modification except as may be
represented by BNPPLC, and (ii) that there are no uncured defaults in BNPPLC’s performance
hereunder.



10 Leasehold Mortgages.




     (A) By Leasehold Mortgage BNPPLC may encumber BNPPLC’s leasehold estate in the Leased Property
created by this Ground Lease and BNPPLC’s rights and interests in buildings, fixtures, equipment
and improvements situated on the Land and rents, issues, profits, revenues and other income to be
derived by BNPPLC from the Leased Property. However, prior to the Turnover Date, a Leasehold
Mortgage will be permitted hereunder only if it constitutes a Permitted Transfer and only if it is
made expressly subject to the rights of NAI under the other Operative Documents.



     (B) Any Leasehold Mortgagee or other party, including any corporation formed by a Leasehold
Mortgagee, may become the legal owner of the leasehold estate created by this Ground Lease and of
BNPPLC’s rights and interests in the improvements, equipment, fixtures and other property assigned
as additional security pursuant to a Leasehold Mortgage, by foreclosure of a Leasehold Mortgage or
as a result of the assignment or conveyance in lieu of foreclosure. Further, any such Leasehold
Mortgagee or other party may itself, after becoming the legal owner and holder of the leasehold
estate created by this Ground Lease, or of any improvements, equipment, fixtures and other property
assigned as additional security pursuant to a Leasehold Mortgage, convey or pledge the same without
the consent of NAI.



     (C) NAI must serve notice of any default by BNPPLC hereunder upon any Leasehold Mortgagee for
which NAI has received written notification from BNPPLC of the Leasehold Mortgagee’s address for
such notice. No notice of a default by BNPPLC will be deemed effective until it is so served. Any
Leasehold Mortgagee will have the right to correct or cure any such default within the same period
of time after receipt of such notice as is given to BNPPLC under this Ground Lease to correct or
cure defaults, plus an additional period of thirty days
thereafter. NAI will accept performance by any Leasehold Mortgagee of any covenant, condition
or agreement on BNPPLC’s part to be performed hereunder with the same force and effect as though
performed by BNPPLC.



     (D) If this Ground Lease should terminate by reason of a disaffirmance or rejection of
this Ground Lease by BNPPLC or any receiver, liquidator or trustee for the property of BNPPLC,



Amended and Restated Ground Lease (RTP Data Center) – Page 8




 









 




or
by any governmental authority which had taken possession of the business or property of BNPPLC by
reason of the insolvency or alleged insolvency of BNPPLC, then:





     (1) NAI must give notice thereof to each Leasehold Mortgagee for which NAI has received
written notification from BNPPLC of the Leasehold Mortgagee’s address for such notice; and
upon request of any Leasehold Mortgagee made within sixty days after NAI has given such
notice, NAI must enter into a new ground lease of the Leased Property with such Leasehold
Mortgagee for the remainder of the Ground Lease Term, at the same Ground Lease Rent and on
the same terms and conditions (including subparagraph 11(E)) as are contained in this Ground
Lease (a “New Ground Lease”).




     (2) The estate of the Leasehold Mortgagee, as lessee under the New Ground Lease, will
have priority equal to the estate of BNPPLC hereunder. That is, there will be no charge,
lien or burden upon the Leased Property prior to or superior to the estate granted by such
New Ground Lease which was not prior to or superior to the estate of BNPPLC under this
Ground Lease as of the date immediately preceding the termination of this Ground Lease. To
the extent, however, that the other Operative Documents are in effect at the time of
execution of such New Ground Lease, the New Ground Lease will be made expressly subject to
the other Operative Documents.




     (3) Notwithstanding the foregoing, if NAI receives requests to enter into a New Ground
Lease from more than one Leasehold Mortgagee because of the expiration or termination of
this Ground Lease, NAI will be required to enter into only one New Ground Lease, and the New
Ground Lease will be to the requesting Leasehold Mortgagee who holds the highest priority
lien or interest in BNPPLC’s leasehold estate in the Land. If the liens or security
interests of two or more such requesting Leasehold Mortgagees which shared the highest
priority just prior to the termination of this Ground Lease, the New Ground Lease will name
all such Leasehold Mortgagees as co-tenants thereunder.



     (E) If BNPPLC has agreed with any Leasehold Mortgagee that such Leasehold Mortgagee’s consent
will be required to any modification or early termination of this Ground Lease by BNPPLC, and if
NAI has been notified in writing of such agreement, such consent will be required for such
Leasehold Mortgagee to be bound by any such modification or early termination of this Ground Lease.



     (F) No Leasehold Mortgagee will assume any liability under this Ground Lease either by virtue
of its Leasehold Mortgage or by any subsequent receipt or collection of rents or profits generated
from the Leased Property, unless and until the Leasehold Mortgagee acquires BNPPLC’s leasehold
estate in the Leased Property at foreclosure or by deed in lieu of foreclosure.



Amended and Restated Ground Lease (RTP Data Center) – Page 9




 









 





     (G) Although the foregoing provisions concerning Leasehold Mortgages and Leasehold
Mortgagees will be self operative, NAI agrees to include, in addition to the items specified in
Paragraph 9, confirmation of the foregoing with respect to any Leasehold Mortgagee or prospective
Leasehold Mortgagee in any statement delivered to such Leasehold Mortgagee which is provided to a
pursuant to Paragraph 9.


11 Other Representations, Warranties and Covenants of NAI. NAI represents, warrants and
covenants as follows:




     (A) Condition of the Property. The Land described in Exhibit A is the same as
the land described in the Title Policy and is shown on both the Plat and the Condominium Map,
copies of which were delivered to BNPPLC at the request of NAI. Unit 4 is located as shown on the
Condominium Map, and all material improvements on the Land as of the Effective Date are as shown on
the Plat or the Condominium Map. There are no easements or encroachments (including Permitted
Encumbrances) which extend over or within the boundaries of Unit 4. No part of Unit 4 is within a
flood plain as designated by any governmental authority. Existing Improvements, if any, are free
from latent or patent defects or deficiencies that, either individually or in the aggregate, could
materially and adversely affect the use or occupancy of the Improved Property as permitted by the
Lease or could reasonably be anticipated to cause injury or death to any person. When the
construction contemplated by the Construction Agreement is complete in accordance with plans
approved as described therein, the Improved Property and use thereof permitted by the Lease will
comply in all material respects with all Applicable Laws, including laws regarding access and use
by disabled persons and local zoning ordinances. Adequate provision has been made (or can be made
at a cost that is reasonable in connection with future development of the Land) for the Land to be
served by electric, gas, storm and sanitary sewers, sanitary water supply, telephone and other
utilities required for the use thereof. All streets, alleys and easements necessary to serve the
Improved Property for the construction contemplated by the Construction Agreement or uses permitted
by the Lease have been completed and are serviceable or will be completed and made serviceable as
part of the construction contemplated by the Construction Agreement. No extraordinary
circumstances (including any use of the Land as a habitat for endangered species) exist that would
materially and adversely affect such construction or uses of the Improved Property. The
Improvements,
when constructed as contemplated in the Construction Agreement, will be useable for their
intended purpose without the need to obtain any additional easements, rights-of-way or concessions
from any third party or parties.



     (B) Environmental Representations. Except as otherwise disclosed in the
Environmental Report, to the knowledge of NAI: (i) no Hazardous Substances Activity has occurred
prior to the Effective Date; (ii) no owner or operator of the Improved Property has reported or
been required to report any release of any Hazardous Substances on or from the



Amended and Restated Ground Lease (RTP Data Center) – Page 10




 









 




Leased Property
pursuant to any Environmental Law; and (iii) no owner or operator of the Leased Property has
received from any federal, state or local governmental authority any warning, citation, notice of
violation or other communication regarding a suspected or known release or discharge of Hazardous
Substances on or from the Leased Property or regarding a suspected or known violation of
Environmental Laws concerning the Leased Property. Further, NAI represents, to its knowledge, that
the Environmental Report taken as a whole is not misleading or inaccurate in any material respect.




