exv10w72





Exhibit
10.72







      










COMMON DEFINITIONS

AND PROVISIONS AGREEMENT

(BUILDING 9)




between




BNP PARIBAS LEASING CORPORATION




and




NETWORK APPLIANCE, INC.




Dated as of February 1, 2008



 















 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I — LIST OF DEFINED TERMS
	 	 	1	 
	97-10/Maximum Permitted Prepayment
	 	 	1	 
	97-10/Meltdown Event
	 	 	1	 
	97-10/Prepayment
	 	 	1	 
	97-10/Project Costs
	 	 	1	 
	97-10/Pronouncement
	 	 	1	 
	ABR
	 	 	1	 
	ABR Period Election
	 	 	2	 
	Active Negligence
	 	 	2	 
	Additional Rent
	 	 	2	 
	Administrative Fees
	 	 	2	 
	Advance Date
	 	 	2	 
	Affiliate
	 	 	3	 
	After Tax Basis
	 	 	3	 
	Applicable Laws
	 	 	3	 
	Applicable Purchaser
	 	 	3	 
	Appurtenant Easements
	 	 	3	 
	Arrangement Fee
	 	 	3	 
	Attorneys’ Fees
	 	 	3	 
	Balance of Unpaid Construction Period Losses
	 	 	3	 
	Banking Rules Change
	 	 	3	 
	Base Rent
	 	 	4	 
	Base Rent Commencement Date
	 	 	4	 
	Base Rent Date
	 	 	4	 
	Base Rent Period
	 	 	4	 
	BNPPLC
	 	 	5	 
	BNPPLC’s Parent
	 	 	5	 
	Breakage Costs
	 	 	5	 
	Break Even Price
	 	 	6	 
	Business Day
	 	 	6	 
	Capital Adequacy Charges
	 	 	6	 
	Carrying Costs
	 	 	6	 
	Closing Certificate
	 	 	6	 
	Closing Letter
	 	 	6	 
	Code
	 	 	7	 
	Commitment Fees
	 	 	7	 
	Common Definitions and Provisions Agreement
	 	 	7	 
	Completion Date
	 	 	7	 
	Completion Notice
	 	 	7	 
	Consolidated Debt for Borrowed Money
	 	 	7	 






 









 






TABLE OF CONTENTS



(Continued)




	 	 	 	 	 
	 	 	 	Page	 
	 
	 	 	 	 
	Consolidated EBITDA
	 	 	7	 
	Constituent Documents
	 	 	7	 
	Construction Advances
	 	 	7	 
	Construction Advance Request
	 	 	7	 
	Construction Agreement
	 	 	7	 
	Construction Allowance
	 	 	7	 
	Construction Period
	 	 	7	 
	Construction Project
	 	 	8	 
	Covered Construction Period Losses
	 	 	8	 
	Default
	 	 	8	 
	Default Rate
	 	 	8	 
	Defective Work
	 	 	8	 
	Designated Sale Date
	 	 	8	 
	Effective Date
	 	 	9	 
	Effective Rate
	 	 	9	 
	Eligible Financial Institution
	 	 	10	 
	Environmental Cutoff Date
	 	 	10	 
	Environmental Laws
	 	 	11	 
	Environmental Losses
	 	 	11	 
	Environmental Report
	 	 	11	 
	ERISA
	 	 	12	 
	ERISA Affiliate
	 	 	12	 
	ERISA Termination Event
	 	 	12	 
	Escrowed Proceeds
	 	 	12	 
	Established Misconduct
	 	 	13	 
	Eurocurrency Liabilities
	 	 	14	 
	Eurodollar Rate Reserve Percentage
	 	 	14	 
	Event of Default
	 	 	14	 
	Excluded Taxes
	 	 	16	 
	Fed Funds Rate
	 	 	17	 
	Fixed Rate
	 	 	18	 
	Fixed Rate Lock
	 	 	18	 
	Fixed Rate Lock Date
	 	 	18	 
	Fixed Rate Lock Termination
	 	 	18	 
	Fixed Rate Lock Termination Date
	 	 	18	 
	Fixed Rate Lock Notice
	 	 	18	 
	Fixed Rate Loss
	 	 	18	 
	Fixed Rate Settlement Amount
	 	 	19	 






(ii)









 






TABLE OF CONTENTS



(Continued)




	 	 	 	 	 
	 	 	 	Page	 
	 
	 	 	 	 
	Fixed Rate Swap
	 	 	19	 
	Floating Rate Payor
	 	 	19	 
	FOCB Notice
	 	 	19	 
	Force Majeure Event
	 	 	19	 
	Fully Subordinated or Removable
	 	 	19	 
	Funded Construction Allowance
	 	 	20	 
	Funding Advances
	 	 	20	 
	Future Work
	 	 	20	 
	GAAP
	 	 	20	 
	Ground Lease
	 	 	20	 
	Hazardous Substance
	 	 	20	 
	Hazardous Substance Activity
	 	 	21	 
	Improvements
	 	 	21	 
	Increased Commitment
	 	 	21	 
	Increased Funding Commitment
	 	 	21	 
	Increased Time Commitment
	 	 	21	 
	Indebtedness
	 	 	21	 
	Initial Advance
	 	 	23	 
	Interested Party
	 	 	23	 
	Interest Rate Swap
	 	 	23	 
	Land
	 	 	23	 
	Lease
	 	 	24	 
	Lease Balance
	 	 	24	 
	Lease Termination Damages
	 	 	24	 
	Liabilities
	 	 	24	 
	LIBOR
	 	 	24	 
	LIBOR Period Election
	 	 	25	 
	Lien
	 	 	26	 
	Liens Removable by BNPPLC
	 	 	26	 
	Local Impositions
	 	 	27	 
	Losses
	 	 	27	 
	Market Quotation
	 	 	27	 
	Maximum Construction Allowance
	 	 	28	 
	Maximum Remarketing Obligation
	 	 	28	 
	Minimum Insurance Requirements
	 	 	28	 
	Multiemployer Plan
	 	 	28	 
	NAI
	 	 	28	 
	NAI’s Estimate of Force Majeure Excess Costs
	 	 	28	 






(iii)









 






TABLE OF CONTENTS



(Continued)




	 	 	 	 	 
	 	 	 	Page	 
	 
	 	 	 	 
	NAI’s Estimate of Force Majeure Delays
	 	 	28	 
	NAI’s Initial Remarketing Right
	 	 	28	 
	Notice of NAI’s Intent to Terminate
	 	 	28	 
	Notice of NAI’s Intent to Terminate Because of a Force Majeure Event
	 	 	29	 
	Notice of Termination by NAI
	 	 	29	 
	Operative Documents
	 	 	29	 
	Outstanding Construction Allowance
	 	 	29	 
	Owner’s Election to Continue Construction
	 	 	29	 
	Participant
	 	 	29	 
	Participation Agreement
	 	 	29	 
	Period
	 	 	30	 
	Permitted Encumbrances
	 	 	30	 
	Permitted Hazardous Substance Use
	 	 	30	 
	Permitted Hazardous Substances
	 	 	31	 
	Permitted Transfer
	 	 	31	 
	Person
	 	 	32	 
	Personal Property
	 	 	32	 
	Plan
	 	 	32	 
	Pre-lease Casualty
	 	 	32	 
	Pre-lease Force Majeure Delays
	 	 	32	 
	Pre-lease Force Majeure Event
	 	 	32	 
	Pre-lease Force Majeure Event Notice
	 	 	32	 
	Pre-lease Force Majeure Excess Costs
	 	 	32	 
	Pre-lease Force Majeure Losses
	 	 	32	 
	Prime Rate
	 	 	32	 
	Prior Work
	 	 	33	 
	Projected Cost Overruns
	 	 	33	 
	Property
	 	 	33	 
	Purchase Agreement
	 	 	33	 
	Purchase Option
	 	 	33	 
	Qualified Affiliate
	 	 	33	 
	Qualified Income Payments
	 	 	33	 
	Qualified Prepayments
	 	 	33	 
	Real Property
	 	 	34	 
	Reimbursable Construction-Period Costs
	 	 	34	 
	Remedial Work
	 	 	34	 
	Rent
	 	 	35	 
	Responsible Financial Officer
	 	 	35	 






(iv)









 






TABLE OF CONTENTS



(Continued)




	 	 	 	 	 
	 	 	 	Page	 
	 
	 	 	 	 
	Rolling Four Quarters Period
	 	 	35	 
	Scope Change
	 	 	35	 
	Spread
	 	 	35	 
	Subsidiary
	 	 	36	 
	Supplemental Payment
	 	 	36	 
	Supplemental Payment Obligation
	 	 	36	 
	Tangible Personal Property
	 	 	36	 
	Target Completion Date
	 	 	36	 
	Term
	 	 	36	 
	Termination of NAI’s Work
	 	 	37	 
	Third Party Contract
	 	 	37	 
	Third Party Contract/Termination Fees
	 	 	37	 
	Transaction Expenses
	 	 	37	 
	Unfunded Benefit Liabilities
	 	 	37	 
	Upfront Fees
	 	 	37	 
	Work
	 	 	37	 
	Work/Suspension Event
	 	 	37	 
	Work/Suspension Notice
	 	 	37	 
	Work/Suspension Period
	 	 	37	 






	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	ARTICLE II — SHARED PROVISIONS	 	 	37	 
	1.
	 	Notices	 	 	37	 
	2.
	 	Severability	 	 	40	 
	3.
	 	No Merger	 	 	40	 
	4.
	 	No Implied Waiver	 	 	40	 
	5.
	 	Entire and Only Agreements	 	 	40	 
	6.
	 	Binding Effect	 	 	41	 
	7.
	 	Time is of the Essence	 	 	41	 
	8.
	 	Governing Law	 	 	41	 
	9.
	 	Paragraph Headings	 	 	41	 
	10.
	 	Negotiated Documents	 	 	41	 
	11.
	 	Terms Not Expressly Defined in an Operative Document	 	 	41	 
	12.
	 	Other Terms and References	 	 	41	 
	13.
	 	Execution in Counterparts	 	 	42	 
	14.
	 	Not a Partnership, Etc	 	 	42	 
	15.
	 	No Fiduciary Relationship Intended	 	 	42	 






(v)









 






TABLE OF CONTENTS



(Continued)




	 	 	 
	 	 	Page
	 
	 	 
	
Annexes
	 
	 	 
	Annex 1

	 	ABR Period Election Form
	 
	 	 
	Annex 2

	 	Fixed Rate Lock Notice Form
	 
	 	 
	Annex 3

	 	LIBOR Period Election Form
	 
	 	 
	Annex 4

	 	Minimum Insurance Requirements







(vi)









 








COMMON DEFINITIONS AND PROVISIONS AGREEMENT

(BUILDING 9)




          This COMMON DEFINITIONS AND PROVISIONS AGREEMENT (BUILDING 9) (this “Agreement”), dated as of
February 1, 2008 (the “Effective Date”), is made by and between BNP PARIBAS LEASING CORPORATION
(“BNPPLC”), a Delaware corporation, and NETWORK APPLIANCE, INC. (“NAI”), a Delaware corporation.




RECITALS




          Contemporaneously with the execution of this Agreement, NAI and BNPPLC are executing the
Closing Certificate (as defined below), the Ground Lease (as defined below), the Lease (as defined
below), the Construction Agreement (as defined below) and the Purchase Agreement (as defined
below), all of which concern NAI or the Property (as defined below). Each of the Closing
Certificate, the Ground Lease, the Lease, the Construction Agreement and the Purchase Agreement
(together with this Agreement, the “Operative Documents”) are intended to create separate and
independent obligations upon the parties thereto. However, NAI and BNPPLC intend that all of the
Operative Documents share certain consistent definitions and other miscellaneous provisions. To
that end, the parties are executing this Agreement and incorporating it by reference into each of
the other Operative Documents.




AGREEMENTS




ARTICLE I — LIST OF DEFINED TERMS




          Unless a clear contrary intention appears, the following terms will have the respective
indicated meanings as used herein and in the other Operative Documents:




          “97-10/Maximum Permitted Prepayment” has the meaning indicated in the Construction Agreement .




          “97-10/Meltdown Event” has the meaning indicated in the Construction Agreement.




          “97-10/Prepayment” has the meaning indicated in the Construction Agreement.




          “97-10/Project Costs“has the meaning indicated in the Construction Agreement.




          “97-10/Pronouncement” has the meaning indicated in the Construction Agreement.




          “ABR” means, for any day, a fluctuating rate of interest per annum (rounded upwards, if
necessary, to the next 1/100th of 1%) equal to the higher of (a) the Prime Rate in effect on
such day and (b) the Fed Funds Rate in effect one day prior to such day plus 1/4 of 1% per annum.




           


 









 







For any period (including any Base Rent Period), “ABR” means the average of the ABR for each day
during such period.




          “ABR Period Election” means an election to have the Effective Rate for any Period calculated
by reference to the ABR, rather than by reference to LIBOR or a Fixed Rate. NAI may (subject to the
limitations and qualifications set forth in this definition) make any Period after the first
Construction Period subject to an ABR Period Election by a notice given to BNPPLC in the form
attached as Annex 1 at least five Business Days prior to the commencement of such Period.
After an ABR Period Election becomes effective, it will remain in effect for all subsequent Periods
until the Fixed Rate Lock Date for any Fixed Rate Lock or a different election is made in
accordance with the provisions of this definition and the definition of LIBOR Period Election. In
no event will changes in any ABR Period Election or LIBOR Period Election become effective except
upon the commencement of a new Period. (For purposes of the Operative Documents, an ABR Period
Election for any Period will also be considered in effect on the Effective Date, Advance Date, Base
Rent Commencement Date or Base Rent Date upon which such Period begins.)




          “Active Negligence” of any Person means, and is limited to, the negligent conduct on the
Property (and not mere omissions) by such Person or by others acting and authorized to act on such
Person’s behalf (other than NAI) in a manner that proximately causes actual bodily injury or
property damage for which NAI does not carry (and is not obligated by the Construction Agreement or
the Lease to carry) insurance. “Active Negligence” will not include (1) any negligent failure of
BNPPLC to act when the duty to act would not have been imposed but for BNPPLC’s status as owner of
any interest in the Land, the Improvements or any other Property or as a party to the transactions
described in the Lease or the other Operative Documents, (2) any negligent failure of any other
Interested Party to act when the duty to act would not have been imposed but for such party’s
contractual or other relationship to BNPPLC or participation or facilitation in any manner,
directly or indirectly, of the transactions described in the Lease or other Operative Documents, or
(3) the exercise in a lawful manner by BNPPLC (or any party lawfully claiming through or under
BNPPLC) of any right or remedy provided in or under the Lease or the other Operative Documents.




          “Additional Rent” has the meaning indicated in subparagraph 3(F) of the Lease.




          “Administrative Fees” means the fees identified as such in subparagraph 3(E) of the
Lease and subparagraph 3(A) of the Construction Agreement.




          “Advance Date” means, regardless of whether any Construction Advance is actually made on such
date, the first Business Day of every calendar month, beginning with the first Business Day in
March, 2008 and continuing regularly thereafter to and including the Base Rent Commencement Date,
which will be the last Advance Date.




 




Common Definitions and Provisions Agreement (Building 9) – Page 2




 









 








          “Affiliate” of any Person means any other Person controlling, controlled by or under
common control with such Person. For purposes of this definition, the term “control” when used with
respect to any Person means the power to direct the management of policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract or otherwise, and
the terms “controlling” and “controlled” have meanings correlative to the foregoing.




          “After Tax Basis” has the meaning indicated in subparagraph 5(C)(1) of the Lease.




          “Applicable Laws” means any or all of the following, to the extent applicable to BNPPLC, NAI,
the Property or the Operative Documents, after giving effect to the contractual choice of law
provisions in the Operative Documents: restrictive covenants; zoning ordinances and building codes;
flood disaster laws; health, safety and environmental laws and regulations; the Americans with
Disabilities Act and other laws pertaining to disabled persons; and other laws, statutes,
ordinances, rules, permits, regulations, orders, determinations and court decisions.




          “Applicable Purchaser” means any third party designated to purchase BNPPLC’s interest in the
Property and in any Escrowed Proceeds as provided in the Purchase Agreement.




          “Appurtenant Easements” has the meaning indicated in Exhibit A attached to the Ground
Lease.




          “Arrangement Fee” has the meaning indicated in the Construction Agreement.




          “Attorneys’ Fees” means the expenses and reasonable fees of counsel to the parties incurring
the same, including costs or expenses of in-house counsel (whether or not accounted for as general
overhead or administrative expenses) and printing, photostating, duplicating and other expenses,
air freight charges, and fees billed for law clerks, paralegals, librarians and others not admitted
to the bar but performing services under the supervision of an attorney. Such terms will also
include all such expenses and reasonable fees incurred with respect to appeals, arbitrations and
bankruptcy proceedings, and whether or not any manner of proceeding is brought with respect to the
matter for which such fees and expenses were incurred.




          “Balance of Unpaid Construction Period Losses” has the meaning indicated in the Purchase
Agreement.




          “Banking Rules Change” means either: (1) the introduction of or any change after the
Effective Date (other than any change by way of imposition or increase of reserve requirements
included in the Eurodollar Rate Reserve Percentage) in any law or regulation applicable to BNPPLC,
BNPPLC’s Parent or any Participant, or in the generally accepted interpretation by the
institutional lending community of any such law or regulation, or in the interpretation of any such
law or regulation asserted by any regulator, court or other governmental authority (other than any




 




Common Definitions and Provisions Agreement (Building 9) – Page 3





 









 







change by way of imposition or increase of reserve requirements included in the Eurodollar
Rate Reserve Percentage) or (2) the compliance by BNPPLC, BNPPLC’s Parent or any Participant with
any new guideline or new request issued after the Effective Date from any central bank or other
governmental authority (whether or not having the force of law).




