exv10w68



 






Exhibit 10.68







PURCHASE AGREEMENT

(1299 ORLEANS)




BETWEEN




NETWORK APPLIANCE, INC.

(“NAI”)




AND




BNP PARIBAS LEASING CORPORATION

(“BNPPLC”)




November 29, 2007














 









 






TABLE OF CONTENTS




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

	 	(A)
	 	Purchase Option; Initial Remarketing Rights; Supplemental Payment Obligation
	 	 	7	 
	 

	 	(B)
	 	Designation of the Purchaser
	 	 	9	 
	 

	 	(C)
	 	Delivery of Property Related Documents If BNPPLC Retains the Property
	 	 	9	 
	 

	 	(D)
	 	Effect of the Purchase Option and NAI’s Initial Remarketing Rights on Subsequent Title
Encumbrances
	 	 	9	 
	 

	 	(E)
	 	Security for NAI’s Purchase Option
	 	 	10	 









 









 






TABLE OF CONTENTS
(Continued)





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	3	 	NAI’s Rights, Options and Obligations After the Designated Sale Date	 	 	10	 
	 

	 	(A)
	 	NAI’s Right to Buy During the Thirty Days After the Designated Sale Date
	 	 	10	 
	 

	 	(B)
	 	NAI’s Obligation to Buy if Certain Conditions are Satisfied
	 	 	10	 
	 

	 	(C)
	 	NAI’s Extended Right to Remarket
	 	 	11	 
	 

	 	(D)
	 	Deemed Sale On the Second Anniversary of the Designated Sale Date
	 	 	12	 
	 

	 	(E)
	 	NAI’s Right to Share in Sales Proceeds Received By BNPPLC From any Qualified Sale
	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	4	 	Transfers By BNPPLC After the Designated Sale Date	 	 	12	 
	 

	 	(A)
	 	BNPPLC’s Right to Sell
	 	 	12	 
	 

	 	(B)
	 	Survival of NAI’s Rights and the Supplemental Payment Obligation
	 	 	13	 
	 

	 	(C)
	 	Easements and Other Transfers in the Ordinary Course of Business
	 	 	13	 
	 
	 	 	 	 	 	 	 	 
	5	 	Terms of Conveyance Upon Purchase	 	 	13	 
	 

	 	(A)
	 	Tender of Sale Closing Documents
	 	 	13	 
	 

	 	(B)
	 	Delivery of Escrowed Proceeds
	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	6	 	Survival and Termination of the Rights and Obligations of NAI and BNPPLC	 	 	14	 
	 

	 	(A)
	 	Status of this Agreement Generally
	 	 	14	 
	 

	 	(B)
	 	Automatic Termination of NAI’s Rights
	 	 	15	 
	 

	 	(C)
	 	Payment Only to BNPPLC
	 	 	15	 
	 

	 	(D)
	 	Preferences and Voidable Transfers
	 	 	15	 
	 

	 	(E)
	 	Remedies Under the Other Operative Documents
	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	7	 	Certain Remedies Cumulative	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	8	 	Attorneys’ Fees and Legal Expenses	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	9	 	Successors and Assigns	 	 	16	 









(ii)









 







TABLE OF CONTENTS

(Continued)




Exhibits and Schedules




	 	 	 
	Exhibit A

	 	Legal Description
	 
	 	 
	Exhibit B

	 	Valuation Procedures
	 
	 	 
	Exhibit C

	 	Form of Deed With Limited Title Warranties
	 
	 	 
	Exhibit D

	 	Bill of Sale and Assignment
	 
	 	 
	Exhibit E

	 	Acknowledgment of Disclaimer of Representations and Warranties
	 
	 	 
	Exhibit F

	 	Secretary’s Certificate
	 
	 	 
	Exhibit G

	 	FIRPTA Statement










(iii)











 





PURCHASE AGREEMENT

(1299 ORLEANS)




     This PURCHASE AGREEMENT (1299 ORLEANS) (this “Agreement”), dated as of November 29, 2007 (the
“Effective Date”), is made by and between BNP PARIBAS LEASING CORPORATION (“BNPPLC”), a Delaware
corporation, and NETWORK APPLIANCE, INC. (“NAI”), a Delaware corporation.



RECITALS




     Contemporaneously with the execution of this Agreement, BNPPLC and NAI are executing a Common
Definitions and Provisions Agreement (1299 Orleans) 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, at the request of NAI BNPPLC is acquiring the Land
described in Exhibit A and existing Improvements on the Land pursuant to the Existing
Contract.



