exv10w6



 






Exhibit 10.6









PURCHASE AGREEMENT




BETWEEN




NETWORK APPLIANCE, INC.

(“NAI”)




AND




BNP PARIBAS LEASING CORPORATION

(“BNPPLC”)




December 15, 2005








 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	1
	 	Additional Definitions	 	 	2	 
	 
	 	“97-1/Default
(100%)”	 	 	2	 
	 
	 	“Applicable Purchaser”	 	 	2	 
	 
	 	“Adjusted Break Even Price”	 	 	2	 
	 
	 	“Adjusted Lease Balance”	 	 	2	 
	 
	 	“Balance of Unpaid Construction Period Losses”	 	 	3	 
	 
	 	“BNPPLC’s Actual Out of Pocket Costs”	 	 	4	 
	 
	 	“Break Even Price”	 	 	4	 
	 
	 	“Committed Price”	 	 	4	 
	 
	 	“Conditions to NAI’s Initial Remarketing Rights”	 	 	4	 
	 
	 	“Contingent Losses”	 	 	5	 
	 
	 	“Decision Not to Sell at a Loss”	 	 	5	 
	 
	 	“Deemed Sale”	 	 	5	 
	 
	 	“Extended Remarketing Period”	 	 	5	 
	 
	 	“Fair Market Value”	 	 	5	 
	 
	 	“Final Sale Date”	 	 	5	 
	 
	 	“Initial Remarketing Notice”	 	 	6	 
	 
	 	“Initial Remarketing
Price”	 	 	6	 
	 
	 	“Lease Balance”	 	 	6	 
	 
	 	“Make Whole Amount”	 	 	6	 
	 
	 	“Maximum Remarketing Obligation”	 	 	7	 
	 
	 	“Must Sell Price”	 	 	7	 
	 
	 	“NAI’s Extended Remarketing Right”	 	 	7	 
	 
	 	“NAI’s Initial Remarketing Rights”	 	 	7	 
	 
	 	“NAI’s Target Price”	 	 	7	 
	 
	 	“Notice of Sale”	 	 	7	 
	 
	 	“Proposed Sale”	 	 	7	 
	 
	 	“Proposed Sale Date”	 	 	7	 
	 
	 	“Purchase Option”	 	 	7	 
	 
	 	“Put Option”	 	 	7	 
	 
	 	“Qualified Sale”	 	 	8	 
	 
	 	“Sale Closing Documents”	 	 	8	 
	 
	 	“Supplemental Payment”	 	 	9	 
	 
	 	“Supplemental Payment Obligation”	 	 	9	 
	 
	 	“Valuation Procedures”	 	 	9	 
	 
	 	 	 	 	 	 
	2
	 	NAI’s Options and Obligations on the Designated Sale Date	 	 	9	 
	 	 	(A) Purchase Option; Initial Remarketing Rights; Supplemental
Payment Obligation	 	 	9	 
	 
	 	(B)   Designation of the Purchaser	 	 	11	 
	 	 	(C) Delivery of Property Related Documents If BNPPLC Retains the
Property	 	 	11	 






 









 






TABLE OF CONTENTS

(Continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 	 	(D) Effect of the Purchase Option and NAI’s Initial Remarketing
Rights on Subsequent Title Encumbrances	 	 	11	 
	 
	 	(E) Security for NAI’s Purchase Option	 	 	12	 
	 
	 	 	 	 	 	 
	3	 	NAI’s Rights, Options and Obligations After the Designated Sale
Date	 	 	12	 
	 	 	(A) NAI’s Right to Buy During the Thirty Days After the Designated
Sale Date	 	 	12	 
	 
	 	(B) NAI’s Obligation to Buy if Certain Conditions Are Satisfied	 	 	12	 
	 
	 	(C)  NAI’s Extended Right to Remarket	 	 	13	 
	 
	 	(D) Deemed Sale On the Second Anniversary of the Designated Sale Date	 	 	14	 
	 	 	(E) NAI’s Right to Share in Sales Proceeds Received By BNPPLC From
any Qualified Sale	 	 	14	 
	 
	 	 	 	 	 	 
	4
	 	Transfers By BNPPLC After the Designated Sale Date	 	 	15	 
	 
	 	(A) BNPPLC’s Right to Sell	 	 	15	 
	 
	 	(B) Survival of NAI’s Rights and the Supplemental Payment Obligation	 	 	15	 
	 
	 	(C) Easements and Other Transfers in the Ordinary Course of Business	 	 	15	 
	 
	 	 	 	 	 	 
	5
	 	Terms of Conveyance Upon Purchase	 	 	16	 
	 
	 	(A) Tender of Sale Closing Documents	 	 	16	 
	 
	 	(B) Delivery of Escrowed Proceeds	 	 	16	 
	 
	 	 	 	 	 	 
	6	 	Survival and Termination of the Rights and Obligations of NAI
and BNPPLC	 	 	17	 
	 
	 	(A) Status of this Agreement Generally	 	 	17	 
	 	 	(B) Election by NAI to Terminate the Supplemental Payment
Obligation Prior to the Completion Date	 	 	17	 
	 
	 	(C) Automatic Termination of NAI’s Rights	 	 	18	 
	 
	 	(D) Payment Only to BNPPLC	 	 	18	 
	 
	 	(E) Preferences and Voidable Transfers	 	 	18	 
	 
	 	(F) Remedies Under the Other Operative Documents	 	 	18	 
	 
	 	 	 	 	 	 
	7
	 	Certain Remedies Cumulative	 	 	19	 
	 
	 	 	 	 	 	 
	8
	 	Attorneys’ Fees and Legal Expenses	 	 	19	 
	 
	 	 	 	 	 	 
	9
	 	Successors and Assigns	 	 	19	 






(ii)









 





TABLE OF CONTENTS

(Continued)




Exhibits and Schedules




	 	 	 	 	 
	Exhibit A
	 	Legal Description
	 
	 	 	 	 
	Exhibit B
	 	Valuation Procedures
	 
	 	 	 	 
	Exhibit C
	 	Requirements Re: Forms to Accomplish Assignment and Conveyance
	 
	 	 	 	 
	Exhibit C-1
	 	Agreement Concerning Ground Lease
	 
	 	 	 	 
	Exhibit C-2
	 	Form of Assignment of Ground Lease and Improvements
	 
	 	 	 	 
	Exhibit C-3
	 	Form of Bill of Sale and Assignment
	 
	 	 	 	 
	Exhibit C-4
	 	Form of Acknowledgment of Disclaimer of Representations and Warranties
	 
	 	 	 	 
	Exhibit D
	 	Secretary’s Certificate
	 
	 	 	 	 
	Exhibit E
	 	FIRPTA Statement
	 
	 	 	 	 
	Exhibit F
	 	Grant of Repurchase Option and Restrictive Covenants Agreement
	 
	 	 	 	 
	Exhibit G
	 	Notice of Election to Terminate the Supplemental Payment Obligation






(iii)









 





PURCHASE AGREEMENT




     This PURCHASE AGREEMENT (this “Agreement”), dated as of December 15, 2005 (the “Effective
Date”), is made by and between BNP PARIBAS LEASING CORPORATION (“BNPPLC”), a Delaware corporation,
and NETWORK APPLIANCE, INC. (“NAI”), a Delaware corporation.



RECITALS




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



     Contemporaneously with this Agreement, BNPPLC is executing and accepting a Ground Lease from
NAI (the “Ground Lease”), pursuant to which BNPPLC is acquiring a leasehold estate in the Land
described in Exhibit A and any existing Improvements on the Land.



     Also contemporaneously with this Certificate, BNPPLC and NAI are executing a Construction
Management Agreement (the “Construction Management Agreement”) and a Lease Agreement (the “Lease”).
Pursuant to the Construction Management Agreement, BNPPLC is agreeing to provide funding for the
construction of new Improvements. When the term of the Lease commences, the Lease will cover all
Improvements on the Land described in Exhibit A. (As used herein, “Property” means (i) all
of BNPPLC’s interests, including those created by the Ground Lease, in the Land and in the
Improvements and in all other real and personal property from time to time covered or to be covered
by the Lease and included within the “Property” as defined therein, and (ii) BNPPLC’s interest in
any Escrowed Proceeds yet to be applied as a Qualified Prepayment or to the cost of repairs to the
Improvements or other property covered by the Lease; except that, for purposes of this Agreement,
Property will not include any condemnation or insurance proceeds included in Escrowed Proceeds as a
result of any Pre-lease Force Majeure Event, nor will it include any right to receive any such
condemnation or insurance proceeds in the future.)



     NAI and BNPPLC have agreed on the terms and conditions upon which NAI may purchase or arrange
for the purchase of the Property, and by this Agreement they desire to confirm all such terms and
conditions.



 









 





AGREEMENTS



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





“97-1/Default (100%)” means a Default or an Event of Default that results from (A) a failure
of NAI to make any payment required by any Operative Document, including (i) any 97-10
Permitted Prepayment payable as provided in Paragraph 9 of the Construction
Management Agreement, (ii) any other amounts payable under the Construction Management
Agreement because of Covered Construction Period Losses, (iii) any payment of Rent required
by the Lease or (iv) any Supplemental Payment required by this Agreement,, or (B) any
Hazardous Substance Activities occurring after the Completion Date on or about the Land, or
(C) any failure of NAI after the Completion Date to insure, maintain, operate or repair the
Property in accordance with all terms and conditions of the Lease, or (D) any failure of NAI
after the Completion Date to apply insurance or condemnation proceeds as required by the
Lease, or (E) any breach by NAI of the Ground Lease, or (F) subject to the proviso at the
end of Exhibit B, any breach by NAI of the provisions set forth in Exhibit
B. Except as provided in subparagraph 3(B), the characterization of any Event of
Default as a 97-1/Default (100%) will not affect the rights or remedies available to BNPPLC
because of the Event of Default.




“Applicable Purchaser” means (1) the third party designated by NAI to purchase the Property
at any sale arranged by NAI as provided in this Agreement, or (2) the third party designated
by BNPPLC as the purchaser at any Qualified Sale not arranged by NAI.




“Adjusted Break Even Price” means an amount equal to:




	 	•	 	the Adjusted Lease Balance, plus
	 
	 	•	 	all of BNPPLC’s Actual Out of Pocket Costs.






“Adjusted Lease Balance” means a dollar amount equal to the following (but not less than
zero):




	 	•	 	the Lease Balance, less
	 
	 	•	 	Pre-lease Force Majeure Losses (if any).





Purchase
Agreement — Page 2




 









 






“Balance of Unpaid Construction Period Losses” means, subject to the qualifications set
forth below in this definition, an amount equal to the sum of:




	 	(1)	 	the total Losses (if any), including Contingent Losses, that have been incurred
or suffered by BNPPLC or other Interested Parties at any time and from time to time
prior to the Completion Date by reason of, in connection with or arising out of (A)
their ownership or alleged ownership of any interest in the Property or the payments
required by the Operative Documents, (B) the use or operation of the Property, (C) the
negotiation, administration or enforcement of the Operative Documents, (D) the making
of Funding Advances, (E) the Construction Project, (F) the breach by NAI of this
Agreement or any other Operative Document or any other document executed by NAI in
connection herewith, (G) any failure of the Property or NAI itself to comply with
Applicable Laws, (H) Permitted Encumbrances, (I) Hazardous Substance Activities,
including those occurring prior to Effective Date, (J) any obligations of BNPPLC under
the Ground Lease or the Closing Certificate, or (K) any bodily or personal injury or
death or property damage occurring in or upon or in the vicinity of the Property
through any cause whatsoever; plus
	 
	 	(2)	 	interest accruing at the Default Rate, compounded annually, on each payment of
any such Losses by BNPPLC or any other Interested Party from the date such payment was
made to the Designated Sale Date.






For purposes of computing the Balance of Unpaid Construction Period Losses, Losses as
described in clause (1) of this definition will include each reduction (if any) (i) in the
Carrying Costs added to the Outstanding Construction Allowance as provided in the
Construction Management Agreement, or (ii) in the Base Rent payable to BNPPLC as provided in
the Lease, that results from Pre-lease Force Majeure Losses. In other words, the Losses
described in clause (1) will include the amounts (if any) by which additional Carrying Costs
and Base Rent would have accrued if Pre-lease Force Majeure Losses were not a factor in the
formulas which are set forth in the Construction Management Agreement and in the Lease for
calculating Carrying Costs and Base Rent, respectively.




Notwithstanding the foregoing, however, none of the following will be included in the
Balance of Unpaid Construction Period Losses: (i) costs paid by BNPPLC with the proceeds of
the Initial Advance as part of the Transaction Expenses; (ii) Losses paid or reimbursed from
Construction Advances (including Local Impositions, insurance premiums and amounts paid by
NAI prior to the Completion Date and reimbursed to it through Construction Advances made
pursuant to the Construction Management Agreement, and also including costs and expenditures
incurred or paid by or on behalf of BNPPLC after any Owner’s Election to Continue
Construction, to the extent that such



Purchase
Agreement — Page 3




 









 






costs and expenditures are considered to be Construction Advances as provided in the
Construction Management Agreement); (iii) any other Losses which NAI has paid prior to the
Designated Sale Date or for which NAI remains fully obligated to pay pursuant to the other
Operative Documents (including Covered Construction Period Losses paid or payable by NAI
pursuant to the Construction Management Agreement); and (iv) any decline in the value of the
Property, including any such decline that is attributable solely to a Pre-lease Force
Majeure Event and thus constitutes a Pre-lease Force Majeure Loss.




“BNPPLC’s Actual Out of Pocket Costs” means the out-of-pocket costs and expenses, if any,
incurred by BNPPLC in connection with a sale of the Property under this Agreement or in
connection with the collection of payments due to it under this Agreement (including any
Breakage Costs; Attorneys’ Fees; appraisal costs; income, transfer, withholding or other
taxes which do not constitute Excluded Taxes; but not including Excluded Taxes or costs of
removing any Lien Removable by BNPPLC).




“Break Even Price” means an amount equal to:




	 	•	 	the Lease Balance, plus
	 
	 	•	 	all costs and expenses (including any Breakage Costs, Attorneys’ Fees, appraisal
costs and income or other taxes except Excluded Taxes) incurred by BNPPLC in connection
with any sale of BNPPLC’s interests in the Property under this Agreement or in
connection with collecting payments due to it under this Agreement, and plus
	 
	 	•	 	an amount equal to the Balance of Unpaid Construction Period Losses (if any).






If, however, the Balance of Unpaid Construction Period Losses includes Contingent Losses,
then for purposes of computing the Break Even Price applicable to any proposed sale on the
Designated Sale Date, NAI may elect to exclude such Contingent Losses from the Break Even
Price by providing to BNPPLC, for the benefit of BNPPLC and other Interested Parties, a
written agreement to indemnify and defend BNPPLC and other Interested Parties against the
excluded Losses. However, to be effective for purposes of reducing the Break Even Price,
any such written indemnity must be fully executed and delivered by NAI on or prior to the
Designated Sale Date, must include provisions comparable to subparagraphs 5(C)(1), (2),
(3), (4) and (5) of the Lease and otherwise must be in form and substance reasonably
satisfactory to BNPPLC.