          “Base Rent” means the rent payable by NAI pursuant to subparagraph 3(A) of the Lease.




          “Base Rent Commencement Date” means the first Business Day of the first calendar month after
the Completion Date.




          “Base Rent Date” means a date upon which Base Rent must be paid under the Lease, all of which
dates will be the first Business Day of a calendar month. The first Base Rent Date will be
determined as follows:





          a)     If an ABR Period Election or a LIBOR Period Election of one month is in effect on
the Base Rent Commencement Date, then the first Business Day of the first calendar
month following the Base Rent Commencement Date will be the first Base Rent Date.




          b)     If a LIBOR Period Election of three months or six months is in effect on the Base
Rent Commencement Date, then the first Business Day of the third calendar month
following the Base Rent Commencement Date will be the first Base Rent Date.


Each successive Base Rent Date after the first Base Rent Date will be the first Business Day of the
first or third calendar month following the calendar month which includes the preceding Base Rent
Date, determined as follows:





          (1)     If an ABR Period Election or a LIBOR Period Election of one month is in effect on a
Base Rent Date, or if a Fixed Rate Lock commences or continues on a Base Rent Date, then the
first Business Day of the first calendar month following such Base Rent Date will be
the next following Base Rent Date.




          (2)     If a LIBOR Period Election of three months or longer is in effect on a Base Rent
Date, then the first Business Day of the third calendar month following such Base
Rent Date will be the next following Base Rent Date.


Thus, for example, if the Base Rent Commencement Date falls on the first Business Day of
September, 2008 and a LIBOR Period Election of three months commences on the Base Rent Commencement
Date, then the first Base Rent Date will be the first Business Day of December, 2008.




          “Base Rent Period” means a period for which Base Rent must be paid under the Lease,




 




Common Definitions and Provisions Agreement (Building 9) – Page 4


 









 






each of which periods will correspond to the ABR Period Election or LIBOR Period Election for the
period (except when a Fixed Rate Lock continues in effect). The first Base Rent Period will begin
on and include the Base Rent Commencement Date, and each successive Base Rent Period will begin on
and include the Base Rent Date upon which the preceding Base Rent Period ends. Each Base Rent
Period, including the first Base Rent Period, will end on but not include the first or second Base
Rent Date after the Base Rent Date upon which such period began, determined as follows:





          (1)     If an ABR Period Election or a LIBOR Period Election of one month or three months
is in effect for a Base Rent Period, or if a Fixed Rate Lock commences or continues on the
first day of the Base Rent Period, then such Base Rent Period will end on but not include
the first Base Rent Date after the Base Rent Date upon which such period began.




          (2)     If a LIBOR Period Election of six months is in effect for a Base Rent Period, then
such Base Rent Period will end on but not include the second Base Rent Date after
the Base Rent Date upon which such period began.


The determination of Base Rent Periods can be illustrated by two examples:





          1)     If NAI makes a LIBOR Period Election of three months for a hypothetical Base Rent
Period beginning on the first Business Day in January, 2009, then such Base Rent Period will
end on but not include the first Base Rent Date after it begins; that is, such Base Rent
Period will end on but not include the first Business Day in April, 2009, the third calendar
month after January, 2009.




          2)     If, however, NAI makes a LIBOR Period Election of six months for the hypothetical
Base Rent Period beginning the first Business Day in January, 2009, then such Base Rent
Period will end on but not include the second Base Rent Date after it begins; that is, the
first Business Day in July, 2009.



          “BNPPLC” means BNPPLC Leasing Corporation, a Delaware corporation.




          “BNPPLC’s Parent” means BNP Paribas, a bank organized and existing under the laws of France,
and any successors of such bank.




          “Breakage Costs” means any and all costs, losses or expenses incurred or sustained by BNPPLC’s
Parent (as a Participant or otherwise) or any Participant, for which BNPPLC’s Parent or the
Participant requests reimbursement from BNPPLC, because of:





          (1)     the resulting liquidation or redeployment of deposits or other funds that
were used to make or maintain Funding Advances upon application of a Qualified



 




Common Definitions and Provisions Agreement (Building 9) – Page 5



 









 






Prepayment or upon any sale of the Property pursuant to the Purchase Agreement, if such
application or sale occurs on any day other than the last day of a Construction Period
or Base Rent Period; or




          (2)     the resulting liquidation or redeployment of deposits or other funds that were
reserved to provide a Construction Advance requested by NAI, if and when the Construction
Advance is not made as anticipated, either because NAI declined to accept the Construction
Advance for any reason or because NAI failed to satisfy any of the conditions to such
Construction Advance specified in the Construction Agreement; or




          (3)     the resulting liquidation or redeployment of deposits or other funds that were used
to make or maintain Funding Advances upon the acceleration of the end of any Construction
Period or Base Rent Period because of an acceleration of the Designated Sale Date as
described in clauses (2) or (3) of the definition thereof.


Breakage Costs will include, for example, losses on Funding Advances maintained by BNPPLC’s Parent
or any Participant which are attributable to any decline in LIBOR as of the effective date of any
application described in the clause (1) preceding, as compared to the LIBOR used to determine the
Effective Rate then in effect. Each determination of Breakage Costs by BNPPLC’s Parent or by any
Participant, as applicable, will be conclusive and binding upon NAI in the absence of clear and
demonstrable error.




          “Break Even Price” has the meaning indicated in the Purchase Agreement.




          “Business Day” means any day that is (1) not a Saturday, Sunday or day on which commercial
banks are generally closed or required to be closed in New York City, New York, and (2) a day on
which dealings in deposits of dollars are transacted in the London interbank market; provided, that
if such dealings are suspended indefinitely for any reason, “Business Day” will mean any day
described in clause (1).




          “Capital Adequacy Charges” means any additional amounts BNPPLC’s Parent or any Participant
requests BNPPLC to pay as compensation for an increase in required capital as provided in
subparagraph 5(B)(2) of the Lease.




          “Carrying Costs” has the meaning indicated in the Construction Agreement.




          “Closing Certificate” means the Closing Certificate and Agreement (Building 9) dated as of the
Effective Date executed by NAI and BNPPLC, as such Closing Certificate and Agreement may be
extended, supplemented, amended, restated or otherwise modified from time to time in accordance
with its terms.




          “Closing Letter” means the letter agreement dated as of the Effective Date between




 




Common Definitions and Provisions Agreement (Building 9) – Page 6


 









 





BNPPLC and NAI confirming the amount of the Initial Advance and the Transactions Expenses paid
from the Initial Advance.




          “Code” means the Internal Revenue Code of 1986, as amended.




          “Commitment Fees” has the meaning indicated in the Construction Agreement.




          “Common Definitions and Provisions Agreement” means this Agreement, which is incorporated by
reference into each of the other Operative Documents, as this Agreement may be extended,
supplemented, amended, restated or otherwise modified from time to time in accordance with its
terms.




          “Completion Date” has the meaning indicated in the Construction Agreement.




          “Completion Notice” has the meaning indicated in the Construction Agreement.




          “Consolidated Debt for Borrowed Money” has the meaning indicated in subparagraph 3(A)
of the Closing Certificate.




          “Consolidated EBITDA” has the meaning indicated in subparagraph 3(A) of the Closing
Certificate.




          “Constituent Documents” of any entity means the organizational documents pursuant to which
such entity was created and is governed, such as the articles of incorporation and bylaws of a
corporation, the articles of organization and regulations of a limited liability company or the
partnership agreement of a partnership.




          “Construction Advances” has the meaning indicated in the Construction Agreement.




          “Construction Advance Request” has the meaning indicated in the Construction Agreement.




          “Construction Agreement” means the Construction Agreement (Building 9) dated as of the
Effective Date between BNPPLC and NAI, as such Construction Agreement may be extended,
supplemented, amended, restated or otherwise modified from time to time in accordance with its
terms.




          “Construction Allowance” has the meaning indicated in the Construction Agreement.




          “Construction Period” means each successive period of approximately one month, with the
first Construction Period beginning on and including the Effective Date and ending on but not
including the first Advance Date. Each successive Construction Period after the first




 




Common Definitions and Provisions Agreement (Building 9) – Page 7


 









 





Construction Period will begin on and include the day on which the preceding Construction Period
ends and will end on but not include the next following Advance Date, until the last Construction
Period, which will end on but not include the earlier of the Base Rent Commencement Date or any
Designated Sale Date upon which NAI or any Applicable Purchaser purchases BNPPLC’s interest in the
Property pursuant to the Purchase Agreement.




          “Construction Project” has the meaning indicated in the Construction Agreement.




          “Covered Construction Period Losses” has the meaning indicated in the Construction Agreement.




          “Default” means any event or circumstance which constitutes, or which would with the passage
of time or the giving of notice or both (if not cured within any applicable cure period)
constitute, an Event of Default.




          “Default Rate” means, a floating per annum rate equal to two percent (2%) above ABR, except
that for purposes of computing interest accruing for any period that commences thirty or more days
after the Designated Sale Date on any 97-10/Prepayment, Base Rent or Supplemental Payment that has
become due, but remains to be paid to BNPPLC by NAI, the Default Rate will mean a floating per
annum rate equal to five percent (5%) above ABR. Notwithstanding the foregoing, in no event will
the “Default Rate” at any time exceed the maximum interest rate permitted by Applicable Laws.




          “Defective Work” has the meaning indicated in the Construction Agreement.




          “Designated Sale Date” means the earliest of:





          (1)      the date upon which the Term is scheduled to expire as provided in
Paragraph 1(A) of the Lease (i.e., the first Business Day of February, 2015);
or




          (2)     any Business Day designated as the “Designated Sale Date” for purposes of this
Agreement and the other Operative Documents in an irrevocable, unconditional notice given by
NAI to BNPPLC before any 97-10/Meltdown Event has occurred; provided, that if the Business
Day so designated by NAI as the Designated Sale Date is not at least twenty days after the
date of such notice, the notice will be of no effect for purposes of this definition; and
provided, further, that to be effective, any such notice must include an irrevocable
exercise by NAI of the Purchase Option under subparagraph 2(A)(1) of the Purchase
Agreement and thereby obligate NAI to tender payment of the full Break Even Price to BNPPLC
on the Business Day so designated; or




          (3)     any Business Day designated as the “Designated Sale Date” for purposes of
this Agreement and the other Operative Documents in a notice given by BNPPLC to



 




Common Definitions and Provisions Agreement (Building 9) – Page 8





 











 






NAI:




•        when an Event of Default has occurred and is continuing and after the Completion
Date; or




•        after a 97-10/Meltdown Event or after BNPPLC’s receipt of a Pre-lease Force
Majeure Event Notice from NAI; or




•        following any change in the zoning or other Applicable Laws after the Completion
Date affecting the permitted use or development of the Property that, in BNPPLC’s
judgment, materially reduces the value of the Property; or




•        following any discovery of conditions or circumstances on or about the Property
after the Completion Date, such as the presence of an endangered species, which are
likely to substantially impede the use or development of the Property and thereby,
in BNPPLC’s judgment, materially reduce the value of the Property;




provided, however, that if the Business Day so designated by BNPPLC as the Designated Sale
Date is not at least thirty days after the date of such notice, the notice will be of no
effect for purposes of this definition; or




          (4)      the first Business Day after the commencement of any Event of Default described in
clauses (G), (H) or (I) of the definition Event of Default herein that occurs because of any
bankruptcy proceeding instituted by or against NAI, as debtor, under Title 11 of the United
States Code; or




          (5)      any date upon which the Lease terminates pursuant to subparagraph 1(B) or
subparagraph 1(C) of the Lease.



          “Effective Date” means February 1, 2008.




          “Effective Rate” means, for each Period, a per annum rate determined as follows:





          (1)      In the case of any Period subject to a LIBOR Period Election, the Effective Rate
will equal the rate per annum determined by dividing (A) LIBOR for such Period, by (B) one
hundred percent (100%) minus the Eurodollar Rate Reserve Percentage for such Period.




          (2)      In the case of any Period that is not subject to a LIBOR Period Election, the
Effective Rate will equal the ABR for such Period.



 




Common Definitions and Provisions Agreement (Building 9) – Page 9




 









 






          (3)      Notwithstanding the foregoing, for any Base Rent Period that begins on or after the
Fixed Rate Lock Date applicable to a Fixed Rate Lock and that ends before or on the date
such Fixed Rate Lock is terminated as provided in subparagraph 3(C) of the Lease,
the Effective Rate will equal the Fixed Rate.


So long as any LIBOR Period Election remains in effect, as LIBOR or the Eurodollar Rate Reserve
Percentage changes from Period to Period, the Effective Rate will be automatically increased or
decreased, as the case may be, without prior notice to NAI. Also, during any period when no LIBOR
Period Election or Fixed Rate Lock is in effect, as the ABR changes from Period to Period, the
Effective Rate will be automatically increased or decreased, as the case may be, without prior
notice to NAI.



If for any reason BNPPLC determines that it is impossible or unreasonably difficult to determine
the Effective Rate with respect to a given Period in accordance with the foregoing, then the
“Effective Rate” for that Period will equal any published index or per annum interest rate
determined in good faith by BNPPLC to be comparable to LIBOR at the beginning of the first day of
that Period. A comparable interest rate might be, for example, the then existing yield on short
term United States Treasury obligations (as compiled by and published in the then most recently
published United States Federal Reserve Statistical Release H.15(519) or its successor
publication), plus or minus a fixed adjustment based on BNPPLC’s comparison of past eurodollar
market rates to past yields on such Treasury obligations.




          “Eligible Financial Institution” means (a) a commercial bank organized under the laws of the
United States, or any State thereof or the District of Columbia, and having total assets in excess
of $5,000,000,000; (b) a commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and Development (“OECD”) or has concluded
special lending arrangements with the International Monetary Fund associated with its General
Arrangements to Borrow, or a political subdivision of any such country, and having total assets in
excess of $5,000,000,000; provided, that such bank is acting through a branch or agency located in
the United States; (c) the central bank of any country which is a member of the OECD; and (d) a
finance company, insurance company or other financial institution (whether a corporation,
partnership or other entity, but excluding any savings and loan association) which is engaged in
making, purchasing or otherwise investing in commercial loans in the ordinary course of its
business, and having total assets in excess of $5,000,000,000; provided, however, that in no event
will any bank or other Person qualify as an Eligible Financial Institution at any time when it has
outstanding obligations with a credit rating less than investment grade from Standard & Poor’s, a
division of the McGraw-Hill Companies, or Moody’s Investors Service, Inc. or another nationally
recognized rating service.




          “Environmental Cutoff Date” means the later of the dates upon which (i) the Lease
terminates or NAI’s interests in the Property are sold at foreclosure as provided in Exhibit
B attached to the Lease, or (ii) NAI surrenders possession and control of the Property and
ceases to




 




Common Definitions and Provisions Agreement (Building 9) – Page 10





 









 







have interest in the Land or Improvements or rights with respect thereto under any of the
Operative Documents.




          “Environmental Laws” means any and all existing and future Applicable Laws pertaining to
safety, health or the environment, or to Hazardous Substances or Hazardous Substance Activities,
including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986, and the Resource Conservation
and Recovery Act of 1976, as amended by the Used Oil Recycling Act of 1980, the Solid Waste
Disposal Act Amendments of 1980, and the Hazardous and Solid Waste Amendments of 1984.




          “Environmental Losses” means Losses suffered or incurred by BNPPLC or any other Interested
Party, directly or indirectly, relating to or arising out of, based on or as a result of any of the
following: (i) any Hazardous Substance Activity that occurs or is alleged to have occurred on or
prior to the Environmental Cutoff Date; (ii) any violation of any applicable Environmental Laws
relating to the Land or the Property or to the ownership, use, occupancy or operation thereof that
occurs or is alleged to have occurred in whole or in part on or prior to the Environmental Cutoff
Date; (iii) any investigation, inquiry, order, hearing, action, or other proceeding by or before
any governmental or quasi-governmental agency or authority in connection with any Hazardous
Substance Activity that occurs or is alleged to have occurred in whole or in part on or prior to
the Environmental Cutoff Date; or (iv) any claim, demand, cause of action or investigation, or any
action or other proceeding, whether meritorious or not, brought or asserted against any Interested
Party which directly or indirectly relates to, arises from, is based on, or results from any of the
matters described in clauses (i), (ii), or (iii) of this definition or any allegation of any such
matters. For purposes of determining whether Losses constitute “Environmental Losses,” as the term
is used in the Lease, any actual or alleged Hazardous Substance Activity or violation of
Environmental Laws relating to the Land or the Property will be presumed to have occurred prior to
the Environmental Cutoff Date unless NAI establishes by clear and convincing evidence to the
contrary that the relevant Hazardous Substance Activity or violation of Environmental Laws did not
occur or commence prior to the Environmental Cutoff Date.




          “Environmental Report” means, collectively, the following reports, which were provided by NAI
to BNPPLC prior to the Effective Date:





          (1)      Phase I and Screen Level Phase II Environmental Assessment for 495 Java Drive,
Sunnyvale, California dated October 1, 1997 provided by McLaren Hart Environmental
Engineering Corporation;




          (2)      Phase I and Screen Level Phase II Environmental Assessment for 475 Java Drive,
Sunnyvale, California dated March 24, 1998 provided by McLaren Hart Environmental
Engineering Corporation;



 




Common Definitions and Provisions Agreement (Building 9) – Page 11




 









 









          (3)      Phase I Environmental Site Assessment for 1275 Crossman Avenue, Sunnyvale,
California dated June 29, 1998 provided by Dames & Moore Group; and




          (4)      Phase I Environmental Site Assessment for 1330 & 1350 Geneva Drive and 1345 & 1347
Crossman Avenue, Sunnyvale, California dated November 1, 1999 provided by Romig Consulting
Engineers.



          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, together with all rules and regulations promulgated with respect thereto.




          “ERISA Affiliate” means any Person who for purposes of Title IV of ERISA is a member of NAI’s
controlled group, or under common control with NAI, within the meaning of Section 414 of the
Internal Revenue Code, and the regulations promulgated and rulings issued thereunder.




          “ERISA Termination Event” means (a) the occurrence with respect to any Plan of (1) a
reportable event described in Sections 4043(b)(5) or (6) of ERISA or (2) any other reportable event
described in Section 4043(b) of ERISA other than a reportable event not subject to the provision
for thirty-day notice to the Pension Benefit Guaranty Corporation pursuant to a waiver by such
corporation under Section 4043(a) of ERISA, or (b) the withdrawal of NAI or any ERISA Affiliate
from a Plan during a plan year in which it was a “substantial employer” as defined in
Section 4001(a)(2) of ERISA, or (c) the filing of a notice of intent to terminate any Plan or the
treatment of any Plan amendment as a termination under Section 4041 of ERISA, or (d) the
institution of proceedings to terminate any Plan by the Pension Benefit Guaranty Corporation under
Section 4042 of ERISA, or (e) any other event or condition which might constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Plan.




          “Escrowed Proceeds” means, subject to the exclusions specified in the next sentence,
any money that is received by BNPPLC from time to time during the Term (and any interest earned
thereon) from any party (1) under any property insurance policy as a result of damage to the
Property, (2) as compensation for any restriction imposed by any Governmental Authority upon the
use or development of the Property or for the condemnation of the Property or any portion thereof
(including any indirect condemnation by means of a taking of any of the Land or appurtenant
easements), (3) because of any judgment, decree or award for physical damage to the Property or (4)
as compensation under any title insurance policy or otherwise as a result of any title defect or
claimed title defect with respect to the Property; provided, however, in determining the amount of
“Escrowed Proceeds” there will be deducted all expenses and costs of every type, kind and nature
(including Attorneys’ Fees) incurred by BNPPLC to collect such proceeds. Notwithstanding the
foregoing, “Escrowed Proceeds” will not include (A) any payment to BNPPLC by a Participant or an
Affiliate of BNPPLC that is made to compensate BNPPLC for the Participant’s or Affiliate’s share of
any Losses BNPPLC may incur as a result of any of the




 




Common Definitions and Provisions Agreement (Building 9) – Page 12





 









 







events described in the preceding clauses (1)
through (4), (B) any money or proceeds that have been applied as a Qualified Prepayment or to pay
any Breakage Costs, Fixed Rate Settlement Amount or other costs incurred in connection with a
Qualified Prepayment, (C) any
money or proceeds that, after no less than ten days notice to NAI, BNPPLC returns or pays to a
third party because of BNPPLC’s good faith belief that such return or payment is required by law,
(D) any money or proceeds paid by BNPPLC to NAI or offset against any amount owed by NAI, or (E)
any money or proceeds used by BNPPLC in accordance with the Lease for repairs or the restoration of
the Property or to obtain development rights or the release of restrictions that will inure to the
benefit of future owners or occupants of the Property. Until Escrowed Proceeds are paid to NAI
pursuant to Paragraph 10 of the Lease, transferred to a purchaser under the Purchase
Agreement as therein provided or applied as a Qualified Prepayment or as otherwise described in the
preceding sentence, BNPPLC will keep the same deposited in one or more interest bearing accounts,
and all interest earned on such account will be added to and made a part of Escrowed Proceeds.




          “Established Misconduct” of a Person means, and is limited to:





          (1)      if the Person is bound by the Operative Documents or the Participation Agreement,
conduct of such Person that constitutes a breach by it of the express provisions of the
Operative Documents or the Participation Agreement, as applicable, and that continues beyond
any period for cure provided therein, as determined in or as a necessary element of a final
judgment rendered against such Person by a court with jurisdiction to make such
determination, and




          (2)      conduct of such Person or its Affiliates that has been determined to constitute
willful misconduct or Active Negligence in or as a necessary element of a final judgment
rendered against such Person by a court with jurisdiction to make such determination.


In no event, however, will Established Misconduct include actions of any Person undertaken
in good faith to mitigate Losses that such Person may suffer because of a breach or repudiation by
NAI of any of the Operative Documents. Further, negligence other than Active Negligence will not
in any event constitute Established Misconduct. For purposes of this definition, “conduct of a
Person” will consist of (1) the conduct of any employee of that Person to the extent (and only to
the extent) that the employee is acting within the scope of his employment by that Person, and (2)
the conduct of an agent of that Person (such as an independent environmental consultant engaged by
that Person), but only to the extent that the agent is (a) acting within the scope of the authority
granted to him by such Person, and (b) neither NAI nor acting with the consent or approval of or at
the request of or under the direction of NAI or NAI’s Affiliates, employees or agents. Established
Misconduct of one Interested Party will not be attributed to a second Interested Party unless the
second Interested Party is an Affiliate of the first, and it is understood that BNPPLC has not been
authorized, and nothing in the Participation Agreement will be construed as




 




Common Definitions and Provisions Agreement (Building 9) – Page 13





 









 







authorizing BNPPLC, to
act as an “agent” for any Participant as the term is used in this definition.




          “Eurocurrency Liabilities” has the meaning indicated in Regulation D of the Board of
Governors of the Federal Reserve System, as in effect from time to time.




          “Eurodollar Rate Reserve Percentage” means, for purposes of determining the Effective Rate for
any Period, the reserve percentage applicable two Business Days before the first day of such Period
under regulations issued from time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) for BNPPLC’s Parent with respect to liabilities
or deposits consisting of or including Eurocurrency Liabilities (or with respect to any other
category or liabilities by reference to which LIBOR is determined) having a term comparable to such
Period.




          “Event of Default” means any of the following:




          (A)      NAI fails to pay when due any installment of Base Rent or Administrative Fees required by
the Lease, and such failure continues for three Business Days after NAI is notified in writing
thereof.




          (B)      NAI fails to pay the full amount of any 97-10/Prepayment when due as provided in the
Construction Agreement or fails to pay the full amount of any Supplemental Payment as provided in
the Purchase Agreement on the Designated Sale Date.




          (C)      NAI fails to pay when first due any amount required by the Operative Documents (other than
Base Rent or Administrative Fees required as provided in the Lease, any 97-10/Prepayment required
as provided in the Construction Agreement or any Supplemental Payment required as provided in the
Purchase Agreement) and such failure continues for ten Business Days after NAI is notified thereof.




          (D)      NAI fails to cause any representation or warranty of NAI contained in any of the
Operative Documents that was false or misleading in any material respect when made to be made true
and not misleading (other than as described in the other clauses of this definition), or NAI fails
to comply with any provision of the Operative Documents (other than as described in the other
clauses of this definition), and in either case does not cure such failure prior to the earlier of
(A) thirty days after notice thereof is given to NAI or (B) the date any writ or order is issued
for the levy or sale of any property owned by BNPPLC (including the Property) or any criminal
prosecution is instituted or overtly threatened 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 prosecution is instituted or overtly threatened, the period within
which such failure may be cured by NAI will be extended for a further period (not to exceed an




 




Common Definitions and Provisions Agreement (Building 9) – Page 14




 









 







additional one hundred twenty days) as is necessary for the curing thereof with diligence, if (but
only if) (x) such failure is susceptible of cure but cannot with reasonable diligence be cured
within such thirty day period, (y) NAI promptly commences to cure such failure and thereafter
continuously prosecutes the curing thereof with reasonable diligence and (z) the extension of the
period for cure will not, in any event, cause the period for cure to extend to or beyond the
Designated Sale Date.




          (E)      NAI abandons any material part of the Property.




          (F)      NAI or any Subsidiary of NAI fails to pay any principal of or premium or interest on any
of its Indebtedness which is outstanding in a principal amount of at least $25,000,000 when the
same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure continues after the applicable grace period, if any,
specified in the agreement or instrument relating to such Indebtedness; or any other event occurs
or condition exists under any agreement or instrument relating to any such Indebtedness and
continues after the applicable grace period, if any, specified in such agreement or instrument, if
the effect of such event or condition is to accelerate the maturity of such Indebtedness; or any
such Indebtedness is declared by the creditor to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment), redeemed, purchased or defeased, or an
offer to prepay, redeem, purchase or defease such Indebtedness is required to be made, in each case
prior to the stated maturity thereof.




          (G)      NAI or any Subsidiary of NAI is generally not paying its debts as such debts become due,
or admits in writing its inability to pay its debts generally, or makes a general assignment for
the benefit of creditors; or any proceeding is instituted by or against NAI or any Subsidiary of
NAI seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking
the entry of an order for relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such proceeding remains
undismissed or unstayed for a period of sixty consecutive days, or any of the actions sought in
such proceeding (including the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or for any substantial part of its
property) occurs; or NAI or any Subsidiary of NAI takes any corporate action to authorize any of
the actions set forth above in this clause.




          (H)      Any order, judgment or decree is entered in any proceedings against NAI or any of NAI’s
Subsidiaries decreeing its dissolution and such order, judgment or decree remains unstayed and in
effect for more than sixty days.




          (I)      Any order, judgment or decree is entered in any proceedings against NAI or any of




 




Common Definitions and Provisions Agreement (Building 9) – Page 15




 









 







NAI’s Subsidiaries decreeing a divestiture of any of assets that represent a substantial part, or
the divestiture of the stock of any of NAI’s Subsidiaries whose assets represent a substantial
part, of the total assets of NAI and its Subsidiaries (determined on a consolidated basis in
accordance with GAAP) or which requires the divestiture of assets, or stock of any of NAI’s
Subsidiaries, which have contributed a substantial part of the net income of NAI and its
Subsidiaries (determined on a consolidated basis in accordance with GAAP) for any of the three
fiscal years
then most recently ended, and such order, judgment or decree remains unstayed and in effect
for more than sixty days.




          (J)      A judgment or order for the payment of money in an amount (not covered by insurance) which
exceeds $25,000,000 is rendered against NAI or any of NAI’s Subsidiaries and either (i)
enforcement proceedings is commenced by any creditor upon such judgment, or (ii) within thirty days
after the entry thereof, such judgment or order is not discharged or execution thereof stayed
pending appeal, or within thirty days after the expiration of any such stay, such judgment is not
discharged.




          (K)      Any ERISA Termination Event occurs that BNPPLC determines in good faith would constitute
grounds for a termination of any Plan or for the appointment by the appropriate United States
district court of a trustee to administer any Plan and such ERISA Termination Event is continuing
thirty days after notice to such effect is given to NAI by BNPPLC, or any Plan is terminated, or a
trustee is appointed by a United States district court to administer any Plan, or the Pension
Benefit Guaranty Corporation institutes proceedings to terminate any Plan or to appoint a trustee
to administer any Plan.




          (L)      NAI enters into any transaction which would cause any of the Operative Documents or any
other document executed in connection herewith (or any exercise of BNPPLC’s rights hereunder or
thereunder) to constitute a non-exempt prohibited transaction under ERISA.




          (M)      NAI fails to comply with the financial covenants set forth in subparagraph 3(C) of the
Closing Certificate.




          (N)      Any Change in Control (as defined in subparagraph 3(A) of the Closing Certificate) shall
occur.




          “Excluded Taxes” means:




          (A)      taxes upon or measured by net income to the extent such taxes are payable in respect of
Base Rent or other Qualified Income Payments;




          (B)      transfer or change of ownership taxes assessed because of BNPPLC’s transfer or
conveyance to any third party of any rights or interest in the Improvements Lease, the Purchase




 




Common Definitions and Provisions Agreement (Building 9) – Page 16





 









 







Agreement or the Property (other than any such taxes assessed because of any Permitted Transfer
under clauses (1), (4) or (5) of the definition of Permitted Transfer in this Agreement);




          (C)      federal, state and local income taxes upon any amounts paid as reimbursement for or to
satisfy Losses incurred by BNPPLC or any Participant to the extent, but only to the extent, such
taxes are offset by a corresponding reduction of BNPPLC’s or the applicable Participant’s income
taxes which are not otherwise subject to reimbursement or indemnification by NAI
because of BNPPLC’s or such Participant’s deduction of the reimbursed Losses from its taxable
income or because of any tax credits attributable thereto;




          (D)      income taxes that are (i) payable by BNPPLC in respect of any Qualified Prepayment or any
net sales proceeds paid to BNPPLC upon a sale of the Property because of Forced Recharacterization
as described in subparagraph 4(C)(3) of the Lease, and (ii) offset in the same taxable period by a
reduction in the taxes of BNPPLC which are not otherwise subject to reimbursement or
indemnification by NAI resulting from depreciation deductions or other tax benefits available to
BNPPLC only because of the refusal of the tax authorities to treat the Lease and other Operative
Documents as a financing arrangement;




          (E)      any withholding taxes that subparagraph 13(A) of the Lease excuses NAI from paying
or requires BNPPLC to pay; and




          (F)      any franchise taxes payable by BNPPLC, but only to the extent that such franchise taxes
would be payable by BNPPLC even if the transactions contemplated by the Lease and the other
Operative Documents were characterized for tax purposes as a mere financing arrangement and not as
a lease or sale.



It is understood that if tax rates used to calculate income taxes which constitute Excluded Taxes
under clause (1) of this definition are increased, the resulting increase will not be subject to
reimbursement or indemnification by NAI. If, however, a change in Applicable Laws after the
Effective Date, as applied to the transactions contemplated by the Operative Documents on a
stand-alone basis, results in an increase in such income taxes for any reason other than an
increase in the applicable tax rates (e.g., a disallowance of deductions that would otherwise be
available against payments described in clause (1) of this definition), then for purposes of the
Operative Documents, the term “Excluded Taxes” will not include the actual increase in such taxes
attributable to the change. Accordingly, BNPPLC or any Participant may recover any such net
increase from NAI pursuant to subparagraph 5(B) of the Lease.



It is also understood that nothing in this definition of “Excluded Taxes” will prevent any Original
Indemnity Payment (as defined in subparagraph 5(C)(1) of the Lease) from being paid on an After Tax
Basis.



          “Fed Funds Rate” means, for any period, a fluctuating interest rate (expressed as a per




 




Common Definitions and Provisions Agreement (Building 9) – Page 17







 









 







annum rate and rounded upwards, if necessary, to the next 1/16 of 1%) equal on each day during such
period to the weighted average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or, if such rates are not so published for any day which is a Business Day, the average
of the quotations for each day during such period on such transactions received by BNPPLC’s Parent
from three Federal funds brokers of recognized standing selected by BNPPLC’s Parent.




          “Fixed Rate” means the fixed rate of interest established by BNPPLC’s execution of an Interest
Rate Swap as described in subparagraph 3(B)(4) of the Lease.




          “Fixed Rate Lock” has the meaning assigned to it in subparagraph 3(B)(4) of the Lease.




          “Fixed Rate Lock Date” has the meaning assigned to it in subparagraph 3(B)(4) of the
Lease.




          “Fixed Rate Lock Termination” means any termination in whole or in part of the Fixed Rate Swap
as described in the first and second sentences of subparagraph 3(C) of the Lease.




          “Fixed Rate Lock Termination Date” means the date upon which a Fixed Rate Lock Termination is
effective. In the case of a Fixed Rate Lock Termination that results from BNPPLC’s receipt of a
Qualified Prepayment, the date such Qualified Prepayment is applied to reduce the Lease Balance
will constitute the Fixed Rate Lock Termination Date. In the case of any Fixed Rate Lock
Termination resulting from an acceleration of the Designated Sale Date as provided in clauses (2)
or (3) the definition thereof in this Agreement, the Fixed Rate Lock Termination Date will
constitute the Designated Sale Date.




          “Fixed Rate Lock Notice” has the meaning assigned to it in subparagraph 3(B)(4) of the
Lease, which includes a reference to the form attached as Annex 2.




          “Fixed Rate Loss” means an amount reasonably determined in good faith by the Floating Rate
Payor to be its total losses and costs in connection with any Fixed Rate Lock Termination. Fixed
Rate Loss will include any loss of bargain, cost of funding or, at the election of the Floating
Rate Payor but without duplication, loss or cost incurred as a result of its terminating,
liquidating, obtaining or reestablishing any hedge or related trading position. The Floating Rate
Payor will be expected to determine the Fixed Rate Loss as of the date of the relevant Fixed Rate
Lock Termination Date, or, if that is not reasonably practicable, as of the earliest date
thereafter as is reasonably practicable. The Floating Rate Payor may (but need not) determine its
Fixed Rate Loss by reference to quotations of relevant rates or prices from one or more leading
dealers in the relevant markets.




 




Common Definitions and Provisions Agreement (Building 9) – Page 18







 









 








          “Fixed Rate Settlement Amount” means, with respect to any Fixed Rate Lock Termination:





(a)      the Market Quotation for such Fixed Rate Lock Termination, if a Market Quotation can be
determined and if (in the reasonable belief of the Floating Rate Payor as the party making
the determination) determining a Market Quotation would produce a commercially reasonable
result; or




(b)      the Fixed Rate Loss, if any, for such Fixed Rate Lock Termination if a Market
Quotation cannot be determined or would not (in the reasonable belief of the Floating Rate
Payor as the party making the determination) produce a commercially reasonable result.



          “Fixed Rate Swap” has the meaning assigned to it in subparagraph 3(B)(4) of the Lease.




          “Floating Rate Payor” means BNP Paribas or any successor or assign of BNP Paribas under an
Interest Rate Swap.




          “FOCB Notice” has the meaning indicated in the Construction Agreement.




          “Force Majeure Event” has the meaning indicated in the Construction Agreement.




          “Fully Subordinated or Removable” means, with respect to any Lien encumbering the Land or any
appurtenant easement, that such Lien is, either by operation of Applicable Laws or by the express
terms of documents which grant or create such Lien:





          (1) fully subject and subordinate to the Ground Lease and to all rights and property
interests of BNPPLC under the Operative Documents; or




          (2) subject to release and removal by BNPPLC or any subsequent owner of the Property at
any time after a Designated Sale Date without any requirement that BNPPLC or the subsequent
owner compensate the holder of such Lien or make any other significant payment in connection
with such release and removal;


provided, however, a Lien will not qualify as Fully Subordinated or Removable under clause
(1) preceding if a purchase of the Land by BNPPLC pursuant to the purchase option set forth in the
Ground Lease (as such option may be modified from time to time by agreement of lessor and lessee
under the Ground Lease) will not, by operation of law or the express agreement of the holder of the
Lien, effectively cut off and terminate such Lien insofar as it applies to or affects the
Improvements and the Land purchased by BNPPLC; and, provided further, a Lien will not qualify as
Fully Subordinated or Removable under clause (2) preceding if it provides or includes a power of
sale or other right or remedy in favor of the holder of such Lien which could result in




 




Common Definitions and Provisions Agreement (Building 9) – Page 19







 









 







a
foreclosure sale or other forfeiture of BNPPLC’s rights or interests under the Ground Lease or in
the Property.




          “Funded Construction Allowance” has the meaning indicated in the Construction Agreement.




          “Funding Advances” means all advances made by BNPPLC’s Parent or any Participant to or on
behalf of BNPPLC to allow BNPPLC to make the Initial Advance and to provide the Construction
Allowance or maintain its investment in the Property.




          “Future Work” has the meaning indicated in the Construction Agreement.




          “GAAP” means generally accepted accounting principles in the United States of America as in
effect from time to time, applied on a basis consistent with those used in the preparation of the
financial statements referred to in subparagraph 2(A)(4) of the Closing Certificate (except
for changes with which NAI’s independent public accountants concur).




          “Governmental Authority” means (1) the United States, the state, the county, the municipality,
and any other political subdivision in which the Land is located, and (2) any other nation, state
or other political subdivision or agency or instrumentality thereof having or asserting
jurisdiction over NAI or the Property.




          “Ground Lease” means the Ground Lease (Building 9) dated as of the Effective Date, under which
the Land is leased from NAI to BNPPLC, as such Ground Lease may be extended, supplemented, amended,
restated or otherwise modified from time to time in accordance with its terms.




          “Hazardous Substance” means (i) any chemical, compound, material, mixture or substance that is
now or hereafter defined or listed in, regulated under, or otherwise classified pursuant to, any
Environmental Laws as a “hazardous substance,” “hazardous material,” “hazardous waste,” “extremely
hazardous waste or substance,” “infectious waste,” “toxic substance,” “toxic pollutant,” or any
other formulation intended to define, list or classify substances by reason of deleterious
properties, including ignitability, corrosiveness, reactivity, carcinogenicity, toxicity or
reproductive toxicity; (ii) petroleum, any fraction of petroleum, natural gas, natural gas liquids,
liquified natural gas, synthetic gas usable for fuel (or mixtures of natural gas and such synthetic
gas), and ash produced by a resource recovery facility utilizing a municipal solid waste stream,
and drilling fluids, produced waters and other wastes associated with the exploration, development
or production of crude oil, natural gas or geothermal resources; (iii) asbestos and any asbestos
containing material; and (iv)  any other material that, because of its quantity, concentration or
physical or chemical characteristics, is the subject of regulation under Applicable Law or poses a
significant present or potential hazard to human health or safety or to the environment if released
into the workplace or the environment.




 




Common Definitions and Provisions Agreement (Building 9) – Page 20








 









 








          “Hazardous Substance Activity” means any actual, proposed or threatened use, storage,
holding, release (including any spilling, leaking, leaching, pumping, pouring, emitting, emptying,
dumping, disposing into the environment, and the continuing migration into or through soil, surface
water, groundwater or any body of water), discharge, deposit, placement, generation, processing,
construction, treatment, abatement, removal, disposal, disposition, handling or transportation of
any Hazardous Substance from, under, in, into or on Land or the Property, including the movement or
migration of any Hazardous Substance from surrounding property, surface water, groundwater or any
body of water under, in, into or onto the Property and any resulting residual Hazardous Substance
contamination in, on or under the Property. “Hazardous Substance Activity” also means any existence
of Hazardous Substances on the Property that would cause the Property or the owner or operator
thereof to be in violation of, or
that would subject the Land or the Property to any remedial obligations under, any
Environmental Laws, assuming disclosure to the applicable Governmental Authorities of all relevant
facts, conditions and circumstances pertaining to the Property.




          “Improvements” means any and all (1) buildings and other real property improvements previously
or hereafter erected on the Land, and (2) equipment (e.g., HVAC systems, elevators and plumbing
fixtures) attached to the buildings or other real property improvements, the removal of which would
cause structural or other material damage to the buildings or other real property improvements or
would materially and adversely affect the value or use of the buildings or other real property
improvements.




          “Increased Commitment” has the meaning indicated in the Construction Agreement.




          “Increased Funding Commitment” has the meaning indicated in the Construction Agreement.




          “Increased Time Commitment” has the meaning indicated in the Construction Agreement.




          “Indebtedness” of any Person means (without duplication of any item) Liabilities of such
Person in any of the following categories:





          (A)      Liabilities for borrowed money;




          (B)      Liabilities constituting an obligation to pay the deferred purchase price of
property or services;




          (C)      Liabilities evidenced by a bond, debenture, note or similar instrument;




          (D)      Liabilities which (1) would under GAAP be shown on such Person’s balance
sheet as a liability, and (2) are payable more than one year from the date of



 




Common Definitions and Provisions Agreement (Building 9) – Page 21







 









 









creation
thereof (other than reserves for taxes and reserves for contingent obligations);




          (E)      Liabilities constituting principal under leases capitalized in accordance with
GAAP;




          (F)      Liabilities arising under conditional sales or other title retention agreements;




          (G)      Liabilities owing under direct or indirect guaranties of Liabilities of any other
Person or otherwise constituting obligations to purchase or acquire or to otherwise protect
or insure a creditor against loss in respect of Liabilities of any other Person (such as
obligations under working capital maintenance agreements, agreements to keep-well,
or agreements to purchase Liabilities, assets, goods, securities or services), but
excluding endorsements in the ordinary course of business of negotiable instruments in the
course of collection;




          (H)      Liabilities (for example, repurchase agreements, mandatorily redeemable preferred
stock and sale/leaseback agreements) consisting of an obligation to purchase or redeem
securities or other property, if such Liabilities arises out of or in connection with the
sale or issuance of the same or similar securities or property;




          (I)      Liabilities with respect to letters of credit or applications or reimbursement
agreements therefor;




          (J)      Liabilities with respect to payments received in consideration of oil, gas, or
other commodities yet to be acquired or produced at the time of payment (including
obligations under “take-or-pay” contracts to deliver gas in return for payments already
received and the undischarged balance of any production payment created by such Person or
for the creation of which such Person directly or indirectly received payment);




          (K)      Liabilities with respect to other obligations to deliver goods or services in
consideration of advance payments therefor; or




          (L)      Liabilities under any “synthetic” or other lease of property or related documents
(including a separate purchase agreement) which obligate such Person or any of its
Affiliates (whether by purchasing or causing another Person to purchase any interest in the
leased property or otherwise) to guarantee a minimum residual value of the leased property
to the lessor.


For purposes of this definition, the amount of Liabilities described in the last clause of
the preceding sentence with respect to any lease classified according to GAAP as an “operating
lease,” will equal the sum of (1) the present value of rentals and other minimum lease payments




 




Common Definitions and Provisions Agreement (Building 9) – Page 22




 









 







required in connection with such lease [calculated in accordance with SFAS 13 and other GAAP
relevant to the determination of the whether such lease must be accounted for as an operating lease
or capital lease], plus (2) the fair value of the property covered by the lease; except that such
amount will not exceed the price, as of the date a determination of Indebtedness is required
hereunder, for which the lessee can purchase the leased property pursuant to any valid ongoing
purchase option if, upon such a purchase, the lessee will be excused from paying rentals or other
minimum lease payments that would otherwise accrue after the purchase.



Notwithstanding the foregoing, the “Indebtedness” of any Person will not include Liabilities that
were incurred by such Person on ordinary trade terms to vendors, suppliers, or other Persons
providing goods and services for use by such Person in the ordinary course of its business, unless
and until such Liabilities are outstanding more than 90 days past the original invoice or billing
date therefor.




          “Initial Advance” has the meaning indicated in the Construction Agreement.




          “Interested Party” means each of following Persons and their Affiliates: (1) BNPPLC and its
successors and permitted assigns as to the Property or any part thereof or any interest therein,
(2) BNPPLC’s Parent, and (3) the Participants and their successors and permitted assigns under the
Participation Agreement; provided, however, none of the following Persons will constitute an
Interested Party: (a) any Person to whom BNPPLC may transfer an interest in the Property by a
conveyance that is not a Permitted Transfer and others that cannot lawfully claim an interest in
the Property except through or under a transfer by such a Person, (b) NAI and its Affiliates, (c)
any Person claiming through or under a conveyance made by NAI after any purchase by NAI of BNPPLC’s
interest in the Property pursuant to the Purchase Agreement, or (d) any Applicable Purchaser
designated by NAI under the Purchase Agreement who purchases the Property pursuant to a sale
arranged by NAI and any Person that cannot lawfully claim an interest in the Property except
through or under a conveyance from such an Applicable Purchaser.




          “Interest Rate Swap” means an interest rate exchange transaction, entered into between BNPPLC,
as the fixed rate payor, and BNP Paribas, as the swap counterparty and floating rate payor, under
the then most recent form of Master Agreement published by the International Swaps and Derivatives
Association, Inc., as supplemented by the definitions and such schedules, annexes, exhibits and
supplements as are agreed upon by the parties thereto, pursuant to which BNP Paribas agrees to pay
monthly to BNPPLC a floating rate of interest equal to LIBOR and BNPPLC agrees to pay monthly to
BNP Paribas a fixed rate of interest for a term that commences on the Fixed Rate Lock Date and ends
on the last day of the scheduled Term of the Lease. The notional principal amount used for any
such interest rate exchange transaction will equal the Lease Balance calculated as of the date such
transaction is entered into.




          “Land” means the land described in Exhibit A attached to the Closing
Certificate, the




 




Common Definitions and Provisions Agreement (Building 9) – Page 23





 









 







Lease, the Ground Lease and the Purchase Agreement.




          “Lease” means the Lease Agreement (Building 9) dated as of the Effective Date between BNPPLC,
as landlord, and NAI, as tenant, pursuant to which NAI has agreed to lease BNPPLC’s interest in the
Property, as such Lease Agreement may be extended, supplemented, amended, restated or otherwise
modified from time to time in accordance with its terms.




          “Lease Balance” as of any date means the amount equal to the sum of the Initial Advance, plus
the sum of all Construction Advances, Carrying Costs and other amounts added to the Outstanding
Construction Allowance as provided in the Construction Agreement on or prior to such date, minus
all funds actually received by BNPPLC and applied as Qualified Prepayments on or prior to such
date. Under no circumstances will any payment of Base Rent or other Qualified Income Payments
reduce the Lease Balance.




          “Lease Termination Damages” has the meaning indicated in subparagraph 15(A)(3)(c) of
the Lease.




          “Liabilities” means, as to any Person, all indebtedness, liabilities and obligations of such
Person, whether matured or unmatured, liquidated or unliquidated, primary or secondary, direct or
indirect, absolute, fixed or contingent, and whether or not required to be considered pursuant to
GAAP.




          “LIBOR” means, for purposes of determining the Effective Rate for any Period, the per annum
rate equal to:





          (a) the offered rate for deposits in U.S. dollars as of approximately 11:00 a.m.,
London time, on the day that is two London Banking Days (hereinafter defined) prior to the
day upon which such Period begins (the “Reset Date”), as reported:




          (1) on Reuters Screen LIBOR01 page (or any replacement page or pages on which
London interbank rates of major banks for U.S. dollars are displayed) by the Reuters
service; or




          (2) on Moneyline Telerate Page 3750, British Bankers Association Interest
Settlement Rates, or another news page selected by BNPPLC’s Parent if the Reuters
Screen LIBOR01 page is removed from the Reuters system or changed such that, in the
opinion of BNPPLC’s Parent, the interest rates shown on it no longer represent the
same kind of interest rates as when the Operative Documents were executed; or




          (b) if such offered rate is for any reason unavailable, the rate per annum
determined by BNPPLC’s Parent on the basis of rates offered for deposits in U.S. dollars



 




Common Definitions and Provisions Agreement (Building 9) – Page 24





 









 









by
four major banks in the London interbank market selected by BNPPLC’s Parent (“Reference
Banks”) at approximately 11:00 a.m., London time, on the day that is two London Banking Days
preceding the Reset Date to prime banks in the London interbank market for a period
corresponding as nearly as possible to the applicable Period. ( If this clause (b) applies,
BNPPLC’s Parent will request the principal London office of each of the Reference Banks to
provide a quotation of its rate. If at least two quotations are provided, “LIBOR” will be
the arithmetic mean of the quotations. If, however, fewer than two quotations are provided,
“LIBOR” will be the arithmetic mean of the rates quoted by major banks in New York selected
by BNPPLC’s Parent, at approximately 11:00 a.m., New York time, on the Reset Date for loans
in U.S. dollars to leading U.S. banks for a period corresponding as nearly as possible to
the applicable Period.)




As used in this definition, “London Banking Day” means any day on which commercial banks are open
for general business (including dealings in foreign exchange and foreign currency deposits) in
London, England.


          “LIBOR Period Election” means an election to have the Effective Rate for any Period calculated
by reference to LIBOR, rather than by reference to the ABR or the Fixed Rate, and to have such
period extend for approximately one month, three months or six months. The first Construction
Period will be subject to a LIBOR Period Election of one month; and, subject to the limitations and
qualifications set forth in this definition, NAI may make any subsequent Period subject to a LIBOR
Period Election by a notice given to BNPPLC in the form attached as Annex 3 at least five
Business Days prior to the commencement of such Period. After a LIBOR Period Election becomes
effective, it will remain in effect for all subsequent Periods until a different election is made
in accordance with the provisions of this definition and the definition of ABR Period Election
above. (For purposes of the Construction Agreement and the Lease a LIBOR Period Election for any
Period will also be considered the LIBOR Period Election in effect on the Effective Date, Advance
Date, Base Rent Commencement Date or Base Rent Date upon which such Period begins.)
Notwithstanding the foregoing:





	 	l	 	 No LIBOR Period Election for a period of more than one month will be effective
prior to the Completion Date.
	 
	 	l	 	 No LIBOR Period Election will be effective that would cause a Base Rent Period
to extend beyond the end of the scheduled Term or beyond a Fixed Rate Lock Date.
	 
	 	l	 	 No LIBOR Period Election will commence or continue during any period that
begins on or after the Fixed Rate Lock Date applicable to a Fixed Rate Lock and that
ends before or on the date such Fixed Rate Lock is terminated as provided in
subparagraph 3(C) of the Lease.





 




Common Definitions and Provisions Agreement (Building 9) – Page 25






 









 









	 	l	 	 Changes in any ABR Period Election or LIBOR Period Election will become effective
only upon the commencement of a new Period.
	 
	 	l	 	 In the event BNPPLC determines that it would be unlawful (or any central bank
or governmental authority asserts that it would be unlawful) for BNPPLC, BNPPLC’s
Parent or any Participant to provide or maintain Funding Advances during a Period if
the Carrying Costs or Base Rent accrued during such Period at a rate based upon LIBOR,
NAI will be deemed to have made such Period subject to an ABR Period Election, not a
LIBOR Period Election.
	 
	 	l	 	 If for any reason (including BNPPLC’s receipt of a notice from NAI purporting
to make a LIBOR Period Election that is contrary to the foregoing provisions), BNPPLC
is unable to determine with certainty whether a particular Period is subject to a
specific LIBOR Period Election of one month, three months or six months, or if any
Event of Default has occurred and is continuing on the third Business Day preceding the
commencement of a particular Period, NAI will be
deemed to have made an ABR Period Election for that particular Period.





          “Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind
(including any agreement to give any of the foregoing, any conditional sale or other title
retention agreement, any lease in the nature thereof, any agreement to sell receivables with
recourse, and the filing of or agreement to give any financing statement under the Uniform
Commercial Code of any jurisdiction).