     (C) Current Status of Title to the Land. NAI holds good and indefeasible title to the
Land, free and clear of all liens and encumbrances, other than the Permitted Encumbrances and any
Liens Removable by BNPPLC.



     (D) Intentionally Deleted.



     (E) Title to Improvements. The leasehold estate created in favor of BNPPLC by this
Ground Lease will extend to and include the rights to use and enjoy any and all Improvements of
whatever nature at any time and from time to time located on the Land. Thus, throughout the term
of this Ground Lease, BNPPLC and its sublessees, assignees, licensees and concessionaires will be
entitled to use and enjoy such Improvements — to the exclusion of NAI as the lessor hereunder, but
subject to NAI’s rights under the Operative Documents (including the Lease) so long as they remain
in effect — as if the lessee hereunder was the owner of the Improvements. Further, although any
Improvements which remain on the Land when this Ground Lease expires or is terminated will revert
to NAI, it is also understood and agreed that the lessee hereunder may at any time and from time to
time — after NAI ceases to have possession of the Leased Property pursuant to the Construction
Agreement or as tenant under the Lease and prior to the expiration or termination of this Ground
Lease — remove all or any Improvements from the Land without the consent of NAI and without any
obligation to NAI or its Affiliates to provide compensation or to construct other Improvements on
or about the Land. Any Improvements removed as provided in the preceding sentence will be
considered severed from the Land and thereupon become personal property of the lessee hereunder.



     (F) Defense of Adverse Title Claims. If any encumbrance or title defect
whatsoever
affecting the Improved Property, other than Permitted Encumbrances or Liens Removable by
BNPPLC, is claimed or discovered (including Liens against any part of or interest in the Improved
Property which are not Fully Subordinated or Removable) or if any legal proceedings are instituted
with respect to any such claimed or discovered encumbrance or title defect, NAI must give prompt
notice thereof to BNPPLC and at NAI’s own cost and expense will promptly remove any such
encumbrance and cure any such defect and will take all necessary and proper steps for the defense
of any such legal proceedings, including the employment of counsel, the prosecution or defense of
litigation and the release or discharge of all adverse claims. If NAI fails to promptly remove any
encumbrance or cure any title defect as required by the preceding



Amended and Restated Ground Lease (RTP Data Center) – Page 11




 









 




sentence, BNPPLC (whether or not
named as a party to legal proceedings with respect thereto) may take such additional steps as in
its judgment may be necessary or proper to remove such encumbrance or cure such defect or for the
defense of any such attack or legal proceedings or the protection of BNPPLC’s leasehold or other
interest in the Improved Property, including the employment of counsel, the prosecution or defense
of litigation, the compromise or discharge of any adverse claims made with respect to the Improved
Property, the removal of prior liens or security interests, and all expenses (including Attorneys’
Fees) so incurred of every kind and character will be a demand obligation owing by NAI.




     For purposes of this subparagraph 11(B), NAI will be deemed to be acting promptly to remove
any encumbrance or to cure any title defect, other than a Lien which NAI or any of its Affiliates
has granted or authorized, so long as NAI is in good faith by appropriate proceedings contesting
the validity and applicability of the encumbrance or defect, and pending such contest NAI will not
be deemed in default under this subparagraph because of the encumbrance or defect, provided that
NAI must satisfy the following conditions and requirements:




     (1) NAI must diligently prosecute the contest to completion in a manner reasonably
satisfactory to BNPPLC.




     (2) NAI must immediately remove the encumbrance or cure the defect upon a final
determination by a court of competent jurisdiction that it is valid and applicable to the
Improved Property.




     (3) NAI must in any event conclude the contest and remove the encumbrance or cure the
defect and pay any claims asserted against BNPPLC or the Improved Property because of such
encumbrance or defect, all prior to (i) the date any criminal charges may be brought against
BNPPLC or any of its directors, officers or employees because of such encumbrance or defect
or (ii) the date any action is taken or threatened against BNPPLC or any property owned by
BNPPLC (including BNPPLC’s leasehold estate under this Ground Lease) by any governmental
authority or any other Person who has or claims rights superior to BNPPLC because of the
encumbrance or defect. Also, with respect to a
contest of any encumbrance or defect discovered or claimed before the Designated Sale
Date, NAI must conclude the contest and remove the encumbrance or cure the defect and pay
any claims asserted against BNPPLC or the Improved Property because of such encumbrance or
defect, all prior to the Designated Sale Date, unless on the Designated Sale Date NAI or an
Affiliate of NAI or any Applicable Purchaser purchases the Improved Property pursuant to the
Purchase Agreement for a net price to BNPPLC (when taken together with any additional
payments made by NAI pursuant to Paragraph 1(a)(ii) of the Purchase Agreement, in the case
of a purchase by an Applicable Purchaser) equal to the Lease Balance.



Amended and Restated Ground Lease (RTP Data Center) – Page 12




 









 





     (G) Prohibition Against Consensual Liens on the Leased Property. NAI will not,
without the prior consent of BNPPLC, create, place or authorize, or through any act or failure to
act, acquiesce in the placing of, any deed of trust, mortgage or other Lien, whether statutory,
constitutional or contractual against or covering the Land or Improvements or any part thereof
(other than Permitted Encumbrances and Liens Removable by BNPPLC). It is understood and agreed,
however, that any Liens which are Fully Subordinated or Removable will constitute Permitted
Encumbrances and thus will not be prohibited by this provision.



     (H) Compliance With Permitted Encumbrances. NAI must comply with and cause to be
performed all of the covenants, agreements and obligations imposed upon NAI or the owner of the
Leased Property by the Permitted Encumbrances.



     (I) Compliance With Laws. Without limiting the foregoing, the use of the Improved
Property permitted by the Lease complies, or will comply after readily available permits are
obtained, in all material respects with all Applicable Laws.



     (J) Modification of Permitted Encumbrances. NAI will not enter 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 the Leased Property or any Improvements constructed thereon
without the prior consent of BNPPLC; provided, this provision will not limit any right of the NAI
Parties to modify any Lien that is Fully Subordinated or Removable and will remain Fully
Subordinated or Removable after the modification. Whether BNPPLC must give any such consent
requested by NAI prior to the Designated Sale Date will be governed by subparagraph 4(C) of
the Closing Certificate.



     (K) Performance and Preservation of the Permitted Encumbrances for the Benefit of
BNPPLC. Not only prior to the expiration or termination of other Operative Documents, but
thereafter throughout the term of this Ground Lease, NAI must comply with and perform the
obligations imposed by the Permitted Encumbrances upon NAI or upon any owner of the Land
and do whatever is required to preserve the rights and benefits conferred or intended to be
conferred by the Permitted Encumbrances, as necessary to prevent any claim against or forfeiture of
any of the Improved Property and to facilitate the construction and use of any Improvements on the
Land after the Turnover Date by BNPPLC and its successors, assigns and subtenants under this Ground
Lease. Further, NAI hereby agrees for itself and its Affiliates, as the owner of the Land and any
other land now owned or hereafter acquired by NAI or its Affiliates, which is encumbered or
benefitted by the Permitted Encumbrances, to assume liability for and to indemnify BNPPLC and other
Interested Parties and to defend and hold them harmless from and against all Losses (including
Losses caused by any decline in the value of the Leased Property or of the Improvements) that they
would not have incurred or suffered but for:



Amended and Restated Ground Lease (RTP Data Center) – Page 13




 









 






     (1) any breach by NAI of its obligations under the preceding sentence,




     (2) any termination of any benefit to the owner, users or occupants of the Land or
Improvements conferred by the Permitted Encumbrances if NAI agreed to the termination or the
termination resulted from a breach of any Permitted Encumbrance by NAI or its Affiliates, or




     (3) any restrictions imposed by or asserted under any Permitted Encumbrance upon any
transfer after (but only after) the Turnover Date by BNPPLC of any interests it may then
have in the Leased Property or in any Improvements.


NAI’s obligations under this subparagraph 11(K) will be binding upon any successor or assign of NAI
or its Affiliates with respect to the Land and other properties encumbered or benefitted by the
Permitted Encumbrances, and such obligations will survive any sale of NAI’s interest in the Leased
Property to BNPPLC because of BNPPLC’s exercise of the Contingent Purchase Option.