“Committed Price” has the meaning indicated in subparagraph 3(C)(4).




“Conditions to NAI’s Initial Remarketing Rights” has the meaning indicated in



Purchase
Agreement — Page 4




 









 






subparagraph 2(A)(2)(a).




“Contingent Losses” means any Losses that consist of claims asserted against BNPPLC or
another Interested Party prior to the Designated Sale Date, but that are not liquidated or
paid on or prior to the Designated Sale Date. Any Contingent Losses included in the Unpaid
Balance of Construction Period Losses, and thus which are relevant to the computation of the
Break Even Price, will equal the sum as reasonably estimated by BNPPLC of (i) all Attorneys’
Fees and other costs that will be incurred to defend against such claims, and (ii) the
amount for which BNPPLC or the other Interested Party can settle or satisfy such claims.




“Decision Not to Sell at a Loss” means a decision by BNPPLC not to sell the Property on the
Designated Sale Date to an Applicable Purchaser pursuant to subparagraph 2(A)(2), despite
NAI’s satisfaction of the Conditions to NAI’s Initial Remarketing Rights.




“Deemed Sale” has the meaning indicated in subparagraph 3(D).




“Extended Remarketing Period” means a period beginning on the Designated Sale Date and
ending on the Final Sale Date.




“Fair Market Value” has the meaning indicated in Exhibit B.




“Final Sale Date” means the earlier of:




	 	•	 	any date after the Designated Sale Date upon which BNPPLC conveys the Property to
consummate a sale of the Property to NAI because of BNPPLC’s exercise of the Put Option
as provided in subparagraph 3(B); or
	 
	 	•	 	any date after the Designated Sale Date upon which BNPPLC conveys the Property to
consummate a sale of the Property to NAI or to any Affiliate of NAI, including any such
sale resulting from NAI’s exercise of its rights under subparagraph 3(A); or
	 
	 	•	 	any date after the Designated Sale Date upon which BNPPLC conveys the Property to
consummate a Qualified Sale, or would have done so but for a material breach of this
Agreement by NAI (including any breach of its obligation to make any Supplemental
Payment required in connection with such Qualified Sale); or
	 
	 	•	 	the second anniversary of the Designated Sale Date, which will be the date
of a





Purchase
Agreement — Page 5




 









 






	 	 	 	Deemed Sale as provided in subparagraph 3(D) if no earlier date qualifies as
the Final Sale Date and the entire Property is not sold by BNPPLC to NAI or an
Applicable Purchaser prior to the second anniversary of the Designated Sale Date.






“Initial Remarketing Notice” means a notice delivered to BNPPLC by NAI prior to the
Designated Sale Date in which NAI confirms NAI’s decision to exercise NAI’s Initial
Remarketing Rights and the amount of the Initial Remarketing Price. (Once given, any such
notice may not be rescinded or modified without BNPPLC’s consent.)




“Initial Remarketing Price” means the cash price set forth in an Initial Remarketing Notice
delivered by NAI to BNPPLC as the price for which NAI has arranged a sale of the Property to
an Applicable Purchaser on the Designated Sale Date. Such price may be any price negotiated
by the Applicable Purchaser in good faith and on an arms length basis with NAI.




“Lease Balance” means the Lease Balance (as defined in the Common Definitions and Provisions
Agreement) on the Designated Sale Date, but computed without deduction for any Supplemental
Payment or other amount paid to BNPPLC pursuant to this Agreement on the Designated Sale
Date.




“Make Whole Amount” means the sum of the following:




     (1) the amount (if any) by which the Lease Balance plus any Base Rent or other amounts
due to BNPPLC pursuant to the other Operative Documents but unpaid on the Designated Sale
Date, exceeds any Supplemental Payment which was actually paid to BNPPLC on the Designated
Sale Date, together with interest on such excess computed at the Default Rate for the period
commencing on the Designated Sale Date and ending on the Final Sale Date, plus




     (2) BNPPLC’s Actual Out of Pocket Costs, plus




     (3) the amount, but not less than zero, by which (i) all Local Impositions, insurance
premiums and other Losses of every kind suffered or incurred by BNPPLC (whether or not
reimbursed in whole or in part by another Interested Party) with respect to the ownership,
operation or maintenance of the Property during the Extended Remarketing Period, exceeds
(ii) any rents or other sums collected by BNPPLC during such period from third parties as
consideration for any lease or other contracts made by BNPPLC that authorize the use and
enjoyment of the Property or any part thereof by such parties; together with interest on
such excess computed at the Default Rate for each day prior to the Final Sale Date.



Purchase
Agreement — Page 6




 









 






“Maximum Remarketing Obligation” means a dollar amount equal to the following (but not less
than zero):




	 	•	 	***85% of the Adjusted Lease Balance; less
	 
	 	•	 	any Fixed Rate Settlement Amount that NAI is required to pay pursuant to the Lease
because of any acceleration of the Designated Sale Date which causes it to occur prior
to the Scheduled Lease Expiration Date.






“Must Sell Price” means, with respect to any Proposed Sale arranged by NAI pursuant to
subparagraph 3(C), a cash price to BNPPLC equal to the Make Whole Amount, computed as of the
Proposed Sale Date applicable to such Proposed Sale, plus all reimbursements or payments by
BNPPLC to NAI that will be required by clause (4) of subparagraph 3(E) in connection with
the Proposed Sale.




“NAI’s Extended Remarketing Right” has the meaning indicated in subparagraph 3(C).




“NAI’s Initial Remarketing Rights” has the meaning indicated in subparagraph 2(A)(2).




“NAI’s Target Price” means the cash purchase price that, according to NAI, should reasonably
be expected for the Property during the Extended Remarketing Period if NAI makes a
reasonable marketing effort to sell the Property, as such price is set forth in a notice
given by NAI to BNPPLC after the Designated Sale Date. Once established by any such notice,
the amount of NAI’s Target Price will not be increased, although nothing in this definition
will be construed to prevent NAI from arranging a sale of the Property pursuant to this
Agreement at a price higher than NAI’s Target Price. After providing a notice of NAI’s
Target Price to BNPPLC, NAI may later decrease NAI’s Target Price by another notice to
BNPPLC, but only if the decrease is justified by a material adverse change in the physical
condition of the Property (e.g., significant damage to the Property by fire or other
casualty).




“Notice of Sale” has the meaning indicated in subparagraph 3(C)(4).




“Proposed Sale” has the meaning indicated in subparagraph 3(C).




“Proposed Sale Date” has the meaning indicated in subparagraph 3(C).




“Purchase Option” has the meaning indicated in subparagraph 2(A)(1).




“Put Option” has the meaning indicated in subparagraph 3(B).



Purchase
Agreement — Page 7



  









 




“Qualified Sale” means (1) a Deemed Sale as described in subparagraph 3(D), or (2) an
actual sale (prior to any such Deemed Sale) of all or substantially all of the Property that
occurs after the thirty day period specified in subparagraph 3(A) and that:




	 	•	 	results from NAI’s exercise of NAI’s Extended Remarketing Right as described in
subparagraph 3(C); or
	 
	 	•	 	is approved in advance as a Qualified Sale by NAI; or
	 
	 	•	 	if NAI delivered an Initial Remarketing Notice to BNPPLC, is for a cash price
greater than the Initial Remarketing Price specified therein; or
	 
	 	•	 	is to a third party, which is not an Affiliate of BNPPLC, for a price not less than
the least of the following amounts:






	 	(a)	 	the lowest possible price at which BNPPLC will be obligated,
pursuant to clause (4) of subparagraph 3(E), to reimburse NAI (i) for any
Supplemental Payment theretofore made by NAI to BNPPLC, or (ii) if no such
Supplemental Payment has been made, but NAI has theretofore made one or more
97-1/Prepayments to BNPPLC, for all such 97-10/Prepayments; or
	 
	 	(b)	 	(i) if NAI notified BNPPLC of NAI’s Target Price prior to the
date BNPPLC and the third party agreed to a price for the sale, NAI’s Target
Price, or (ii) if NAI did not notify BNPPLC of NAI’s Target Price prior to the
date BNPPLC and the third party agreed to a price for the sale, any price
satisfactory to BNPPLC in its sole good faith business judgment; or
	 
	 	(c)	 	90% of the Fair Market Value of the Property.






NAI acknowledges that BNPPLC’s own marketing efforts after the Designated Sale Date will
depend upon the minimum price required for a Qualified Sale, and such efforts could be
hampered if NAI’s Target Price is too high. Thus, after receipt of any notice of NAI’s
Target Price from NAI, BNPPLC may (but will not be obligated to) invoke the Valuation
Procedures in order to determine the minimum price permitted under clause (c) preceding.




“Sale Closing Documents” means the following documents, which BNPPLC must tender pursuant to
Paragraph 5(A) to consummate any sale of the Property pursuant to this Agreement: (1)
documents in the forms required by Exhibit C, including either a
termination or an assignment of the Ground Lease and other rights and interests of



Purchase
Agreement — Page 8





 







 







BNPPLC in the Property,
(2) a Secretary’s Certificate in the form attached as Exhibit D (3) a certificate
concerning tax withholding in the form attached as Exhibit E, and (4) if the
condition specified in subparagraph 3(C)(6) is applicable, a Grant of Repurchase Option and
Restrictive Covenants Agreement executed by both NAI and the Applicable Purchaser in the
form attached as Exhibit F.




“Supplemental Payment” has the meaning indicated in subparagraph 2(A)(3).




“Supplemental Payment Obligation” has the meaning indicated in subparagraph 2(A)(3).




“Valuation Procedures” means procedures set forth in Exhibit B, which are to be
followed in the event a determination of the Fair Market Value of the Property or any
portion thereof is required by this Agreement.




	2	 	NAI’s Options and Obligations on the Designated Sale Date.





     (A) Purchase Option; Initial Remarketing Rights; Supplemental Payment Obligation.
Whether or not an Event of Default has occurred and is continuing, but subject to Paragraph 6
below:




     (1) NAI will have the right (the “Purchase Option”) to purchase or cause an Affiliate of
NAI, as the Applicable Purchaser, to purchase the Property on the Designated Sale Date for
a cash price equal to the Break Even Price.




     (2) If NAI does not exercise the Purchase Option, NAI will have the following rights
(collectively, “NAI’s Initial Remarketing Rights”):




     (a) First, NAI will have the right to designate a third party, other than an
Affiliate of NAI, as the Applicable Purchaser and to cause such Applicable
Purchaser to purchase the Property on the Designated Sale Date for a cash price
equal to the Initial Remarketing Price. Such right, however, will be subject to the
conditions subject to the conditions (the “Conditions to
NAI’s Initial Remarketing
Rights”) that (i) NAI deliver an Initial Remarketing Notice to BNPPLC on or within
the thirty days prior to the Designated Sale Date, (ii) on the Designated Sale Date
the Applicable Purchaser tenders to BNPPLC a payment equal to the Initial
Remarketing Price, and (iii) NAI itself tenders to BNPPLC the Supplemental Payment,
if any, which will be required by subparagraph 2(A)(3) in the event BNPPLC
completes the sale to the Applicable Purchaser. Further, notwithstanding the
satisfaction of the Conditions to NAI’s Initial Remarketing Rights on the
Designated Sale Date, if the sum of the price to be paid by the



Purchase Agreement — Page 9




 









 









Applicable Purchaser for the Property (i.e., the Initial Remarketing Price) and any
Supplemental Payment required by subparagraph 2(A)(3) is less than the Break Even
Price, then BNPPLC may affirmatively elect not to complete the sale of the Property
to the Applicable Purchaser on the Designated Sale Date (and thereby defer the sale
of the Property pursuant to this Agreement) by making a Decision Not to Sell at a
Loss.




     (b)  Second, if BNPPLC completes a sale of the Property to an Applicable Purchaser on
the Designated Sale Date pursuant to subparagraph 2(A)(2)(a) and the price paid by
the Applicable Purchaser for the Property (i.e., the Initial Remarketing Price) is
greater than the Break Even Price, then NAI will have the right to require BNPPLC
to pay the excess to NAI or as otherwise required by Applicable Law.




     (3) If for any reason whatsoever BNPPLC does not receive a cash price for the Property on
the Designated Sale Date equal to or in excess of the Break Even Price in connection with a
sale made pursuant to subparagraph 2(A)(1) or subparagraph 2(A)(2)(a), then NAI will have
the obligation (the “Supplemental Payment Obligation”) to pay to BNPPLC on the Designated
Sale Date a supplemental payment (the “Supplemental Payment”) equal to the lesser of:




     (a) the amount by which the Break Even Price exceeds any such cash price actually
received by BNPPLC on the Designated Sale Date; or




     (b) the Maximum Remarketing Obligation.




Without limiting the generality of the foregoing, NAI must make the Supplemental Payment
even if BNPPLC does not sell the Property to NAI or an Applicable Purchaser on the
Designated Sale Date because of (A) a Decision Not to Sell at a Loss, or (B) a failure of
NAI to exercise, or a decision by NAI not to exercise, the Purchase Option or NAI’s Initial
Remarketing Rights, or (C) a failure of NAI or any Applicable Purchaser to tender the price
required by the forgoing provisions on the Designated Sale Date following any exercise of
or attempt by NAI to exercise the Purchase Option or NAI’s Initial Remarketing Rights.




NAI acknowledges that it is undertaking the Supplemental Payment Obligation in
consideration of the rights afforded to it by this Agreement, but that such obligation is
not contingent upon any exercise by NAI of such rights or upon any purchase of the Property
by NAI or an Applicable Purchaser. If any Supplemental Payment due according to this
subparagraph 2(A)(3) is not actually paid to BNPPLC on the Designated Sale Date, then NAI
must pay interest on the past due amount computed at the Default Rate. However,



Purchase Agreement — Page 10




 









 









NAI will be
entitled to a credit against the interest required by the preceding sentence equal to the
Base Rent, if any, actually paid by NAI pursuant to the Lease for any period after the
Designated Sale Date.




     (B) Designation of the Purchaser. To give BNPPLC the opportunity before the
Designated Sale Date to prepare the Sale Closing Documents, NAI must, by a notice to BNPPLC given
at least ten days prior to the Designated Sale Date, specify irrevocably, unequivocally and with
particularity any party who will purchase the Property because of NAI’s exercise of its Purchase
Option or of NAI’s Initial Remarketing Rights. If NAI fails to do so, BNPPLC may postpone the
delivery of the Sale Closing Documents until a date after the Designated Sale Date and not more
than ten days after NAI finally does so specify a party, but such postponement will not relieve or
postpone the obligation of NAI to make a Supplemental Payment on the Designated Sale Date as
provided in subparagraph 2(A)(3).




     (C) Delivery of Property Related Documents If BNPPLC Retains the Property. Unless
NAI or its Affiliate or another Applicable Purchaser purchases the Property pursuant to
subparagraph 2(A), promptly after the Designated Sale Date NAI must deliver and assign to BNPPLC
all plans and specifications for the Property previously prepared for NAI or otherwise available to
NAI (including those prepared in connection with the construction contemplated by the Construction
Management Agreement), together with all other files, documents and permits of NAI (including any
subleases then in force) which may be necessary or useful to any future owner’s or occupant’s use
of the Property. Without limiting the foregoing, NAI will transfer or arrange the transfer to
BNPPLC of all utility, building, health and other operating permits required by any municipality or
other governmental authority having jurisdiction over the Property for uses of the Property
permitted by the Lease or for any remaining construction required to complete the Improvements
contemplated by the Construction Management Agreement if
neither NAI nor any Affiliate or other Applicable Purchaser purchases the Property pursuant to
subparagraph 2(A).