          “Liens Removable by BNPPLC” means, and is limited to, Liens encumbering the Property
that are asserted (1) other than as contemplated in the Operative Documents, by BNPPLC itself or by
BNPPLC’s Parent, (2) by third parties lawfully claiming through or under BNPPLC (which for purposes
of the Operative Documents will include any judgment liens established against the Property because
of a judgment rendered against BNPPLC and will also include any liens established against the
Property to secure past due Excluded Taxes), or (3) by third parties claiming under a deed or other
instrument duly executed by BNPPLC; provided, however, Liens Removable by BNPPLC will not include
(A) any Permitted Encumbrances (regardless of whether claimed through or under BNPPLC), (B) the
Operative Documents or any other document executed by BNPPLC with the knowledge of (and without
objection by) NAI or NAI’s counsel contemporaneously with the execution and delivery of the
Operative Documents, (C) Liens which are neither lawfully claimed through or under BNPPLC (as
described above) nor claimed under a deed or other instrument duly executed by BNPPLC, (D) Liens
claimed by NAI or claimed through or under a conveyance made by NAI other than NAI’s conveyance of
the leasehold estate to BNPPLC under the Ground Lease, (E) Liens arising because of BNPPLC’s
compliance with Applicable Law, the Operative Documents, Permitted Encumbrances or any written
request made by NAI, (F) Liens securing the payment of property taxes or other amounts assessed
against the Property by any Governmental Authority, other than to secure the payment




 




Common Definitions and Provisions Agreement (Building 9) – Page 26







 









 







of past due
Excluded Taxes or to secure damages caused by (and attributed by any applicable principles of
comparative fault to) BNPPLC’s own Established Misconduct, (G) Liens resulting from or arising in
connection with any breach by NAI of the Operative Documents; or (H) Liens resulting from or
arising in connection with any Permitted Transfer that occurs more than thirty days after any
Designated Sale Date upon which, for any reason, NAI or any Applicable Purchaser does not purchase
BNPPLC’s interest in the Property pursuant to the Purchase Agreement for a price (when taken
together with any Supplemental Payment paid by NAI pursuant to the Purchase Agreement, in the case
of a purchase by an Applicable Purchaser) equal to the Break Even Price.




          “Local Impositions” means all sales, excise, ad valorem, gross receipts, business, transfer,
stamp, occupancy, rental and other taxes (other than taxes on net income and corporate franchise
taxes), levies, fees, charges, surcharges, assessments, interest, additions to tax, or penalties
imposed by the State of California or any agency or political subdivision thereof upon BNPPLC or
any owner of the Property or any part of or interest in the Property because of (i) the Lease or
other Operative Documents, (ii) the status of record title to the Property, (iii) the ownership,
leasing, occupancy, sale or operation of the Property or any part thereof or interest
therein, or (iv) the Permitted Encumbrances; excluding, however, Excluded Taxes. “Local
Impositions” will include any real estate taxes imposed because of a change of use or ownership of
the Property resulting from, or occurring on or prior to the date of, any sale by BNPPLC pursuant
to the Purchase Agreement.




          “Losses” means the following: any and all losses, liabilities, damages (whether actual,
consequential, punitive or otherwise denominated), demands, claims, administrative or legal
proceedings, actions, judgments, causes of action, assessments, fines, penalties, costs of
settlement and other costs and expenses (including Attorneys’ Fees and the fees of outside
accountants and environmental consultants), of any and every kind or character, foreseeable and
unforeseeable, liquidated and contingent, proximate and remote, known and unknown.




          “Market Quotation” means, with respect to any Fixed Rate Lock Termination, an amount
determined by the Floating Rate Payor on the basis of quotations from Reference Market-makers.
Each quotation will be for an amount, if any, that would be paid by the Floating Rate Payor in
consideration of an agreement between it and the quoting Reference Market-maker to enter into a
transaction (the “Replacement Transaction”) that would have the effect of preserving for the
Floating Rate Payor the economic equivalent of any payment or delivery (whether the underlying
obligation was absolute or contingent and assuming the satisfaction of each applicable condition
precedent) that would, but for the occurrence of the relevant Fixed Rate Lock Termination, have
been required under the Fixed Rate Swap. The Replacement Transaction would be subject to such
documentation as such party and the Reference Market-maker may, in good faith, agree. The Floating
Rate Payor (or its agent) will request each Reference Market-maker to provide its quotation to the
extent reasonably practicable as of the same day and time (without regard to different time zones)
on the effective date of or as soon as




 




Common Definitions and Provisions Agreement (Building 9) – Page 27







 









 







reasonably practicable after the relevant Fixed Rate Lock
Termination. The date and time as of which those quotations are to be obtained will be selected in
good faith by the Floating Rate Payor. If more than three quotations are provided, the Market
Quotation will be the arithmetic mean of the quotations, without regard to the quotations having
the highest and lowest values. If exactly three such quotations are provided, the Market Quotation
will be the quotation remaining after disregarding the highest and lowest quotations. For this
purpose, if more than one quotation has the same highest value or lowest value, then one of such
quotations will be disregarded. If fewer than three quotations are provided, it will be deemed
that the Market Quotation in respect of such Fixed Rate Lock Termination cannot be determined.




          “Material Adverse Effect” means a material adverse effect on (a) the assets, operations,
financial condition or businesses of NAI, (b) the ability of NAI to perform any of its obligations
under the Operative Documents, (c) the rights of or benefits available to BNPPLC under the
Operative Documents, (d) the value, utility or useful life of the Property or (e) the priority,
perfection or status of any of BNPPLC’s interests in the Property or in any of the Operative
Documents.




          “Maximum Construction Allowance” has the meaning indicated in the Construction
Agreement.




          “Maximum Remarketing Obligation” has the meaning indicated in the Purchase Agreement.




          “Minimum Insurance Requirements” means the insurance requirements outlined in Annex 4
attached to this Agreement.




          “Multiemployer Plan” means a multiemployer plan as defined in Section 3(37) of ERISA to which
contributions have been made by NAI or any ERISA Affiliate during the preceding six years and which
is covered by Title IV of ERISA.




          “NAI” means Network Appliance, Inc., a Delaware corporation.




          “NAI’s Estimate of Force Majeure Excess Costs” has the meaning indicated in the Construction
Agreement.




          “NAI’s Estimate of Force Majeure Delays” has the meaning indicated in the Construction
Agreement.




          “NAI’s Initial Remarketing Right” has the meaning indicated in the Purchase Agreement.




          “Notice of NAI’s Intent to Terminate” has the meaning indicated in the Construction




 




Common Definitions and Provisions Agreement (Building 9) – Page 28







 









 







Agreement.




          “Notice of NAI’s Intent to Terminate Because of a Force Majeure Event” has the meaning
indicated in the Construction Agreement.




          “Notice of Termination by NAI” has the meaning indicated in the Construction Agreement.




          “Operative Documents” means the Closing Letter, the Closing Certificate, the Ground Lease, the
Lease, the Construction Agreement, the Purchase Agreement and this Common Definitions and
Provisions Agreement.




          “Outstanding Construction Allowance” has the meaning indicated in the Construction Agreement.




          “Owner’s Election to Continue Construction” has the meaning indicated in the Construction
Agreement.




          “Participant” means any Person other than BNPPLC that from time to time, by
executing the Participation Agreement or supplements as contemplated therein, becomes a party
to the Participation Agreement and thereby agrees to participate in all or some of the risks and
rewards to BNPPLC of the Operative Documents; provided, however, no such Person will qualify as a
Participant for purposes of the Operative Documents unless (i) such Person is approved to be a
Participant by NAI or (ii) such Person becomes a Participant when an Event of Default has occurred
and is continuing. As of the Effective Date, NAI has approved only BANK OF AMERICA, N.A.; GOLDMAN
SACHS CREDIT PARTNERS L.P.; JPMORGAN CHASE BANK, NATIONAL ASSOCIATION; KEYBANK NATIONAL
ASSOCIATION; MORGAN STANLEY BANK; SUMITOMO MITSUI BANKING CORPORATION; and WELLS FARGO BANK, N.A.
(all of which are original parties to the Participation Agreement). BNPPLC may, however, from time
to time request NAI’s approval for other prospective Participants. NAI will not unreasonably
withhold or delay any approval required for any prospective Participant which is an Eligible
Financial Institution. However, as to any prospective Participant that is not already a party to
the Participation Agreement or an Eligible Financial Institution, NAI may withhold such approval in
its sole discretion. Further, it is understood that if giving such approval will increase NAI’s
liability for withholding taxes or other taxes not constituting Excluded Taxes under tax laws or
regulations then in effect, NAI may reasonably refuse to give such approval.




          “Participation Agreement” means the Participation Agreement (Building 9) dated as of
the Effective Date, pursuant to which BANK OF AMERICA, N.A.; GOLDMAN SACHS CREDIT PARTNERS L.P.;
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION; KEYBANK NATIONAL ASSOCIATION; MORGAN STANLEY BANK;
SUMITOMO MITSUI BANKING CORPORATION; and WELLS FARGO BANK, N.A. are agreeing with




 




Common Definitions and Provisions Agreement (Building 9) – Page 29




 









 







BNPPLC to
participate in the risks and rewards to BNPPLC of the Operative Documents, as such Participation
Agreement may be extended, supplemented, amended, restated or otherwise modified from time to time
in accordance with its terms. It is understood, however, that because the Participation Agreement
will expressly make NAI a third party beneficiary of each Participant’s obligations thereunder to
make advances to BNPPLC in connection with Construction Advances under the Construction Agreement,
NAI’s consent will be required to any amendment of the Participation Agreement that limits or
excuses such obligations.




          “Period” means a Construction Period or Base Rent Period.




          “Permitted Encumbrances” means (i) the encumbrances and other matters affecting the Property
that are set forth in Exhibit B attached to the Closing Certificate, (ii) any easement
agreement or other document affecting title to the Property executed by BNPPLC at the request of or
with the consent of NAI, (iii) any Liens securing the payment of Local Impositions which are not
delinquent or claimed to be delinquent or which are being contested in accordance with
subparagraph 5(A) of the Lease, (iv) statutory liens, if any, in the nature of
contractors’, mechanics’ or materialmen’s liens for amounts not past due or claimed to be past due
for more than thirty days or which are being contested in accordance with
subparagraph 11(B) of the Lease, (v) Liens which are Fully Subordinated or Removable, (vi)
any documents or maps which NAI executes and records, with the consent of BNPPLC as provided in
subparagraph 4(C) of the
Closing Certificate, and (vii) other easements (if any) that (A) have previously been executed
by NAI (as owner of the Land) in favor of the City of Sunnyvale or a local utility provider for the
use or installation of streets, sidewalks or utilities, (B) do not extend under, over or through
any building or other structure constructed or be constructed on the Land, (C) do not and will not
have any significant adverse impact on the value of the Property, and (D) do and will not preclude
or significantly impede any development or construction contemplated in or permitted by the
Operative Documents.




          “Permitted Hazardous Substance Use” means the use, generation, storage and offsite disposal of
Permitted Hazardous Substances in strict accordance with applicable Environmental Laws and with due
care given the nature of the Hazardous Substances involved; provided, the scope and nature of such
use, generation, storage and disposal will not:





          (1) exceed that reasonably required for the construction of the Construction Project in
accordance with the Construction Agreement or for the use and operation of the Property for
the purposes expressly permitted under subparagraph 2(A) of the Lease; or




          (2) include any disposal, discharge or other release of Hazardous Substances
from the Property in any manner that might allow such substances to reach surface water or
groundwater, except (i) through a lawful and properly authorized discharge (A) to a publicly
owned treatment works or (B) with rainwater or storm water runoff in accordance with
Applicable Laws and any permits obtained by NAI that govern such



 




Common Definitions and Provisions Agreement (Building 9) – Page 30





 









 









runoff; or (ii) any such
disposal, discharge or other release of Hazardous Substances for which no permits are
required and which are not otherwise regulated under applicable Environmental Laws.


Further, notwithstanding anything to the contrary herein contained, Permitted Hazardous Substance
Use will not include any use of the Property (including as a landfill, incinerator or other waste
disposal facility) in a manner that requires a treatment, storage or disposal permit under the
Resource Conservation and Recovery Act of 1976, as amended by the Used Oil Recycling Act of 1980,
the Solid Waste Disposal Act Amendments of 1980, and the Hazardous and Solid Waste Amendments of
1984..




          “Permitted Hazardous Substances” means Hazardous Substances used and reasonably required for
the construction of the Construction Project or for the use and operation of the Property by NAI
and its permitted subtenants and assigns for the purposes expressly permitted by
subparagraph 2(A) of the Lease, in either case in strict compliance with all Environmental
Laws and with due care given the nature of the Hazardous Substances involved. Without limiting the
generality of the foregoing, Permitted Hazardous Substances will include usual and customary office
and janitorial products.




          “Permitted Transfer” means any one or more of the following:





          (1)      the creation or conveyance by BNPPLC of rights and interests in favor of
Participants pursuant to the Participation Agreement;




          (2)      any lien, security interest or assignment covering the Property or the Rents which
is granted by BNPPLC in favor of Participants or an agent appointed for them to secure their
rights under the Participation Agreement, and any subsequent assignment or conveyance made
to accomplish a foreclosure of such lien or security interest, provided that such lien,
security interest or assignment and any such subsequent assignment or conveyance are all
made expressly subject to the rights of NAI under the Operative Documents;




          (3)      other than as described in the preceding clauses, any conveyance to BNPPLC’s Parent
or to any Qualified Affiliate of BNPPLC of all or any interest in or rights with respect to
the Property or any portion thereof, provided that NAI and Participants must be notified
before any such conveyance to BNPPLC’s Parent or a Qualified Affiliate which will be
recorded in the real property records of the county in which the Land is situated;




          (4)      any assignment or conveyance by BNPPLC requested by NAI or required by any
Permitted Encumbrance, by the Purchase Agreement or by Applicable Laws; or



 




Common Definitions and Provisions Agreement (Building 9) – Page 31




 









 









          (5)      any assignment or conveyance after a Designated Sale Date on which NAI does
not purchase or cause an Applicable Purchaser to purchase BNPPLC’s interest in the Property
and, if applicable, after the expiration of the thirty day cure period specified in
Paragraph 3(A) of the Purchase Agreement.



          “Person” means an individual, a corporation, a partnership, an unincorporated organization, an
association, a joint stock company, a joint venture, a trust, an estate, a government or agency or
political subdivision thereof or other entity, whether acting in an individual, fiduciary or other
capacity.




          “Personal Property” has the meaning indicated on page 2 of the Lease.




          “Plan” means any employee benefit or other plan established or maintained, or to which
contributions have been made, by NAI or any ERISA Affiliate during the preceding six years and
which is covered by Title IV of ERISA, including any Multiemployer Plan.




          “Pre-lease Casualty” has the meaning indicated in the Construction Agreement.




          “Pre-lease Force Majeure Delays” has the meaning indicated in the Construction Agreement.




          “Pre-lease Force Majeure Event” has the meaning indicated in the Construction Agreement.




          “Pre-lease Force Majeure Event Notice” has the meaning indicated in the Construction
Agreement.




          “Pre-lease Force Majeure Excess Costs” has the meaning indicated in the Construction
Agreement.




          “Pre-lease Force Majeure Losses” has the meaning indicated in the Construction Agreement.




          “Prime Rate” means the prime interest rate or equivalent charged by BNPPLC’s Parent in
the United States of America as announced or published by BNPPLC’s Parent from time to time, which
need not be the lowest interest rate charged by BNPPLC’s Parent. If for any reason BNPPLC’s Parent
does not announce or publish a prime rate or equivalent, the prime rate or equivalent announced or
published by either CitiBank, N.A. or any New York branch or office of Credit Commercial de France
as selected by BNPPLC will be used to compute the rate describe in the preceding sentence. The
prime rate or equivalent announced or published by such bank need not be the lowest rate charged by
it. The Prime Rate may change from time to time after the Effective Date without notice to NAI as
of the effective time of each change in rates described in




 




Common Definitions and Provisions Agreement (Building 9) – Page 32







 









 







this definition.




          “Prior Work” has the meaning indicated in the Construction Agreement.




          “Projected Cost Overruns” has the meaning indicated in the Construction Agreement.




          “Property” means the Personal Property and the Real Property, collectively. The fee interest
in the Land itself will not be included in the Property, but the leasehold estate conveyed to
BNPPLC under the Ground Lease will be included.




          “Purchase Agreement” means the Purchase Agreement (Building 9) dated as of the Effective Date
between BNPPLC and NAI, as such Purchase Agreement may be extended, supplemented, amended, restated
or otherwise modified from time to time in accordance with its terms.




          “Purchase Option” has the meaning indicated in the Purchase Agreement.




          “Qualified Affiliate” means any Person that, like BNPPLC, (i) is one hundred percent (100%)
owned, directly or indirectly, by BNPPLC’s Parent or any successor of such bank, (ii) can make (and
has in writing made) the same representations to NAI that BNPPLC has made in subparagraphs 4(A)
and 4(B) of the Closing Certificate (except that it need not be incorporated in or qualified to
do business in Delaware), and (iii) is an entity organized under the laws of the
State of Delaware or another state within the United States of America.




          “Qualified Income Payments” means: (A) Base Rent; (B) payments that are made to BNPPLC only
because the following amounts are capitalized (i.e., added to the Lease Balance) as described in
subparagraph 3 of the Construction Agreement: the Upfront Fees, the Arrangement Fee,
Administrative Fees, Commitment Fees, Increased Cost Charges and Capital Adequacy Charges; (C)
payments of the following made to BNPPLC to satisfy the Lease: Administrative Fees, Increased Cost
Charges and Capital Adequacy Charges; (D) any interest paid to BNPPLC or any Participant pursuant
to subparagraph 3(G) of the Lease; and (E) payments by BNPPLC to Participants required
under the Participation Agreements because of BNPPLC’s receipt of payments described in the
preceding clauses (A) through (D).




          “Qualified Prepayments” means any payments received by BNPPLC from time to time during the
Term (1) under any property insurance policy as a result of damage to the Property, (2) as
compensation for any restriction placed upon the use or development of the Property or for the
condemnation of the Property or any portion thereof (including any indirect condemnation by means
of a taking of any of the Land or appurtenant easements), (3) because of any judgment, decree or
award for injury or damage to the Property, or (4) under any title insurance policy or otherwise as
a result of any title defect or claimed title defect with respect to the Property. For the
purposes of determining the amount of any Qualified Prepayment and other amounts




 




Common Definitions and Provisions Agreement (Building 9) – Page 33





 











 




dependent upon Qualified Prepayments (e.g., the Lease Balance, the Outstanding Construction
Allowance and the Break Even Price):





     (i)      there will be deducted all expenses and costs of every kind, type and nature
(including taxes and Attorneys’ Fees) incurred by BNPPLC with respect to the collection or
application of such payments;




     (ii)      Qualified Prepayments will not include any payment to BNPPLC by a Participant or
an Affiliate of BNPPLC that is made to compensate BNPPLC for the Participant’s or
Affiliate’s share of any Losses BNPPLC may incur as a result of any of the events described
in the preceding clauses (1) through (4);




     (iii)      Qualified Prepayments will not include any payments received by BNPPLC that
BNPPLC has paid or is obligated to pay to NAI for the repair, restoration or replacement of
the Property or that BNPPLC is holding as Escrowed Proceeds in accordance with the
Paragraph 10 of the Lease or other provisions of the Operative Documents;




     (iv)      payments described in the preceding clauses (i) through (iii) will be considered
as Escrowed Proceeds, not Qualified Prepayments, until they are actually applied as
Qualified Prepayments by BNPPLC as provided in Paragraph 10 of the Lease; and




     (v)      in no event will interest that accrues under the Purchase Agreement on a past due
Supplemental Payment constitute a Qualified Prepayment.


For purposes of computing the total Qualified Prepayments (and other amounts dependent upon
Qualified Prepayments, such as the Lease Balance, the Outstanding Construction Allowance and the
Break Even Price) paid to or received by BNPPLC as of any date, payments described in the preceding
clauses (1) through (4) will be considered as Escrowed Proceeds, not Qualified Prepayments, until
they are actually applied as Qualified Prepayments by BNPPLC as provided in the
Paragraph 10 of the Lease.




          “Real Property” has the meaning indicated on page 2 of the Lease.




          “Reimbursable Construction-Period Costs” has the meaning indicated in the Construction
Agreement.




          “Remedial Work” means any investigation, monitoring, clean-up, containment,
remediation, removal, payment of response costs, or restoration work and the preparation and
implementation of any closure or other required remedial plans that any governmental agency or
political subdivision requires or approves (or could reasonably be expected to require if it was




 




Common Definitions and Provisions Agreement (Building 9) – Page 34





 









 







aware of all relevant circumstances concerning the Property), whether by judicial order or
otherwise, because of the presence of or suspected presence of Hazardous Substances in, on, under
or about the Property or because of any prior Hazardous Substance Activity.




          “Rent” means the Base Rent and all Additional Rent.




          “Responsible Financial Officer” means the chief financial officer, the controller, the
treasurer or the assistant treasurer of NAI.




          “Rolling Four Quarters Period” has the meaning indicated in subparagraph 3(A) of the
Closing Certificate.




          “Scope Change” has the meaning indicated in the Construction Agreement.




          “Spread” means, for each Construction Period and for any period beginning on and including the
Base Rent Commencement Date or a Base Rent Date and ending on but not including the next Base Rent
Date, the amount established as of the date (in this definition, the “Spread Test Date”) that is
two Business Days prior to such period by reference to the pricing grid below, based upon the ratio
calculated by dividing (1) Consolidated EBITDA for the then latest Rolling Four Quarters Period
that ended prior to (and for which NAI has reported earnings as necessary to compute Consolidated
EBITDA) into (2) the Consolidated Debt for Borrowed Money as of the end of such Rolling Four
Quarters Period. In each case, the Spread will be established at the Level in the pricing grid
below which corresponds to such ratio; provided, that:





     (a) promptly after earnings are reported by NAI for the latest quarter in any Rolling
Four Quarters Period, NAI must notify BNPPLC of any resulting change in the Spread under
this definition, and no reduction in the Spread from one period to the next will be
effective for purposes of the Operative Documents unless, prior to the Spread Test Date for
the next period, NAI shall have provided BNPPLC with a written notice setting forth and
certifying the calculation under this definition that justifies the reduction;




     (b) if Carrying Costs are understated or Base Rent is underpaid for any Period because
of any misstatement, subsequently discovered, of Consolidated EBITDA or Consolidated Debt
for Borrowed Money, BNPPLC will be entitled to collect from NAI all additional payments that
would have been expected under the Operative Documents but for the misstatement, together
with interest on each such additional payment computed at the Default Rate from the date it
would have been expected to the date it is actually paid; and



 




Common Definitions and Provisions Agreement (Building 9) – Page 35





 









 









     (c) notwithstanding anything to the contrary in this definition, on any date when an
Event of Default has occurred and is continuing, the Spread will equal the Default Rate less
the Effective Rate.








	 	 	 	 	 	 	 	 	 
	 	Levels	 	 	Ratio of Consolidated Debt for	 	 	Spread	 
	 	 	 	 	Borrowed Money to 	 	 	 	 
	 	 	 	 	Consolidated EBITDA	 	 	 	 
	 	Level I
	 	 	less than 0.5
	 	 	35.0 basis points	 
	 	Level II
	 	 	greater than or equal to 0.5, but less

than 1.0
	 	 	45.0 basis points	 
	 	Level III
	 	 	greater than or equal to 1.0, but less

than 1.5
	 	 	55.0 basis points	 
	 	Level IV
	 	 	greater than or equal to 1.5, but less

than 2.0
	 	 	70.0 basis points	 
	 	Level IV
	 	 	greater than or equal to 2.0
	 	 	85.0 basis points	 








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




          “Subsidiary” means, with respect to any Person, any Affiliate of which at least a majority of
the securities or other ownership interests having ordinary voting power then exercisable for the
election of directors or other persons performing similar functions are at the time owned directly
or indirectly by such Person.




          “Supplemental Payment” has the meaning indicated in the Purchase Agreement.




          “Supplemental Payment Obligation” has the meaning indicated in the Purchase Agreement.




          “Tangible Personal Property” has the meaning indicated on page 2 of the Lease.




          “Target Completion Date” has the meaning indicated in the Construction Agreement.




          “Term” has the meaning indicated in subparagraph 1(A) of the Lease.




 




Common Definitions and Provisions Agreement (Building 9) – Page 36





 









 








          “Termination of NAI’s Work” has the meaning indicated in the Construction Agreement.




          “Third Party Contract” has the meaning indicated in the Construction Agreement.




          “Third Party Contract/Termination Fees” has the meaning indicated in the Construction
Agreement.




          “Transaction Expenses” means costs incurred in connection with the preparation and negotiation
of the Operative Documents and related documents and the consummation of the transactions
contemplated therein.




          “Unfunded Benefit Liabilities” means, with respect to any Plan, the amount (if any) by which
the present value of all benefit liabilities (within the meaning of Section 4001(a)(16) of ERISA)
under the Plan exceeds the market value of all Plan assets allocable to such benefit liabilities,
as determined on the most recent valuation date of the Plan and in accordance with the provisions
of ERISA for calculating the potential liability of NAI or any ERISA Affiliate under Title IV of
ERISA.




          “Upfront Fees” has the meaning indicated in the Construction Agreement.




          “Work” has the meaning indicated in the Construction Agreement.




          “Work/Suspension Event” has the meaning indicated in the Construction Agreement.




          “Work/Suspension Notice” has the meaning indicated in the Construction Agreement.




          “Work/Suspension Period” has the meaning indicated in the Construction Agreement.




 




Common Definitions and Provisions Agreement (Building 9) – Page 37






 









 








ARTICLE II — SHARED PROVISIONS




          The following provisions will apply to and govern the construction of this Agreement and the
other Operative Documents (including attachments), except to the extent (if any) a clear, contrary
intent is expressed herein or therein:




          1.      Notices. Any provision of (1) any of the Operative Documents, (2) any other
document which references this provision for purposes of establishing notice requirements (in this
provision, a “Related Document”), or (3) any Applicable Law, that makes reference to any required
payment from NAI or BNPPLC to the other or that makes reference to the sending, mailing or delivery
of any notice or demand will be subject to the following provisions (except that any notice given
by BNPPLC to satisfy any statutory requirement, including any notice of eviction or foreclosure,
will be considered sufficient if it satisfies the statutory requirements applicable to the notice,
regardless of whether the notice or payment satisfies the following provisions):





     (i)      All Rent and other amounts required to be paid by NAI to BNPPLC must be paid to
BNPPLC in immediately available funds by wire transfer to:



Federal Reserve Bank of New York

BNP Paribas — New York Branch

Favor: BNP Paribas Leasing Corporation

ABA 026 007 689

/AC/ 0200-517000-070-78

Reference: Network Appliance, Inc./Building 9 Lease





or at such other place and in such other manner as BNPPLC may designate in a notice to NAI.




     (ii)      All advances paid to NAI by BNPPLC under the Construction Agreement or in
connection therewith will be paid by wire transfer to:



Wells Fargo Bank

San Francisco, CA

ABA#121000248

Acct#4311-790562

Account of: Network Appliance

Reference: BNP Lease





or at such other place and in such other manner as NAI may reasonably designate from time to
time by notice to BNPPLC signed by a Responsible Financial Officer of NAI.



 




Common Definitions and Provisions Agreement (Building 9) – Page 38





 









 









     (iii)      All notices, demands, approvals, consents and other communications to be made
under any Operative Document or Related Document to or by the parties thereto must, to be
effective for purposes thereof, be in writing. Notices, demands and other communications
required or permitted under any Operative Document or Related Document must be given by any
of the following means: (A) personal service (including local and overnight courier), with
proof of delivery or attempted delivery retained; (B) electronic communication, whether by
electronic mail or telecopying (if confirmed in writing sent by United States first class
mail, return receipt requested); or (C) registered or certified first class mail, return
receipt requested. Such addresses may be changed by notice to the other parties given in the
same manner as provided above. Any notice or other communication sent pursuant to clause
(A) or (B) hereof will be deemed received upon such personal service or upon dispatch by
electronic means, and, if sent pursuant to clause (C) will be deemed received five days
following deposit in the mail. Notices, demands and other communications required or
permitted by any Related Document are to be sent to the addresses set forth therein; and
notices, demands and other communications required or permitted by under any Operative
Document are to be sent to the following addresses (or in the case of communications to
Participants, at the addresses set forth in Schedule 1 to the Participation
Agreement):



Address of BNPPLC:




BNP Paribas Leasing Corporation

12201 Merit Drive, Suite 860

Dallas, Texas 75251

Attention: Lloyd G. Cox, Managing Director

Telecopy: (972) 788-9140




Address of NAI:




Network Appliance, Inc.

7301 Kit Creek Road

Research Triangle Park, NC 27709

Attention: Ingemar Lanevi

Telecopy: (919) 476-5750




With a copy to:




Network Appliance, Inc.

495 East Java Drive

Sunnyvale, California 94089

Attention: Mr. Thom Bryant

Telecopy: (408)-822-4463




 




Common Definitions and Provisions Agreement (Building 9) – Page 39





 









 









However, any party to any Operative Document or Related Document may change its address
above or in the Related Document, as applicable, by written notice to the other parties to
such Operative Document or Related Document given in accordance with this provision.



          2.      Severability. If any term or provision of any Operative Document or the
application thereof is to any extent held by a court of competent jurisdiction to be invalid and
unenforceable, the remainder of such document, or the application of such term or provision other
than to the extent to which it is invalid or unenforceable, will not be affected thereby.




          3.      No Merger. There will be no merger of the Lease or of the leasehold estate created
by the Lease or of the mortgage and security interest granted in subparagraph 4(C)(1) of the Lease
with any other interest in the Property by reason of the fact that the same person may acquire or
hold, directly or indirectly, the Lease or the leasehold estate created thereby or such mortgage
and security interest and any other interest in the Property, unless all Persons with an interest
in the Property that would be adversely affected by any such merger specifically agree in writing
that such a merger has occurred. There will be no merger of the Purchase Agreement or of the
purchase options or obligations created by the Purchase Agreement with any other interest in the
Property by reason of the fact that the same person may acquire or hold, directly or indirectly,
the rights and options granted by the Purchase Agreement and any other interest in the Property,
unless all Persons with an interest in the Property that would be adversely affected by any such
merger specifically agree in writing that such a merger has occurred.




          4.      No Implied Waiver. The failure of any party to any Operative Document to insist at
any time upon the strict performance of any covenant or agreement therein or to exercise any
option, right, power or remedy contained therein will not be construed as a waiver or a
relinquishment thereof for the future. The waiver of or redress for any breach of any Operative
Document by any party thereto will not prevent a similar subsequent act from constituting a
violation. Any express waiver of any provision of any Operative Document will affect only the term
or condition specified in such waiver and only for the time and in the manner specifically stated
therein. No waiver by any party to any Operative Document of any provision therein will be deemed
to have been made unless expressed in writing and signed by the party to be bound by the waiver. A
receipt by any party to any Operative Document of any payment thereunder (including the receipt by
BNPPLC of any Rent paid under the Lease) with knowledge of the breach by another party of any
covenant or agreement contained in that or any other Operative Document will not be deemed a waiver
of such breach.




          5.      Entire and Only Agreements. The Operative Documents supersede any prior
negotiations and agreements between BNPPLC and NAI concerning the Property, and no amendment or
modification of any Operative Document will be binding or valid unless expressed in a writing
executed by all parties to such Operative Document.




 




Common Definitions and Provisions Agreement (Building 9) – Page 40





 









 








          6.      Binding Effect. Except to the extent, if any, expressly provided to the contrary
in any Operative Document with respect to assignments thereof, all of the covenants, agreements,
terms and conditions to be observed and performed by the parties to the Operative Documents will be
applicable to and binding upon their respective successors and, to the extent assignment is
permitted thereunder, their respective assigns.




          7.      Time is of the Essence. Time is of the essence as to all obligations created by
the Operative Documents and as to all notices expressly required by the Operative Documents.




          8.      Governing Law. Each Operative Document will be governed by and construed in
accordance with the laws of the State of California without regard to conflict or choice of laws
principles that might require the application of the laws of another jurisdiction.




          9.      Paragraph Headings. The paragraph and section headings contained in the Operative
Documents are for convenience only and will in no way enlarge or limit the scope or meaning of the
various and several provisions thereof.




          10.      Negotiated Documents. All parties to each Operative Document and their counsel
have reviewed and revised or requested revisions to such Operative Document, and the usual rule of
construction that any ambiguities are to be resolved against the drafting party will not apply to
the construction or interpretation of any Operative Documents or any amendments thereof.




          11.      Terms Not Expressly Defined in an Operative Document. As used in any Operative
Document, a capitalized term that is not defined therein or in this Agreement, but is defined in
another Operative Document, will have the meaning ascribed to it in the other Operative Document.




          12.      Other Terms and References. Words of any gender used in each Operative
Document will be held and construed to include any other gender, and words in the singular number
will be held to include the plural and vice versa, unless the context otherwise requires.
References in any Operative Document to Paragraphs, subparagraphs, Sections, subsections or other
subdivisions refer to the corresponding Paragraphs, subparagraphs, Sections, subsections or
subdivisions of that Operative Document, unless specific reference is made to another document or
instrument. References in any Operative Document to any Schedule or Exhibit refer to the
corresponding Schedule or Exhibit attached to that Operative Document, which are made a part
thereof by such reference. All capitalized terms used in each Operative Document which refer to
other documents will be deemed to refer to such other documents as they may be renewed, extended,
supplemented, amended or otherwise modified from time to time, provided such documents are not
renewed, extended or modified in breach of any provision contained in the Operative Documents or,
in the case of any other document to which BNPPLC or NAI is a party or intended beneficiary,
without its consent. All accounting terms used but not specifically




 




Common Definitions and Provisions Agreement (Building 9) – Page 41





 









 







defined in any Operative Document will be construed in accordance with GAAP. The words “this
[Agreement]”, “herein”, “hereof”, “hereby”, “hereunder” and words of similar import when used in
each Operative Document refer to that Operative Document as a whole and not to any particular
subdivision unless expressly so limited. The phrases “this Paragraph”, “this subparagraph”, “this
Section”, “this subsection” and similar phrases used in any Operative Document refer only to the
Paragraph, subparagraph, Section, subsection or other subdivision described in which the phrase
occurs. As used in the Operative Documents the word “or” is not exclusive, and the words “include”,
“including” and similar terms will be construed as if followed by “without limitation to”. The
rule of ejusdem generis will not be applied to limit the generality of a term in any of the
Operative Documents when followed by specific examples. When used to qualify any representation or
warranty made by a Person, the phrases “to the knowledge of [such Person]” or “to the best
knowledge of [such Person]” are intended to mean only that such Person does not have knowledge of
facts or circumstances which make the representation or warranty false or misleading in some
material respect; such phrases are not intended to suggest that the Person does indeed know the
representation or warranty is true.