     (L) Cooperation by NAI and its Affiliates.




     (1) After the Turnover Date, if neither NAI nor an Applicable Purchaser has purchased
BNPPLC’s interest in the Improved Property pursuant to the Purchase Agreement, and if a use
of the Improved Property by BNPPLC or any new Improvements or any removal or modification of
Improvements proposed by BNPPLC would violate any Permitted Encumbrance or Applicable Law
unless NAI or any of its Affiliates, as an owner of adjacent land or otherwise, gave its
consent or approval thereto or agreed to join in a modification of a Permitted Encumbrance,
then NAI must give and cause its Affiliates to give such consent or approval or join in such
modification.




     (2) After the Turnover Date, if neither NAI nor an Applicable Purchaser has purchased
BNPPLC’s interest in the Improved Property pursuant to the Purchase
Agreement, and if any Permitted Encumbrance or Applicable Law requires the consent or
approval of NAI or any of its Affiliates or of the city or county in which the Improved
Property is located or of any other Person to an assignment of any interest in the Improved
Property by BNPPLC or by any of its successors or assigns, NAI will without charge give and
cause its Affiliates to give such consent or approval and will cooperate in any way
reasonably requested by BNPPLC to assist BNPPLC to obtain such consent or approval from the
city, county or other Person.




     (3) NAI’s obligations under this subparagraph 11(L) will be binding upon any
successor or assign of NAI or its Affiliates with respect to the Land and other properties
encumbered or benefitted by the Permitted Encumbrances, and such obligations will survive
(a) any sale of the Improved Property by BNPPLC, other than to NAI or an



Amended and Restated Ground Lease (RTP Data Center) – Page 14




 









 





Applicable
Purchaser under the Purchase Agreement, for the benefit of BNPPLC’s assignees, and (b) any
sale of NAI’s interest in the Leased Property to BNPPLC because of BNPPLC’s exercise of the
Contingent Purchase Option.




     (M) Condominium Instruments. Without limiting the provisions the preceding
subparagraphs 11(K) and 11(L), Ground Lessor agrees as follows with regard to the Condominium
Declaration and other Condominium Instruments:




     (1) This Ground Lease will be superior to any and all liens granted in the Condominium
Declaration, or arising to secure any obligations created by the Condominium Declaration
(including judgment liens which may secure damages because of any failure of the Owner of
Unit 4 to satisfy its obligations under the Condominium Instruments).




     (2) As the Owner of Unit 4, NAI will on a timely basis pay any assessments or other
amounts required of the Owner of Unit 4 by the Condominium Instruments and take any other
action required of the Owner of Unit 4 by the Condominium Instruments, including the filing
of any new maps required by the Condominium Declaration after the completion of construction
of Improvements over the land designated as Unit 4. In no even will BNPPLC be required to
make any such payment or take any such action, nor will BNPPLC suffer any loss of rights or
interests under this Ground Lease because of any failure of NAI to do so.




     (3) Before this Ground Lease expires or is terminated, without the prior written
consent of BNPPLC in each case: (A) no rules or regulations will be imposed pursuant to the
Condominium Declaration that would limit or restrict the rights which BNPPLC would enjoy
under this Ground Lease or the other Operative Documents if the Condominium Declaration did
not exist; (B) no amendment to any of the Condominium
Instruments will be made which would terminate or limit the rights or easements
appurtenant to Unit 4 thereunder or expand the obligations of any owner or occupant of the
Land thereunder; (C) no liens will be granted or permitted against the Common Elements
unless they are expressly subject and subordinate to (i) the rights and easements
appurtenant to Unit 4 under the Condominium Declaration, and (ii) the rights and interests
of BNPPLC under this Ground Lease and the other Operative Documents; (D) the rights of the
Declarant under the Condominium Declaration will not be transferred to anyone other than the
Owner of Unit 4; and (E) no conveyance of the fee estate in Unit 4 will be made without a
transfer of all rights of the Declarant to the same transferee (i.e., the new Owner of Unit
4). Further, until this Ground Lease expires or is terminated, this Ground Lease and the
other Operative Documents will control in the event of any conflict between the Condominium
Declaration and the terms and conditions of this Ground Lease or the other Operative
Documents.



Amended and Restated Ground Lease (RTP Data Center) – Page 15




 









 






     (4) After the Turnover Date: (a) BNPPLC will be entitled to attend and receive
notice of any meeting the Owners required or permitted by the Condominium Instruments, and
BNPPLC will be entitled to cast a vote in any vote of the Owners required or permitted by
the Condominium Instruments, as if BNPPLC were the Owner of Unit 4. (b) Further, if the
Owner of Unit 4 breaches any obligations imposed upon it by the Condominium Instruments,
BNPPLC will have the right to receive notice of such breach and the right, but not the
obligation, to cure such breach, as if BNPPLC itself were the Owner of Unit 4. (c) Also,
the rights of BNPPLC and its invitees to use parking and driveways within the Additional
Leased Premises (as defined in Exhibit A) will be superior to the rights granted to
others by the Condominium Declaration; and BNPPLC may, as it from time to time deems
necessary, identify any or all parking areas within the Additional Leased Premises as
“reserved” or take other reasonable steps to assure preferred access to such parking by
occupants of the Improvements which comprise Unit 4.




     (5) BNPPLC will not be restricted or limited by anything in the Condominium Instruments
in the demolition, construction, alteration repair, replacement, use or operation of
Improvements. Further, BNPPLC will not be required by reason of the Condominium
Instruments to obtain any consent or approval for any such demolition, construction,
alteration, use or operation or for any related submissions (including site plans) to Wake
County or other governmental authorities.




     (6) The rights of BNPPLC under this Ground Lease or any other Operative Documents to
control and to receive and retain or apply insurance or condemnation proceeds with respect
to the Property will control over any conflicting provisions of the Condominium Instruments.




     (7) BNPPLC will not be bound by or required to participate in any arbitration by reason
of any arbitration provisions or other provisions in the Condominium Instruments.


The agreements of NAI in this subparagraph 11(M) are made by NAI, not only as the current owner of
the Ground Leased Premises (as defined in Exhibit A), but also as the current Owner of all
Units created by the Condominium Declaration, and with the understanding that all of such
agreements will be binding upon all future Owners so long as this Ground Lease remains in force.




     (N) Omissions. None of NAI’s representations or warranties contained in this
Ground Lease or in any other document, certificate or written statement furnished to BNPPLC by or
on behalf of NAI contains any untrue statement of a material fact or omits a material fact
necessary in order to make the statements contained herein or therein (when taken in their
entireties) not


Amended and Restated Ground Lease (RTP Data Center) – Page 16




 









 





     misleading.


     (O) Insurance and Casualty. In the event any of the Leased Property is destroyed or
damaged by fire, explosion, windstorm, hail or by any other casualty against which insurance is
maintained or required hereunder, (i) BNPPLC may make proof of loss, (ii) each insurance company
concerned is hereby authorized and directed to make payment for such loss directly to BNPPLC for
application as required by Paragraph 4, and (iii) BNPPLC’s consent must be obtained for any
settlement, adjustment or compromise of any claims for loss, damage or destruction under any policy
or policies of insurance.



     (P) Condemnation. All proceeds of condemnation awards or proceeds of sale in lieu of
condemnation with respect to the Leased Property and all judgments, decrees and awards for injury
or damage to the Leased Property will be paid to BNPPLC and applied as provided in Paragraph 4
above. BNPPLC is hereby authorized, in the name of NAI, to execute and deliver valid acquittances
for, and to appeal from, any such judgment, decree or award concerning condemnation of any of the
Leased Property. BNPPLC will not be, in any event or circumstances, liable or responsible for
failure to collect, or to exercise diligence in the collection of, any such proceeds, judgments,
decrees or awards.