     (D) Effect of the Purchase Option and NAI’s Initial Remarketing Rights on Subsequent
Title Encumbrances. Any conveyance made to consummate a sale of the Property to NAI or any
Applicable Purchaser pursuant to subparagraph 2(A) will cut off and terminate all interests in the
Property claimed by, through or under BNPPLC, including Liens Removable by BNPPLC (including any
leasehold estate or other interests conveyed by BNPPLC to third parties, even if conveyed in the
ordinary course of BNPPLC’s business, and including any judgment liens established against the
Property because of a judgment rendered against BNPPLC), but not personal obligations of NAI to
BNPPLC under the Lease or other Operative Documents (including obligations of NAI arising under the
indemnities in the Lease, which indemnities will survive any such sale). Anyone accepting or taking
any interest in the Property through or under BNPPLC on or after the Effective Date will acquire
such interest subject to the Purchase Option.



Purchase Agreement — Page 11




 









 









       (E) Security for NAI’s Purchase Option. If (contrary to the intent of the parties
as expressed in subparagraph 4(C) of the Lease) it is determined that NAI is not, under
applicable state law as applied to the Operative Documents, the equitable owner of the Property and
the borrower from BNPPLC in a financing arrangement, but rather is a tenant under the Lease with an
option to purchase from BNPPLC as provided in subparagraph 2(A)(1), then the parties intend that
the Purchase Option be secured by a lien and security interest against the Property. Accordingly,
BNPPLC does hereby grant to NAI a lien and security interest against the Property, including all
rights, title and interests of BNPPLC from time to time in and to the Land and Improvements, in
order to secure (1) BNPPLC’s obligation to convey the Property to NAI or an Affiliate designated by
it if NAI exercises the Purchase Option and tenders payment of the Break Even Price to BNPPLC on
the Designated Sale Date as provided herein, and (2) NAI’s right to recover any damages from BNPPLC
caused by a breach of such obligation, including any such breach caused by a rejection or
termination of this Agreement in any bankruptcy or insolvency proceeding instituted by or against
BNPPLC, as debtor. NAI may enforce such lien and security interest judicially after any such breach
by BNPPLC, but not otherwise.




	3	 	NAI’s Rights, Options and Obligations After the Designated Sale Date.





       (A) NAI’s Right to Buy During the Thirty Days After the Designated Sale Date.
Even after a failure to pay any required Supplemental Payment on the Designated Sale Date, NAI may
tender (or cause an Applicable Purchaser to tender) to BNPPLC the full Make Whole Amount and all
amounts then due under the Operative Documents on any Business Day within thirty days after the
Designated Sale Date. If presented with such a tender within thirty days after the Designated Sale
Date, BNPPLC must accept it and promptly thereafter deliver to NAI (or the Applicable Purchaser)
the Sale Closing Documents and any Escrowed Proceeds then constituting Property held by BNPPLC.
Otherwise, BNPPLC will have no further obligation to sell the Property to NAI or to any
Affiliate of NAI pursuant to this Agreement, although BNPPLC will continue to have the option to
require NAI to buy the Property after the Completion Date if the conditions listed in the next
subparagraph are satisfied.



     (B) NAI’s Obligation to Buy if Certain Conditions Are Satisfied. Regardless of
any prior Decision Not to Sell at a Loss, BNPPLC will have the option (the “Put Option”) to require
NAI to purchase the Property upon demand at any time after both the Completion Date and the
Designated Sale Date for a cash price equal to the Make Whole Amount if:




     (1) BNPPLC has not already conveyed the Property to consummate a sale of the Property to NAI
or an Applicable Purchaser pursuant to other provisions of this Agreement; and




     (2) either (i) NAI has elected to accelerate the Designated Sale Date as



Purchase Agreement — Page 12




 









 









provided in clause (2) of the definition of Designated Sale Date in the Common Definitions and Provisions
Agreement, or (ii) a 97-1/Default (100%) occurs or is continuing on or after the Designated
Sale Date; and




     (3) BNPPLC notifies NAI of BNPPLC’s exercise of the Put Option within two years following
the Designated Sale Date.



     (C) NAI’s Extended Right to Remarket. If the Property is not sold to NAI or an
Applicable Purchaser on the Designated Sale Date pursuant to this Agreement, NAI will have the
right (“NAI’s Extended Remarketing Right”) during the Extended Remarketing Period to arrange a sale
of the Property to an Applicable Purchaser, other than an Affiliate of NAI, for a price equal to or
in excess of the Must Sell Price (a “Proposed Sale”). NAI’s Extended Remarketing Right will,
however, be subject to all of the following conditions:




     (1) BNPPLC has not exercised the Put Option as provided in subparagraph 3(B) or already
contracted with another Applicable Purchaser to convey the Property in connection with a
Qualified Sale.




     (2) NAI’s Extended Remarketing Right is not terminated pursuant to subparagraph 6(C) because
of NAI’s failure to pay a Supplemental Payment.




     (3) NAI’s Extended Remarketing Right is not terminated pursuant to subparagraph 6(C) because
of NAI’s failure to pay a 97-10 Prepayment.




     (4) NAI must have provided a notice to BNPPLC (a “Notice of Sale”) setting forth (i) the
date proposed by NAI as the Final Sale Date (the “Proposed Sale Date”), which must be no
sooner than thirty days after BNPPLC’s receipt of the Notice of Sale and no later than the
last Business Day of the Extended Remarketing Period, (ii) the full legal name of the
purchaser (be it NAI or an Applicable Purchaser) and such other information as is needed to
prepare the Sale Closing Documents,
and (iii) the cash price that will be tendered to BNPPLC for the Property (the “Committed
Price”).




     (5) The Committed Price must be no less than the Must Sell Price, computed as of the
Proposed Sale Date. Also, if NAI has notified BNPPLC of NAI’s Target Price, the Committed
Price must be no less than NAI’s Target Price.




     (6) If requested by BNPPLC, both NAI and the Applicable Purchaser must execute and
acknowledge a Grant of Repurchase Option and Restrictive Covenants Agreement in the form
attached as Exhibit F for delivery with the other Sale Closing Documents upon the
consummation of the sale.



Purchase Agreement — Page 13




 









 








     (D) Deemed Sale On the Second Anniversary of the Designated Sale Date. If no date
prior to the second anniversary of the Designated Sale Date qualifies as the Final Sale Date, then
on second anniversary of the Designated Sale Date BNPPLC will, for purposes of calculating NAI’s
Supplemental Payment Obligation, be deemed to have sold the Property (a “Deemed Sale”) to an
Applicable Purchaser at a Qualified Sale for a net cash price equal to its Fair Market Value.



     (E) NAI’s Right to Share in Sales Proceeds Received By BNPPLC From any Qualified
Sale. BNPPLC must apply the cash proceeds received by BNPPLC from any Qualified Sale
(regardless of whether the sale is arranged by NAI as provided in subparagraph 3(C) or by BNPPLC
itself), or deemed to be received in connection with any Deemed Sale, in the following order of
priority:




     (1) first, to pay or reimburse to BNPPLC BNPPLC’s Actual Out of Pocket Costs incurred in
connection with the Qualified Sale;




     (2) second, to pay or reimburse to BNPPLC the Local Impositions, insurance premiums and
other Losses suffered or incurred by BNPPLC with respect to the ownership, operation or
maintenance of the Property after the Designated Sale Date, together with interest on such
Local Impositions, insurance premiums and other Losses computed at the Default Rate from
the date paid or incurred to the date reimbursed from sales proceeds;




     (3) third, to pay to BNPPLC an amount equal to the difference, if any, computed by
subtracting (i) the aggregate payments, if any, previously paid by NAI to BNPPLC as a
Supplemental Payment or as a 97-10/Prepayment, from (ii) the Adjusted Lease Balance;




     (4) fourth, to reimburse NAI for the aggregate payments, if any, previously made by NAI to
BNPPLC as a Supplemental Payment or as 97-10/Prepayments;




     (5) fifth, to pay to BNPPLC an amount that, when added to all payments or reimbursements to
BNPPLC described in the preceding clauses (1), (2) and (3), will equal the Make Whole
Amount;




     (6) sixth, to pay to BNPPLC any other amounts then due from NAI to BNPPLC under any of the
Operative Documents; and




     (7) last, if any such cash proceeds exceed all the payments and reimbursements that are
required or may be required as described in the preceding



Purchase Agreement — Page 14




 









 









clauses of this subparagraph, BNPPLC may retain the excess.


If, however, BNPPLC completes any sale and conveyance of the Property after the Extended
Remarketing Period expires or is terminated, BNPPLC will not be required by this subparagraph to
share any proceeds of the sale or conveyance with NAI or any other party claiming through or under
NAI.





	4	 	Transfers By BNPPLC After the Designated Sale Date.





     (A) BNPPLC’s Right to Sell. At any time more than thirty days after the
Designated Sale Date, if the Property has not already been sold and conveyed by BNPPLC pursuant to
Paragraph 2 or Paragraph 3, BNPPLC will have the right to sell the Property or offer the Property
for sale to any third party on any terms believed to be appropriate by BNPPLC in its sole good
faith business judgment.



     (B) Survival of NAI’s Rights and the Supplemental Payment Obligation. If the
Property is not sold on the Designated Sale Date, and if BNPPLC completes a sale or other transfer
of the Property after the Designated Sale Date, other than a Qualified Sale, the Supplemental
Payment Obligation will survive in favor of BNPPLC’s successors and assigns with respect to the
Property, and BNPPLC’s successors and assigns will take the Property subject to NAI’s rights under
Paragraph 3, all on the same terms and conditions as would have applied to BNPPLC itself if BNPPLC
had not transferred or sold the Property. Without limiting the foregoing, any purchaser that
acquires the Property from BNPPLC during the Extended Remarketing Period, other than at a Qualified
Sale, will be obligated to distribute proceeds of a subsequent Qualified Sale of the Property as
described in the subparagraph 3(E) in the same manner and to the same extent that BNPPLC itself
would have been obligated if not for the sale by BNPPLC to the purchaser.



     (C) Easements and Other Transfers in the Ordinary Course of Business. No
“Permitted Transfer” described in clause (5) (the last clause) of the definition thereof in
the Common Definitions and Provisions Agreement will constitute a Qualified Sale if it covers less
than all or substantially all of BNPPLC’s then existing interests in the Property. Any such
Permitted Transfer of less than all or substantially all of BNPPLC’s then existing interests in the
Property will not be prohibited by this Agreement during the Extended Remarketing Period or
otherwise; provided, however, any such Permitted Transfer made before the end of one hundred eighty
days after the Designated Sale Date, or made to an Affiliate of BNPPLC before the end of the
Extended Remarketing Period, or otherwise not in the ordinary course of business, will be made
subject to NAI’s rights under Paragraph 3. Thus, for example, if the Property is not sold by BNPPLC
to an Applicable Purchaser on the Designated Sale Date, then at any time more than thirty days after the
Designated Sale Date BNPPLC may in the ordinary course of business convey a utility easement or a
lease of space in the Improvements to a Person not an Affiliate of



Purchase Agreement — Page 15




 









 







BNPPLC free from NAI’s rights
under Paragraph 3, although following the conveyance of the lesser estate, NAI’s rights under
Paragraph 3 will continue during the Extended Remarketing Period as to BNPPLC’s remaining interest
in the Land and the Improvements@.





	5	 	Terms of Conveyance Upon Purchase.





     (A) Tender of Sale Closing Documents. As necessary to consummate any sale of the
Property to NAI or an Applicable Purchaser pursuant to this Agreement, BNPPLC must, subject to any
postponement permitted by subparagraph 2(B), promptly after the tender of the purchase price and
any other payments to BNPPLC required pursuant to Paragraph 2 or Paragraph 3, as applicable, convey
the Property to NAI or the Applicable Purchaser, as the case may be, by BNPPLC’s execution,
acknowledgment (where appropriate) and delivery of the Sale Closing Documents. Such conveyance by
BNPPLC will be subject to the Permitted Encumbrances and any other encumbrances that do not
constitute Liens Removable by BNPPLC, and such conveyance will not include the rights of BNPPLC or
other Interested Parties under the indemnities provided in the Operative Documents, including
rights to any payments then due from NAI under the indemnities or that may become due thereafter
because of any expense or liability incurred by BNPPLC or another Interested Party resulting in
whole or in part from events or circumstances occurring or alleged to have occurred before such
conveyance. The costs, both foreseen and unforeseen, of any purchase by NAI or an Applicable
Purchaser will be the responsibility of the purchaser to the extent (if any) not included in any
Break Even Price or Make Whole Amount actually paid to BNPPLC. If for any reason BNPPLC fails to
tender the Sale Closing Documents as required by this Paragraph 5(A), BNPPLC will have the right
and obligation to cure such failure at any time before thirty days after receipt of a demand for
such cure from NAI. Prior to the end of such cure period, NAI may initiate appropriate legal action
to specifically enforce BNPPLC’s obligation to deliver the Sale Closing Documents or to foreclose
NAI’s liens or security interests against the Property which secure such obligation, but if BNPPLC
does cure within such thirty day period, BNPPLC will not be liable for monetary damages because of
its prior failure to deliver the Sale Closing Documents.



     (B) Delivery of Escrowed Proceeds. BNPPLC may deliver any Escrowed Proceeds
constituting Property directly to NAI or to any Applicable Purchaser purchasing the Property
pursuant to this Agreement notwithstanding any prior actual or attempted conveyance or assignment
by NAI, voluntary or otherwise, of any right to receive the same; BNPPLC will not be responsible
for the proper distribution or application by NAI or any Applicable Purchaser of any such Escrowed
Proceeds; and any such payment of Escrowed Proceeds to NAI or an Applicable Purchaser will
discharge any obligation of BNPPLC to deliver the same to all Persons claiming an interest therein.