          13.      Execution in Counterparts. To facilitate execution, each of the Operative
Documents may be executed in multiple identical counterparts. It will not be necessary that the
signature of, or on behalf of, each party, or that the signature of all persons required to bind
any party, appear on each counterpart. All counterparts, taken together, will collectively
constitute a single instrument. But it will not be necessary in making proof of any of the
Operative Documents to produce or account for more than a single counterpart containing the
respective signatures of, or on behalf of, each of the parties to such document. Any signature page
may be detached from one counterpart and then attached to a second counterpart with identical
provisions without impairing the legal effect of the signatures on the signature page. Signing and
sending a counterpart (or a signature page detached from the counterpart) by facsimile or other
electronic means to another party will have the same legal effect as signing and delivering an
original counterpart to the other party. A copy (including a copy produced by facsimile or other
electronic means) of any signature page that has been signed by or on behalf of a party to any of
the Operative Documents will be as effective as the original signature page for the purpose of
proving such party’s agreement to be bound.




          14.      Not a Partnership, Etc. Nothing in any Operative Document is intended to create
any partnership, joint venture, or other joint enterprise between NAI and BNPPLC or any other
Interested Party.




          15.      No Fiduciary Relationship Intended. Neither the execution of the Operative
Documents or other documents referenced in this Agreement nor the administration thereof by BNPPLC
will create any fiduciary obligations of BNPPLC (or any other Interested Party) to NAI. Moreover,
BNPPLC and NAI disclaim any intent to create any fiduciary or special relationship between
themselves (or on the part of any other Interested Party) under or by reason of the Operative
Documents or the transactions described therein or any other documents




 




Common Definitions and Provisions Agreement (Building 9) – Page 42





 









 







or agreements referenced
therein.




[The signature pages follow.]




 




Common Definitions and Provisions Agreement (Building 9) – Page 43





 









 








          IN WITNESS WHEREOF, this Common Definitions and Provisions Agreement (Building 9) is executed
to be effective as of February 1, 2008.




	 	 	 	 	 
	 	BNP PARIBAS LEASING CORPORATION, a
 Delaware
corporation

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



 




Common Definitions and Provisions Agreement (Building 9) – Signature Page





 









 







[Continuation of signature pages for Common Definitions and Provisions Agreement (Building 9) dated
as of February 1, 2008]




	 	 	 	 	 
	 	NETWORK APPLIANCE, INC., a Delaware
 corporation

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



 




Common Definitions and Provisions Agreement (Building 9) – Signature Page





 









 








Annex 1




Notice of ABR Period Election




[Date]




BNP Paribas Leasing Corporation

12201 Merit Drive, Suite 860

Dallas, Texas 75251

Attention: Lloyd G. Cox, Managing Director

Telecopy: (972) 788-9140




Gentlemen:




          Capitalized terms used in this letter are intended to have the meanings assigned to them in
the Common Definitions and Provisions Agreement (Building 9) dated as of February 1, 2008, between
you, BNP Paribas Leasing Corporation, and the undersigned, Network Appliance, Inc. This letter
constitutes notice of our election to make the first Construction Period or Base Rent Period
beginning on or after                    , 20___subject to an ABR Period Election.




          We understand that until a different election becomes effective as provided in definitions of
“ABR Period Election” and “LIBOR Period Election” in the Common Definitions and Provisions
Agreement (Building 9), all subsequent Periods will also be subject to an ABR Period Election.



NOTE: YOU ARE ENTITLED TO DISREGARD THIS NOTICE IF THE DATE SPECIFIED ABOVE CONCERNING THE
COMMENCEMENT OF THE ABR PERIOD ELECTION IS LESS THAN FIVE BUSINESS DAYS AFTER YOUR RECEIPT OF THIS
NOTICE. HOWEVER, WE ASK THAT YOU NOTIFY US IMMEDIATELY IF FOR ANY REASON YOU BELIEVE THIS NOTICE
IS DEFECTIVE.




	 	 	 	 	 	 	 
	 	 	NETWORK APPLIANCE, INC., a Delaware
 corporation
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 




[cc all Participants]




 









 








Annex 2




Fixed Rate Lock Notice




[Date]




BNP Paribas Leasing Corporation

12201 Merit Drive, Suite 860

Dallas, Texas 75251

Attention: Lloyd G. Cox, Managing Director

Telecopy: (972) 788-9140




Gentlemen:




          Capitalized terms used in this letter are intended to have the meanings assigned to them in
the Common Definitions and Provisions Agreement (Building 9) dated as of February 1, 2008, between
you, BNP Paribas Leasing Corporation, and the undersigned, Network Appliance, Inc.. By this
letter, which is given pursuant to subparagraph 3(B)(4) of the Lease, NAI requests that
BNPPLC promptly establish a Fixed Rate for a notional amount equal to the Lease Balance as of the
date of this letter for use in the calculation of the Effective Rate for all Base Rent Periods
commencing on or after the following Fixed Rate Lock Date:                     , 20___.




          As contemplated in the conditions set forth in subparagraph 3(B)(4) of the Lease, such
Fixed Rate Lock Date is the first Business Day of a calendar month which falls after the projected
Base Rent Commencement Date; such Fixed Rate Lock Date does not fall prior to the end of any Base
Rent Period which has commenced or will commence before BNPPLC receives this notice; and NAI
expects BNPPLC to receive this notice more than ten days prior to such Fixed Rate Lock Date.




          In an earlier phone conversation today between a representative of NAI and                      at the
New York Branch of BNP Paribas, NAI requested an estimate from BNP Paribas of the Fixed Rate that
would be established by BNPPLC and BNP Paribas entering into an Interest Rate Swap. The estimate
provided by telephone was:                      percent (___%) per annum.




          By this letter, NAI confirms that it will accept such a rate or any lower rate as the Fixed
Rate for purposes of the Lease.



NOTE: BNPPLC will be entitled to disregard this notice if the conditions to a Fixed
Rate Lock, as specified in subparagraph 3(B)(4) of the Lease, have not been satisfied.
However, NAI requests that BNPPLC notify NAI immediately if for any reason BNPPLC believes this
notice will not be effective.




 









 








	 	 	 	 	 	 	 
	 	 	NETWORK APPLIANCE, INC., a Delaware
 corporation
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 





[cc all Participants]




Annex 2 – Page 2





 









 








Annex 3




Notice of LIBOR Period Election




[Date]




BNP Paribas Leasing Corporation

12201 Merit Drive, Suite 860

Dallas, Texas 75251

Attention: Lloyd G. Cox, Managing Director

Telecopy: (972) 788-9140




Gentlemen:




          Capitalized terms used in this letter are intended to have the meanings assigned to them in
the Common Definitions and Provisions Agreement (Building 9) dated as of February 1, 2008, between
you, BNP Paribas Leasing Corporation, and the undersigned, Network Appliance, Inc.. This letter
constitutes notice of our election to make the first Construction Period or Base Rent Period
beginning on or after                    , 20___subject to a LIBOR Period Election of                     
month(s).




          We understand that until a different election becomes effective as provided in definitions of
“ABR Period Election” and “LIBOR Period Election” in the Common Definitions and Provisions
Agreement (Building 9), all subsequent Periods will also be subject to the same LIBOR Period
Election.



NOTE: YOU ARE ENTITLED TO DISREGARD THIS NOTICE IF THE NUMBER OF MONTHS SPECIFIED ABOVE IS
NOT A PERMITTED NUMBER UNDER THE DEFINITION OF “LIBOR PERIOD ELECTION” IN THE COMMON DEFINITIONS
AND PROVISIONS AGREEMENT (BUILDING 9), OR IF THE DATE SPECIFIED ABOVE CONCERNING THE COMMENCEMENT
OF THE LIBOR PERIOD ELECTION IS LESS THAN FIVE BUSINESS DAYS AFTER YOUR RECEIPT OF THIS NOTICE.
HOWEVER, WE ASK THAT YOU NOTIFY US IMMEDIATELY IF FOR ANY REASON YOU BELIEVE THIS NOTICE IS
DEFECTIVE.




	 	 	 	 	 	 	 
	 	 	NETWORK APPLIANCE, INC., a Delaware
 corporation
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 





[cc all Participants]




 









 








Annex 4




Minimum Insurance Requirements



A. PROVISIONS APPLICABLE BOTH BEFORE AND AFTER THE COMPLETION DATE.




          1.      Other Requirements Not Affected: The insurance coverages required by this Annex
represent minimum requirements of BNPPLC and other Interested Parties and are not to be construed
to modify or limit NAI’s indemnities or other agreements in the Agreement to which this Annex is
attached or in any other Operative Document. Such required coverages do not constitute a
representation or determination by BNPPLC of the minimum insurance coverages NAI should maintain
for its own protection.




          2.      Requirements Apply Only to the Property: Further, the insurance coverages
required by this Annex apply only to the Property, it being understood that nothing in this Annex
is intended to impose minimum insurance requirements upon NAI with respect to other properties
owned or leased by NAI.




          3.      Failure to Obtain: Failure of BNPPLC to demand certificate or other evidence of
full compliance with these insurance requirements, or failure of BNPPLC to identify a deficiency
from evidence that is provided, will not be construed as a waiver of NAI’s obligation to maintain
required insurance.




          4.      Copies of Policies: NAI must provide to BNPPLC, at the offices of NAI, copies of
all insurance policies required herein within ten (10) days after receipt of a request for such
copies from BNPPLC or as soon as practicable if policies are in the process of being issued by the
applicable insurer. Such copies must be certified as complete and correct by an authorized
representative of the applicable insurer, subject to availability from the insurance company.




          5.      Inconsistent Endorsements. The insurance policies maintained to comply with these
requirements will contain no endorsements that restrict, limit, or exclude coverages in any manner
that is inconsistent with these express requirements without the prior express written approval of
BNPPLC.




          6.      Limits of Liability. The limits of liability necessary to satisfy these
requirements may be provided by a single policy of insurance or by a combination of primary and
umbrella/excess policies, but in no event will the total limits of liability available for any one
occurrence or accident be less than the amount required herein.




          7.      Additional Insured Status. Additional insured status will be provided in
favor




Annex 4 – Page 1





 









 







of BNPPLC and other Interested Parties on all liability insurance required herein except
workers’ compensation and employer’s liability. Such additional insured status will be provided on
a basis that neither limits coverage to the additional insured by reason of its negligence (sole or
otherwise) nor excludes coverage for completed operations with respect to construction of the
Improvements.




          8.      Primary Liability. The insurance policies maintained to comply with these
requirements will be primary to all insurance available to BNPPLC and other Interested Parties,
collectively or individually, with BNPPLC and other Interested Parties’ insurance being excess,
secondary and non-contributing (except in the case of workers’ compensation and employer’s
liability insurance). Where necessary, coverage will be endorsed to provide such primary
liability.



B. PROVISIONS APPLICABLE BEFORE THE COMPLETION DATE.




          1. General Terms and Conditions.





     A.    Definitions: For purposes of this Annex:




	 	 	 	“Construction Period Policies” means insurance policies that satisfy
the minimum requirements set forth in this Annex and that NAI has obtained or
required its Contractors to obtain with respect to the Property prior to the
Completion Date.
	 
	 	 	 	“Contractor” will include subcontractors of any tier.
	 
	 	 	 	“ISO” means Insurance Services Office.






B.      Status and Rating of Insurance Company. All insurance coverages required herein
prior to the Completion Date will be written through insurance companies admitted to do
business in the State of California and rated upon each renewal no less than A-: VII in the
then most current edition of A.M. Best’s Key Rating Guide.




C.      Waiver of Subrogation. All insurance coverages carried by NAI with respect to
the Construction Project, whether required herein or not, will provide a waiver of
subrogation in favor of BNPPLC and other Interested Parties.




D.      Release and Waiver: Without limiting other waivers or provisions in favor
of BNPPLC and other Interested Parties in any of the Operative Documents or other
attachments thereto, NAI hereby releases, and agrees to cause all Contractors performing any
Work prior to the Completion Date (other than subcontractors providing goods and/or



Annex 4 – Page 2





 









 









services with a value of less than $100,000) to release, BNPPLC and all other Interested
Parties from any and all claims or causes of action whatsoever that NAI and/or such
Contractors might otherwise now or hereafter have resulting from or in any way connected
with any loss covered by insurance, whether required herein or not, or which would have been
covered by insurance required herein but for a failure of NAI and/or its Contractors to
maintain such insurance.




E.      Initial Insurance Representations to BNPPLC and Other Interested Parties: NAI
represents, acknowledges and agrees that:




     1.      Any Construction Period Policies not previously obtained will be
obtained by NAI (or by the primary Contractor engaged by NAI to perform the
Work), and the initial premiums for all Construction Period Policies will be
paid, before NAI requests Construction Advances that cause the Lease Balance
to exceed $2,000,000; and notwithstanding anything to the contrary in the
Construction Agreement, BNPPLC may refuse to fund any Construction Advances
that would cause the Lease Balance to exceed $2,000,000 prior to such time
as BNPPLC is satisfied that NAI has obtained and paid the premiums for the
Construction Period Policies. Moreover, in the case of the Builder’s Risk
Policy, the premium must be paid or prepaid for the entire period through
the projected Completion Date before the Lease Balance exceeds $2,000,000.




     2.      The coverages provided by the Construction Period Policies will not
be terminated or modified to reduce, limit or qualify coverages in any
material respect without BNPPLC’s prior written consent in each case by
reason of any act or omission on the part of NAI or anyone acting for or
authorized to act for NAI (including any Contractor engaged by NAI to obtain
the Construction Period Policies for NAI). Without limiting the foregoing,
NAI will not do or authorize any act or omission that could cause the
coverage provided with respect to any Improvements by the Builder’s Risk
Policy to expire or lapse before the Completion Date.




     3.      NAI must notify BNPPLC with reasonable promptness of any possible
damage claims known to NAI that NAI believes are, individually or taken
together, reasonably likely to a exceed seventy-five percent (75%) of any
aggregate limit of the Builder’s Risk Policy required herein.




     4.      NAI will endeavor in good faith to cause each certificate of
insurance which is provided to BNPPLC by an insurer, or its authorized



Annex 4 – Page 3





 









 









representative, at the request of NAI in regard to any Construction Period
Policies to include the following express provision:




This is to certify that the policies of insurance described
herein have been issued to the Insured for whom this
certificate is executed and are in force at this time. In
the event of cancellation or non-renewal of coverage
affecting the certificate holder, other than by reason of
nonpayment of premium, thirty (30) days prior written notice
will be given to the certificate holder by certified mail or
registered mail, return receipt requested. In the event of
cancellation or non-renewal of coverage affecting the
certificate holder by reason of nonpayment of premium, ten
(10) days prior written notice will be given to the
certificate holder by certified mail or registered mail,
return receipt requested.




It is understood, however, that an insurer issuing such a certificate may
decline to include the foregoing statement in the certificate, in which case
NAI will instead deliver the certificate to BNPPLC with a cover letter from
NAI itself which states substantially as follows:




Enclosed is a certificate of insurance, which has been
issued by an insurer or its authorized representative, and
which we are providing to you to confirm that policies
described in the certificate have been issued to NAI or
another insured named in the certificate and are in force at
this time. NAI also certifies to you that such policies
have been issued, and in the event of any cancellation,
non-renewal, or reduction in coverage affecting you (BNP
Paribas Leasing Corporation) or other Interested Parties,
NAI will give you thirty (30) days prior written notice by
certified mail or registered mail, return receipt requested.




     5.      NAI will also endeavor in good faith to cause each
Construction Period Policy to be endorsed to provide, in effect, that (A) in
the event of cancellation, non-renewal, or reduction in coverage affecting
BNPPLC, other than by reason of nonpayment of premium, thirty (30) days
prior written notice will be given by the insurer to BNPPLC by certified
mail or registered mail, return receipt requested; and (B) in the
event of cancellation, non-renewal, or reduction in coverage affecting
BNPPLC by reason of nonpayment of premium, ten (10) days prior written



Annex 4 – Page 4





 









 









notice will be given by the insurer to BNPPLC by certified mail or
registered mail, return receipt requested.



          2.      Commercial General Liability Insurance. Throughout the period from the Effective
Date to the Completion Date, NAI will maintain commercial general liability insurance in accordance
with the following requirements:





A.      Coverage: Such insurance will cover liability (as to claims covered by the form
of CGL policy specified below, including claims for bodily injury and property damage)
arising from any occurrence on or about the Land or from any operations conducted on or
about the Land, including but not limited to tort liability assumed under any of the
Operative Documents. Defense will be provided as an additional benefit and not included
within the limit of liability.




B.      Form: Commercial General Liability Occurrence form (ISO CG 0001, dated 12 04, or
an equivalent substitute form providing the same or greater coverage, and in any case
written to provide primary coverage to BNPPLC as provided in Part A.8 above).