     (Q) Further Assurances. NAI must, on request of BNPPLC, (i) promptly correct any
defect, error or omission which may be discovered in the contents of this Ground Lease or in any
other instrument executed in connection herewith or in the execution or acknowledgment thereof;
(ii) execute, acknowledge, deliver and record or file such further instruments and do such further
acts as may be necessary, desirable or proper to carry out more effectively the purposes of this
Ground Lease and to subject to this Ground Lease any property intended by the terms hereof to be
covered hereby including specifically, but without limitation, any renewals, additions,
substitutions, replacements or appurtenances to the Leased Property; (iii) execute,
acknowledge, deliver, procure and record or file any document or instrument deemed advisable by
BNPPLC to protect BNPPLC’s rights in and to the Leased Property against the rights or interests of
third persons; and (iv) provide such certificates, documents, reports, information, affidavits and
other instruments and do such further acts as may be necessary, desirable or proper in the
reasonable determination of BNPPLC to enable BNPPLC or any Leasehold Mortgagee to comply with the
requirements or requests of any agency or authority having jurisdiction over them.


12 Ground Lease Defaults.




     (A) Definition of Ground Lease Default. Each of the following events will be deemed
to be a “Ground Lease Default” by BNPPLC under this Ground Lease:




     (1) A failure by BNPPLC to pay when due any installment of Ground Lease Rent due
hereunder if such failure continues for sixty days after BNPPLC receives notice


Amended and Restated Ground Lease (RTP Data Center) – Page 17




 









 






thereof.


     (2) A failure by BNPPLC to comply with any term, provision or covenant of this Ground
Lease (other than as described in the other clauses of this subparagraph 13(A)) if such
failure is not cured prior to the earlier of (A) ninety days after notice thereof is sent to
BNPPLC, or (B) the date any writ or order is issued for the levy or sale of any property
owned by NAI or its Affiliates (including the leasehold created by this Ground Lease)
because of such failure or any criminal action is instituted against BNPPLC or any of its
directors, officers or employees because of such failure; provided, however, that so long as
no such writ or order is issued and no such criminal actions is instituted, if such failure
is susceptible of cure but cannot with reasonable diligence be cured within such ninety day
period, and if BNPPLC has promptly commenced to cure the same and thereafter prosecutes the
curing thereof with reasonable diligence, the period within which such failure may be cured
will be extended for such further period as is necessary to complete the cure.



     (B) Remedy. Upon the occurrence of a Ground Lease Default which is not cured within
any applicable period expressly permitted by subparagraph 13(A), NAI’s sole and exclusive remedies
will be to sue BNPPLC for the collection of any amount due under this Ground Lease, to sue for the
specific enforcement of BNPPLC’s obligations hereunder, or to enjoin the continuation of the Ground
Lease Default, provided, however, no limitation of NAI’s remedies contained herein will prevent NAI
from exercising rights expressly provided in other Operative Documents or from recovering any
reasonable costs NAI may incur to mitigate its damages by curing a Ground Lease Default that BNPPLC
has failed to cure itself (so long as the cure by NAI is pursued in a lawful manner and the costs
NAI seeks to recover do not exceed the
actual damages to be mitigated). NAI may not terminate this Ground Lease or BNPPLC’s right to
possession under this Ground Lease, except as expressly provided in the Operative Documents. Any
judgment which NAI may obtain against BNPPLC for amounts due under this Ground Lease may be
collected only through resort of a judgement lien against BNPPLC’s interest in the Leased Property
and any Improvements. BNPPLC will have no personal liability for the payment amounts due under
this or for the performance of any obligations of BNPPLC under this Ground Lease.


13 Quiet Enjoyment. NAI warrants that neither it nor any third party lawfully claiming
any right or interest in the Leased Property will, during the Ground Lease Term, disturb BNPPLC’s
peaceable and quiet enjoyment of the Leased Property; however, such enjoyment will be subject to
the terms, provisions, covenants, agreements and conditions of this Ground Lease and those
Permitted Encumbrances which are listed on Exhibit B.



14 Option to Purchase. Subject to the terms and conditions set forth in
Exhibit C, BNPPLC (and any assignee of BNPPLC’s
entire interest in the Leased Property, but
not any




Amended and Restated Ground Lease (RTP Data Center) – Page 18




 









 




 subtenant or assignee of a lesser interest) will have the option, and NAI hereby grants to
BNPPLC such option, to purchase NAI’s interest in the Leased Property.



15 Miscellaneous.




     (A) No Merger. There will be no merger of this Ground Lease or of the leasehold
estate hereby created with the fee or any other estate in the Leased Property or any part thereof
by reason of the fact that the same person may acquire or hold, directly or indirectly, this Ground
Lease or the leasehold estate hereby created or any interest in this Ground Lease or in such
leasehold estate as well as the fee or any other estate in the Leased Property or any interest in
such fee or other estate, unless all parties with an interest in the Leased Property that would be
adversely affected by any such merger specifically agree in writing that such a merger has
occurred.



     (B) Recording; Memorandum of Lease. Either party may record this Ground Lease in the
real property records of Wake County, North Carolina. If NAI and BNPPLC decide not to record this
Ground Lease, they will execute a memorandum of this Ground Lease in recordable form which will be
filed in the real property records of Wake County, North Carolina.


16 Certain Remedies Cumulative. No right or remedy herein conferred upon or reserved to
BNPPLC is intended to be exclusive of any other right or remedy BNPPLC has with respect to the
Improved Property, and each and every right and remedy of BNPPLC will be cumulative and in addition
to any other right or remedy given to it under this Ground Lease or now or hereafter existing in
its favor at law or in equity. In addition to other remedies available
under this Ground Lease, either party will be entitled, to the extent permitted by applicable law,
to a decree compelling performance of any of the other party’s agreements hereunder.



17 Attorney’s Fees and Legal Expenses. If BNPPLC commences any legal action or other
proceeding because of any breach of this Ground Lease by NAI, BNPPLC may recover all Attorneys’
Fees incurred by it in connection therewith from NAI, whether or not such controversy, claim or
dispute is prosecuted to a final judgment. Any Attorneys’ Fees incurred by BNPPLC in enforcing a
judgment in its favor under this Ground Lease will be recoverable separately from such judgment,
and the obligation for such Attorneys’ Fees is intended to be severable from other provisions of
this Ground Lease and not to be merged into any such judgment.



18 Successors and Assigns. The terms, provisions, covenants and conditions of this
Ground Lease will be binding upon NAI and BNPPLC and their respective permitted successors and
assigns and will inure to the benefit of NAI and BNPPLC and all permitted transferees, mortgagees,
successors and assignees of NAI and BNPPLC with respect to the Leased Property; except that (A)
BNPPLC will not assign this Ground Lease or any rights hereunder
except




Amended and Restated Ground Lease (RTP Data Center) – Page 19




 









 




pursuant to a Permitted
Transfer, and (C) NAI will not assign this Ground Lease or any rights hereunder prior to the
Turnover Date without the prior written consent of BNPPLC.



19 Amendment and Restatement of Prior ground Lease. This Lease amends, restates and
replaces entirely the Ground Lease dated as of July 17, 2007, between NAI (as lessor) and BNPPLC
(as lessee) (as previously amended, the “Prior Ground Lease”). Without limiting the rights and
obligations of the parties under this Ground Lease, NAI acknowledges that any and all rights or
interest of NAI in and to the Land or other Property under the Prior Ground Lease are now made
subject to the terms and conditions of this Ground Lease; and all rights and interests of BNPPLC in
and to the Land or other Property under the Prior Ground Lease are renewed and extended (rather
than terminated) by this Ground Lease.




[The signature pages follow.]




Amended and Restated Ground Lease (RTP Data Center) – Page 20





 











 





     IN WITNESS WHEREOF, this Amended and Restated Ground Lease (RTP Data Center) is executed to be
effective as of November 29, 2007.



	 	 	 	 	 
	 	BNP PARIBAS LEASING CORPORATION, a Delaware
corporation

 	 
	 	By:  	/s/ Lloyd G. Cox
 	 
	 	 	Lloyd G. Cox, Managing Director 	 
	 	 	 	 
	 



	 	 	 	 	 	 	 
	STATE OF TEXAS

	 	 	)	 	 	 
	 

	 	 	)	 	 	SS
	COUNTY OF DALLAS

	 	 	)	 	 	 





I, Kathryn Hackett, certify that Lloyd G. Cox personally came before me
this day and acknowledged that he is Managing Director of BNP Paribas Leasing Corporation, a
Delaware corporation, and that he, as a Managing Director being duly authorized to do so, executed
the foregoing on behalf of the corporation.



Witness my hand and official seal this the 27th day of November, 2007.




	 	 	 	 	 
	 	 	 
	 	 /s/   Kathryn Hackett
 	 
	 	Notary Public, State of Texas 	 
	 	 	 





	 	 	 	 	 
	My Commission Expires:	 	 
	 	 
 	 
	June 21, 2011	 	 
	 	 	 
	(Notary Seal)	NOTARY PUBLIC

STATE OF TEXAS
KATHRYN HACKETT
MY COMMISSION EXPIRES

June 21, 2011	 





Amended and Restated Ground Lease (RTP Data Center) – Signature Page




 









 







[Continuation of signature pages for Amended and Restated Ground Lease (RTP Data Center) dated as
of November 29, 2007.]




	 	 	 	 	 
	 	NETWORK APPLIANCE, INC., a Delaware corporation

 	 
	 	By:  	/s/ Ingemar Lanevi
 	 
	 	 	Ingemar Lanevi, Vice President and Corporate 	 
	 	 	Treasurer 	 
	 



	 	 	 	 	 	 	 
	STATE OF NORTH CAROLINA

	 	 	)	 	 	 
	 

	 	 	)	 	 	SS
	COUNTY OF WAKE

	 	 	)	 	 	 





I, Donna M. Mareotte, certify that Ingemar Lanevi personally came before me
this day and acknowledged that he is Vice President and Corporate Treasurer of Network Appliance,
Inc., a Delaware corporation, and that he, as a Vice President and Corporate Treasurer being duly
authorized to do so, executed the foregoing on behalf of the corporation.



Witness my hand and official seal this the 27th day of November, 2007.




	 	 	 	 	 
	 	 	 
	 	     Donna M. Mareotte
 	 
	 	Notary Public, State of North Carolina 	 
	 	 	 



	 	 	 	 	 
	My Commission Expires:	 	 
	 	 
 	 
	Oct 05, 2008	 	 
	 	 	 
	(Notary Seal)	 	 



Amended and Restated Ground Lease (RTP Data Center) – Signature Page




 









 







[Continuation of signature pages for Amended and Restated Ground Lease (RTP Data Center dated as of
November 29, 2007.]




Consent and Agreement of the Condominium Association





     At the request and direction of NAI, as the current Owner of all Units created by the
Condominium Declaration, the undersigned, being the Association under and as defined in the
Condominium Declaration, joins in the execution of this Ground Lease for the following limited
purposes:



     1. The Association consents to the execution of this Ground Lease and the other Operative
Documents by NAI and BNPPLC.



     2. The Association agrees that the Association’s Relevant Property Rights (as defined below)
are and will be subject and subordinate to this Ground Lease (and all its terms and conditions), to
the leasehold estate created by this Ground Lease and to each and all of the other Operative
Documents (and all of their terms and conditions). As used herein, the “Association’s Relevant
Property Rights” means any and all rights, titles and interests the Association may have, now or in
the future, to the land described in Exhibit A as the Ground Lease Premises, or any part
thereof, or to any land burdened by easements appurtenant to the Ground Lease Premises as described
in Exhibit A. The Association’s Relevant Property Rights will include its rights, titles
and interests in and to Common Elements.



     3. In consideration of the rents to be paid to NAI under this Ground Lease, and to assure
BNPPLC that the Association’s Relevant Property Rights will be subject to the leasehold estate
contemplated by this Ground Lease, the Association does hereby LEASE, DEMISE AND LET unto BNPPLC
the Association’s Relevant Property Rights. However, this lease by the Association to BNPPLC will
be limited to the land described in Exhibit A as the Ground Lease Premises and the
easements appurtenant to the Ground Lease Premises as described in Exhibit A. Accordingly,
any rights of possession or use created in favor of BNPPLC by the lease from the Association will
be limited to possession of the Ground Lease Premises and to the nonexclusive use of adjacent land
pursuant to such appurtenant easements.



	 	 	 	 	 
	 	NETAPP RTP PHASE I CONDOMINIUM OWNERS ASSOCIATION,

INC., a North Carolina nonprofit corporation

 	 
	 	By:  	/s/
Steven J. Boons
 	 
	 	 	Name:  	Steven J. Boons	 
	 	 	Title:  	EVP Finance and CFO 	 
	 



Amended and Restated Ground Lease (RTP Data Center) – Signature Page




 









 








	 	 	 	 	 	 	 
	STATE OF CALIFORNIA

	 	 	)	 	 	 
	 

	 	 	)	 	 	SS
	COUNTY OF SANTA CLARA

	 	 	)	 	 	 





I,
Cristina Curiel Morales, certify that Steven Boons personally came
before me this day and acknowledged that he is Executive Vice President of NetApp RTP Phase I
Condominium Owners Association, Inc., a North Carolina nonprofit corporation, and that he, as a
Chief Financial Officer being duly authorized to do so, executed the foregoing on behalf of the
corporation.



Witness my hand and official seal this the 26th day of November, 2007.




	 	 	 	 	 
	 	 	 
	 	 /s/ Cristina Curiel Morales
 	 
	 	Notary Public, State of California 	 
	 	 	 




	 	 	 	 	 
	My Commission Expires:	 	 
	 	 
 	 
	Nov. 2, 2010	 	 
	 	 	 
	(Notary Seal)	CRISTINA CURIEL MORALES

COMMISSION # 1782681
NOTARY PUBLIC – CALIFORNIA
SANTA
CLARA COUNTY

MY COMM. EXPIRES NOV 2, 2010	 




Amended and Restated Ground Lease (RTP Data Center) – Signature Page




 









 








Exhibit A




Legal Description



BEING a portion of Site 12 as shown on the map entitled “Exempt Subdivision Map of Site 12”,
prepared by Barbara H. Mulkey Engineering, Inc., on May 30, 2000 as recorded in the Book of Maps
2000, Page 1300, Wake County, North Carolina Registry, such portion being described as follows:






Unit 4 and the Additional Leased Premises, both as defined below (collectively, the
“Ground Lease Premises”).




As used in this Exhibit:




     (1) “Additional Leased Premises” means the land surrounding and adjacent to
Unit 4, depicted on the site plan attached to and made a part of this Exhibit as the
area shaded in gray, which includes parking lots, driveways and other areas within
the larger area designated as Common Elements in the Condominium Declaration. The
outer boundaries of the Additional Leased Premises are described by metes and bounds
on the last page attached to and made a part of this Exhibit. All land within those
outer boundaries, other than Unit 4, is included in the Additional Leased Premises.




     (2) “Condominium Declaration” means the Declaration of Condominium for NetApp
RTP Phase I Condominium recorded in Book 012647, Page 01310, Wake County, North
Carolina Registry.




     (3) “Condominium Map” means the plat provided to BNP Paribas Leasing
Corporation (“BNPPLC”) by Network Appliance, Inc. (“NAI”) attached to and made a
part of this Exhibit. (The Condominium Map has also been filed in the Book of Maps
CM2007, Page 444A1, Wake County, North Carolina Registry.)




     (4) “Unit 4” means the land designated and described in the Condominium
Declaration as Unit 4 and is shown on the Condominium Map and site plan attached to
and made a part of this Exhibit.


TOGETHER WITH, easements appurtenant to the Ground Lease Premises (the “Appurtenant Easements”)
under, over and across adjacent parcels (“Adjacent Parcels”) which are owned by NAI or the
Association (as defined in the Condominium Declaration) for the purposes described below and on and
subject to the express terms and conditions set forth below;



SUBJECT, HOWEVER, to an easement appurtenant to the Adjacent Parcels (the “Reserved
Easement”) over the Additional Leased Premises (but not any part of Unit 4) in favor of the
Association for the purposes described below and on and subject to the express terms and





 









 






conditions
set forth below.


The Appurtenant Easements will be for the following purposes:





     1. The construction (including expansion or replacement), use, maintenance and repair
of utility lines under, over and across the Adjacent Parcels and related equipment
(including lines or equipment for water, sanitary sewer, electricity, phone and gas)
(collectively, the “Utility Lines”) to serve improvements constructed from time to time on
the Ground Lease Premises.




     2. Access and parking over and in paved driveways and parking lots or garages now or
hereafter located on the Adjacent Parcels (“Driveways and Parking Areas”).




     3. The encroachment, support, maintenance, repair and replacement of any buildings
constructed on Unit 4 as shown on the Condominium Map during the period that BNPPLC owns or
leases Unit 4.


The Appurtenant Easements will be subject to the following terms and conditions:





     A. The Appurtenant Easements for Utility Lines will be limited to:




     (1) those Utility Lines, if any, existing on the first date upon which any
instrument is recorded which gives notice of the Appurtenant Easements;




     (2) those Utility Lines, if any, constructed by or at the request of NAI
itself;




     (3) any other Utility Lines reasonably necessary for the use of improvements
constructed or expected to be constructed as provided in the Construction Agreement
dated as of the date of this Ground Lease between NAI and BNPPLC (whether
constructed for BNPPLC or otherwise) (and in the case of Utility Lines permitted
only because of this clause (3), such Utility Lines must be installed in a location
that does not run through or under any then existing building or structured garage
on the Adjacent Parcels); and




     (4) replacements (including replacements that may increase utility capacity)
for any Utility Lines permitted under the preceding clauses (1) through (3).




     B. Any Utility Line on any Adjacent Parcel may be relocated to another location
on the same Adjacent Parcel by the owner of such parcel and at its sole cost and



Exhibit A to Amended and Restated Ground Lease (RTP Data Center) – Page 2




 









 









expense, so long as the relocation is done in a good and workmanlike manner that does not and will
not impose any significant or unexpected interruption of utility services or additional
costs upon the owner or occupants of the Ground Lease Premises.




     C. The use of Driveways and Parking Areas by the owner of the Ground Lease Premises and
its tenants and other invitees will not exceed that reasonably required to provide buildings
constructed on the Ground Lease Premises with parking that both (i) meets local zoning and
other legal requirements, and (ii) when taken together with any permanent, concrete parking
spaces from time to time constructed on the Ground Lease Premises, causes the Parking Ratio
(as defined below) for building(s) constructed upon Unit 4 to equal the average Parking
Ratio for all buildings constructed upon all Units created by the Condominium Declaration
(collectively, the “Parking Requirements”). As used in the preceding sentence, “Parking
Ratio” means, for any building, the percentage computed by dividing of the number of parking
spaces on the Additional Leased Premises or on the Adjacent Tracts which are available to
the occupants of such building, divided by the useable square footage of such building.




     D. NAI and its successors and assigns as the owners of Adjacent Parcels will always
maintain a number of parking spaces on the Adjacent Parcels which is no less than the sum of
(1) the spaces required to meet Parking Requirements for buildings on the Ground Lease
Premises, and (2) the spaces required to satisfy zoning or other parking requirements for
other buildings on or served by parking on the Adjacent Parcels.


The Reserved Easement will be for the following purposes:





     1. The construction (including expansion and replacement), use, maintenance and repair
of any structured parking garage on any portion of the Additional Leased Premises (but not
any part of Unit 4) and related equipment (including lines or equipment for electricity)
(collectively, a “Structured Garage”) as deemed necessary or helpful by the Association to
serve improvements constructed from time to time on both Unit 4 and any one or more other
Units (as defined in the Condominium Declaration) designated by the Association prior to the
construction of the Structured Garage (whether one or more, the “Other Units”); and




     2. Access across paved driveways now or hereafter located on the Additional Leased
Premises, including access to loading docks which serve and are part of the building
designated as “Building 3” on the Condominium Map.


The Reserved Easement will be subject to the following terms and conditions:





     A. The construction (including expansion or replacement) of any Structured
Garage
will be not exceed the size or scope required, as proposed in good faith by the



Exhibit A to Amended and Restated Ground Lease (RTP Data Center) – Page 3





 









 









Association and approved by Ground Lessee (which approval will not be unreasonably
withheld), to provide Unit 4 and Other Units with parking that both (i) meets local zoning
and other legal requirements, and (ii) when taken together with any permanent, concrete
parking spaces from time to time constructed and available for use on the Adjacent Tracts,
is sufficient to meet the reasonable projected parking needs of the owners and occupants of
Unit 4 and the Other Units (collectively, the “Association’s Proposed Parking
Requirements”). If, however, the Association does propose, and the tenant under this Ground
Lease does approve, the construction of a Structured Garage to meet the Association’s
Proposed Parking Requirements, then the Association may undertake such construction pursuant
to the Reserved Easement; and in the case of any such construction commenced after the
Turnover Date, the Ground Lessee must join with the owners of Other Units to reimburse to
the Association all actual, out-of-pocket costs of design and construction in accordance
with a schedule of reimbursements imposed by the Association to facilitate the construction.




     B. Before the Turnover Date, Ground Lessee will have no obligation for any such
reimbursements to the Association. After the Turnover Date, such reimbursements will be
allocated among the Ground Lessee and each owner of Other Units in proportion to the square
footage of their respective buildings to be served by the Structured Garage; subject,
however, to any reasonable determination of the Association that (1) some other allocation
of the cost would be more equitable, (2) is made before construction commences and
contemporaneously with the Association’s determination that construction of a Structured
Garage is required to meet the Association’s Proposed Parking Requirements, and (3) is made
at a time when none of the parties affected by such determination has voting control of the
Association.




     B. Prior to the Turnover Date, Ground Lessee will have no obligation to pay or
reimburse the costs of operating or maintaining any Structured Garage. However, after the
Turnover Date and construction of any Structured Garage by the Association, the cost of
operating and maintaining it (including property taxes) will be allocated among the Ground
Lessee and the owners of Other Units in the same proportion as the original costs of
construction pursuant to the preceding paragraph.




     C. The Reserved Easement will not preclude any construction by the Ground Lessee, at
its own expense, of any Structured Garage on the Additional Leased Premises if ever the
Ground Lessee itself should determine that a Structured Garage is needed to meet the parking
needs of the occupants of Unit 4.



Exhibit A to Amended and Restated Ground Lease (RTP Data Center) – Page 4




 









 













Exhibit A to Amended and Restated Ground Lease (RTP Data Center) – Page 5




 









 













Exhibit A to Amended and Restated Ground Lease (RTP Data Center) – Page 6




 









 








Attachment to Exhibit A — Metes and Bounds

Description of “Additional Leased Premises”




     The following is a metes and bounds description of the outer boundaries of the Additional Leased premise:


BEGINNING
at NCOS Monument “Hopson”, said monument having NC Grid Coordinates of N=773,721.48 and
E=2,034,907.39 (NAD 83), traveling thence South 11° 44' 59" West 6154.66 feet to a right-of-way,
monument on the southern margin of Louis Stephens Drive (a 100 foot
public right-of-way), thence
North 72° 48' 35" East 164.29 feet to a right-of-way monument on the southern margin of Kit Creek
Road (a 150 foot public right-of-way); thence with the southern margin of said Kit Creek Road the
following two (2) courses and distances:




     (1) South
68° 46' 54 East 412.64 feet to a right-of-way monument; and



     (2) with a curve to the right having a radius of 924.83 feet, an arc length of 475.96 and a
chord bearing and distance of South 54° 02' 59” East 470.72 feet to a computed point;


said computed being the POINT AND PLACE OF BEGINNING; thence from said point of beginning
and continuing with the southern margin of Kit Creek Road South 39° 18' 29" East 571.64 feet to a
computed point, thence cornering and leaving said right-of-way and with the common line of
property now or formerly owned by Research Triangle Foundation of NC (DB 1670 PG 239) the
following two (2) courses and distances:




     (1) South 50° 41' 31" West 100.00 feet to an iron pipe found; and



     (2) South 83° 31' 01" West 483.47 feet to an iron pipe found;


thence cornering and along three (3) new lines within the bounds of property owned by Network
Appliance. Inc. (DB 10941 Pg 2054) as follows:



     (1) North
12° 44' 00" West 279.97 feet



     (2) North 48° 55' 31" West 50.30 feet; and



     (3) North
32° 57' 24" East 401. 61 feet to a point along tile southern margin of said Kit
Creek Road;

thence with the southern margin of Kit Creek Road along a curve to the right having a
radius of 925.04 feet, an arc length of 113.05 feet and a chord bearing and distance of South 42°
48' 33" East 112.98 feet to the POINT AND PLACE OF BEGINNING, containing 5.36 acres (233,621
square feet), more or less, said area shown on the rendering attached hereto.