     Also contemporaneously with this Agreement, BNPPLC and NAI are executing a Lease Agreement
(1299 Orleans) dated as of the Effective Date (the “Lease”), pursuant to which NAI is leasing from
BNPPLC the Land described in Exhibit A and all Improvements on such Land. (As used herein,
“Property” means (i) all of BNPPLC’s interests, including those conveyed to it by the Prior Owner,
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 or restoration of the Improvements or other property covered by the Lease.)



     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 that is or results from any of the following:




     (A) a failure of NAI to make any payment required by any Operative Document, including
any payment of Rent required by the Lease or any Supplemental Payment required by this
Agreement;




     (B) any Hazardous Substance Activities on or about the Land;




     (C) any failure of NAI to insure, maintain, operate or repair the Property in
accordance with all terms and conditions of the Lease;




     (D) any failure of NAI to apply insurance or condemnation proceeds received by NAI as
required by the Lease;




     (E) any breach by NAI of the provisions in Paragraph 1 of the Closing Certificate;




     (F) any bankruptcy or insolvency proceeding involving NAI or any of its Subsidiaries,
as the debtor, or any of the events or circumstances described in clauses (G), (H) or (I) of
the definition of Event of Default in the Common Definitions and Provisions Agreement;




     (G) any breach by NAI of the financial covenants in subparagraph 3(C) of the Closing
Certificate;




     (H) a failure of NAI or any of its Subsidiaries to pay when due a regularly scheduled
payment of the principal of or premium or interest on any of its Indebtedness which is
outstanding in a principal amount of at least $25,000,000, as described in clause (F) of the
definition of Event of Default in the Common Definitions and Provisions Agreement;




     (I) a failure of NAI or any of its Subsidiaries to pay any judgment or order for the
payment of money rendered against it in an amount (not covered by insurance) which exceeds
$25,000,000, as described in clause (J) of the definition of Event of Default in the Common
Definitions and Provisions Agreement; or




     (J) 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 Default as a
97-1/Default (100%) will not affect the rights or remedies available to BNPPLC because of
the Default.



 
Purchase Agreement (1299 Orleans) — Page 2





 









 









“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.




“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; and 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
	 
	 	•	 	BNPPLC’s Actual Out of Pocket Costs.






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




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




“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 as provided in 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 earliest 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,





 
Purchase Agreement (1299 Orleans) — Page 3





 









 









	 	 	 	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
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 on
the Designated Sale Date to an Applicable Purchaser which is not an Affiliate of NAI. 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 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) any unpaid Base Rent or other amounts due to BNPPLC pursuant to the other Operative
Documents; plus




     (3) BNPPLC’s Actual Out of Pocket Costs; plus



 
Purchase Agreement (1299 Orleans) — Page 4





 









 









     (4) 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 by such parties; together with interest on such excess computed at
the Default Rate for each day prior to the Final Sale Date.




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




	 	•	 	85% of the 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 date upon which the Term of the Lease is scheduled to expire (as such date
is confirmed in clause (1) of the definition of Designated Sale Date in the Common
Definitions and Provisions Agreement).






“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.




“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 the parties make 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)(3).



 
Purchase Agreement (1299 Orleans) — Page 5





 









 









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




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




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




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




“Qualified Sale” means any (1) Deemed Sale as described in subparagraph 3(D), or (2) actual
sale (prior to any such Deemed Sale) of all or substantially all of the Property to an
Applicable Purchaser 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
	 
	 	•	 	is to a third party which is not an Affiliate of BNPPLC and, if it is completed
by a conveyance from BNPPLC prior to eighteen months after the Designated Sale Date, is
for a price not less than the least of the following amounts:






	 	(a)	 	the lowest price at which BNPPLC will be obligated, pursuant to
clause (3) of subparagraph 3(E), to reimburse to NAI the entire amount of any
Supplemental Payment theretofore made by NAI to BNPPLC; 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



 
Purchase Agreement (1299 Orleans) — Page 6





 









 









tender pursuant to Paragraph 5(A) to consummate any sale of the Property pursuant to
this Agreement: (1) a Deed With Limited Title Warranties in the form attached as
Exhibit C, (2) a Bill of Sale and Assignment in the form attached as Exhibit
D, (3) an Acknowledgment of Disclaimer of Representations and Warranties in the form
attached as Exhibit E, (4) a Secretary’s Certificate in the form attached as
Exhibit F, and (5) a certificate concerning tax withholding in the form attached as
Exhibit G.