C.      Amount of Insurance: Coverage will be provided with limits of not less than:



	 	 	 	 	 	 	 
	i.
	 	Each Occurrence Limit	 	$	1,000,000	 
	 
	 	 	 	 	 	 
	ii.
	 	General Aggregate Limit	 	$	2,000,000	 
	 
	 	 	 	 	 	 
	iii.
	 	Product-Completed
	 	 	 	 
	 
	 	Operations Aggregate Limit	 	$	2,000,000	 
	 
	 	 	 	 	 	 
	iv.
	 	Personal and Advertising Injury Limit	 	$	1,000,000	 







D.      Required Endorsements:



	 	 	 	 	 
	i.

	 	Additional Insured.
	 	as required in Part A.7
above.
	.
	 	 	 	 
	ii.

	 	Aggregate Per Location
	 	The aggregate limit will apply
separately to each location through use of an Aggregate Limit of Insurance Per
Location endorsement (ISO CG 2504 1185 or its equivalent).






Annex 4 – Page 5





 











 






	 	 	 	 	 	 	 
	 

	 	iii.
	 	Notice of Cancellation,	 	 
	 

	 	 	 	Nonrenewal or	 	 
	 

	 	 	 	Reduction in Coverage:
	 	Consistent with Part B.1.E.5 above.
	 
	 	 	 	 	 	 
	 

	 	iv.
	 	Personal Injury Liability:
	 	The personal injury
contractual liability exclusion will be deleted.
	 
	 	 	 	 	 	 
	 

	 	v.
	 	Primary Liability:
	 	As required in Part A.8 above.
	 
	 	 	 	 	 	 
	 

	 	vi.
	 	Waiver of Subrogation:
	 	As required in Part B.1.C above.







E.    Deductible or Self Insured Retention Under Liability Policies: If a gap in the
liability insurance coverage provided to BNPPLC or another Interested Party under any
Construction Period Policy results from any deductible, self-insured retention or other
similar arrangement to which NAI agrees, then such gap must be covered by one or more other
Construction Period Policies, such that liability insurance protection afforded to BNPPLC
and other Interested Parties by all such Construction Period Policies, taken together, is no
less than it would be if NAI had not agreed to the deductible, self-insured retention or
other similar arrangement.



     3.      Workers’ Compensation/Employer’s Liability Insurance. Throughout the period from
the Effective Date to the Completion Date, NAI will maintain workers’ compensation and employer’s
liability insurance in accordance with the following requirements:




A.   Coverage: Such insurance will cover liability arising out of NAI’s employment of
workers and anyone for whom NAI may be liable for workers’ compensation claims.




B.   Amount of Insurance: Coverage will be provided with a limit of not less than:



	 	 	 	 	 	 	 
	 

	 	i.
	 	Workers’ Compensation:
	 	Statutory limits.
	 
	 	 	 	 	 	 
	 

	 	ii.
	 	 Employer’s Liability:
	 	$1,000,000 each accident and each
disease.







C.   Required Endorsements:



	 	 	 	 	 	 	 
	 

	 	i.
	 	Notice of Cancellation,
Nonrenewal or Reduction
in Coverage:
	 	Consistent with Part B.1.E.5 above.
	 
	 	 	 	 	 	 
	 

	 	ii.
	 	 Waiver of Subrogation:
	 	As required in Part B.1.C above.






Annex 4 – Page 6




 









 





     4.      Umbrella/Excess Liability Insurance. Throughout the period from the Effective
Date to the Completion Date, NAI will maintain umbrella/excess liability insurance in accordance
with the following requirements:




A.      Coverage: Such insurance will be excess over and be no less broad than all
coverages described in the preceding subsections 1, 2 and 3 and will include a drop-down
provision if commercially available.




B.      Form: This policy will have the same inception and expiration dates as the
commercial general liability insurance required above or a nonconcurrency endorsement.




C.      Amount of Insurance: Coverage will be provided with a limit of not less than
$10,000,000 per occurrence and in the aggregate.



     5.      Builders Risk Insurance. Throughout the period from the Effective Date to the
Completion Date, NAI will maintain or cause to be maintained property insurance (Builders Risk
Insurance) in accordance with the following requirements:




A.      Insureds: Protection will extend to BNPPLC as a Named Insured or Additional
Named Insured as its interest may appear; and the policy will be modified if necessary so
that the protection afforded to BNPPLC is not reduced or impaired by acts or omissions of
NAI or any other beneficiary or insured. (Such modification of the policy may be by
endorsement comparable to a standard mortgagee clause; not limited, however, by its terms to
BNPPLC’s rights “as a mortgagee” and not conditioned upon rights of the insurer to be
subrogated to BNPPLC’s rights under the Operative Documents in the event of a payment of
insurance proceeds to BNPPLC.)




B.       Covered Property: Such insurance will cover:




	 	i.	 	Improvements and any equipment made or to be made a permanent part of the
Property;
	 
	 	ii.	 	structure(s) under construction;
	 
	 	iii.	 	property including materials and supplies on site for installation;
	 
	 	iv.	 	property including materials and supplies at other locations but intended for
use at the site;
	 
	 	v.	 	property including materials and supplies in transit to the site for
installation; and





Annex 4 – Page 7




 









 






	 	vi.	 	temporary structures (e.g., scaffolding, falsework, and temporary buildings)
located at the site.






C.       Form: Coverage will be on an “all risk” form, will include theft, flood,
earthquake, and earthquake sprinkler leakage, and be written on a completed-value basis with
no co-insurance provision. No protective safeguard warranty will be permitted.




D.       Amount of Insurance: Real property coverage will be provided in an amount equal
at all times to the full replacement value, exclusive of land, foundation, footings,
excavations and grading.




E.      Deductibles. Deductibles applicable to the Builder’s Risk Policy will not exceed
the following:



	 	 	 	 	 	 	 
	 

	 	i.
	 	All Risks of Direct Damage, Per Occurrence,
except flood or water damage and earthquake
	 	$50,000
	 
	 	 	 	 	 	 
	 

	 	ii.
	 	Delayed Opening Waiting Period
	 	30 Days
	 
	 	 	 	 	 	 
	 

	 	iii
	 	Water Damage (including flood), Per Occurrence
	 	$50,000; or (in the
case of flood)
excess of NFIP if
in Flood Zone A
	 
	 	 	 	 	 	 
	 

	 	iv
	 	Earthquake and Earthquake
Sprinkler Leakage, Per Occurrence
	 	5% of total project
value at risk at
the time of the
loss, subject to a
minimum of $100,000







F.       Termination of Coverage: The termination of coverage provision will be endorsed
to permit occupancy of the covered property being constructed. Further, NAI will maintain
or cause the insurance to be maintained in effect, unless otherwise provided for the
Operative Documents, until the earliest of the following dates:




	 	i.	 	the date on which all persons and organizations who are insureds under the
policy agree that it is terminated;
	 
	 	ii.	 	any termination or expiration of the Lease upon the Designated Sale Date, which
is the date upon which final payment is expected under the Operative Documents; or





Annex 4 – Page 8




 









 






	 	iii.	 	the date on which the insurable interests in the Covered Property of all
insureds other than NAI have ceased;





     G.  Required Endorsements and Minimum Sublimits:



	 	 	 	 	 	 	 
	 

	 	i.
	 	Additional Expenses Due To Delay
In Completion Project, including but
not limited to financing costs including
interest expenses, insurance expenses,
	 	Included with specific
sublimits (based on an
estimated 12 period of
indemnity) as follows:
	 

	 	 	 	professional fees and taxes;	 	 
	 

	 	 	 	 	 	$1,900,000 — construction
financing interest.
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	$380,000 — real estate taxes
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	$204,000 — insurance
premiums
	 
	 	 	 	 	 	 
	 

	 	ii.
	 	 Agreed Value;
	 	No coinsurance
	 
	 	 	 	 	 	 
	 

	 	iii.
	 	 Boiler & Machinery on
a Comprehensive Basis;
	 	Included without sublimit
	 
	 	 	 	 	 	 
	 

	 	iv.
	 	 Damage Resulting From
or Arising From Error, Omission
or Deficiency In Design,
Specifications, Workmanship
or Materials, Including Collapse;
	 	Included without sublimit
	 
	 	 	 	 	 	 
	 

	 	v.
	 	 Debris Removal Additional
Limit; Debris Removal
	 	$4,000,000 sublimit
	 
	 	 	 	 	 	 
	 

	 	vi.
	 	 Earthquake including
Sprinkler Leakage;
	 	$10,000,000 sublimit
	 
	 	 	 	 	 	 
	 

	 	vii.
	 	Expediting Expenses;
	 	$50,000 sublimit
	 
	 	 	 	 	 	 
	 

	 	viii.
	 	 Flood — Annual Aggregate
including Earthquake
Sprinkler Leakage;
	 	$10,000,000 sublimit






Annex 4 – Page 9




 









 





	 	 	 	 	 	 	 
	 

	 	ix.
	 	Freezing;
	 	$100,000 sublimit
	 
	 	 	 	 	 	 
	 

	 	x.
	 	Notice of Cancellation
or Reduction;
	 	Consistent with Part B.1.E.5 above
	 
	 	 	 	 	 	 
	 

	 	xi.
	 	Occupancy Clause;
	 	Consistent with Part
B.5.F above
	 
	 	 	 	 	 	 
	 

	 	xii.
	 	Demolition /Increased Cost of
Cost of Construction — Per Occurrence
	 	$1,000,000 sublimit
	 
	 	 	 	 	 	 
	 

	 	xiii.
	 	 Pollutant Clean-Up
and Removal, provided that
such condition ensues following
a loss from a covered peril;
	 	Included in Debris

Removal sublimit
	 
	 	 	 	 	 	 
	 

	 	xiv.
	 	Preservation of Property;
	 	Included without sublimit
	 
	 	 	 	 	 	 
	 

	 	xv.
	 	Repair, Replace or Re-erect Valuation Clause;
	 	 Included without sublimit
	 
	 	 	 	 	 	 
	 

	 	xvi.
	 	Testing;
	 	Included without sublimit
	 
	 	 	 	 	 	 
	 

	 	xvii.
	 	 Waiver of Subrogation.
	 	As required in Part B.1.C above






     6.      Evidence of Insurance. NAI will provide confirmation of the insurance required
prior to the Completion Date in accordance with the following:




A.      Provision of Evidence. Evidence of the insurance coverage required to be
maintained by NAI, represented by certificates of insurance or policies and endorsements
issued by the insurance company or its legal agent, must be furnished to BNPPLC prior to the
Effective Date. New certificates of insurance or policies and endorsements will be provided
to BNPPLC prior to or concurrent with the termination date of the current certificates of
insurance or policies and endorsements.




B.    Form:




	 	i.	 	The Builders Risk Insurance will be evidenced by ACORD form 28,
“Evidence of Property Insurance”, completed in a manner satisfactory to BNPPLC
to show compliance with the requirements of this Annex. To the extent
requested by BNPPLC, copies of endorsements to such insurance must be attached
to such form.





Annex 4 – Page 10




 









 






	 	ii.	 	All liability insurance required herein will be evidenced by ACORD
form 25, “Certificate of Insurance”, in each case completed in a manner
satisfactory to BNPPLC to show compliance with the requirements of this
Annex. To the extent requested by BNPPLC, copies of endorsements to this
insurance must be attached to such form.






C.    Specifications: Such certificates of insurance or policies and endorsements will
specify:




	 	i.	 	BNPPLC as a certificate holder with correct mailing address as
provided by BNPPLC.
	 
	 	ii.	 	Insured’s name, which must match that on the Agreement to which
this Annex is attached.
	 
	 	iii.	 	Insurance companies affording each coverage, policy number of
each coverage, policy dates of each coverage, all coverages and limits
described herein, and signature of authorized representative of insurance
company.
	 
	 	iv.	 	Producer of the certificate with correct address and phone
number listed.
	 
	 	v.	 	Additional or named insured status of BNPPLC as required by
this Annex.
	 
	 	vi.	 	Aggregate limits per location (except as to the umbrella
liability insurance) required by this Annex.
	 
	 	vii.	 	Amount of any deductibles and/or retentions.
	 
	 	viii.	 	Cancellation, nonrenewal and reduction in coverage
notification consistent with Part B.1.E.5 above. Additionally, NAI
will endeavor in good faith to cause any insurer issuing to BNPPLC a
certificate on ACORD form 25 to delete the words “endeavor to” and “but failure
to mail such notice shall impose no obligation or liability of any kind upon
Company, it agents or representatives” from the cancellation provision of such
form.
	 
	 	ix.	 	Primary status as required by this Annex.
	 
	 	x.	 	Waivers of subrogation as required by this Annex.






D.    Required Endorsements. A copy of each required endorsement will, if and as
requested by BNPPLC from time to time, also be provided.



Annex 4 – Page 11





 









 









E.    Commencement of Construction. Commencement of construction without
provision of the required certificate of insurance and/or required policies and
endorsements, or without compliance with any other provision of this Annex or the Agreement
to which it is attached, will not constitute a waiver by BNPPLC of any rights. BNPPLC will
have the right, but not the obligation, of prohibiting NAI or any Contractor from performing
any work until such certificate of insurance and/or required policies and endorsements are
received by BNPPLC.



     7.    Contractor’s Insurance: To the extent, if any, necessary to preserve or provide
liability coverage for BNPPLC and other Interested Parties with regard to operations performed on
or about the Property prior to the Completion Date, NAI will require Contractors to provide (or
will provide the coverage on behalf of Contractors) similar to that required of NAI by the
foregoing provisions of this Annex. In the event NAI requires any Contractor to maintain
Construction Period Policies necessary to comply with these insurance requirements, NAI will also
require such Contractor to provide and maintain certificates of insurance containing provisions as
described herein (modified to recognize the Contractor, rather than NAI, as named insured)
enumerating, among other things, the waivers of subrogation, additional or named insured status,
and primary liability as required herein; and in such event NAI will cause the Contractor to make
those insurance certificates available to BNPPLC upon request.



C.  PROVISIONS APPLICABLE AFTER THE COMPLETION DATE.




       1.    Liability Insurance: After the Completion Date and throughout the Term of the
Lease, NAI must maintain commercial general liability insurance against claims for bodily injury,
death, advertising injury and property damage occurring in or upon or resulting from any occurrence
in or upon the Property under one or more insurance policies, all in such amounts, with such
insurance companies and upon such terms and conditions (including self-insurance, whether by
deductible, retention, or otherwise) as are consistent with NAI’s normal insurance practices in the
United States. In any event, policies under which NAI maintains such liability insurance must
provide, by endorsement or otherwise, that BNPPLC and other Interested Parties are also insured
thereunder against such claims with coverage that is not limited by any negligence or allegation of
negligence on their part and with coverage that is primary, not merely excess over or contributory
with the other commercial general liability coverage they may themselves maintain.



       2.    Property Insurance: After the Completion Date and throughout the Term of the
Lease, NAI must keep all Improvements (including all alterations, additions and changes made to the
Improvements) insured against fire and other casualty under one or more property insurance
policies, all in such amounts, with such insurance companies and upon such terms and conditions
(including self-insurance, whether by deductible, retention, or otherwise) as are consistent with
NAI’s normal insurance practices in the United States. In any event, policies under which NAI



Annex 4 – Page 12




 









 




maintains such insurance must:





	 	i.	 	show BNPPLC as an additional insured as its interest may appear; and
	 
	 	ii.	 	provide that the protection afforded to BNPPLC thereunder is primary (such that
any policies maintained by BNPPLC itself will be excess, secondary and noncontributing)
and is not to be reduced or impaired by acts or omissions of NAI or any other
beneficiary or insured.





     3.      Evidence of Insurance. NAI will provide confirmation of the insurance required
after the Completion Date in accordance with the following:




A.      Provision of Evidence. Evidence of the insurance coverage required to be
maintained by NAI, represented by certificates of insurance, evidence of insurance, and
endorsements issued by the insurance company or its legal agent, must be furnished to BNPPLC
prior to the Completion Date. New certificates of insurance, evidence of insurance, and
endorsements will be provided to BNPPLC prior to or concurrent with the termination date of
the current certificates of insurance, evidence of insurance, and endorsements.




	 	B.	 	Form:






	 	i.	 	The property insurance will be evidenced by ACORD form 28,
“Evidence of Property Insurance”, completed in a manner reasonably satisfactory
to BNPPLC to show compliance with the requirements of this Annex.
	 
	 	ii.	 	The liability insurance will be evidenced by ACORD form 25,
“Certificate of Insurance”, in each case completed in a manner reasonably
satisfactory to BNPPLC to show compliance with the requirements of this Annex.
To the extent requested by BNPPLC, copies of endorsements giving additional
insured status to BNPPLC and other Interested Parties must be attached to such
form.






	 	C.	 	Specifications: Such certificates of insurance or policies and endorsements will
specify:






	 	i.	 	BNPPLC as a certificate holder with correct mailing address as
provided by BNPPLC.
	 
	 	ii.	 	Insured’s name, which must match that on the Agreement to which
this Annex is attached.





Annex 4 – Page 13




 









 









	 	iii.	 	Insurance companies affording each coverage, policy number of each
coverage, policy dates of each coverage, all coverages and limits described
herein, and signature of authorized representative of insurance company.
	 
	 	iv.	 	Producer of the certificate with correct address and phone
number listed.
	 
	 	v.	 	Additional or named insured status of BNPPLC as required by
this Annex.
	 
	 	vi.	 	Aggregate limits.
	 
	 	vii.	 	Amount of any deductibles and/or retentions.
	 
	 	viii.	 	Primary status as required by this Annex.
	 
	 	ix.	 	Waivers of subrogation as required by this Annex.





Annex 4 – Page 14