Exhibit A to Amended and Restated Ground Lease (RTP Data Center) – Page 7




 









 








Exhibit B




Permitted Encumbrances




     The leasehold and other interests in the Land hereby conveyed by NAI are conveyed subject to
the following matters to the extent the same are still valid and in force:




	1.	 	Taxes for the year 2007 and subsequent years, not yet due and payable.
	 
	2.	 	Amended Declaration of Covenants recorded in Book 1663, page 559, Wake County Registry and
Amended Conditions, Covenants, Restrictions and Reservations recorded in Book 3679, page 53,
Wake County Registry as further amended and modified by instrument recorded in Book 3679, page
41, Wake County Registry; instrument recorded in Book 3679, page 48, Wake County Registry; and
instrument recorded in Book 3679, page 53, Wake County Registry. The aforesaid covenants were
extended by Extension Agreement recorded in Book 6098, page 683, Wake County Registry.
	 
	3.	 	Easement(s) to Duke Power Company recorded in Book 1306, page 330; Book 1262, page 51; Book
1262, page 186; Book 1306, page 334; Book 1389, page 570; and Book 1389, page 568, Wake County
Registry.
	 
	4.	 	Sanitary Sewer Easement recorded in Book 4783, page 360, Wake County Registry; and shown in
Map Book 1990, pages 973-976, Wake County Registry.
	 
	5.	 	Easement to Duke Power Company as shown in Plat Book 1985, page 1208 and Plat Book 1985,
1347, Wake County Registry.
	 
	6.	 	The following maters as shown on plat prepared by Barbara H. Mulkey Engineering, Inc., dated
May 30, 2000 entitled “Exempt Subdivision Map of Site 12”, recorded in Book of Maps 2000, page
1300, Wake County Registry:






	 	(a)	 	New permanent drainage easement along the eastern right of way identified on
such plat as “Future Roadway for Louis Stephens Drive”;
	 
	 	(b)	 	Surface Cover Maintenance easement along the western boundary of Site 12 as
shown on such plat;
	 
	 	(c)	 	One hundred (100) year flood zone along the southern boundary of Site 12 as
shown on such plat;
	 
	 	(d)	 	Temporary drainage easement along norther boundary of Site 12 as shown on such
plat;
	 
	 	(e)	 	Existing sixty (60) foot right of way of Kit Creek Road, which right of way is to
be abandoned (if it has not already been abandoned) as located in the northeastern





 









 






	 		 	portion of Site 12 as shown on such plat;
	 
	 	(f)	 	Overhead electric lines located on the northeastern portion of Site 12 as shown
on such plat;
	 
	 	(g)	 	Flood plain area, wetlands and creek located within the Natural Area Preserve
as shown on such plat; and
	 
	 	(h)	 	Thirty (30) foot Wake County sanitary sewer easement within the Natural Areas
Preserve as shown on such plat.






	7.	 	Except to the extent inconsistent with or in conflict with the requirements, limitations and
qualifications of subparagraphs 11(K), 11(L) and 11(M) of this Ground Lease, the terms and
conditions of the Condominium Declaration.





Exhibit B to Amended and Restated Ground Lease (RTP Data Center) – Page 2





 











 





Exhibit C




CONTINGENT PURCHASE OPTION




     Subject to the terms of this Exhibit, BNPPLC shall have an option (the “Option”) to buy NAI’
fee interest in the Leased Property at any time during the term of this Ground Lease after (but
only after) any breach by NAI under the Purchase Agreement, provided NAI does not cure the breach
within any time permitted for cure by the express provisions of the Purchase Agreement, for a
purchase price (the “Option Price”) to NAI equal to fair market value.



     For the purposes of this Exhibit, “fair market value” means (and all appraisers and other
persons involved in the determination of the Option Price will be so advised) the price that would
be agreed upon between a willing buyer, under no compulsion to buy, and a willing seller, under no
compulsion to sell, for unimproved land comparable in size and location to the Land,
exclusive of any Improvements but assuming that there is no higher and better use for such land
than as a site for improvements of comparable size and utility to the Improvements, at the time of
BNPPLC’s exercise of the Option and taking into consideration the condition of the Land, the
encumbrances affecting the title to the Land and all applicable zoning, land use approvals and
other governmental permits relating to the Land at the time of the exercise of the Option.



     If BNPPLC exercises the Option, which BNPPLC may do by notifying NAI that BNPPLC has elected
to buy NAI’ interest in the Leased Property as provided herein, then:




     (1) To the extent, if any, required as a condition imposed by law to the conveyance of
the fee interest in the Leased Property to BNPPLC, NAI shall promptly at its expense do
whatever is necessary and possible (including, without limitation, cooperating with BNPPLC
in seeking any zoning variances requested by BNPPLC) to obtain approvals of a new recorded
plat or lot line adjustments. Should it be determined that it is not possible to satisfy
any such condition imposed by law, neither NAI nor BNPPLC shall be required to consummate
any purchase pursuant to this Exhibit, and this Ground Lease will continue as if BNPPLC had
not exercised the Option.




     (2) Upon BNPPLC’s tender of the Option Price to NAI, NAI will convey good and
indefeasible title to the fee estate in the Land and its interest in all other Leased
Property to BNPPLC by general warranty deed and assignment subject only to the Permitted
Encumbrances, to any claims of BNPPLC or Liens Removable by BNPPLC, and (to the extent still
in force) to the Lease and the Purchase Agreement.




     (3) BNPPLC’s obligation to close the purchase shall be subject to the following
terms and conditions, all of which are for the benefit of BNPPLC: (a) BNPPLC shall have
been furnished with evidence satisfactory to BNPPLC that NAI can convey title as required by
the preceding subparagraph; (b) nothing shall have occurred or been discovered after BNPPLC
exercised the Option that could significantly and
adversely affect title to the Leased Property or BNPPLC’s use thereof, (c) all of the
representations of NAI in this Ground Lease shall continue to be true as if made effective



 









 






on the date of the closing and, with respect to any such representations which may be
limited to the knowledge of NAI or any of NAI’ representatives, would continue to be true on
the date of the closing if all relevant facts and circumstances were known to NAI and such
representatives, and (d) BNPPLC shall have been tendered the deed and other documents which
are described in this Exhibit as documents to be delivered to BNPPLC at the closing of
BNPPLC’s purchase.




     (4) Closing of the purchase will be scheduled on the first Business Day following
thirty days after the Option Price is established in accordance with the terms and
conditions of this Exhibit and after any approvals described in subparagraph (1) above are
obtained, and prior to closing BNPPLC’s occupancy of the Leased Property shall continue to
be subject to the terms and conditions of this Ground Lease, including the terms setting
forth BNPPLC’s obligation to pay rent. Closing shall take place at the offices of any title
insurance company reasonably selected by BNPPLC to insure title under the title insurance
policy described below.




     (5) Any transfer taxes or notices or registrations required by law in connection with
the sale contemplated by this Exhibit will be the responsibility of NAI.




     (6) NAI will deliver a certificate of nonforeign status to BNPPLC at closing as needed
to comply with the provisions of the U.S. Foreign Investors Real Property Tax Act (FIRPTA)
or any comparable federal, state or local law in effect at the time.