Purchase Agreement — Page 16




 









 









	6	 	Survival and Termination of the Rights and Obligations of NAI and BNPPLC.





     (A) Status of this Agreement Generally. Except as expressly provided in this
Agreement, this Agreement will not terminate; nor will NAI have any right to terminate this
Agreement; nor will NAI be entitled to any reduction (by setoff or otherwise) of the Break Even
Price, the Make Whole Amount or any payment required under this Agreement; nor will any of the
obligations of NAI to BNPPLC under Paragraph 2 or Paragraph 3 be excused by reason of (i) any
damage to or the destruction of all or any part of the Property from whatever cause, (ii) the
taking of the Property or any portion thereof by eminent domain or otherwise for any reason, (iii)
the prohibition, limitation or restriction of NAI’s use or development of all or any portion of the
Property or any interference with such use by governmental action or otherwise, (iv) any eviction
of NAI or of anyone claiming through or under NAI, (v) any default on the part of BNPPLC under this
Agreement or any other Operative Document or any other agreement to which BNPPLC and NAI are
parties, (vi) the inadequacy in any way whatsoever of the design, construction, assembly or
installation of any improvements, fixtures or tangible personal property included in the Property
(it being understood that BNPPLC has not made, does not make and will not make any representation
express or implied as to the adequacy thereof), (vii) any latent or other defect in the Property or
any change in the condition thereof or the existence with respect to the Property of any violations
of Applicable Laws, or (viii) NAI’s prior acquisition or ownership of any interest in the Property,
or (ix) any other cause, whether similar or dissimilar to the foregoing, any existing or future law
to the contrary notwithstanding. It is the intention of the parties hereto that the obligations of
NAI under this Agreement (including the obligation to make any Supplemental Payment as provided in
Paragraph 2) be separate from and independent of BNPPLC’s obligations under this Agreement or any
other agreement between BNPPLC and NAI; however, that nothing in this subparagraph will be
construed as a waiver by NAI of any right NAI may have at law or in equity to the following
remedies, whether because of BNPPLC’s failure to remove a Lien Removable by BNPPLC or because of
any other default by BNPPLC under this Agreement: (A) the recovery of monetary damages, (B)
injunctive relief in case of the violation, or attempted or threatened violation, by BNPPLC of any
of the express covenants, agreements, conditions or provisions of this Agreement which are binding
upon BNPPLC, or (C) a decree compelling performance by BNPPLC of any of the express covenants,
agreements, conditions or provisions of this Agreement which are binding upon BNPPLC.



     (B) Election by NAI to Terminate the Supplemental Payment Obligation Prior to the
Completion Date. By delivery of a notice to BNPPLC in the form attached as Exhibit G,
NAI may terminate its Supplemental Payment Obligation, but only prior to the Completion Date and
only if at the time of such exercise (1) NAI has given (and not rescinded) a Notice of NAI’s Intent
to Terminate as provided in the Construction Management Agreement, or (2) BNPPLC has given any FOCB
Notice as provided in the Construction Management Agreement. (If for any reason



Purchase Agreement — Page 17




 









 







BNPPLC does not receive a notice terminating the Supplemental Payment Obligation as described in the preceding
sentence prior to the Completion Date, then without any notice or other action by the
parties to this Agreement, NAI will cease to have any right to terminate the Supplemental Payment
Obligation.) If NAI does send a notice to BNPPLC in the form attached as Exhibit G, such
notice will (as provided therein) constitute an irrevocable and absolute waiver by NAI of NAI’s
rights to purchase the Property or to cause any of its Affiliates to purchase the Property pursuant
to this Agreement. No such termination of NAI’s Supplemental Payment Obligation will terminate
BNPPLC’s right to exercise the Put Option, which BNPPLC may exercise if NAI fails to make a
97-10/Permitted Prepayment required by the Construction Management Agreement.




     (C) Automatic Termination of NAI’s Rights. If NAI fails to pay the full amount of
any Supplemental Payment required by subparagraph 2(A)(3) on the Designated Sale Date, then the
Purchase Option, NAI’s Initial Remarketing Rights, NAI’s Extended Remarketing Right and all other
rights of NAI under this Agreement, other than its rights under subparagraph 3(A), will terminate
automatically. If, however, prior to the Designated Sale Date NAI effectively terminates the
Supplemental Payment Obligation pursuant to subparagraph 6(B) by the delivery of a notice to BNPPLC
in the form attached as Exhibit G, so that NAI is excused from the obligation to make any
Supplemental Payment pursuant to subparagraph 2(A)(3), then NAI’s Extended Remarketing Right will
not terminate automatically pursuant to this subparagraph 6(C), but rather will survive except to
the extent waived by such notice. No termination of NAI’s rights as described in this subparagraph
will limit BNPPLC’s other remedies, including its right to sue NAI for any amount due from NAI
pursuant to any of the Operative Documents and its right to exercise the Put Option.



     (D) Payment Only to BNPPLC. All amounts payable under this Agreement by NAI and,
if applicable, by an Applicable Purchaser must be paid directly to BNPPLC. If paid to other
parties, such payments will not be effective for purposes of this Agreement.



     (E) Preferences and Voidable Transfers. If any payment to BNPPLC by an Applicable
Purchaser is held to constitute a preference or a voidable transfer under Applicable Laws, or must
for any other reason be refunded by BNPPLC to the Applicable Purchaser or to another Person, and if
such payment to BNPPLC reduced or had the effect of reducing a payment required of NAI by this
Agreement (e.g., the Supplemental Payment) or increased or had the effect of increasing any sale
proceeds paid over to NAI pursuant to subparagraph 2(A)(2)(b) or pursuant to subparagraph 3(E),
then NAI must pay to BNPPLC upon demand an amount equal to the reduction of the payment required of
NAI or to the increase of the excess sale proceeds paid to NAI, as applicable, and this Agreement
will continue to be effective or will be reinstated as necessary to permit BNPPLC to enforce its
right to collect such amount from NAI.



     (F) Remedies Under the Other Operative Documents. No repossession of or
re-



Purchase Agreement — Page 18




 









 







entering upon the Property or exercise of any other remedies available to BNPPLC under the other
Operative Documents will terminate NAI’s rights or obligations under this Agreement, all of which
will survive BNPPLC’s exercise of remedies under the other Operative Documents. NAI acknowledges
that the consideration for this Agreement is separate from and independent of the consideration for
the Construction Management
Agreement, the Lease, the Closing Certificate and other agreements executed by the parties, and
NAI’s obligations under this Agreement will not be affected or impaired by any event or
circumstance that would excuse NAI from performance of its obligations under such other Operative
Documents.



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



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



9  Successors and Assigns. The terms, provisions, covenants and conditions hereof
will be binding upon NAI and BNPPLC and their respective permitted successors and assigns and will
inure to the benefit of NAI and BNPPLC and all permitted transferees, mortgagees, successors and
assignees of NAI and BNPPLC with respect to the Property; except that (A) the rights of BNPPLC
hereunder will not pass to NAI or any Applicable Purchaser or any subsequent owner claiming through
NAI or an Applicable Purchaser, (B) BNPPLC will not assign this Agreement or any rights hereunder
except pursuant to a Permitted Transfer, and (C) NAI will not assign this Agreement or any rights
hereunder without the prior written consent of BNPPLC.




[The signature pages follow.]




Purchase Agreement — Page 19




 









 








     IN WITNESS WHEREOF, this Purchase Agreement is executed to be effective as of December 15,
2005.



	 	 	 	 	 
	 	BNP PARIBAS LEASING
CORPORATION, a Delaware corporation

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



Purchase Agreement — Signature Page




 









 








[Continuation of signature pages for Purchase Agreement dated as of December 15, 2005]




	 	 	 	 	 
	 	NETWORK APPLIANCE, INC., a Delaware 

corporation

 	 
	 	By:  	/s/  Steven Gomo	 
	 	 	Steven Gomo, Chief Financial Officer 	 
	 



Purchase Agreement — Signature Page




 









 








Exhibit A




Legal Description



Parcel 1, as shown on that certain Parcel Map which filed for record in the office of the recorder
of the County of Santa Clara, State of California on July 7, 1994, in Book 657 of Parcel Maps, Page
9.




APN: 110-32-6

ARB: 110-3-x65



TOGETHER WITH, easements appurtenant to Parcel 1 as described in Exhibit A attached to the
Ground Lease.




 









 








Exhibit B




Valuation Procedures





     This Exhibit explains the procedures to be used to determine Fair Market Value of the Property
if such a determination is required by this Agreement. In such event, either party may invoke the
procedures set out herein prior to the date the determination will be needed so as to minimize any
postponement of any payment, the amount of which depend upon Fair Market Value. In the event such a
payment becomes due before the required determination of Fair Market Value is complete, such
payment will be postponed until the determination is complete. But in that event, when the required
determination is complete, the payment will be made together with interest thereon, computed at the
@Implicit Rate, accruing over the period the payment was postponed.



     If any determination of Fair Market Value is required, NAI and BNPPLC will attempt in good
faith to reach a written agreement upon the Fair Market Value without unnecessary delay, and either
party may propose such an agreement to the other. If, however, for any reason whatsoever, they do
not execute such an agreement within seven days after the first such proposed agreement is offered
by one party to the other, then the
determination will be made by independent appraisers in accordance with the following procedures:


1. Definitions and Assumptions. For purposes of the determination, Fair Market
Value will be defined as follows, and all appraisers or others involved in the determination will
be instructed to use the following definition:





     “Fair Market Value” means the most probable net cash price, as of a specified
date, for which the Property should sell after reasonable exposure in a
competitive market under all conditions requisite to a fair sale, with the buyer
and seller each acting prudently, knowledgeably, and for self-interest, and
assuming that neither is under undue duress.


In addition, the appraisers or others making the determination will be instructed to assume that
ordinary and customary brokerage fees, title insurance costs and other sales expenses will be
incurred and deducted in the calculation of such net cash price. Such appraisers or others making
the determination will also be instructed to assume that the value of the Property (or applicable
portion thereof) is neither enhanced nor reduced by any lease to another tenant that BNPPLC may
have executed subsequent to the termination or expiration of the Lease (a “Replacement Lease”). In
other words, rather than determine value in light of actual rents generated or to be generated by
any such Replacement Lease, the Property (or applicable portion thereof) will be valued in light of
the most probable rent that it should bring in a competitive and open market (in this section, a
“Fair Market Rental”), taking into account:





     (x) the fact that the Ground Lease exists to permit the continued use and
enjoyment of the Property during the term of the



 









 







Ground
Lease1; and




     (y) the
actual physical condition of the Property2 ; and




     (z) that a reasonable period of time may be required to market the Property
(or applicable portion thereof) for lease and make it ready for use or
occupancy before it is leased at a Fair Market Rental.


2. Initial Selection of Appraisers; Appraiser’s Agreement as to Value. After having
failed to reach a written agreement upon Fair Market Value as described in the second paragraph of
this Exhibit, either party may deliver a notice to the other demanding the appointment of
appraisers (the “First Appraisal Notice”) pursuant to this Exhibit. In such event:




     (a) Within fifteen days after the First Appraisal Notice is delivered, NAI and BNPPLC
must each appoint an independent property appraiser who has experience appraising commercial
properties in California and notify the other party of such appointment, including the name of the
appointed appraiser (a “Notice of Appointment”).



     (b) If the appraiser appointed by NAI and the appraiser appointed by BNPPLC agree in
writing upon the Fair Market Value (an “Appraiser’s Agreement As To Value”), such agreement will be
binding upon NAI and BNPPLC. Both NAI and BNPPLC will instruct their respective appraisers to
attempt in good faith to quickly reach an Appraiser’s Agreement As To Value. Neither appraiser will
be required to produce a formal appraisal prior to reaching an Appraiser’s Agreement As To Value.


3. Selection of a Third Appraiser. If the two appraisers fail to deliver an
Appraiser’s Agreement As to Value within thirty days following the later of the dates upon which
NAI or BNPPLC delivers its Notice of Appointment:




     (a) Either party (NAI or BNPPLC) may deliver another notice to the other (a “Third
Appraisal Notice”), demanding that the two appraisers appoint a third independent property





 




			
	1	 	But for the Ground Lease, the Improvements could not be used and maintained in place. Thus, the parties believe that, but for the Ground Lease, the Improvements would be worth much less. However, it is understood that Property does not include the fee estate in the Land, and the continued use of the Improvements will necessitate the payment of rents as required by the Ground Lease and compliance with the other terms and conditions thereof. Accordingly, the value of the Land itself will not be included in the Fair Market Value of the Property.
	 
	2	 	If, however, the use of the Property by BNPPLC or any tenant under any Replacement Lease after NAI vacated the Property has resulted in excess wear and tear, such excess wear and tear will be assumed not to have occurred for purposes of determining Fair Market Value.





Exhibit B to Purchase Agreement — Page 2




 









 







appraiser to help determine Fair Market Value. Immediately after the Third Appraisal Notice is
delivered, each of the first two appraisers much act promptly, reasonably and in good faith to try
to reach agreement upon the third appraiser. If, however, the two appraisers fail to reach
agreement upon a third appraiser within ten days after the Third Appraisal Notice is delivered:




     (a) NAI and BNPPLC will each cause its respective appraiser to deliver, no later than
fifteen days after the delivery of the Third Appraisal Notice, an unqualified written promise
addressed to both of NAI and BNPPLC: (i) to act promptly, reasonably and in good faith in trying to
reach agree upon the third appraiser, and (ii) to propose and consider proposals of persons as the
third appraiser on the basis of objectivity and competence, not on the basis of such persons’
relationships with the other appraisers or with NAI or BNPPLC, and not on the basis of preferences
expressed by NAI or BNPPLC.



     (b) If, despite the delivery of the promises described in the preceding subsection, the two
appraisers fail to reach agreement upon a third appraiser within thirty days after the Third
Appraisal Notice is delivered, then each of the first two appraisers must immediately submit its
top choice for the third appraiser to the then highest ranking officer of the California Bar
Association who will agree to help and who has no attorney/client or other significant relationship
to either NAI or BNPPLC. Such officer will have complete discretion to select the most objective
and competent third appraiser from between the choice of each of the first two appraisers, and will
do so within ten days after such choices are submitted to him.


4. Resolution of Issues by the Third Appraiser. If a third appraiser is selected
under the procedure set out above:




     (a) No later than twenty days after a third appraiser is selected, each of the first two
appraisers must submit (and NAI and BNPPLC will each cause its appointed appraiser to submit) his
best estimate of Fair Market Value, together with a written report supporting such estimate. (Such
report need not be in the form of a formal appraisal, and
may contain any qualifications the submitting appraiser deems necessary under the circumstances.
Any such qualifications, however, may be considered by the third appraiser for purposes of the
selection required by the next subsection.)



     (b) After receipt of the two estimates required by the preceding subsection, and no
later than thirty days after the third appraiser is selected, he must (i) choose one or the other
of the two estimates of Fair Market Value submitted by the first two appraisers as being the more
accurate in his opinion, and (ii) notify NAI and BNPPLC of which estimate he chose. The third
appraiser will not be asked or allowed to specify an amount as Fair Market Value that is different
than an estimate provided by one of the other two appraisers (either by averaging the two estimates
or otherwise). The estimate of Fair Market Value thus chosen by the third appraiser as being the
more accurate will be binding upon NAI and BNPPLC.



Exhibit B to Purchase Agreement — Page 3




 









 







5. Criteria For Selecting Appraisers; Cost of Appraisals. All appraisers selected
for the appraisal process set out in this Exhibit will be disinterested, reputable, qualified
appraisers with the designation of NAI or equivalent and with at least five years experience in
appraising commercial properties comparable to the Property. NAI and BNPPLC shall each bear the
expense of the appraiser appointed by it, and the expense of the third appraiser and of any officer
of the California Bar Association who participates in the appraisal process described above will be
shared equally by NAI and BNPPLC.



6. Time is of the Essence; Defaults.




     (a) All time periods and deadlines specified in this Exhibit are of the essence.



     (b) Each party must cause the appraiser appointed by it (as set forth in Section 2(a))
to comply in a timely manner with the requirements of this Exhibit applicable to such appraiser.
Accordingly, if an appraiser appointed by one of the parties as provided in Section 2(a) fails to
comply in a timely manner with any provision of this Exhibit, such failure will be considered a
default by the party who appointed such appraiser.