“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
(the “Conditions to NAI’s Initial Remarketing Rights”) that (i) NAI deliver an
Initial Remarketing Notice to BNPPLC 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 Applicable Purchaser for the Property (i.e.,



 
Purchase Agreement (1299 Orleans) — Page 7





 









 









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 BNPPLC will 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, 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



 
Purchase Agreement (1299 Orleans) — Page 8





 









 









after the Designated Sale
Date.




     (4) For the avoidance of doubt, BNPPLC acknowledges that NAI may elect not to exercise
the Purchase Option or NAI’s Initial Remarketing Rights and instead pay to BNPPLC a
Supplemental Payment equal to the Maximum Remarketing Obligation on the Designated Sale Date
in full satisfaction of its obligations under this subparagraph 2(A).



     (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, together
with all other files, documents and permits of NAI (including all Existing Leases and 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 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 (1299 Orleans) — Page 9





 









 








     (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 (including
all amounts then due under the other 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 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 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) a 97-1/Default (100%) occurs or is continuing on or after the Designated Sale Date;
and



 
Purchase Agreement (1299 Orleans) — Page 10





 









 









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


Further, and without limiting the foregoing, if any Event of Default occurs as described in clauses
(G), (H) or (I) of the definition Event of Default in the Common Definitions and Provisions
Agreement because of any bankruptcy proceeding instituted by or against NAI, as debtor, under Title
11 of the United States Code, then NAI will be obligated (without any further act or notice or
demand by BNPPLC) to pay to BNPPLC the Make Whole Amount and purchase the Property, as if (i)
BNPPLC had exercised the Put Option, and (ii) the second Business Day after the commencement of
such Event of Default was the Final 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(B)
because of NAI’s failure to pay any required Supplemental Payment.




     (3) 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
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”).




     (4) 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.



     (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 the next
subparagraph, 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.



 
Purchase Agreement (1299 Orleans) — Page 11





 









 








     (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 to BNPPLC the Make Whole Amount;




     (2) second, to pay to BNPPLC any other amounts then due from NAI to BNPPLC under any of
the Operative Documents;




     (3) third, to reimburse LRC for any Supplemental Payment previously made by LRC to
BNPPLC; and




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



 
Purchase Agreement (1299 Orleans) — Page 12





 









 







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 made 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 one hundred eighty 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 BNPPLC free from NAI’s rights
under Paragraph 3, although following such 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 Loss 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



 
Purchase Agreement (1299 Orleans) — Page 13





 









 







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.



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




     (A) Status of this Agreement Generally. Except as expressly provided in other
provisions of 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, 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



 
Purchase Agreement (1299 Orleans) — Page 14





 









 







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) 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. 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 amounts due from NAI pursuant to
any of the Operative Documents and its right to exercise the Put Option.



     (C) 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.



     (D) 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.



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



 
Purchase Agreement (1299 Orleans) — Page 15





 









 







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 (1299 Orleans) — Page 16





 









 








     IN WITNESS WHEREOF, this Purchase Agreement (1299 Orleans) is executed to be effective as of
November 29, 2007.



	 	 	 	 	 
	 	BNP PARIBAS LEASING CORPORATION, a Delaware
corporation

 	 
	 	By:  	 	 
	 	 	Lloyd G. Cox, Managing Director 	 



 
Purchase Agreement (1299 Orleans) — Signature Page





 









 







[Continuation of signature pages for Purchase Agreement (1299 Orleans) dated as of November
29, 2007.]




	 	 	 	 	 
	 	NETWORK APPLIANCE, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Ingemar Lanevi, Vice President and Corporate 	 
	 	 	Treasurer 	 
	 



 
Purchase Agreement (1299 Orleans) — Signature Page





 









 








Exhibit A




Legal Description



THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SUNNYVALE, COUNTY OF SANTA CLARA,
STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:



All of Parcel 1, as shown upon that certain Map entitled, “Parcel Map being a Resubdivision of
Parcel A as shown on Map recorded in Book 431 of Maps, at page 32, Santa Clara County Records”,
which Map was filed for record in the Office of the Recorder of the County of Santa Clara, State of
California, on March 8, 1979 in Book 437 of Maps, at Page 9.



APN 110-36-007





 









 








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 depends 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 a rate equal to ABR, 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:





 









 









     (i) the actual physical condition of the Property 1 ; and




     (iii) 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, then 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 appraiser to help with the determination of Fair Market Value. Immediately
after the Third Appraisal Notice is delivered, each of the first two appraisers must 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





 




			
	1	 	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 (1299 Orleans) — Page 2





 









 







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 thirty 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
forty-five 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.