     (7) NAI will also pay for and deliver to BNPPLC at the closing an owner’s title
insurance policy in the full amount of the Option Price, issued by a title insurance company
designated by BNPPLC (or written confirmation from the title company that it is then
prepared to issue such a policy), and subject only to standard printed exceptions which the
title insurance company refuses to delete or modify in a manner acceptable to BNPPLC and to
Permitted Encumbrances.




     (8) NAI shall also deliver at the closing all other documents or things reasonably
required to be delivered to BNPPLC or by the title insurance company to evidence NAI’
ability to transfer the Leased Property to BNPPLC.



     If NAI and BNPPLC do not otherwise agree upon the amount of the Option Price within twenty
days after BNPPLC exercises the Option, the Option Price shall be determined in accordance with the
following procedure:




     (a) NAI and BNPPLC shall each appoint a real estate appraiser who is
familiar with properties in the vicinity of the Land and who has not previously
acted for either party. Each party will make the appointment no later than ten days
after receipt of notice from the other party that the appraisal process



Exhibit C to Amended and Restated Ground Lease (RTP Data Center) – Page 2




 









 






described in
this Exhibit has been invoked. The agreement of the two appraisers as to the Option
Price will be binding upon NAI and BNPPLC. If the two appraisers cannot agree upon
the Option Price within ten days following their appointment, they shall within
another ten days agree upon a third real estate appraiser. Immediately thereafter,
each of the first two appraisers will submit his best estimate of the appropriate
Option Price (together with a written report supporting such estimate) to the third
appraiser and the third appraiser will choose between the two estimates. The
estimate of Option Price chosen by the third appraiser as the closest to the
prevailing monthly fair market value will be binding upon NAI and BNPPLC.
Notification in writing of the Option Price shall be made to NAI and BNPPLC within
fifteen days following the selection of the third appraiser.




     (b) If appraisers must be selected under the procedure set out above and either
BNPPLC or NAI fails to appoint an appraiser or fails to notify the other party of
such appointment within fifteen days after receipt of notice that the prescribed
time for appointing the appraisers has passed, then the other party’s appraiser will
determine the Option Price. All appraisers selected for the appraisal process set
out in this Exhibit will be disinterested, reputable, qualified real estate
appraisers with the designation of MAI or equivalent and with at least 5 years
experience in appraising properties comparable to the Land.




     (c) If a third appraiser must be chosen under the procedure set out above, he
will be chosen on the basis of objectivity and competence, not on the basis of his
relationship with the other appraisers or the parties to this Ground Lease, and the
first two appraisers will be so advised. Although the first two appraisers will be
instructed to attempt in good faith to agree upon the third appraiser, if for any
reason they cannot agree within the prescribed time, either NAI and BNPPLC may
require the first two appraisers to immediately submit its top choice for the third
appraiser to the then highest ranking officer of the Dallas, Texas Bar Association
who will agree to help and who has no attorney/client or other significant
relationship to either NAI or BNPPLC. Such officer will have complete discretion to
select the most objective and competent third appraiser from between the choice of
each of the first two appraisers, and will do so within ten days after such choices
are submitted to him.




     (d) Either NAI or BNPPLC may notify the appraiser selected by the other
party to demand the submission of an estimate of Option Price or a choice of
a third appraiser as required under the procedure described above; and if the
submission of such an estimate or choice is required but the other party’s appraiser
fails to comply with the demand within fifteen days after receipt of such notice,
then the Option Price or choice of the third appraiser, as the case may be, selected



Exhibit C to Amended and Restated Ground Lease (RTP Data Center) – Page 3




 









 









by the other appraiser (i.e., the notifying party’s appraiser) will be binding upon
NAI and BNPPLC.




     (e) NAI and BNPPLC shall each bear the expense of the appraiser appointed by
it, and the expense of the third appraiser and of any officer of the Dallas, Texas
Bar Association who participates in the appraisal process described above will be
shared equally by NAI and BNPPLC.



Exhibit C to Amended and Restated Ground Lease (RTP Data Center) – Page 4





 









 








Exhibit D




DETERMINATION OF FAIR RENTAL VALUE




     Each annual payment of Ground Lease Rent will equal the Fair Rental Value, computed as of the
most recent Rental Determination Date when such payment becomes due. As used in this Exhibit,
“Rental Determination Date” means the (1) the Effective Date, (2) the earliest anniversary of the
Effective Date to follow the Turnover Date by more than thirty days, and (3) after the second
Rental Determination Date described in clause (2), each fifth anniversary of the preceding Rental
Determination Date.



     As of the Effective Date (i.e., the first Rental Determination Date), the parties have agreed
that Fair Rental Value is the dollar amount set forth in Paragraph 3 of this Ground Lease.



     If NAI and BNPPLC have not agreed upon Fair Rental Value as of any subsequent Rental
Determination Date within one hundred eighty days after the such date, then Fair Rental Value will
be determined as follows:




     (a) NAI and BNPPLC shall each appoint a real estate appraiser who is familiar with
rental values for properties in the vicinity of the Land and who has not previously acted
for either party. Each party will make the appointment no later than ten days after receipt
of notice from the other party that the appraisal process described in this Exhibit has been
invoked. The agreement of the two appraisers as to Fair Rental Value will be binding upon
NAI and BNPPLC. If the two appraisers cannot agree upon the Fair Rental Value within ten
days following their appointment, they shall within another ten days agree upon a third real
estate appraiser. Immediately thereafter, each of the first two appraisers will submit his
best estimate of the appropriate Fair Rental Value (together with a written report
supporting such estimate) to the third appraiser and the third appraiser will choose between
the two estimates. The estimate of Fair Rental Value chosen by the third appraiser as the
closest to the prevailing annual fair rental value will be binding upon NAI and BNPPLC.
Notification in writing of this estimate shall be made to NAI and BNPPLC within fifteen days
following the selection of the third appraiser.




     (b) If appraisers must be selected under the procedure set out above and either BNPPLC
or NAI fails to appoint an appraiser or fails to notify the other party of such appointment
within fifteen days after receipt of notice that the prescribed time for appointing the
appraisers has passed, then the other party’s appraiser will determine the Fair Rental
Value. All appraisers selected for the appraisal process set out in this Exhibit will be
disinterested, reputable, qualified real estate appraisers with the designation of MAI or
equivalent and with at least 5 years experience in appraising properties comparable to the
Land.




     (c) If a third appraiser must be chosen under the procedure set out above, he or she
will be chosen on the basis of objectivity and competence, not on the basis of his



 









 






relationship with the other appraisers or the parties to this Ground Lease, and the first
two appraisers will be so advised. Although the first two appraisers will be instructed to
attempt in good faith to agree upon the third appraiser, if for any reason they cannot agree
within the prescribed time, either NAI and BNPPLC may require the first two appraisers to
immediately submit its top choice for the third appraiser to the then highest ranking
officer of the Dallas, Texas Bar Association who will agree to help and who has no
attorney/client or other significant relationship to either NAI or BNPPLC. Such officer
will have complete discretion to select the most objective and competent third appraiser
from between the choice of each of the first two appraisers, and will do so within twenty
days after such choices are submitted to him.




     (d) Either NAI or BNPPLC may notify the appraiser selected by the other party to demand
the submission of an estimate of Fair Rental Value or a choice of a third appraiser as
required under the procedure described above; and if the submission of such an estimate or
choice is required but the other party’s appraiser fails to comply with the demand within
fifteen days after receipt of such notice, then the Fair Rental Value or choice of the third
appraiser, as the case may be, selected by the other appraiser (i.e., the notifying party’s
appraiser) will be binding upon NAI and BNPPLC.




     (e) NAI and BNPPLC shall each bear the expense of the appraiser appointed by it, and
the expense of the third appraiser and of any officer of the Dallas, Texas Bar Association
who participates in the appraisal process described above will be shared equally by NAI and
BNPPLC.



Exhibit D to Amended and Restated Ground Lease (RTP Data Center) – Page 2