     (c) Any breach of or default under this Exhibit by either party will be construed as a
breach of the Purchase Agreement to which this Exhibit is attached.



     (d) Any such breach or default by NAI will constitute a 97-1/Default (100%); provided,
however:




     (1) Before characterizing any such breach or default as a 97-1/Default (100%), BNPPLC must
first notify NAI of the breach or default and give NAI the opportunity, during the five
days after delivery of such notice, to fully rectify the breach or default.




     (2) Any breach or default by NAI under this Exhibit will be deemed rectified if, within such
five day period, NAI offers BNPPLC an unqualified written agreement that all determinations of Fair Market Value required by this Agreement will, if
made by the appraiser appointed by BNPPLC as hereinabove provided, be binding upon BNPPLC
and NAI. (It is understood that following the delivery of any such agreement by NAI, no
further input from NAI’s appraiser or from any official of the California bar association
or from a third appraiser will be required for any required determination of Fair Market
Value.)



Exhibit B to Purchase Agreement — Page 4




 









 








Exhibit C




Requirements Re: Forms to Accomplish Assignment and Conveyance



The form of the documents to be used to accomplish any conveyance of BNPPLC’s interest in the
Improvements and other Property pursuant to this Agreement will depend upon whether the conveyance
is to NAI or an Applicable Purchaser and, in the case of an conveyance by NAI itself, upon whether
NAI elects to take an assignment of the Ground Lease or to terminate the Ground Lease.



If NAI is itself acquiring BNPPLC’s interest in the Property, the conveyance of such interest will
be accomplished either by (A) the execution of an Agreement Concerning Ground Lease in the form
attached as Exhibit C-1, which (among other things) will effectively terminate the Ground
Lease with the result that BNPPLC’s interest in all Improvements will revert to NAI by operation of
law, or (B) BNPPLC’s execution of assignments in the forms attached as Exhibit C-2 and
Exhibit C-3 and NAI’s execution of an Acknowledgment of Disclaimer of Representations and
Warranties in the form attached as Exhibit C-4. NAI may choose between the Agreement
Concerning Ground Lease or the alternative forms attached as Exhibits C-2, C-3 and
C-4; however, if NAI fails to notify BNPPLC at least fifteen days prior to the Designated
Sale Date that NAI chooses to receive the assignments in the forms attached as Exhibit C-2
and Exhibit C-3, BNPPLC may assume that NAI has elected instead to have BNPPLC execute the
Agreement Concerning Ground Lease in the form attached as Exhibit C-1. If NAI does choose
to receive the assignments in the forms attached as Exhibit C-2 and Exhibit C-3,
NAI must execute and deliver to BNPPLC the Acknowledgment of Disclaimer of Representations and
Warranties in the form attached as Exhibit C-4.



If an Applicable Purchaser is acquiring BNPPLC’s interest in the Improvements and other Property,
such interest will be conveyed by BNPPLC’s execution and delivery of assignments in the forms
attached as Exhibit C-2 and Exhibit C-3, and the Applicable Purchaser must execute
and deliver to BNPPLC an Acknowledgment of Disclaimer of Representations and Warranties in the form
attached as Exhibit C-4.





 









 








Exhibit C-1




RECORDING REQUESTED BY AND,

WHEN RECORDED, RETURN TO:




Network Appliance, Inc.

7301 Kit Creek Road

Research Triangle Park, NC 27709

Attention: Ingemar Lanevi




AGREEMENT CONCERNING GROUND LEASE




     THIS
AGREEMENT CONCERNING GROUND LEASE (this “Agreement”) dated
as of                     ,
200___ (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




This Agreement is entered into upon, and with respect to, the following facts and intentions:




     A. BNPPLC and NAI have heretofore entered into the following agreements:




     (1) Ground Lease dated as of December 15, 2005 and recorded in the official records of Santa
Clara County, California (the “Official Records”) on or about December 15, 2005 as
Instrument
Number                     (as the same may have been modified, the “Ground Lease”), whereby
NAI, as ground lessor, ground leased to BNPPLC, as ground lessee, that certain land more
particularly described in Annex A, attached hereto and incorporated herein by this
reference (herein the “Land”); and




     (2) Lease Agreement dated as of December 15, 2005 (as the same may have been modified, the
“Sublease”), which was the subject of that certain Short Form of Sublease, dated as of
December 15, 2005 and recorded in the Official Records on or about December 15, 2005 as
Instrument Number
                     (the “Short Form of Sublease”), whereby BNPPLC, as sublessor,
leased to NAI, as sublessee, its ground leasehold interest in the Land and all of the
improvements located thereon (collectively the “Subleased Premises”); and




     (3) Purchase Agreement dated as of December 15, 2005 (has the same may have been modified,
the “Purchase Agreement”), which was the subject of that certain Memorandum of Purchase
Agreement, dated as of December 15, 2005 and recorded in the Official Records on or about
December 15, 2005 as Instrument Number                     .




     (4) Common Definitions and Provisions Agreement dated as of December 15, 2005 Date (as the
same may have been modified, the “Common Definitions and





 









 









Provisions Agreement”). As used in
this Agreement, capitalized terms defined in the Common Definitions and Provisions
Agreement and not otherwise defined in
this Agreement are intended to have the respective meanings assigned to them in the Common
Definitions and Provisions Agreement.



     B. BNPPLC and NAI now mutually wish to terminate the Ground Lease on the terms and conditions
more particularly herein set forth.



AGREEMENT



NOW, THEREFORE, for good and valuable consideration the adequacy of which is hereby acknowledges,
the parties hereto agree as follows:




     1. Termination of Ground Lease. As of the Effective Date, BNPPLC hereby surrenders all
of its right title and interest in the Ground Lease unto NAI, subject only to the “Permitted
Encumbrances” described in Annex B attached hereto and incorporated herein by this reference, and
the Ground Lease is hereby terminated. Notwithstanding anything to the contrary in this Agreement,
BNPPLC does, for itself and its successors, covenant, warrant and agree to defend the title to the
Land against claims and demands of any person claiming under or through a Lien Removable by BNPPLC.
Except as expressly set forth in the preceding sentence, BNPPLC makes no warranty of title, express
or implied.



     2. Acknowledgment of Reversion. BNPPLC also acknowledges and agrees that because of
the termination of the Ground Lease, all of BNPPLC’s right, title and interest in and to the
following property will revert to NAI and BNPPLC does hereby forever relinquish, waive, and
quitclaim unto NAI (subject to such Permitted Encumbrances):




	 	A.	 	the Sublease;
	 
	 	B.	 	the Purchase Agreement;
	 
	 	C.	 	any pending or future award made because of our condemnation affecting
the Property or because of any conveyance to be made in lieu thereof, and any unpaid
proceeds of insurance or claim or cause of action for damages, loss or injury to the
Subleased Premises; and
	 
	 	D.	 	all other property included within the definition of “Property” as set
forth in the Purchase Agreement;




provided, however, that excluded from this conveyance and reserved to BNPPLC are any rights or
privileges of BNPPLC under the following are expressly reserved and retained by BNPPLC: (i) the
indemnities set forth in the Sublease and the Ground Lease, whether such rights are presently known
or unknown, including rights of BNPPLC to be indemnified against environmental claims of third
parties, as provided in the Ground Lease which may not presently




Exhibit C-1 to Purchase Agreement — Page 2




 









 







be known; and (ii) provision in
the Sublease that establish the right of BNPPLC to recover any accrued unpaid rent under the
Sublease which may be outstanding as of the date hereof; and (iii) agreements between BNPPLC and
BNPPLC’s Parent or any Participant, or any modification or extension thereof.



BNPPLC agrees to warrant and defend the title to the Subleased Premises as herein assigned, against
claims and demands of any person claiming under or through a Lien Removable by BNPPLC relating to
the Subleased Premises.




     3. “As Is” Reversion. Notwithstanding any contrary provisions contained herein, NAI
acknowledges that BNPPLC makes no representations or warranties of any nature or kind, whether
statutory, express or implied, with respect to environmental matters or the physical condition of
the Subleased Premises, and NAI, by acceptance of this agreement, accepts the Subleased Premises
“As Is,” “Where Is,” and “With All Faults,” and without any such representation or warranty by
BNPPLC as to environmental matters, the physical condition of the Subleased Premises, compliance
with subdivision or platting requirements or construction of any improvements. Without limiting the
generality of the foregoing, NAI hereby further acknowledges and agrees that warranties of
merchantability and fitness for a particular purpose are excluded from the transactions
contemplated by this Agreement, as are any warranties arising from a course of dealing or usage of
trade. NAI hereby assumes all risk and liability (and agrees that BNPPLC will not be liability for
any special, direct, indirect, consequential, or other damages) resulting or arising from or
relating to the ownership, use, condition, location, maintenance, repair, or operation of the
Subleased Premises, except for damages proximately caused by (and attributed by any applicable
principles of comparative fault to) the “Established Misconduct” of BNPPLC.



     4. Binding Effect. The terms, provisions, covenants, and conditions hereof will be
binding upon NAI and BNPPLC and their respective successors and assigns, and any other party
claiming through either of them, and will inure to the benefit of NAI and BNPPLC and all
transferees, mortgages, successors and assigns.



     5. Miscellaneous. This Agreement and any other agreement relating hereto and executed
concurrently herewith represent the entire agreement of the parties hereto with respect to the
subject matter hereof and supersede any prior negotiations and agreement between BNPPLC and NAI
concerning the subject matter hereof. No amendment or modification of this Agreement will be
binding or valid unless express in a writing executed by both parties hereto. This Agreement will
be governed by and construed in accordance with the laws of the State of California without regard
to conflict or choice of laws. Words in the singular number will be held to include the plural and
vice versa, unless the context otherwise requires. This Agreement may be executed in counterparts,
each of which will be an original and all of which together will be a single



Exhibit C-1 to Purchase Agreement — Page 3




 









 







instrument.




[Signature pages follow.]




Exhibit C-1 to Purchase Agreement — Page 4




 









 








IN WITNESS WHEREOF, BNPPLC and NAI have signed this Agreement Concerning Ground Lease to be
effective as of                     , 200                    .




	 	 	 	 	 
	 	BNP PARIBAS LEASING CORPORATION, a 

Delaware corporation

 	 
	 	By:  	 	 
	 	 	Lloyd G. Cox, Managing Director 	 
	 	 	 	 
	 



	 	 	 	 	 	 	 
	STATE OF                     

	 	 	)	 	 	 
	 

	 	 	)	 	 	SS
	COUNTY OF                     

	 	 	)	 	 	 






     On                                         , 200                    , before me                                                             , a Notary Public in and for the
County and State aforesaid, personally appeared 

                                                            , who is
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that he/she executed the
same in his/her authorized capacity and that by his/her signature on such instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.



	 	 	 
	WITNESS, my hand and official seal.

	 	 
	 
	 	 
	 


	 	 






Exhibit C-1 to Purchase Agreement — Page 5




 









 








[Continuation of signature pages to Agreement Concerning Ground Lease dated to be effective as of
December 15, 2005.]




	 	 	 	 	 
	 	NETWORK APPLIANCE, INC., a Delaware 

corporation

 	 
	 	By:  	/s/  Steven J. Gomo	 
	 	 	Name: 	Steven J. Gomo
	 	 	Title:  	Chief
Financial Officer	 
	 



	 	 	 	 	 	 	 
	STATE
OF CALIFORNIA

	 	 	)	 	 	 
	 

	 	 	)	 	 	SS
	COUNTY
OF SANTA CLARA

	 	 	)	 	 	 





On
December 16, 2005, before me Lola Rodriguez, a Notary Public in and for the
County and State aforesaid, personally appeared Steven Gomo, Chief
Financial Officer, who is
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that he/she executed the
same in his/her
authorized capacity and that by his/her signature on such instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.




	 	 	 
	WITNESS, my hand and official seal.

	 	 
	 
	 	 
	 


	 	 






Exhibit C-1 to Purchase Agreement — Page 6





 










 







Annex A




Legal Description



[DRAFTING NOTE: TO THE EXTENT THAT THE “LAND” COVERED BY THE GROUND LEASE CHANGES FROM TIME
TO TIME AS PROVIDED THEREIN OR BECAUSE OF ADJUSTMENTS FOR WHICH NAI REQUESTS BNPPLC’S CONSENT OR
APPROVAL AS PROVIDED IN THE CLOSING CERTIFICATE, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW
CHANGE. ANY SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS “DRAFTING NOTE”
WILL BE DELETED BEFORE THE ASSIGNMENT TO WHICH THIS DESCRIPTION IS ATTACHED IS ACTUALLY EXECUTED
AND DELIVERED.]



Parcel 1, as shown on that certain Parcel Map which filed for record in the office of the recorder
of the County of Santa Clara, State of California on July 7, 1994, in Book 657 of Parcel Maps, Page
9.




APN: 110-32-6

ARB: 110-3-x65



TOGETHER WITH, easements appurtenant to Parcel 1 as described in Exhibit A attached to the
Ground Lease.


 

Exhibit C-1 to Purchase Agreement — Page 7




 









 




Annex B




Permitted Encumbrances



[DRAFTING NOTE: BEFORE THIS AGREEMENT IS ACTUALLY EXECUTED AND DELIVERED BY BNPPLC: ALL PERMITTED
ENCUMBRANCES LISTED IN EXHIBIT B TO THE CLOSING CERTIFICATE WILL BE SET OUT BELOW, IN ADDITION TO
THE ITEMS ALREADY LISTED. ALSO, IF ANY ENCUMBRANCES (OTHER THAN “LIENS REMOVABLE BY BNPPLC”) ARE
IDENTIFIED IN ADDITION TO THOSE DESCRIBED BELOW OR IN EXHIBIT B TO THE CLOSING CERTIFICATE, SUCH
ADDITIONAL ENCUMBRANCES WILL BE ADDED TO THE LIST BELOW. AFTER SUCH ADJUSTMENTS ARE MADE, THIS
“DRAFTING NOTE” WILL BE DELETED. THE ADDITIONAL ENCUMBRANCES TO BE LISTED BELOW WOULD INCLUDE ANY
NEW ENCUMBRANCES APPROVED BY BNPPLC AS “PERMITTED ENCUMBRANCES” FROM TIME TO TIME OR BECAUSE OF
NAI’s REQUEST FOR BNPPLC’S CONSENT OR APPROVAL TO AN ADJUSTMENT.]



This conveyance is subject to all encumbrances not constituting a “Lien Removable by BNPPLC” (as
defined in the Common Definitions and Provisions Agreement), including the following matters to the
extent the same are still valid and in force:



1. Taxes and assessments for the year 200___and subsequent years, which are not yet due and
payable.



2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5 commencing with Section
75 of the California Revenue and Taxation Code, resulting from changes of ownership or completion
of construction on or after the date hereof.



3. EASEMENT for the purposes stated herein and incidents thereto




	 	 	 	 	 
	 

	 	Purpose
	 	: Slope Easement
	 
	 	 	 	 
	 

	 	In favor of
	 	: City of Sunnyvale
	 
	 	 	 	 
	 

	 	Recorded
	 	: October 9, 1964 in Book 6695, page 430, Official Records
	 
	 	 	 	 
	 

	 	Affects
	 	: Easterly 18 feet, as shown on a survey plat entitled ALTA/ACSM Land Title Survey
for: Network Appliance, 1345 Crossman Avenue, dated December 2, 1999, prepared by Kier
& Wright, Job No. 97208-16.





4. EASEMENT for the purposes stated herein and incidents thereto




	 	 	 	 	 
	 

	 	Purpose
	 	: Public utilities easement
	 
	 	 	 	 
	 

	 	In favor of
	 	: City of Sunnyvale





 
Exhibit C-1 to Purchase Agreement — Page 8

 











 








	 	 	 	 	 
	 

	 	Recorded
	 	: October 9, 1964 in Book 6695, page 450, Official Records
	 
	 	 	 	 
	 

	 	Affects
	 	: Easterly 7 feet, as shown on a survey plat entitled ALTA/ACSM Land Title Survey
for: Network Appliance, 1345 Crossman Avenue, dated December 2, 1999, prepared by Kier
& Wright, Job No. 97208-16.





5. Covenants, Conditions and Restrictions in the Declaration of Protective Covenants — Moffett
Industrial Park No. 2) recorded December 23, 1971 in Book 9640, page 443, Official Records; which
provide that a violation thereof shall not defeat or render invalid the lien of any Mortgage or
Deed of Trust made in good faith and for value. Said Covenants, Conditions and Restrictions do not
provide for reversion of title in the event of a breach thereof. Restrictions, if any, based upon
race, color, religion, sex, handicap, familial status, or national origin are deleted, unless and
only to the extent that said covenant (a) is exempt under Chapter 42, Section 3607, of the United
States Code, or (b) related to handicap but does not discriminate against handicapped persons.




     ASSIGNMENT AND ASSUMPTION of the rights, powers, duties, obligations, and reservations of
Moffett Park Associates, in favor of The Prudential Insurance Company of America, recorded February
8, 1977 in Book C583, page 685, Official Records.


6. EASEMENT for the purposes stated herein and incidents thereto




	 	 	 	 	 
	 

	 	Purpose
	 	: Public utilities
	 
	 	 	 	 
	 

	 	Granted to
	 	: City of Sunnyvale
	 
	 	 	 	 
	 

	 	Recorded
	 	: November 16, 1976 in Book C414, page 105, Official Records
	 
	 	 	 	 
	 

	 	Affects
	 	: Southerly 10 feet, as shown on a survey plat entitled ALTA/ACSM Land Title Survey
for: Network Appliance, 1345 Crossman Avenue, dated December 2, 1999, prepared by Kier
& Wright, Job No. 97208-16.





7. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms, but deleting any
covenant, condition or restriction indicating a preference, limitation or discrimination based on
race, color, religion, sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained in the document recorded
February 5, 1980 in Book F122, page 460, Official Records.



 

Exhibit C-1 to Purchase Agreement — Page 9




 









 








Exhibit C-2




Form of Assignment of Ground Lease and Improvements




RECORDING REQUESTED BY

AND WHEN RECORDED MAIL TO:




	 	 	 	 	 
	 

	 	 	 	 
	NAME:

	 	[NAI or the Applicable Purchaser]	 	 
	ADDRESS:
	 	 	 	 
	 

	 	 	 	 
	ATTN:
	 	 	 	 
	 

	 	 	 	 
	CITY:
	 	 	 	 
	 

	 	 	 	 
	STATE:
	 	 	 	 
	 

	 	 	 	 
	Zip:
	 	 	 	 
	 

	 	 	 	 





ASSIGNMENT OF GROUND LEASE AND IMPROVEMENTS

(Covering Improvements and Leasehold Estate in Land)




     BNP Paribas Leasing Corporation (“Assignor”), a Delaware corporation, for and in consideration
of the sum of Ten Dollars ($10.00) and other valuable consideration paid to Assignor by [NAI or the
Applicable Purchaser] (hereinafter called “Assignee”), the receipt and sufficiency of which are
hereby acknowledged, does hereby GRANT, SELL, CONVEY, ASSIGN and DELIVER to Assignee (1) the
leasehold estate created by a Ground Lease from NAI to Assignor dated as of December 15, 2005,
which covers the land described in Annex A attached hereto and hereby made a part hereof, and (2)
all other rights, titles and interests of Assignor in and to (a) such land, (b) the buildings and
other improvements situated on such land, (c) any fixtures and other property affixed thereto and
(d) the adjacent streets, alleys and rights-of-way (all of the property interests conveyed hereby
being hereinafter collectively referred to as the “Property”); however, this conveyance is made by
Assignor and accepted by Assignee subject to the terms and conditions of the aforementioned Ground
Lease and to all zoning and other ordinances affecting the Property, all general or special
assessments due and payable after the date hereof, all encroachments, variations in area or in
measurements, boundary line disputes, roadways and other matters not of record which would be
disclosed by a current survey and inspection of the Property, and the encumbrances listed in Annex
B attached hereto and made a part hereof (collectively, the “Permitted Encumbrances”).



     TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances
thereto belonging unto Assignee, its successors and assigns, forever, and Assignor does hereby bind
Assignor and Assignor’s successors and assigns to warrant and forever defend all and singular the
said premises unto Assignee, its successors and assigns against every person whomsoever lawfully
claiming, or to claim the same, or any part thereof by, through or under Assignor, but not
otherwise; subject, however, to the Permitted Encumbrances. Except as expressly set forth in the
preceding sentence, Assignor makes no warranty of title, express or
implied.



 









 





     Assignor makes no representations or warranties of any nature or kind, whether
statutory, express or implied, with respect to environmental matters or the physical condition of
the Property, and Assignee, by acceptance of this Assignment, accepts the Property “AS
IS,” “WHERE IS,” “WITH ALL FAULTS” and without any
such representation or warranty by Assignor as to environmental matters, the physical condition of
the Property, compliance with subdivision or platting requirements or construction of any
improvements. Without limiting the generality of the foregoing, by acceptance of this Assignment,
Assignee hereby further acknowledges and agrees that warranties of merchantability and fitness for
a particular purpose are excluded from the transaction contemplated by this Assignment, as are any
warranties arising from a course of dealing or usage of trade.



     Assignee hereby assumes the obligations (including any personal obligations) of Assignor, if
any, created by or under, and agrees to be bound by the terms and conditions of, the Permitted
Encumbrances to the extent that the same concern or apply to the land or improvements conveyed by
this Assignment.



[Signature pages follow.]



 
Exhibit C-2 to Purchase Agreement — Page 2





 









 







IN WITNESS WHEREOF, Assignor and Assignee have signed this Assignment to be effective as of
___, 200___.




	 	 	 	 	 
	 	 	BNP PARIBAS LEASING CORPORATION, a

Delaware corporation
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Lloyd G. Cox, Managing Director






	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	STATE OF                     

	 	 	)	 	 	 	 	 
	 

	 	 	)	 	 	SS	 	 
	COUNTY OF                     

	 	 	)	 	 	 	 	 






     On                     , 200___, before me                                         , a Notary Public in and for the
County and State aforesaid, personally appeared                                                             , who is
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that he/she executed the
same in his/her authorized capacity and that by his/her signature on such instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.



	 	 	 
	 

	 	 
	WITNESS, my hand and official seal.
	 	 
	 
	 	 
	 	 	 




 
Exhibit C-2 to Purchase Agreement — Page 3




 









 




[Continuation of signature pages to Assignment of Ground Lease and Improvements dated to be
effective as of December 15, 2005.]



[NAI or the Applicable Purchaser]




	 	 	 	 	 
	 

	 	 	 	 
	By:
	 	/s/  Steven J. Gomo	 	 
	 

	 	 	 	 
	Name:
	 	Steven Gomo	 	 
	 

	 	 	 	 
	Title:
	 	Chief Financial Officer	 	 
	 

	 	 	 	 





	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	STATE
OF CALIFORNIA

	 	 	)	 	 	 	 	 
	 

	 	 	)	 	 	SS	 	 
	COUNTY
OF SANTA CLARA

	 	 	)	 	 	 	 	 





On
December 16, 2005, before me Lola Rodriguez, a Notary Public in and for the
County and State aforesaid, personally appeared Steven Gomo, Chief
Financial Officer, who is
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that he/she executed the
same in his/her authorized capacity and that by his/her signature on such instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.




	 	 	 
	 

	 	 
	WITNESS, my hand and official seal.
	 	 
	 
	 	 
	 	 	 




 
Exhibit C-2 to Purchase Agreement — Page 4




 









 






Annex A




LEGAL DESCRIPTION



[DRAFTING NOTE: TO THE EXTENT THAT THE “LAND” COVERED BY THE GROUND LEASE CHANGES FROM
TIME TO TIME AS PROVIDED THEREIN OR BECAUSE OF ADJUSTMENTS FOR WHICH NAI REQUESTS BNPPLC’S CONSENT
OR APPROVAL AS PROVIDED IN THE CLOSING CERTIFICATE, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW
CHANGE. ANY SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS “DRAFTING NOTE”
WILL BE DELETED BEFORE THE ASSIGNMENT TO WHICH THIS DESCRIPTION IS ATTACHED IS ACTUALLY EXECUTED
AND DELIVERED.]



Parcel 1, as shown on that certain Parcel Map which filed for record in the office of the recorder
of the County of Santa Clara, State of California on July 7, 1994, in Book 657 of Parcel Maps, Page
9.




APN: 110-32-6

ARB: 110-3-x65



TOGETHER WITH, easements appurtenant to Parcel 1 as described in Exhibit A attached to the
Ground Lease.




 
Exhibit C-2 to Purchase Agreement — Page 5




 









 








Annex B




Permitted Encumbrances



[DRAFTING NOTE: BEFORE THIS ASSIGNMENT IS ACTUALLY EXECUTED AND DELIVERED BY BNPPLC: ALL
PERMITTED ENCUMBRANCES LISTED IN EXHIBIT B TO THE CLOSING CERTIFICATE WILL BE SET OUT BELOW, IN
ADDITION TO THE ITEMS ALREADY LISTED. ALSO, IF ANY ENCUMBRANCES (OTHER THAN “LIENS REMOVABLE BY
BNPPLC”) ARE IDENTIFIED IN ADDITION TO THOSE DESCRIBED BELOW OR IN EXHIBIT B TO THE CLOSING
CERTIFICATE, SUCH ADDITIONAL ENCUMBRANCES WILL BE ADDED TO THE LIST BELOW. AFTER SUCH ADJUSTMENTS
ARE MADE, THIS “DRAFTING NOTE” WILL BE DELETED. THE ADDITIONAL ENCUMBRANCES TO BE LISTED BELOW
WOULD INCLUDE ANY NEW ENCUMBRANCES APPROVED BY BNPPLC AS “PERMITTED ENCUMBRANCES” FROM TIME TO TIME
OR BECAUSE OF NAI’s REQUEST FOR BNPPLC’S CONSENT OR APPROVAL TO AN ADJUSTMENT.]



This conveyance is subject to all encumbrances not constituting a “Lien Removable by BNPPLC”
(as defined in the Common Definitions and Provisions Agreement incorporated by reference into the
Lease Agreement referenced in the last item of the list below), including the following matters to
the extent the same are still valid and in force:



1. Taxes and assessments for the year 200___and subsequent years, which are not yet due and
payable.




2. THE LIEN of supplemental taxes, if any, assessed pursuant to Chapter 3.5 commencing with Section
75 of the California Revenue and Taxation Code, resulting from changes of ownership or completion
of construction on or after the date hereof.



3. EASEMENT for the purposes stated herein and incidents thereto




	 	 	 	 	 
	 

	 	Purpose
	 	: Slope Easement
	 
	 	 	 	 
	 

	 	In favor of
	 	: City of Sunnyvale
	 
	 	 	 	 
	 

	 	Recorded
	 	: October 9, 1964 in Book 6695, page 430, Official Records
	 
	 	 	 	 
	 

	 	Affects
	 	: Easterly 18 feet, as shown on a survey plat entitled ALTA/ACSM Land Title Survey
for: Network Appliance, 1345 Crossman Avenue, dated December 2, 1999, prepared by Kier
& Wright, Job No. 97208-16.





4. EASEMENT for the purposes stated herein and incidents thereto




	 	 	 	 	 
	 

	 	Purpose
	 	: Public utilities easement
	 
	 	 	 	 
	 

	 	In favor of
	 	: City of Sunnyvale




 

Exhibit C-2 to Purchase Agreement — Page 6




 









 








	 	 	 	 	 
	 

	 	Recorded
	 	: October 9, 1964 in Book 6695, page 450, Official Records
	 
	 	 	 	 
	 

	 	Affects
	 	: Easterly 7 feet, as shown on a survey plat entitled ALTA/ACSM Land Title Survey
for: Network Appliance, 1345 Crossman Avenue, dated December 2, 1999, prepared by Kier
& Wright, Job No. 97208-16.





5. Covenants, Conditions and Restrictions in the Declaration of Protective Covenants — Moffett
Industrial Park No. 2) recorded December 23, 1971 in Book 9640, page 443, Official Records; which
provide that a violation thereof shall not defeat or render invalid the lien of any Mortgage or
Deed of Trust made in good faith and for value. Said Covenants, Conditions and Restrictions do not
provide for reversion of title in the event of a breach thereof. Restrictions, if any, based upon
race, color, religion, sex, handicap, familial status, or national origin are deleted, unless and
only to the extent that said covenant (a) is exempt under Chapter 42, Section 3607, of the United
States Code, or (b) related to handicap but does not discriminate against handicapped persons.




     ASSIGNMENT AND ASSUMPTION of the rights, powers, duties, obligations, and reservations of
Moffett Park Associates, in favor of The Prudential Insurance Company of America, recorded February
8, 1977 in Book C583, page 685, Official Records.


6. EASEMENT for the purposes stated herein and incidents thereto




	 	 	 	 	 
	 

	 	Purpose
	 	: Public utilities
	 
	 	 	 	 
	 

	 	Granted to
	 	: City of Sunnyvale
	 
	 	 	 	 
	 

	 	Recorded
	 	: November 16, 1976 in Book C414, page 105, Official Records
	 
	 	 	 	 
	 

	 	Affects
	 	: Southerly 10 feet, as shown on a survey plat entitled ALTA/ACSM Land Title Survey
for: Network Appliance, 1345 Crossman Avenue, dated December 2, 1999, prepared by Kier
& Wright, Job No. 97208-16.





7. LIMITATIONS, covenants, restrictions, reservations, exceptions or terms, but deleting any
covenant, condition or restriction indicating a preference, limitation or discrimination based on
race, color, religion, sex, handicap, familial status, or national origin to the extent such
covenants, conditions or restrictions violate 42 USC 3604(c), contained in the document recorded
February 5, 1980 in Book F122, page 460, Official Records.