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 MAI or equivalent and with at least five years experience in appraising
commercial properties comparable to the Property. NAI and BNPPLC will 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.



 
Exhibit B to Purchase Agreement (1299 Orleans) — Page 3





 









 








     (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 (1299 Orleans) — Page 4





 









 









Exhibit C




Form of Deed




RECORDING REQUESTED BY

AND WHEN RECORDED MAIL TO:




	 	 	 	 	 
	NAME:

	 	[NAI or the Applicable Purchaser]	 	 
	ADDRESS:
	 	 	 	 
	 

	 	 

	 	 
	ATTN:
	 	 	 	 
	 

	 	 

	 	 
	CITY:
	 	 	 	 
	 

	 	 

	 	 
	STATE:
	 	 	 	 
	 

	 	 

	 	 
	Zip:
	 	 	 	 
	 

	 	 

	 	 






DEED WITH LIMITED TITLE WARRANTIES




     BNP Paribas Leasing Corporation (“Grantor”), a Delaware corporation, for and in consideration
of the sum of Ten Dollars ($10.00) and other valuable consideration paid to Grantor by [NAI or the
Applicable Purchaser] (hereinafter called “Grantee”), the receipt and sufficiency of which are
hereby acknowledged, does hereby GRANT, SELL, CONVEY, ASSIGN and DELIVER to Grantee (1) the land
described in Annex A attached hereto and hereby made a part hereof, and (2) all other rights,
titles and interests of Grantor 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 Grantor and
accepted by Grantee subject to 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 Grantee, its successors and assigns, forever, and Grantor does hereby bind
Grantor and Grantor’s successors and assigns to warrant and forever defend all and singular the
said premises unto Grantee, its successors and assigns against every person whomsoever lawfully
claiming, or to claim the same, or any part thereof by, through or under Grantor, but not
otherwise; subject, however, to the Permitted Encumbrances. Except as expressly set forth in the
preceding sentence, Grantor makes no warranty of title, express or implied.



     Grantee hereby assumes the obligations (including any personal obligations) of Grantor, 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 Deed.



[Signature pages follow.]




 
Exhibit C to Purchase Agreement (1299 Orleans) — Page 2





 









 







IN WITNESS WHEREOF, Grantor and Grantee have signed this Deed to be effective as of ______,
20___.




	 	 	 	 	 
	 	BNP PARIBAS LEASING CORPORATION, a Delaware
corporation

 	 
	 	By:  	 	 
	 	 	Lloyd G. Cox, Managing Director 	 
	 	 	 	 
	 



	 	 	 	 	 	 	 	 	 
	STATE OF

	 	 	 	 	)	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	)	 	 	SS
	COUNTY OF

	 	 	 	 	)	 	 	 
	 

	 	 	 	 	 	 	 	 




On                                         , 20___, 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 to Purchase Agreement (1299 Orleans) — Page 3





 









 







[Continuation of signature pages to Deed dated to be effective as of _______, 20_.]




[NAI or the Applicable Purchaser]




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	Name:
	 	 	 	 
	 

	 	 

	 	 
	Title:
	 	 	 	 
	 

	 	 

	 	 






	 	 	 	 	 	 	 	 	 
	STATE OF

	 	 	 	 	)	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	)	 	 	SS
	COUNTY OF

	 	 	 	 	)	 	 	 
	 

	 	 	 	 	 	 	 	 





     On                                         , 20___, 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 to Purchase Agreement (1299 Orleans) — Page 4





 









 








Annex A




LEGAL DESCRIPTION



[DRAFTING NOTE: TO THE EXTENT THAT THE “LAND” COVERED BY THE LEASE 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.]



THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SUNNYVALE, COUNTY OF SANTA CLARA,
STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:



All of Parcel 1, as shown upon that certain Map entitled, “Parcel Map being a Resubdivision of
Parcel A as shown on Map recorded in Book 431 of Maps, at page 32, Santa Clara County Records”,
which Map was filed for record in the Office of the Recorder of the County of Santa Clara, State of
California, on March 8, 1979 in Book 437 of Maps, at Page 9.



APN 110-36-007




 
Exhibit C to Purchase Agreement (1299 Orleans) — 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 XYZ’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 (1299 Orleans) incorporated by
reference into the Lease Agreement (1299 Orleans) 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. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Chapter 3.5
(Commencing with Section 75) of the Revenue and Taxation code of the State of California. (none
currently assessed)



2. Covenants, conditions and restrictions in the declaration of restrictions:




	 	 	 
	Recorded:

	 	March 8, 1978, Book D511, Page 396, of Official Records
	and re-recorded:

	 	December 12,1978, Book E157, Page 147, of Official Records





Said covenants, conditions and restrictions provide that a violation thereof shall not defeat the
lien of any mortgage or deed of trust made in good faith and for value.