 
Exhibit C-2 to Purchase Agreement — Page 7




 









 








Exhibit C-3




BILL OF SALE AND ASSIGNMENT




     Reference is made to: (1) that certain Purchase Agreement dated as of December 15, 2005, (the
"Purchase Agreement”) between BNP Paribas Leasing Corporation (“Assignor”), a Delaware corporation,
and Network Appliance, Inc. , a Delaware corporation, and (2) that certain Lease Agreement dated as
of December 15, 2005 (the “Lease”) between Assignor, as landlord, and Network Appliance, Inc. , a
Delaware corporation, as tenant. (Capitalized terms used and not otherwise defined in this document
are intended to have the meanings assigned to them in the Common Definitions and Provisions
Agreement incorporated by reference into both the Purchase Agreement and Lease.)



     As contemplated by the Purchase Agreement, Assignor hereby sells, transfers and assigns unto
[NAI or the Applicable Purchaser], a ___(“Assignee”), all of Assignor’s right, title and
interest in and to the following property, if any, to the extent such property is assignable:




	 	(a)	 	the Lease;
	 
	 	(b)	 	any pending or future award made because of any condemnation affecting the
Property or because of any conveyance to be made in lieu thereof, and any unpaid award
for damage to the Property and any unpaid proceeds of insurance or claim or cause of
action for damage, loss or injury to the Property; and
	 
	 	(c)	 	all other personal or intangible property included within the definition of
“Property” as set forth in the Purchase Agreement, including but not limited to any of
the following transferred to Assignor by the tenant pursuant to Paragraph 6 of
the Lease or otherwise acquired by Assignor, at the time of the execution and delivery
of the Lease and Purchase Agreement or thereafter, by reason of Assignor’s status as
the owner of any interest in the Property: (1) any goods, equipment, furnishings,
furniture, chattels and tangible personal property of whatever nature that are located
on the Property and all renewals or replacements of or substitutions for any of the
foregoing; (ii) the rights of Assignor, existing at the time of the execution of the
Lease and Purchase Agreement or thereafter arising, under Permitted Encumbrances; and
(iii) any general intangibles, other permits, licenses, franchises, certificates, and
other rights and privileges related to the Property that Assignee would have acquired
if Assignee had itself acquired the interest of Assignor in and to the Property instead
of Assignor.




Provided, however, excluded from this conveyance and reserved to Assignor are any rights or
privileges of Assignor under the following: (1) the indemnities set forth in the Lease and the
Ground Lease, whether such rights are presently known or unknown, including rights of the Assignor
to be indemnified against environmental claims of third parties as provided in the Lease
which may not presently be known, all of which indemnities will survive the deliver of this Bill 


 









 







of
Sale and Assignment and other documents required by the Purchase Agreement, (2) provisions in the
Lease that establish the right of Assignor to recover any accrued unpaid rent under the Lease which
may be outstanding as of the date hereof, (3) agreements between Assignor and Assignor’s Parent or
any Participant, (4) the right to retain Escrowed Proceeds, if any, that consist of condemnation or
insurance proceeds resulting from a Pre-lease Force Majeure Event, (5) any right to receive future
payments of any such condemnation or insurance proceeds, or (6) any other instrument being
delivered to Assignor contemporaneously herewith pursuant to the Purchase Agreement.




     Assignor does for itself and its successors covenant and agree to warrant and defend the title
to the property assigned herein against the just and lawful claims and demands of any person
claiming under or through a Lien Removable by Assignor, but not otherwise.



     Assignee hereby assumes and agrees to keep, perform and fulfill Assignor’s obligations, if
any, relating to any permits or contracts (including the Lease), under which Assignor has rights
being assigned herein.


[Signature pages follow.]


 

Exhibit C-3 to Purchase Agreement — Page 2




 









 








IN WITNESS WHEREOF, Assignor and Assignee have signed this Bill of Sale and Assignment to be
effective as of ___, 200___.




	 	 	 	 	 
	 	 	BNP PARIBAS LEASING CORPORATION, a

Delaware corporation
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Lloyd G. Cox, Managing Director






	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	STATE OF                     

	 	 	)	 	 	 	 	 
	 

	 	 	)	 	 	SS	 	 
	COUNTY OF                     

	 	 	)	 	 	 	 	 





On                     , 200___, before me                                         , a Notary Public in and for the
County and State aforesaid, personally appeared                                                             , who is
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that he/she executed the
same in his/her authorized capacity and that by his/her signature on such instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.




	 	 	 
	 

	 	 
	WITNESS, my hand and official seal.
	 	 
	 
	 	 
	 
	 	 




Exhibit C-3 to Purchase Agreement — Page 3




 









 




[Continuation of signature pages to Bill of Sale and Assignment dated to be effective as of
December 15, 2005.]



[NAI or the Applicable Purchaser]




	 	 	 	 	 
	 

	 	 	 	 
	By:
	 	/s/ Steven J. Gomo	 	 
	 

	 	 	 	 
	Name:
	 	Steven Gomo	 	 
	 

	 	 	 	 
	Title:
	 	Chief Financial Officer	 	 
	 

	 	 	 	 






	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	STATE
OF CALIFORNIA

	 	 	)	 	 	 	 	 
	 

	 	 	)	 	 	SS	 	 
	COUNTY
OF SANTA CLARA

	 	 	)	 	 	 	 	 





On
December 16, 2005, before me Lola Rodriguez, a Notary Public in and for the
County and State aforesaid, personally appeared Steven Gomo, Chief
Financial Officer, who is
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that he/she executed the
same in his/her authorized capacity and that by his/her signature on such instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.




	 	 	 
	 

	 	 
	WITNESS, my hand and official seal.
	 	 
	 
	 	 
	 	 	 




 
Exhibit C-3 to Purchase Agreement — Page 4





 









 






Exhibit C-4



ACKNOWLEDGMENT
OF DISCLAIMER

OF REPRESENTATIONS AND WARRANTIES




     THIS ACKNOWLEDGMENT OF DISCLAIMER OF REPRESENTATIONS AND WARRANTIES (this “Certificate”) is
made as of ___, ___, by [NAI or the Applicable Purchaser], a ___
(“Assignee”).



     Contemporaneously with the execution of this Certificate, BNP Paribas Leasing Corporation
(“Assignor”), a Delaware corporation, is executing and delivering to Assignee (1) an Assignment of
Ground Lease and Improvements, and (2) a Bill of Sale and Assignment (the foregoing documents and
any other documents to be executed in connection therewith are herein called the “Conveyancing
Documents” and any of the properties, rights or other matters assigned, transferred or conveyed
pursuant thereto are herein collectively called the “Subject Property”).



     Notwithstanding any provision contained in the Conveyancing Documents to the contrary,
Assignee acknowledges that Assignor makes no representations or warranties of any nature or kind,
whether statutory, express or implied, with respect to environmental matters or the physical
condition of the Subject Property, and Assignee, by acceptance of the Conveyancing Documents,
accepts the Subject Property “AS IS,” “WHERE IS,” “WITH
ALL FAULTS” and without any such representation or warranty by Grantor as to
environmental matters, the physical condition of the Subject Property, compliance with subdivision
or platting requirements or construction of any improvements. Without limiting the generality of
the foregoing, Assignee hereby further acknowledges and agrees that warranties of merchantability
and fitness for a particular purpose are excluded from the transaction contemplated by the
Conveyancing Documents, as are any warranties arising from a course of dealing or usage of trade.
Assignee hereby assumes all risk and liability (and agrees that Assignor will not be liable for any
special, direct, indirect, consequential, or other damages) resulting or arising from or relating
to the ownership, use, condition, location, maintenance, repair, or operation of the Subject
Property, except for damages proximately caused by (and attributed by any applicable principles of
comparative fault to) the Established Misconduct of Assignor. As used in the preceding sentence,
"Established Misconduct” is intended to have, and be limited to, the meaning given to it in the
Common Definitions and Provisions Agreement incorporated by reference into the Purchase Agreement
dated as of December 15, 2005 between Assignor and Network Appliance, Inc. , pursuant to which
Purchase Agreement Assignor is delivering the Conveyancing Documents.



     The provisions of this Certificate will be binding on Assignee, its successors and assigns and
any other party claiming through Assignee. Assignee hereby acknowledges that Assignor is entitled
to rely and is relying on this Certificate.



[Signature page follows.]




 









 







IN WITNESS WHEREOF, Assignor and Assignee have signed this Bill of Sale and Assignment to be
effective as of December 15, 2005.




[NAI or the Applicable Purchaser]




	 	 	 	 	 
	By:
	 	/s/ Steven J. Gomo	 	 
	Name:
	 	 
Steven Gomo	 	 
	 

	 	 	 	 
	Title:
	 	Chief Financial Officer	 	 
	 

	 	 	 	 





	 	 	 	 	 	 	 	 	 
	STATE
OF CALIFORNIA
	 	 	 	 	)	  
	 
	 	 	 	 	)	 	 	SS	 	 
	COUNTY OF SANTA CLARA
	 	 	 	 	)	  
	 
	 	 	 	 	 	 	 	 	 




On
December 16, 2005, before me Lola Rodriguez, a Notary Public in and for the
County and State aforesaid, personally appeared Steven Gomo, Chief
Financial Officer, who is
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that he/she executed the
same in his/her authorized capacity and that by his/her signature on such instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.



WITNESS, my hand and official seal.



                                                                                




 




Exhibit C-4 to
Purchase Agreement — Page 2




 









 








Exhibit D



SECRETARY’S CERTIFICATE




     The undersigned, [Secretary or Assistant Secretary] of BNP Paribas Leasing Corporation
(“BNPPLC”), a Delaware corporation, hereby certifies as follows:



     1. That he is the duly, elected, qualified and acting Secretary [or Assistant Secretary] of
the Corporation and has custody of the corporate records, minutes and corporate seal.



     2. That the following named persons have been properly designated, elected and assigned to the
office in BNPPLC as indicated below; that such persons hold such office at this time and that the
specimen signature appearing beside the name of such officer is his or her true and correct
signature.


[The following blanks must be completed with the names and signatures of the officers who will be
signing the Sale Closing Documents on behalf of BNPPLC.]




	 	 	 	 	 
	Name	 	Title	 	Signature
	 

	 	 
	 	 
	 
	 	 	 	 
	 

	 	 
	 	 
	 
	 

	 	 
	 	 





     3. That the resolutions attached hereto and made a part hereof were duly adopted by the Board
of Directors of BNPPLC in accordance with BNPPLC’s Articles of Incorporation and Bylaws. Such
resolutions have not been amended, modified or rescinded and remain in full force and effect.



     IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of the Corporation on
this___, day of___,___.



 





[signature and title]




 









 








CORPORATE RESOLUTIONS OF

BNP PARIBAS LEASING CORPORATION



[DRAFTING NOTE: INSERT HERE COPIES OF RESOLUTIONS ADOPTED BY THE BOARD OF DIRECTORS OF
BNPPLC SUFFICIENT TO AUTHORIZE THE DELIVERY OF SALE CLOSING DOCUMENTS. SUCH RESOLUTIONS MAY BE AS
FOLLOWS:




     WHEREAS, pursuant to that certain Purchase Agreement (herein called the “Purchase Agreement”)
dated as of December 15, 2005, by and between BNP Paribas Leasing Corporation (“BNPPLC”) and [NAI
or the Applicable Purchaser] (“Purchaser”), BNPPLC agreed to sell and Purchaser agreed to purchase
or cause the Applicable Purchaser (as defined in the Purchase Agreement) to purchase the
Corporation’s interest in the property (the “Property”) located in                     , California, more
particularly described therein.



     NOW THEREFORE, BE IT RESOLVED, that the Board of Directors of BNPPLC, in its best business
judgment, deems it in the best interest of BNPPLC and its shareholders that BNPPLC convey the
Property to Purchaser or the Applicable Purchaser pursuant to and in accordance with the terms of
the Purchase Agreement.



     RESOLVED FURTHER, that the proper officers of BNPPLC, and each of them, are hereby authorized
and directed in the name and on behalf of BNPPLC to cause BNPPLC to fulfill its obligations under
the Purchase Agreement.



     RESOLVED FURTHER, that the proper officers of BNPPLC, and each of them, are hereby authorized
and directed to take or cause to be taken any and all actions and to prepare or cause to be
prepared and to execute and deliver any and all deeds, assignments and other documents, instruments
and agreements that are necessary, advisable or appropriate, in such officer’s sole and absolute
discretion, to carry out the intent and to accomplish the purposes of the foregoing resolutions. ]



 




Exhibit D to
Purchase Agreement — Page 2




 









 








Exhibit E



CERTIFICATION OF NON-FOREIGN STATUS




     Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real
property interest must withhold tax if the transferor is a foreign person. Sections 18805, 18815
and 26131 of the California Revenue and Taxation Code, as amended, provide that a transferee of a
California real property interest must withhold income tax if the transferor is a nonresident
seller.



     To inform NETWORK APPLIANCE, INC. (“Transferee”), a Delaware corporation, that withholding of
tax is not required upon the disposition of a California real property interest by BNP PARIBAS
LEASING CORPORATION (“Transferor”), a Delaware corporation, the undersigned hereby certifies the
following on behalf of Transferor:


1. Transferor is not a foreign corporation, foreign partnership, foreign trust, or foreign estate
(as those terms are defined in the Internal Revenue Code and Income Tax Regulations);



2. Transferor is not a disregarded entity (as defined in Section 1.1445-2(b)(2)(iii) of the Income
Tax Regulations);



3. Transferor’s U.S. employer identification number is 75-2252918; and



4. Transferor’s office address is:




     BNP Paribas Leasing Corporation

     12201 Merit Drive, Suite 860

    Dallas, Texas 75251

    Attention: Lloyd G. Cox, Managing Director



Transferor understands that this Certification of Non-Foreign Status may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained herein could be
punished by fine, imprisonment, or both.



Under penalties of perjury I declare that I have examined this Certification of Non-Foreign Status
and to the best of my knowledge and belief it is true, correct and complete, and I further
declare that I have authority to sign this document on behalf of the Transferor.




     Dated: December 15, 2005.



	 	 	 
	 

	 	 
	 

	 	Lloyd G. Cox, Managing Director of Transferor






 









 






Exhibit F



Grant of Repurchase Option 

And Restrictive Covenants




     THIS GRANT OF REPURCHASE OPTION AND RESTRICTIVE COVENANTS AGREEMENT (this “Agreement”) is made
as of                     , ___, by NETWORK APPLIANCE, INC. (“NAI”), a Delaware corporation, whose
address is                     , and [THE APPLICABLE PURCHASER] (the “Applicable Purchaser”), whose
address is                     , in favor of BNP PARIBAS LEASING CORPORATION (“BNPPLC”), a Delaware
corporation.



RECITALS




     BNPPLC and NAI entered into a Purchase Agreement dated as of December 15, 2005, (the “Purchase
Agreement”) concerning the leasehold estate under a ground lease covering the land described in
Annex 1 attached hereto and made a part hereof and other property described therein.
(Capitalized terms used and not otherwise defined in this document are intended to have the
meanings assigned to them in the Common Definitions and Provisions Agreement incorporated by
reference into the Purchase Agreement.)



     Pursuant to the Purchase Agreement, BNPPLC is, contemporaneously with the execution of this
Agreement, executing and delivering to the Applicable Purchaser (1) an Assignment of Ground Lease
and Improvements and (2) a Bill of Sale and Assignment (the foregoing documents and any other
documents to be executed in connection therewith are herein called the “Conveyancing Documents” and
any of the properties, rights or other matters assigned, transferred or conveyed pursuant thereto
are herein collectively called the “Subject Property”).



     As provided in the Purchase Agreement, BNPPLC is entitled to require this Agreement from NAI
and the Applicable Purchaser to induce BNPPLC to execute the Conveyancing Documents and in
consideration thereof.



COVENANTS AND GRANTS




     NOW, THEREFORE, the Applicable Purchaser does hereby grant to BNPPLC an option to repurchase
the Subject Property (the “Repurchase Option”) for a price and on the terms and conditions
hereinafter set forth, and on the condition that NAI or the Applicable Purchaser breaches either of
the following covenants (a “Breach”), both of which covenants are made jointly and severally by NAI
and the Applicable Purchaser as covenants intended to run with the land described in Annex
1 for the benefit of BNPPLC and its successors and assigns:



     1. No Other Payments to NAI. Except for the payments (if any) that BNPPLC
must pay to NAI as provided in the Purchase Agreement, neither NAI nor any Affiliate of NAI will
receive or accept any payment or other thing of value, directly or indirectly, from the Applicable
Purchaser or any Affiliate of the Applicable Purchaser or any successor or assign of the



 









 







Applicable Purchaser because of or in connection with the sale of the Subject Property from BNPPLC
to the Applicable Purchaser pursuant to the Purchase Agreement.



     2. 10 Year Restriction Against NAI’s Involvement With the Property. Neither NAI nor
any Affiliate of NAI may acquire, occupy or use, directly or indirectly, the Subject Property for a
period of ten years after the date hereof.



     To exercise the Repurchase Option, BNPPLC must deliver notice thereof to NAI and the
Applicable Purchaser at the addresses indicated above no later than the earlier of (1) one year
after BNPPLC is itself notified of a Breach, or (2) the tenth anniversary of the date of this
Agreement. Within thirty days after receipt of any such notice, NAI and the Applicable Purchaser
must deliver to BNPPLC an assignment of ground lease and bill of sale that is sufficient to
reconvey the Subject Property back to BNPPLC, with warranties of title by NAI and the Applicable
Purchaser against any and all claims other than the Permitted Encumbrances. Further, if the Ground
Lease is no longer then in effect, NAI must reinstate the Ground Lease in favor of BNPPLC. (But in
no event will BNPPLC be responsible for any breach of, or required to cure any default by the
lessee under, the Ground Lease that first occurred after the date hereof and prior to any such
conveyance back to BNPPLC.) Contemporaneously with the reconveyance back to BNPPLC, NAI and the
Applicable Purchaser must cause possession of the Subject Property to be delivered to BNPPLC, with
the Subject Property in good condition and in compliance with Applicable Laws, unoccupied and free
from any encumbrances other than Permitted Encumbrances.



     The price required for the Subject Property if BNPPLC exercises the Repurchase Option will be
the lesser of (1) the net cash sales proceeds remaining after the payment of all sales costs that
BNPPLC is receiving and entitled to retain under the Purchase Agreement because of its sale of the
Subject Property to the Applicable Purchaser, or (2) the then fair market value of the Subject
Property, as determined in accordance with the appraisal procedures set forth in Annex 2
attached hereto. If for any reason the price has not been determined as of the date upon which a
reconveyance to BNPPLC is required by this Agreement, such date will be deferred until the price is
determined.



     Any reconveyance of the Subject Property back to BNPPLC pursuant to this Agreement will
cut off and terminate any interest in the Subject Property claimed by, through or under the
Applicable Purchaser (such as, but not limited to, any judgment liens established against the
Subject Property because of a judgment rendered against the Applicable Purchaser and any leasehold
or other interests conveyed by the Applicable Purchaser in the ordinary course of its business).
Anyone accepting or taking any interest in the Property through or under the Applicable Purchaser
after the date of this Agreement will acquire such interest subject to the Repurchase Option.
Further, BNPPLC may make any payment of the purchase price required by this Agreement for the
purchase of the Subject Property directly to the Applicable Purchaser
notwithstanding any prior conveyance or assignment by the Applicable Purchaser, voluntary or



 




Exhibit F to
Purchase Agreement — Page 2




 









 







otherwise, of any right or interest in the Subject Property, and BNPPLC will not be responsible for
the proper distribution or application of any such payments by the Applicable Purchaser; and any
such payment to the Applicable Purchaser will discharge the obligation of BNPPLC to cause such
payment to all Persons claiming an interest in such payment.




     Notwithstanding any exercise by BNPPLC of the Repurchase Option, BNPPLC’s obligation to close
the repurchase of the Subject Property will be subject to the following terms and conditions, all
of which are for the benefit of BNPPLC: (1) BNPPLC must have been furnished with evidence
satisfactory to BNPPLC that title will be conveyed to it as required by the preceding subparagraph;
(2) nothing has occurred or been discovered after BNPPLC exercised the Repurchase Option that could
significantly and adversely affect title to the Subject Property or BNPPLC’s use thereof, (3) all
of the representations of NAI in the Ground Lease must continue to be true as if made effective on
the date of the closing and, with respect to any such representations which may be limited to the
knowledge of NAI or any of NAI’s representatives, would continue to be true on the date of the
closing if all relevant facts and circumstances were known to NAI and such representatives, (4)
BNPPLC must find the price for the Subject Property to be acceptable after it is determined as
provided in this Agreement, (5) the deed and other documents which are described in this Agreement
as documents to be delivered to BNPPLC at the closing of BNPPLC’s repurchase must have been
tendered to BNPPLC; and (6) NAI and the Applicable Purchaser must have complied with the all the
terms and condition of this Agreement.



     BNPPLC may deduct from the purchase price required of it by this Agreement the full amount of
any transfer taxes required because of the reconveyance of the Subject Property back to BNPPLC.
Further, BNPPLC may deduct any withholding tax from the price required by this Agreement if BNPPLC
is not excused from such withholding because of the delivery to it of an appropriate certificate of
nonforeign status as needed to comply with the provisions of the U.S. Foreign Investors Real
Property Tax Act (FIRPTA) or any comparable federal, state or local law in effect at the time.



     At the closing or any repurchase of the Subject Property by BNPPLC hereunder, NAI and the
Applicable Purchaser will pay for and deliver to BNPPLC an owner’s title insurance policy in the
full amount of the purchase price payable by BNPPLC, issued by a title insurance company designated
by BNPPLC (or written confirmation from the title company that it is then prepared to issue such a
policy), and subject only to standard printed exceptions which the title insurance company refuses
to delete or modify in a manner acceptable to BNPPLC and to Permitted Encumbrances.



     To secure the obligations of the Applicable Purchaser to reconvey the Subject Property
if BNPPLC exercises the Repurchase Option and to pay any damages to BNPPLC caused by a breach of
NAI’s or the Applicable Purchaser’s obligations hereunder, including any such breach
caused by a rejection or termination of this Agreement in any bankruptcy or insolvency



 




Exhibit F to
Purchase Agreement — Page 3




 









 







proceeding instituted by or against NAI or the Applicable Purchaser, as debtor, the Applicable
Purchaser does hereby grant to BNPPLC (and BNPPLC does hereby reserve from the conveyances provided
in the Conveyancing Documents) a lien and security interest against all rights, title and interests
conveyed by BNPPLC under the Conveyancing Documents.




     The terms, provisions, covenants and conditions hereof will be binding upon NAI and the
Applicable Purchaser and their respective successors and assigns with respect to the Subject
Property and will inure to the benefit of BNPPLC and all transferees, mortgagees, successors and
assignees of BNPPLC with respect to the Subject Property. It is understood that BNPPLC may
transfer the Repurchase Option and other rights and interests granted to it or reserved by it
herein, in whole or in part, by any instrument recorded in the real property records of the county
in which the Subject Property is located.



[Signature pages follow.]




 




Exhibit F to Purchase Agreement — Page 4







 









 







IN WITNESS WHEREOF, the NAI and the Applicable Purchaser have signed this Grant of Repurchase
Option and Restrictive Covenants to be effective as of
December 15, 2005.




	 	 	 	 	 
	 	NETWORK APPLIANCE, INC., a Delaware corporation

 	 
	 	By:  	/s/  Steven J. Gomo	 
	 	 	Name:  	Steven Gomo	 
	 	 	Title:  	Chief
Financial Officer	 
	 



	 	 	 	 	 	 	 	 	 
	STATE
OF CALIFORNIA
	 	 	 	 	)	  
	 
	 	 	 	 	)	 	 	SS
	 	 
	COUNTY OF SANTA CLARA
	 	 	 	 	)	  
	 
	 	 	 	 	 	 	 	 	 




On
December 16, 2005, before me Lola Rodriguez, a Notary Public in and for the
County and State aforesaid, personally appeared Steven Gomo, Chief
Financial Officer, who is
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that he/she executed the
same in his/her authorized capacity and that by his/her signature on such instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.



WITNESS, my hand and official seal.



                                                            




 




Exhibit F to
Purchase Agreement — Page 5







 









 







[Continuation of signature pages to Grant of Repurchase Option and Restrictive Covenants dated to
be effective as of ___, 200___.]



[the Applicable Purchaser]




	 	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	 

	 	 	 	 
	Title:
	 	 	 	 
	 

	 	 	 	 





	 	 	 	 	 	 	 	 	 	 	 
	STATE OF

	 	 	 	 	)	 	 	 	 	  
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	)	 	 	SS
	 	 
	COUNTY OF

	 	 	 	 	)	 	 	 	 	  
	 

	 	 	 	 	 	 	 	 	 	 




On                                         , 200___, before me                                                             , a Notary Public in and for the
County and State aforesaid, personally appeared                                                                                 , who is
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that he/she executed the
same in his/her authorized capacity and that by his/her signature on such instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.



WITNESS, my hand and official seal.



                                                            




 




Exhibit F to
Purchase Agreement — Page 6






 









 











Annex A



LEGAL DESCRIPTION



[DRAFTING NOTE: TO THE EXTENT THAT THE “LAND” COVERED BY THE GROUND LEASE CHANGES FROM
TIME TO TIME AS PROVIDED THEREIN OR BECAUSE OF ADJUSTMENTS FOR WHICH NAI REQUESTS BNPPLC’S CONSENT
OR APPROVAL AS PROVIDED IN THE CLOSING CERTIFICATE, SO TOO WILL THE DESCRIPTION OF THE LAND BELOW
CHANGE. ANY SUCH CHANGES WILL BE INCORPORATED INTO THE DESCRIPTION BELOW AND THIS “DRAFTING NOTE”
WILL BE DELETED BEFORE THE ASSIGNMENT TO WHICH THIS DESCRIPTION IS ATTACHED IS ACTUALLY EXECUTED
AND DELIVERED.]



Parcel 1, as shown on that certain Parcel Map which filed for record in the office of the recorder
of the County of Santa Clara, State of California on July 7, 1994, in Book 657 of Parcel Maps, Page
9.




APN: 110-32-6

ARB: 110-3-x65



TOGETHER WITH, easements appurtenant to Parcel 1 as described in Exhibit A attached to the
Ground Lease.





 




Exhibit F to
Purchase Agreement — Page 7






 









 








Annex B



Appraisal Procedures




     If the Applicable Purchaser and BNPPLC do not otherwise agree upon the amount of the fair
market value of the Subject Property as required to establish the price to be paid by BNPPLC for
the Subject Property following BNPPLC’s exercise of the Repurchase Option, the fair market value
will be determined in accordance with the following procedure:


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



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



3. If a third appraiser must be chosen under the procedure set out above, he will be chosen on the
basis of objectivity and competence, not on the basis of his relationship with the other appraisers
or the parties to this Agreement, and the first two appraisers will be so advised. Although the
first two appraisers will be instructed to attempt in good faith to agree upon the third appraiser,
if for any reason they cannot agree within the prescribed time, either the Applicable Purchaser and
BNPPLC may require the first two appraisers to immediately submit its top choice for the third
appraiser to JAMS/ENDISPUTE in Dallas, Texas, who will have complete discretion to select the most
objective and competent third appraiser from between the choices of each of the first two
appraisers, and will do so within ten Business Days after such choices are submitted for decision.





 




Exhibit F to
Purchase Agreement — Page 8







 









 







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



5. The Applicable Purchaser bear the expenses of all appraisers involved in the determination of
fair market value as provided in this Annex.





 




Exhibit F to
Purchase Agreement — Page 9







 









 








Exhibit G



Notice of Election to Terminate the Supplemental Payment Obligation 

and Irrevocable Release and Waiver of the Right to Purchase




[Date]




BNP Paribas Leasing Corporation

12201 Merit Drive, Suite 860

Dallas, Texas 75251

Attention: Lloyd G. Cox, Managing Director




     Re: Purchase Agreement dated as of December 15, 2005 (the “Purchase Agreement”), between
Network Appliance, Inc. (“NAI”), a Delaware corporation, and BNP Paribas Leasing Corporation
(“BNPPLC”), a Delaware corporation



     Gentlemen:



     Capitalized terms used in this letter are intended to have the meanings assigned to them in
the Purchase Agreement referenced above. This letter will constitute a notice given pursuant to
subparagraph 6(B) of the Purchase Agreement. As provided in that subparagraph, NAI irrevocably
elects to terminate the Supplemental Payment Obligation effective immediately, subject only to the
conditions described below. In addition, NAI irrevocably waives and releases its rights to
purchase or cause an Affiliate of NAI to purchase the Property granted to it by the Purchase
Agreement. Because of (but without limiting) such waiver and release, the Purchase Option is
terminated and so are all rights of NAI under subparagraph 2(A) of the Purchase Agreement.



     NAI acknowledges that this notice will not be effective to terminate the Supplemental Payment
Obligation if it is not received by BNPPLC prior to the Completion Date.



     NAI also acknowledges that even if no prior 97-10/Event has occurred, the delivery of this
notice is in and of itself a 97-10/Event under and as defined in the Construction Management
Agreement. Therefore, after receipt of this notice BNPPLC will be entitled to demand and receive a
97-10/Prepayment on and subject to the terms and conditions of Paragraph 9 of the Construction
Management Agreement.



     NAI also acknowledges that its right to terminate the Supplemental Payment Obligation is
subject to the condition precedent that (1) NAI must have given (and not rescinded) a Notice of
NAI’s Intent to Terminate as provided in the Construction Management Agreement, or (2) BNPPLC must
have given any FOCB Notice as provided in the Construction Management Agreement. Accordingly, if
neither of the notices described in the preceding sentence have been given, the Supplemental
Payment Obligation will not terminate by reason of this notice.



 









 





     Finally, NAI acknowledges that because the delivery of this notice constitutes a 97-10/Event,
BNPPLC will have the right at any time for any reason or no reason to terminate the Lease by notice
to NAI.



	 	 	 	 	 
	 	NETWORK APPLIANCE, INC., a Delaware corporation

 	 
	 	By:  	/s/  Steven
J. Gomo	 
	 	 	Name:  	Steven
Gomo	 	 
	 	 	Title:  	Chief
Financial Officer	 	 
	 



[cc all Participants]



 




Exhibit G to Purchase Agreement — Page 2