3. Easement for the purposes stated herein, and incidental purposes, shown or dedicated by the Map
recorded in Book 431 of Maps, at Page 32




	 	 	 
	For:

	 	Public Utility Easement
	Affects:

	 	The Easterly 10 feet of Said Land





Said easement is as depicted on the ALTA/ACSM Survey by Kier & Wright, Civil Engineers & Surveyors,
Inc., dated October 1, 2007, Job No. A03080-1




 
Exhibit C to Purchase Agreement (1299 Orleans) — Page 6





 









 









Exhibit D




BILL OF SALE AND ASSIGNMENT




     Reference is made to: (1) that certain Purchase Agreement (1299 Orleans) dated as of November
29, 2007, (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 (1299 Orleans) dated as of November 29, 2007 (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 (1299 Orleans) 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, 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, or (4) any other instrument being delivered to Assignor contemporaneously herewith
pursuant to the Purchase Agreement.[Drafting Note: The following sentence will be included
unless the Property is being sold to NAI or an Affiliate pursuant to subparagraph 2(A)(1), 3(A) or
3(B) of the Purchase Agreement: Also excluded from this conveyance and reserved to Assignor are
(i) the right to retain Escrowed Proceeds, if any, that consist of condemnation or insurance
proceeds resulting from a Pre-completion Force Majeure Event, and (ii) any right to receive future
payments of any such condemnation or insurance proceeds. ].




     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 D to Purchase Agreement (1299 Orleans) — Page 2





 









 







IN WITNESS WHEREOF, Assignor and Assignee have signed this Bill of Sale and Assignment to be
effective as of ______, 20___.




	 	 	 	 	 
	 	BNP PARIBAS LEASING CORPORATION, a Delaware
corporation

 	 
	 	By:  	 	 
	 	 	Lloyd G. Cox, Managing Director 	 
	 	 	 	 
	 



	 	 	 	 	 	 	 	 	 
	STATE OF

	 	 	 	 	)	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	)	 	 	SS
	COUNTY OF

	 	 	 	 	)	 	 	 
	 

	 	 	 	 	 	 	 	 




On                                         , 20___, 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 D to Purchase Agreement (1299 Orleans) — Page 3





 









 








[Continuation of signature pages to Bill of Sale and Assignment dated to be effective as of                     ,
20_.]




[NAI or the Applicable Purchaser]




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	Name:
	 	 	 	 
	 

	 	 

	 	 
	Title:
	 	 	 	 
	 

	 	 

	 	 






	 	 	 	 	 	 	 	 	 
	STATE OF

	 	 	 	 	)	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	)	 	 	SS
	COUNTY OF

	 	 	 	 	)	 	 	 
	 

	 	 	 	 	 	 	 	 




On                                         , 20___, 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 D to Purchase Agreement (1299 Orleans) — Page 4





 









 








Exhibit E




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) a Deed With
Limited Title Warranties, 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 (1299 Orleans) incorporated by reference into the
Purchase Agreement (1299 Orleans) dated as of November 29, 2007 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 Acknowledgment of Disclaimer to be
effective as of                     , 20___.




[NAI or the Applicable Purchaser]




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

	 	 
	Name:
	 	 	 	 
	 

	 	 

	 	 
	Title:
	 	 	 	 
	 

	 	 

	 	 






	 	 	 	 	 	 	 	 	 
	STATE OF

	 	 	 	 	)	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	)	 	 	SS
	COUNTY OF

	 	 	 	 	)	 	 	 
	 

	 	 	 	 	 	 	 	 




On                                         , 20___, 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 E to Purchase Agreement (1299 Orleans) — Page 2





 









 








Exhibit F




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                     
                    , 20___.



 

[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 (1299 Orleans) (herein called the
“Purchase Agreement”) dated as of November 29, 2007, by and between BNP Paribas Leasing Corporation
(“BNPPLC”) and Network Appliance, Inc. (“NAI”) , 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 Santa Clara County, 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 NAI 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 F to Purchase Agreement (1299 Orleans) — Page 2





 









 








Exhibit G




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 [NAI or the Applicable Purchaser] (“Transferee”) that withholding of tax is not
required upon the disposition of a U.S. 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

Telecopy: (972) 788-9140



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:                                         , 20___.



	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 
	 	 	 	 
	 

	 	Title: