exv10w64



 








Exhibit 10.64









LEASE AGREEMENT

(MOFFETT BUSINESS CENTER)




BETWEEN




NETWORK APPLIANCE, INC.

(“NAI”)




AND




BNP PARIBAS LEASING CORPORATION

(“BNPPLC”)




November 29, 2007






 









 







TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	1	 	Term	 	 	3	 
	 
	 	(A)	 	Scheduled Term	 	 	3	 
	 
	 	(B)	 	Extension of the Term	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	2	 	Use and Condition of the Property	 	 	4	 
	 
	 	(A)	 	Use	 	 	4	 
	 
	 	(B)	 	Condition of the Property	 	 	4	 
	 
	 	(C)	 	Consideration for and Scope of Waiver	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	3	 	Rent	 	 	5	 
	 
	 	(A)	 	Base Rent Generally	 	 	5	 
	 
	 	(B)	 	Calculation of and Due Dates for Base Rent	 	 	5	 
	 
	 	 	 	(1)     Determination of Payment Due Dates Generally	 	 	6	 
	 
	 	 	 	(2)     Special Adjustments to Base Rent Payment Dates and Periods	 	 	6	 
	 
	 	 	 	(3)     Base Rent Formula	 	 	6	 
	 
	 	 	 	(4)     Fixed Rate Lock	 	 	6	 
	 
	 	(C)	 	Early Termination of Fixed Rate Lock	 	 	7	 
	 
	 	(D)	 	Additional Rent	 	 	8	 
	 
	 	(E)	 	Arrangement Fee and Upfront Fees	 	 	8	 
	 
	 	(F)	 	Administrative Fees	 	 	8	 
	 
	 	(G)	 	No Demand or Setoff	 	 	8	 
	 
	 	(H)	 	Default Interest and Order of Application	 	 	8	 
	 
	 	(I)	 	Calculations by BNPPLC Are Conclusive	 	 	9	 
	 
	 	 	 	 	 	 	 	 
	4	 	Nature of this Agreement	 	 	9	 
	 
	 	(A)	 	“Net” Lease Generally	 	 	9	 
	 
	 	(B)	 	No Termination	 	 	9	 
	 
	 	(C)	 	Characterization of this Lease	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	5	 	Payment of Executory Costs and Losses Related to the Property	 	 	12	 
	 
	 	(A)	 	Local Impositions	 	 	12	 
	 
	 	(B)	 	Increased Costs; Capital Adequacy Charges	 	 	13	 
	 
	 	(C)	 	NAI’s Payment of Other Losses; General Indemnification	 	 	14	 
	 
	 	(D)	 	Exceptions and Qualifications to Indemnities	 	 	18	 
	 
	 	(E)	 	Refunds and Credits Related to Losses Paid by NAI	 	 	23	 
	 
	 	(F)	 	Reimbursement of Excluded Taxes Paid by NAI	 	 	24	 
	 
	 	(G)	 	Collection on Behalf of Participants	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	6	 	Replacement of Participants	 	 	24	 
	 
	 	(A)	 	NAI’s Right to Substitute Participants	 	 	24	 
	 
	 	(B)	 	Conditions to Replacement of Participants	 	 	25	 








 









 







TABLE OF CONTENTS

(Continued)





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	7	 	Items Included in the Property	 	 	26	 
	 
	 	 	 	 	 	 	 	 
	8	 	Environmental	 	 	26	 
	 
	 	(A)	 	Environmental Covenants by NAI	 	 	26	 
	 
	 	(B)	 	Right of BNPPLC to do Remedial Work Not Performed by NAI	 	 	27	 
	 
	 	(C)	 	Environmental Inspections and Reviews	 	 	27	 
	 
	 	(D)	 	Communications Regarding Environmental Matters	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	9	 	Insurance Required and Condemnation	 	 	29	 
	 
	 	(A)	 	Liability Insurance	 	 	29	 
	 
	 	(B)	 	Property Insurance	 	 	29	 
	 
	 	(C)	 	Failure to Obtain Insurance	 	 	30	 
	 
	 	(D)	 	Condemnation	 	 	30	 
	 
	 	(E)	 	Waiver of Subrogation	 	 	31	 
	 
	 	 	 	 	 	 	 	 
	10	 	Application of Insurance and Condemnation Proceeds	 	 	31	 
	 
	 	(A)	 	Collection and Application of Insurance and Condemnation Proceeds Generally	 	 	31	 
	 
	 	(B)	 	Advances of Escrowed Proceeds to NAI	 	 	32	 
	 
	 	(C)	 	Application of Escrowed Proceeds as a Qualified Prepayment	 	 	32	 
	 
	 	(D)	 	Right of NAI to Receive and Apply Remaining Proceeds Below a Certain Level	 	 	33	 
	 
	 	(E)	 	Special Provisions Applicable After an Event of Default	 	 	33	 
	 
	 	(F)	 	NAI’s Obligation to Restore	 	 	33	 
	 
	 	(G)	 	Takings of All or Substantially All of the Property	 	 	33	 
	 
	 	(H)	 	If Remaining Proceeds Exceed the Lease Balance	 	 	34	 
	 
	 	 	 	 	 	 	 	 
	11	 	Additional Representations, Warranties and Covenants of NAI Concerning the Property	 	 	34	 
	 
	 	(A)	 	Operation and Maintenance	 	 	34	 
	 
	 	(B)	 	Debts for Construction, Maintenance, Operation or Development	 	 	35	 
	 
	 	(C)	 	Repair, Maintenance, Alterations and Additions	 	 	36	 
	 
	 	(D)	 	Permitted Encumbrances	 	 	36	 
	 
	 	(E)	 	Books and Records Concerning the Property	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	12	 	Assignment and Subletting by NAI	 	 	37	 
	 
	 	(A)	 	BNPPLC’s Consent Required	 	 	37	 
	 
	 	(B)	 	Standard for BNPPLC’s Consent to Assignments and Certain Other Matters	 	 	38	 








(ii)









 







TABLE OF CONTENTS

(Continued)






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	 
	 	(C)	 	Consent Not a Waiver	 	 	38	 
	 
	 	 	 	 	 	 	 	 
	13	 	Assignment by BNPPLC	 	 	38	 
	 
	 	(A)	 	Restrictions on Transfers	 	 	38	 
	 
	 	(B)	 	Effect of Permitted Transfer or other Assignment by BNPPLC	 	 	39	 
	 
	 	 	 	 	 	 	 	 
	14	 	BNPPLC’s Right to Enter and to Perform for NAI 	 	 	39	 
	 
	 	(A)	 	Right to Enter	 	 	39	 
	 
	 	(B)	 	Performance for NAI	 	 	39	 
	 
	 	(C)	 	Building Security	 	 	40	 
	 
	 	 	 	 	 	 	 	 
	15	 	Remedies	 	 	40	 
	 
	 	(A)	 	Traditional Lease Remedies	 	 	40	 
	 
	 	(B)	 	Foreclosure Remedies	 	 	42	 
	 
	 	(C)	 	Notice Required So Long As the Purchase Option Continues Under the Purchase Agreement	 	 	43	 
	 
	 	(D)	 	Enforceability	 	 	43	 
	 
	 	(E)	 	Remedies Cumulative	 	 	43	 
	 
	 	 	 	 	 	 	 	 
	16	 	Default by BNPPLC	 	 	44	 
	 
	 	 	 	 	 	 	 	 
	17	 	Quiet Enjoyment	 	 	44	 
	 
	 	 	 	 	 	 	 	 
	18	 	Surrender Upon Termination	 	 	44	 
	 
	 	 	 	 	 	 	 	 
	19	 	Holding Over by NAI	 	 	45	 
	 
	 	 	 	 	 	 	 	 
	20	 	Recording Memorandum	 	 	45	 
	 
	 	 	 	 	 	 	 	 
	21	 	Independent Obligations Evidenced by Other Operative Documents	 	 	45	 
	 
	 	 	 	 	 	 	 	 
	22	 	Proprietary Information and Confidentiality	 	 	45	 
	 
	 	(A)	 	Proprietary Information	 	 	45	 
	 
	 	(B)	 	Confidentiality	 	 	46	 








(iii)









 








TABLE OF CONTENTS

(Continued)




      



Exhibits and Schedules




	 	 	 	 	 
	 	 	 	 	Page
	Exhibit A

	 	Legal Description	 	 
	Exhibit B

	 	California Lien and Foreclosure Provisions	 	 








(iv)











 







LEASE AGREEMENT

(MOFFETT BUSINESS CENTER)




     This LEASE AGREEMENT (MOFFETT BUSINESS CENTER) (this “Lease”), dated as of November 29, 2007
(the “Effective Date”), is made by and between BNP PARIBAS LEASING CORPORATION (“BNPPLC”), a
Delaware corporation, and NETWORK APPLIANCE, INC. (“NAI”), a Delaware corporation.



RECITALS




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



     At the request of NAI and to facilitate the transactions contemplated in the other Operative
Documents, BNPPLC is acquiring the Land described in Exhibit A and improvements on the Land
from AMB Property, L.P., a Delaware limited partnership, (the “Prior Owner”) contemporaneously with
the execution of this Lease.



     In anticipation of BNPPLC’s acquisition of the Land and other property described below, BNPPLC
and NAI have reached agreement as to the terms and conditions upon which BNPPLC is willing to lease
to NAI the Land and the Improvements, and by this Lease BNPPLC and NAI desire to evidence such
agreement.



GRANTING CLAUSES




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




     (1) the Land, including all interests in the Land acquired by BNPPLC from the Prior
Owner;




     (2) any and all Improvements;




     (3) all easements and other rights appurtenant to the Land or to the Improvements; and




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






 









 





 

     and gores between the Land and abutting land.


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




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




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




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




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


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




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



     Without limiting the foregoing, it is understood that so long as NAI continues to be entitled
to possession of the Property pursuant to this Lease, NAI’s possession will extend to and include
(to the exclusion of BNPPLC) not only the Improvements, but also the Land (subject only to BNPPLC’s
limited right of entry on and subject to the terms and conditions set forth in this Lease), and NAI
will be entitled to any benefits conferred upon the owner of the Property by Permitted
Encumbrances, including the right to receive and retain rents as they become due under
Existing Space Leases and to otherwise enforce Existing Space Leases during the term of this
Lease. Accordingly, it is the intent of the parties that BNPPLC will not assume or retain



 




Lease Agreement (Moffett Business Center) — Page 2







 









 








responsibility for the condition of the Land or the Improvements or for any obligations undertaken
by NAI under the Existing Space Leases or under other Permitted Encumbrances.




GENERAL TERMS AND CONDITIONS




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


1 Term.




     (A) Scheduled Term. The term of this Lease (the “Term”) will commence on the Effective
Date and will end on the first Business Day of December, 2012, unless extended as provided in
subparagraph 1(B) or sooner terminated as expressly provided in other provisions of this Lease.



     (B) Extension of the Term. The Term may be extended at the option of NAI for up
to two successive periods of five years each; provided, however, that prior to each such extension
the following conditions must have been satisfied: (A) NAI must have delivered a notice of its
election to exercise the option at least one hundred eighty days prior to the end of the Term, and
prior to the commencement of any such extension BNPPLC and NAI must have agreed in writing upon,
and received the written consent and approval of BNPPLC’s Parent and all Participants (other than
Participants being replaced at the request of NAI as provided in Paragraph 6) to, (1) a
corresponding extension of the date specified in clause (1) of the definition of Designated Sale
Date in the Common Definitions and Provisions Agreement, and (2) an adjustment to the Rent that NAI
will be required to pay during the extension, it being expected that the Rent for the extension may
be different than the Rent required for the original Term or any prior extension, and it being
understood that the Rent for any extension must in all events be satisfactory to both BNPPLC and
NAI, each in its sole and absolute discretion; (B) at the time of NAI’s exercise of its option to
extend, no Event of Default has occurred and is continuing and no Event of Default will result from
the extension; (C) immediately prior to any such extension, this Lease must then remain in effect;
and (D) if this Lease has been assigned by NAI, then NAI must have executed a guaranty (or
confirmed an existing guaranty, if applicable), guaranteeing NAI’s assignee’s obligations under the
Operative Documents throughout such extended Term. With respect to the condition that BNPPLC and
NAI must have agreed upon the Rent required for any extension of the Term, neither NAI nor BNPPLC
is willing to submit itself to a risk of liability or loss of rights hereunder for being judged
unreasonable. Similarly, neither BNPPLC’s Parent nor any Participant is expected to submit itself
to a risk of liability or loss of rights for being judged to have unreasonably withheld consent or
approval to any extension of the Term. Accordingly, NAI, BNPPLC, BNPPLC’s Parent and Participants
will each have sole and absolute discretion in making its determination, and both NAI and BNPPLC
hereby disclaim any obligation express or
implied to be reasonable in negotiating the Rent for any such extension. Subject to the
changes to the Rent and satisfaction of the other conditions listed in this



 




Lease Agreement (Moffett Business Center) — Page 3







 









 








subparagraph, if NAI exercises its option to extend the Term as provided in this
subparagraph, this Lease will continue in full force and effect, and the leasehold estate
hereby granted to NAI will continue without interruption and without any loss of priority
over other interests in or claims against the Property that may be created or arise after
the Effective Date and before the extension.



2 Use and Condition of the Property.




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




     (1) administrative and office space;




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




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




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


The foregoing provisions of this subparagraph will not prevent a tenant under an Existing Space
Lease executed prior to the Effective Date from using the space covered thereby for purposes
expressly authorized by the terms and conditions of such Existing Space Lease.




     (B) Condition of the Property. NAI acknowledges that it has carefully and fully
inspected the Property and accepts the Property in its present state, AS IS, and without
any representation or warranty, express or implied, as to the condition of such property or as to
the use which may be made thereof. NAI
also accepts the Property without any covenant, representation or warranty,



 




Lease Agreement (Moffett Business Center) — Page 4






 









 








express or implied, by BNPPLC or other Interested Parties regarding the title thereto or the rights
of any parties in possession of any part thereof, except as expressly set forth in Paragraph 17.
BNPPLC will not be responsible for any latent or other defect or change of condition in the Land,
Improvements or other Property or for any violations with respect thereto of Applicable Laws.
Further, BNPPLC will not be required to furnish to NAI any facilities or services of any kind,
including water, phone, sewer, steam, heat, gas, air conditioning, electricity, light or power.




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



     However, such exclusion of representations and warranties by BNPPLC is not intended to impair
any representations or warranties made by other parties, including the Prior Owner, the benefit of
which may pass to NAI during the Term because of the definition of Personal Property and Property
above.


3 Rent.




     (A) Base Rent Generally. On each Base Rent Date through the end of the Term, NAI must
pay BNPPLC rent (“Base Rent”), calculated as provided below . Each payment of Base Rent must be
received by BNPPLC no later than 1:00 p.m. (Eastern time) on the date it becomes due; if received
after 1:00 p.m. (Eastern time) it will be considered for purposes of this Lease as received on the
next following Business Day. At least five days prior to any Base Rent Date upon which an
installment of Base Rent becomes due, BNPPLC will notify NAI in writing of the amount of each
installment, calculated as provided below. Any failure by BNPPLC to so notify NAI, however, will
not constitute a waiver of BNPPLC’s right to payment, but absent such notice NAI will not be in
default hereunder for any underpayment resulting therefrom if NAI, in good faith, reasonably
estimates the payment required, makes a timely payment of the amount so estimated and corrects any
underpayment within three Business Days after being notified by BNPPLC of the underpayment.



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




     (1) Determination of Payment Due Dates Generally. For
Base Rent Periods subject to a LIBOR Period Election of six months, Base Rent
will be payable in two



 




Lease Agreement (Moffett Business Center) — Page 5






 









 








installments, with the first installment becoming due on the Base Rent Date that occurs on the
first Business Day of the third calendar month following the commencement of such Base Rent Period,
and with the second installment becoming due on the Base Rent Date upon which the Base Rent Period
ends. For all other Base Rent Periods, Base Rent will be due in one installment on the Base Rent
Date upon which the Base Rent Period ends.




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




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




	 	•	 	the Lease Balance on the first day of such Base Rent Period, times
	 
	 	•	 	the sum of the Effective Rate and the Spread, times
	 
	 	•	 	the number of days in the period from and including the preceding Base Rent
Date to but not including the Base Rent Date upon which the installment is due, divided
by
	 
	 	•	 	three hundred sixty.






     Only for the purpose of illustration, assume the following for a hypothetical Base Rent
Period: that prior to the first day of such Base Rent Period Qualified Prepayments have been
received by BNPPLC, leaving a Lease Balance of $30,000,000; that the Effective Rate for the
Base Rent Period is 6%; that the Spread is one hundred fifty basis points (150/100 of 1%);
and that such Base Rent Period contains exactly thirty days. Under such assumptions, Base
Rent for the hypothetical Base Rent Period will equal:



$30,000,000 x [6% + 1.50%] x 30/360 = $187,500.





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



 




Lease Agreement (Moffett Business Center) — Page 6






 









 










BNP Paribas (the “Fixed Rate Swap”); except that BNPPLC may decline to enter into the Fixed
Rate Swap and to establish a Fixed Rate Lock if:




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




     (b) NAI specifies a Fixed Rate Lock Date in the Fixed Rate Lock Notice that is
prior to the end of any Base Rent Period which commenced before BNPPLC receives the
Fixed Rate Lock Notice;




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




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




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




     (f) any event has occurred or circumstance exists that constitutes a Default.




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



     (C) Early Termination of Fixed Rate Lock. After a Fixed Rate Lock is
established, BNPPLC may cause or suffer a termination in whole or in part of the Fixed
Rate Swap in the event that (i) NAI fails to make any payment of Base Rent required
hereunder on the Base Rent Date when it first becomes due, (ii) the Designated Sale
Date occurs before the date specified in clause (1) of the definition thereof in the
Common Definitions and Provisions Agreement, (iii) for any reason a Qualified
Prepayment is applied to reduce the Lease Balance, (iv) the Lease Balance on the Fixed
Rate Lock Date is less than the notional amount of the Fixed Rate Swap for



 




Lease Agreement (Moffett Business Center) — Page 7






 









 








any reason. NAI must reimburse to BNPPLC any Fixed Rate Settlement Amount charged to BNPPLC in
connection with such a termination, and if the termination is a complete, rather than a partial,
termination of the Fixed Rate Swap then in effect, it will for purposes of this Lease constitute a
termination of the Fixed Rate Lock itself. Further, if BNPPLC is charged penalties or interest
because of its failure to make a timely payment required under the Fixed Rate Swap, and if BNPPLC’s
failure to make the timely payment was caused by NAI’s failure to make a timely payment of Base
Rent or other amounts due hereunder or under other Operative Documents, then such penalties or
interest will constitute Losses against which BNPPLC is entitled to be indemnified pursuant to
subparagraph 5(C). If a Fixed Rate Lock is terminated as provided in this subparagraph, NAI shall
have no right to require BNPPLC to enter into another Interest Rate Swap in order to establish a
new fixed rate.




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



     (E) Arrangement Fee and Upfront Fees. In addition to other amounts payable by NAI
hereunder, contemporaneously with the execution of this Lease NAI must pay BNPPLC an arrangement
fee (the “Arrangement Fee”) and upfront fees (the “Upfront Fees”) as provided in the Closing
Letter. The Arrangement Fee and the Upfront Fees will represent Additional Rent for the first Base
Rent Period.



     (F) Administrative Fees. In addition to other amounts payable by NAI hereunder, on or
before each anniversary of the Effective Date and prior to the Designated Sale Date, NAI must pay
BNPPLC an annual administrative agency fee (an “Administrative Fee”) as provided in the Closing
Letter. Each payment of an Administrative Fee will represent Additional Rent for the first Base
Rent Period during which it first becomes due.



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



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



     (I) Calculations by BNPPLC Are Conclusive. All calculations by BNPPLC of Base Rent,
Additional Rent or any amount needed to calculate Base Rent (including the Effective Rate



 




Lease Agreement (Moffett Business Center) — Page 8






 









 








for any Base Rent Period and the Lease Balance) or Additional Rent will, in the absence of
clear and demonstrable error, be conclusive and binding upon NAI.



4 Nature of this Agreement.




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



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



 




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



     (C) Characterization of this Lease.




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




     (2) Notwithstanding the foregoing, NAI acknowledges and agrees that none of BNPPLC or
the other Interested Parties has made, or will be deemed to have made, in the Operative Documents
or otherwise, any representations or warranties concerning how this Lease and the other Operative
Documents will be characterized or treated under applicable accounting rules, income tax,
regulatory, commercial or real estate law, bankruptcy, insolvency or receivership law or any other
rules or requirements concerning



 




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the tax, accounting or legal characteristics of the Operative Documents. NAI further acknowledges
and agrees that it is sophisticated and knowledgeable regarding all such matters and that it has,
as it deemed appropriate, obtained from and relied upon its own professional accountants, counsel
and other advisors for such tax, accounting and legal advice concerning the
Operative Documents.




     (3) In any event, NAI will be required by subparagraph 5(C) below to indemnify and hold
harmless BNPPLC from and against all additional taxes that may arise or become due because
of any refusal of taxing authorities to recognize and give effect to the intention of the
parties as set forth in subparagraph 4(C)(1) (“Unexpected Recharacterization Taxes”),
including any additional income or capital gain tax that may become due because of payments
to BNPPLC of the purchase price upon any sale under the Purchase Agreement resulting from
any insistence of such taxing authorities that BNPPLC be treated as the “true owner” of the
Property for tax purposes (a “Forced Recharacterization”); provided, however, NAI will not
be required to pay or reimburse Unexpected Recharacterization Taxes to the extent that they
are, in any given tax year, eliminated or offset by actual savings to BNPPLC because of
additional depreciation deductions or other tax benefits available to BNPPLC in the same
year only by reason of the Forced Recharacterization (“Unexpected Tax Savings”). To the
extent Unexpected Recharacterization Taxes are eliminated or offset by Unexpected Tax
Savings in a given tax year, including the tax year in which any sale under the Purchase
Agreement occurs (the “Year of Sale”), such Unexpected Recharacterization Taxes will
constitute Excluded Taxes as provided in clause (D) of the definition thereof in the Common
Definitions and Provisions Agreement. Also, for purposes of this provision, it is
understood that any depreciation deductions first available to BNPPLC in tax years prior to
the Year of Sale and resulting from a Forced Recharacterization (“Prior Year Depreciation
Deductions”) will be considered “available to BNPPLC” in the Year of Sale (and thus will
eliminate or offset any Unexpected Recharacterization Taxes resulting from the recapture of
such Prior Year Depreciation Deductions upon a sale under the Purchase Agreement) to the
extent that (A) such Prior Year Depreciation Deductions are not otherwise used to generate
Unexpected Tax Savings or Unexpected Net Tax Benefits (as defined below), and (B) the tax
laws and regulations applicable in the Year of Sale effectively permit BNPPLC to carry over
the Prior Year Depreciation Deductions to the Year of Sale by allowing BNPPLC to carry over
net operating losses from the years in which the Prior Year Depreciation Deductions were
first available to BNPPLC to the Year of Sale.




     (4) After any Forced Recharacterization, BNPPLC will make a reasonable effort to
determine whether Unexpected Tax Savings exceed Unexpected Recharacterization Taxes
in any given tax year (any such excess being hereinafter called an “Unexpected Net
Tax Benefit”); and if BNPPLC does determine that an Unexpected Net Tax Benefit has
been realized and the amount thereof, BNPPLC will notify NAI of



 




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the same and either credit the amount thereof against payments otherwise then
due or to become due from NAI under this Lease or the other Operative Documents or
pay the amount of such Unexpected Net Tax Benefit to NAI. It is understood,
however, that the tax position of BNPPLC (and the consolidated tax group of which it
is a part) may, in any given tax year, be such that no Unexpected
Net Tax Benefit exists or can be determined with a reasonable effort on the part of
BNPPLC. Therefore, BNPPLC makes no representation that NAI will receive any credits
or payments pursuant to this provision after any Forced Recharacterization. Also,
the determination by BNPPLC of the amount of any Unexpected Net Tax Benefit will be
conclusive absent clear and manifest error, as will any determination by BNPPLC that
the amount of any Unexpected Net Tax Benefit in a given tax year cannot be
calculated with a reasonable effort. If NAI is dissatisfied with any such
determination by BNPPLC prior to the Designated Sale Date, NAI will be entitled to
accelerate the Designated Sale Date (as provided in clause (2) of the definition
thereof), after which NAI may purchase or cause an Applicable Purchaser to purchase
the Property on the accelerated Designated Sale Date pursuant to the Purchase
Agreement.


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




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



     Notwithstanding the foregoing, NAI may in good faith, by appropriate proceedings,
contest the validity, applicability or amount of any asserted Local Imposition, and pending such
contest NAI will not be deemed in default under any of the provisions of this Lease because of the
Local Imposition if (1) NAI diligently prosecutes such contest to completion in a manner reasonably
satisfactory to BNPPLC, and (2) NAI promptly causes to be paid any amount adjudged by a court of
competent jurisdiction to be due, with all costs, penalties and interest thereon, promptly after
such judgment becomes final; provided, however, in any event each such contest must be concluded
and the contested Local Impositions must be paid by NAI prior to the earliest of (i) the date that
any criminal prosecution is instituted or overtly threatened against BNPPLC or its directors,
officers or employees because of the nonpayment thereof or (ii) the date any writ or order is
issued under which any property owned or leased by BNPPLC (including the Property) may be seized or
sold or any other action is taken or overtly threatened against BNPPLC or against any property
owned or leased by BNPPLC because of the nonpayment thereof, or (iii) any Designated Sale Date upon
which, for any reason, NAI or an Affiliate of NAI or any Applicable Purchaser does not purchase
BNPPLC’s interest in the Property pursuant to the Purchase Agreement for a price (when taken
together with any Supplemental Payment paid by NAI pursuant to the Purchase Agreement, in the case
of a purchase by an Applicable Purchaser) equal to the Break Even Price.



 




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




     (1) If there is any increase in the cost to BNPPLC’s Parent or any Participant of
agreeing to make or making, funding or maintaining advances to BNPPLC in
connection with the Property because of any Banking Rules Change, then NAI must from
time to time (after receipt of a request from BNPPLC’s Parent or such Participant as
provided below) pay to BNPPLC for the account of BNPPLC’s Parent or such Participant, as the
case may be, additional amounts sufficient to compensate BNPPLC’s Parent or the Participant
for such increased cost. A certificate as to the amount of such increased cost, submitted
to BNPPLC and NAI by BNPPLC’s Parent or the Participant, will be conclusive and binding upon
NAI, absent clear and demonstrable error.




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




     (3) Notwithstanding the foregoing provisions of this subparagraph 5(B), NAI will not be
obligated to pay any claim for compensation pursuant to this subparagraph 5(B) that arises or
accrues (a) in the case of BNPPLC’s Parent, as a result of any change in the rating assigned to
BNPPLC by rating agencies or bank regulators in regard to BNPPLC’s creditworthiness, record keeping
or failure to comply with Applicable Laws (including U.S. banking regulations applicable to
subsidiaries of a bank holding company), or (b) in the case of BNPPLC’s Parent or any Participant,
more than nine months prior to the date NAI is notified of the intent of BNPPLC’s Parent or such
Participant to make a claim for such charges; provided, that if the Banking Rules Change which
results in a claim for compensation is retroactive, then the nine month period will be extended to
include the period of the retroactive effect of such Banking Rules Change. Further, BNPPLC will
cause BNPPLC’s Parent and any Participant that is an Affiliate of BNPPLC to use commercially
reasonable efforts to reduce or eliminate any claim for compensation pursuant to this subparagraph
5(B), including a change in the office of BNPPLC’s Parent or such Participant through which it
provides and maintains Funding Advances if such change will avoid the need for, or reduce the
amount of, such compensation and will not, in the reasonable judgment of BNPPLC’s Parent or such
Participant, be otherwise disadvantageous to it. It is understood that NAI may also



 




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request similar commercial reasonable efforts on the part of any Participant that is
not an Affiliate of BNPPLC, but if a claim for additional compensation by any such
Participant is not eliminated or waived, then NAI may request that BNPPLC replace
such Participant as provided in Paragraph 6. Nothing in this subparagraph will be
construed to require BNPPLC’s Parent or any Participant to create any new office
through which to make or maintain Funding Advances.




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



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




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




	 	•	 	the ownership or alleged ownership of any interest in
the Property or the Rents;
	 
	 	•	 	the purchase, design, construction, preparation,
installation, inspection, delivery, non-delivery, acceptance,
rejection, possession, use, operation, maintenance, management, rental,
lease, sublease, repossession, condition (including defects, whether or
not discoverable), destruction, repair, alteration, modification,
restoration, addition or substitution, storage, transfer of title,
redelivery, return, sale or other disposition of all or any part of or
interest in the Property;
	 
	 	•	 	the imposition of any Lien (or incurring of any liability to refund
or pay over any amount as a result of any Lien) against all or any part
of or interest in the Property;
	 
	 	•	 	any failure of the Property or NAI itself to comply
with Applicable Laws;
	 
	 	•	 	Existing Space Leases or other Permitted Encumbrances
or any violation thereof;





 




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	 	•	 	Hazardous Substance Activities, including those
occurring prior to the Term;
	 
	 	•	 	the negotiation, administration or enforcement of the
Operative Documents or the Participation Agreement;
	 
	 	•	 	the making or maintenance of Funding Advances;
	 
	 	•	 	any Interest Rate Swap that BNPPLC enters into as
described in subparagraph 3(B)(4) of this Lease;
	 
	 	•	 	the breach by NAI of this Lease, any other Operative
Document or any other document executed by NAI pursuant to or in
connection with any Operative Document;
	 
	 	•	 	any obligations of BNPPLC under the Closing
Certificate; or
	 
	 	•	 	any bodily or personal injury or death or property
damage occurring in or upon or in the vicinity of the Property through
any cause whatsoever.






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




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



 




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federal, state and local tax authorities, as applicable, for the relevant period or periods)
imposed because of the receipt or constructive receipt of the Original Indemnity Payment and
the Additional Indemnity Payment, from (ii) the sum of the Original Indemnity Payment and
the Additional Indemnity Payment. (With regard to any payment or reimbursement of an
Original Indemnity Payment, “After Tax Basis” means that such payment or reimbursement is or
will be made together with the additional amount needed to gross up such Original Indemnity
Payment as described in this provision.)




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




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




	 	•	 	appraisal fees;
	 
	 	•	 	Uniform Commercial Code search fees;
	 
	 	•	 	filing and recording fees;
	 
	 	•	 	inspection fees and expenses;
	 
	 	•	 	brokerage fees and commissions;





 




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





          (4) Defense and Settlement of Indemnified Claims.





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




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




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



 




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     provisions of this Lease.




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



     (D) Exceptions and Qualifications to Indemnities.




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




	 	•	 	Excluded Taxes; or
	 
	 	•	 	Losses incurred or suffered by any Interested Party to the extent proximately
caused by (and attributed by any applicable principles of comparative fault to) the
Established Misconduct of that Interested Party; or
	 
	 	•	 	Losses that result from any Liens Removable by BNPPLC; or
	 
	 	•	 	transaction expenses (including Attorneys’ Fees) incurred by any of the
Participants in connection with the drafting, negotiation or execution of the
Participation Agreement (or supplements making them parties thereto) or in
connection with any due diligence Participants may undertake before entering into
the Participation Agreement; or
	 
	 	•	 	Local Impositions or other Losses contested, if and so long as they
are contested, by NAI in accordance with any of the provisions of this Lease or
other Operative Documents which expressly authorize such contests; or
	 
	 	•	 	transaction expenses or other Losses caused by or necessary to accomplish any
conveyance by BNPPLC to BNPPLC’s Parent or a Qualified Affiliate which constitutes a
Permitted Transfer only by reason of clause (3) of the definition of Permitted
Transfer in the Common Definitions and Provisions Agreement; or
	 
	 	•	 	any amount which may from time to time be payable by BNPPLC to any
Participant representing the excess of “Base Rent” as defined in the Participation
Agreement over Base Rent as defined in and calculated pursuant to this Lease and the
Common Definitions and Provisions Agreement; or





 




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






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




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




     (3) Withholding of Consent to Settlements Proposed by NAI. With regard to any tort claim
against an Interested Party for which NAI undertakes to defend the Interested Party as provided in
subparagraph 5(C)(4)(a), if the Interested Party unreasonably refuses to consent to a settlement of
the claim which is proposed by NAI and which will meet the conditions listed in the next sentence,
NAI’s liability for the cost of continuing the defense and for any other amounts payable in respect
of the claim will be limited to the total cost for which the settlement proposed by NAI would have
been accomplished but for the unreasonable refusal to consent. Any such settlement proposed by
NAI must meet the following conditions: (A) at the time of the settlement by NAI, NAI must pay all
amounts required to release the Interested Party and its property



 




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interests from any further obligation for or liens securing the applicable claim and from any
interest, penalties and other related liabilities, and (B) the settlement or compromise must not
involve an admission of fraud or criminal wrongdoing or result in some other material adverse
consequence to the Interested Party.




     (4) Settlements Without the Prior Consent of NAI.




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




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




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




     (5) No Authority to Admit Wrongdoing by NAI or to Bind NAI to any



 




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




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




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




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




     (6) Defense of Tax Claims. This Lease does not grant to NAI any right to control the defense
of or contest any tax claim for which an Interested Party may have a right to indemnity under
subparagraph 5(C), other than the right to contest Local Impositions as provided in subparagraph
5(A), nor does this Lease grant to NAI the right to inspect the income tax returns, books or
records of any Interested Party. Nevertheless, if a tax claim is asserted against BNPPLC for
which it is entitled to be indemnified pursuant to subparagraph 5(C), BNPPLC will consider in good
faith any defenses and strategies proposed by NAI with regard to such claim. Further, if any such
tax claim is asserted against BNPPLC which involves assertions that apply not only to the



 




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transactions contemplated by this Lease, but also to other similar transactions in which BNPPLC has
participated, then BNPPLC will not settle the claim on a basis that results in a disproportionately
greater tax burden with respect to the transactions contemplated herein than with respect to such
other similar transactions. For example, if taxing authorities assert that both this Lease and
other comparable lease agreements made by BNPPLC are not financing arrangements as intended by the
parties thereto, and on the basis of such assertions the taxing authorities claim that BNPPLC owes
income taxes which are not Excluded Taxes, then BNPPLC will not settle the claim in a manner that
would cause NAI’s liability under subparagraph 5(C) to be disproportionately greater than the
indemnity obligation of another similarly situated tenant of BNPPLC under another lease agreement
with an indemnity provision comparable to subparagraph 5(C). Also, BNPPLC will not grant to
another tenant the right to dictate to BNPPLC the tax position BNPPLC must take in regard to the
Property or the Operative Documents, except that BNPPLC may include provisions comparable to the
foregoing in other leases to assure other tenants against a disproportionately greater burden than
NAI will bear in regard to any settlement
of a tax claim by BNPPLC.




     (7) Indemnified Parties Other than Landlord. As a condition to making any indemnity
payment for Losses directly to any Interested Party other than BNPPLC itself, NAI may
require the Interested Party to confirm and agree in writing that it will be obligated to
make the payments to NAI as provided in subparagraph 5(E)(2) in the event the Interested
Party subsequently receives a refund of the Losses covered by such indemnity payment.



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




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



 




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     BNPPLC.




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




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




     (4) Notwithstanding the foregoing, in no event will BNPPLC or any other Interested
Party be required to make any payment to NAI pursuant to this subparagraph 5(E) when an
Event of Default has occurred and is continuing.



     (F) Reimbursement of Excluded Taxes Paid by NAI. If NAI is ever required (by laws
imposing withholding tax obligations or otherwise) to pay Excluded Taxes that any Interested Party
should have paid, but failed to pay when due, in connection with this Lease, such Interested Party
must reimburse NAI for such Excluded Taxes (together with any additional amount required to
preserve for NAI the full amount of such reimbursement after related taxes are considered,
calculated in the same manner that an Additional Indemnity Payment would be calculated under
subparagraph 5(C)(1) in the case of a reimbursement owed by NAI to an Interested Party) within 30
days after such Interested Party’s receipt of a written demand for such



 




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reimbursement by NAI.




     (G) Collection on Behalf of Participants. BNPPLC may, on behalf of any Participant or
its Affiliates, collect any amount that becomes due from NAI to such Participant or its Affiliates
pursuant to subparagraph 5(B) or 5(C), in which case BNPPLC will be obligated to such Participant
in respect of the collected amount as provided in the Participation Agreement. Alternatively, as
provided in the Participation Agreement, BNPPLC may assign the right to collect any such amount to
such Participant, in which case the Participant will be entitled to collect the same directly from
NAI.


6 Replacement of Participants.




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



     (B) Conditions to Replacement of Participants. NAI and BNPPLC, working together, will
endeavor in good faith to identify New Participants that are willing to replace any Unrelated
Participant described in the preceding subparagraph and that are acceptable to both NAI and BNPPLC.
(The term New Participants may include new parties to the Participation Agreement and it may
include existing Participants that increase their Funding Advances as needed to replace the
Unrelated Participant.) However, nothing contained herein will be construed to require BNPPLC
itself to increase its Percentage (as defined in the Participation Agreement) to replace an
Unrelated Participant, and nothing herein contained will be construed to require BNPPLC itself to
provide or to obtain from its Affiliates Funding Advances to replace the Funding Advances that an
Unrelated Participant has provided or agreed to provide. Also, New Participants will be subject to
the approval of BNPPLC; provided, that BNPPLC must not unreasonably withhold its approval for the
substitution of any New Participant proposed by NAI for any Unrelated Participant so long as (i) no
Event of Default has occurred and is continuing, (ii) BNPPLC determines it can give such approval
without violating Applicable Laws, without breaching its obligations under the Participation
Agreement, and without waiving rights or remedies it has under this Lease or the other Operative
Documents, (iii) BNPPLC or BNPPLC’s



 




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Parent is not involved in any material litigation adverse to the New Participant in any pending
lawsuit or other legal proceeding, and (iv) all of the conditions listed in the next sentence are
satisfied. Any substitution of New Participants for an Unrelated Participant as provided in this
Paragraph will be subject to the following conditions:





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




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




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


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




7 Items Included in the Property. The Land and all Improvements on the Land from time to
time will constitute “Property” covered by this Lease. Further, to the extent heretofore or
hereafter acquired by NAI (in whole or in part) with any portion of the Initial Advance or with
other funds for which NAI receives reimbursement from the Initial Advance, all furnishings,
furniture, chattels, permits, licenses, franchises, certificates and other personal property of
whatever nature will be deemed to have been acquired on behalf of BNPPLC by NAI and will constitute
“Property” covered by this Lease, as will all renewals or replacements of or substitutions for any
such Property. Upon request of BNPPLC, but not more often than once in any period of twelve
consecutive months, NAI will deliver to BNPPLC an inventory describing all significant items of
Personal Property (and, in the case of Tangible Personal Property, showing the make, model, serial
number and location thereof), with a certification by NAI that such inventory is true and complete
and that all items specified in the inventory are covered by this Lease free and clear of any Lien
other than the Permitted Encumbrances or Liens Removable by BNPPLC.




 




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8 Environmental.




     (A) Environmental Covenants by NAI.




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




          (2) NAI will not discharge or permit the discharge of anything (including Permitted
Hazardous Substances) on or from the Property that would require any permit under applicable
Environmental Laws, other than (i) storm water runoff, (ii) waste water discharges through a
publicly owned treatment works, (iii) discharges that are a necessary part of any Remedial
Work, and (iv) other similar discharges consistent with the definition herein of Permitted
Hazardous Substance Use which do not significantly increase the risk of Environmental Losses
to BNPPLC, in each case in strict compliance with Environmental Laws.




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




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



     (B) Right of BNPPLC to do Remedial Work Not Performed by NAI. If NAI’s failure to
perform any Remedial Work required as provided in subparagraph 8(A) continues beyond the
Environmental Cure Period (as defined below), BNPPLC may, in addition to any other remedies
available to it, conduct all or any part of the Remedial Work. To the extent that Remedial Work is
done by BNPPLC pursuant to the preceding sentence (including any removal of Hazardous Substances),
the cost thereof will be a demand obligation owing by NAI to BNPPLC. As used in this subparagraph,
“Environmental Cure Period” means the period ending on the earliest of: (1) ninety days after NAI
is notified of the breach which must be cured within such period or, if during such ninety days NAI
initiates the Remedial Work and diligently and continuously pursues it in accordance with a
timetable accepted and approved by applicable Governmental



 




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Authorities (which may include delays waiting for permits or other authorizations), the date by
which such Remedial Work is to be completed according to such timetable, (2) the date that any
writ or order is issued for the levy or sale of any property owned by BNPPLC (including the
Property) because of such breach, (3) the date that any criminal action is instituted or overtly
threatened against BNPPLC or any of its directors, officers or employees because of such breach, or
(4) any Designated Sale Date upon which, for any reason, NAI or an Affiliate of NAI or any
Applicable Purchaser does not purchase BNPPLC’s interest in the Property pursuant to the Purchase
Agreement for a net price to BNPPLC (when taken together with any Supplemental Payment paid by NAI
pursuant to the Purchase Agreement, in the case of a purchase by an Applicable Purchaser) equal to
the Break Even Price.




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



     (D) Communications Regarding Environmental Matters.




     (1) NAI must promptly advise BNPPLC and Participants of (i) any discovery known to NAI
of any event or circumstance which would render any of the representations of NAI herein or
in any of the other Operative Documents concerning environmental matters materially
inaccurate or misleading if made at the time of such discovery and assuming that NAI was
aware of all relevant facts, (ii) any Remedial Work
(or change in Remedial Work) required or undertaken by NAI or its Affiliates in response



 




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




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




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


9 Insurance Required and Condemnation.




     (A) Liability Insurance. Throughout the Term NAI must maintain commercial general
liability insurance against claims for bodily and personal injury, death and property damage
occurring in or upon or resulting from any occurrence in or upon the Property under one or more
insurance policies, all in such amounts, with such insurance companies and upon such terms and



 




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conditions (including self-insurance, whether by deductible, retention, or otherwise) as are
consistent with NAI’s normal insurance practices in the country where the Land is located. In any
event, policies under which NAI maintains such insurance will provide, by endorsement or otherwise,
that BNPPLC and the other Interested Parties are also insured thereunder against such claims with
coverage that is not limited by any negligence or allegation of negligence on their part and with
coverage that is primary, not merely excess over or contributory with the other commercial general
liability coverage they may themselves maintain. NAI must deliver and maintain with BNPPLC for
each liability insurance policy required by this Lease written confirmation of the policy and the
scope of the coverage provided thereby issued by the applicable insurer or its authorized agent.




     (B) Property Insurance.




     (1) Throughout the Term NAI must keep all Improvements (including all
alterations, additions and changes made to the Improvements) insured against fire and other
casualty under one or more property insurance policies, all in such amounts, with such
insurance companies and upon such terms and conditions (including self-insurance, whether by
deductible, retention, or otherwise) as are consistent with NAI’s normal insurance practices
in the country where the Property is located. In any event, policies under which NAI
maintains such insurance will (a) provide coverage for the full replacement cost of the
Improvements (exclusive of footings and foundations) and on a basis that eliminates any risk
of reduced coverage under co-insurance provisions, (b) show BNPPLC as an insured as its
interest may appear and (c) provide that the protection afforded to BNPPLC thereunder is
primary (such that any policies maintained by BNPPLC itself will be excess, secondary and
noncontributing) and is not to be reduced or impaired by acts or omissions of NAI or any
other beneficiary or insured. NAI must deliver and maintain with BNPPLC for each property
insurance policy required by this Lease written confirmation of the policy and the scope of
the coverage provided thereby issued by the applicable insurer or its authorized agent.




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



 




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BNPPLC must provide NAI with at least forty-five days notice of BNPPLC’s intention to settle
any such claim before settling it unless NAI has already approved of the settlement by
BNPPLC.




     (3) BNPPLC will not in any event or circumstances be liable or responsible for failure
to collect, or to exercise diligence in the collection of, any insurance proceeds.




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



     (C) Failure to Obtain Insurance. If NAI fails to obtain any insurance or to provide
confirmation of any such insurance as required by this Lease, BNPPLC will be entitled (but not
required) to obtain the insurance that NAI has failed to obtain or for which NAI has not provided
the required confirmation and, without limiting BNPPLC’s other remedies under the circumstances,
BNPPLC may require NAI to reimburse BNPPLC for the cost of such insurance and to pay interest
thereon computed at the Default Rate from the date such cost was paid by BNPPLC until the date of
reimbursement by NAI.



     (D) Condemnation. Immediately upon obtaining knowledge of the institution of
any proceedings for the condemnation of the Property or any portion thereof, or any other similar
governmental or quasi-governmental proceedings arising out of injury or damage to the Property or
any portion thereof, each party will promptly notify the other (provided, however, BNPPLC will have
no liability for its failure to provide such notice) of the pendency of such proceedings. NAI
must, at its expense, diligently prosecute any such proceedings and must consult with BNPPLC, its
attorneys and experts and cooperate with them as reasonably requested in the carrying on or defense
of any such proceedings. BNPPLC is hereby authorized, in its own name or in the name of NAI or in
the name of both, at any time when an Event of Default has occurred and is continuing, but not
otherwise without NAI’s prior consent, to execute and deliver valid acquittances for, and to appeal
from, any such judgment, decree or award concerning condemnation of any of the Property. BNPPLC
will not in any event or circumstances be liable or responsible for failure to collect, or to
exercise diligence in the collection of, any such proceeds, judgments, decrees or awards.



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



     (E) Waiver of Subrogation. NAI, for itself and for any Person claiming through it
(including any insurance company claiming by way of subrogation), waives any and every claim which
arises or may arise in its favor against BNPPLC or any other Interested Party to recover



 




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Losses for which NAI is compensated by insurance or would be compensated by the insurance
contemplated in this Lease, but for any deductible or self-insured retention maintained under such
insurance or but for a failure of NAI to maintain the insurance as required by this Lease. NAI
agrees to have such insurance policies properly endorsed so as to make them valid notwithstanding
this waiver, if such endorsement is required to prevent a loss of insurance.



10 Application of Insurance and Condemnation Proceeds.




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




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




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



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



 




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




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



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



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



 




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reason of any insurance deductible or self-insured retention, NAI must pay to BNPPLC upon demand an
additional amount equal to the full amount of such deductible or self insured retention, whereupon
the additional amount paid will be added to the Remaining Proceeds and applied as such by BNPPLC in
accordance with the provisions of this Lease.




     (F) NAI’s Obligation to Restore. Regardless of the adequacy of any Remaining Proceeds
available to NAI hereunder, if the Property is damaged by fire or other casualty or less than all
or substantially all of the Property is taken by condemnation, NAI must either (1) promptly restore
or improve the Property or the remainder thereof to a value no less than the Lease Balance and to a
reasonably safe and sightly condition, or (2) promptly restore the Property or remainder thereof to
a reasonably safe and sightly condition and pay to BNPPLC for application as a Qualified Prepayment
the amount (if any), as determined by BNPPLC, needed to reduce the Lease Balance to no more than
the then current “AS IS” market value of the Property or remainder thereof.



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



     (H) If Remaining Proceeds Exceed the Lease Balance. Notwithstanding the various
provisions of this Paragraph 10 authorizing BNPPLC to apply Remaining Proceeds received by it
during the Term as a Qualified Prepayment, in the event any such Remaining Proceeds exceed the sum
of (i) all payments thereof made to NAI to reimburse it for the costs of repairs and restoration to
the Property, (ii) any application thereof to cover costs incurred by BNPPLC for the repair or
restoration the Property and (iii) the Lease Balance, such excess will not be applied as a
Qualified Prepayment, but rather will constitute Escrowed Proceeds which must, if NAI exercises
the Purchase Option pursuant to the Purchase Agreement, be delivered to the purchaser of the
Property (be it NAI or an Applicable Purchaser) as provided therein.


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




     (A) Operation and Maintenance. NAI must operate and maintain the Property in a
good and workmanlike manner and in compliance with Applicable Laws in all material respects and pay
or cause to be paid all fees or charges of any kind due in connection therewith. (If NAI does not
promptly correct any failure of the Property to comply with Applicable Laws that is the subject of
a written complaint or demand for corrective action given by any Governmental Authority to NAI, or
to BNPPLC and forwarded by it to NAI, then for purposes of the preceding



 




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sentence, NAI will be considered not to have maintained the Property “in compliance with all
Applicable Laws in all material respects” whether or not the noncompliance would be material in the
absence of the complaint or demand.) NAI will not use or occupy, or allow the use or occupancy of,
the Property in any manner which violates any Applicable Laws or which constitutes a public or
private nuisance or which makes void, voidable or cancelable any insurance then in force with
respect to the Property. To the extent that any of the following would, individually or in the
aggregate, materially and adversely affect the value of the Property or the use of the Property for
purposes permitted by this Lease, NAI will not, without BNPPLC’s prior consent: (i) initiate or
permit any zoning reclassification of the Property; (ii) seek any variance under existing zoning
ordinances applicable to the Property; (iii) use or permit the use of the Property in a manner that
would result in such use becoming a nonconforming use under applicable zoning ordinances or similar
laws, rules or regulations; (iv) execute or file any subdivision plat affecting the Property; or
(v) consent to the annexation of the Property to any municipality. NAI will not cause or permit any
drilling or exploration for, or extraction, removal or production of, minerals from the surface or
subsurface of the Property, and NAI will not do anything that could reasonably be expected to
significantly reduce the market value of the Property. If NAI receives a notice or claim from any
Governmental Authority that the Property is not in compliance with any Applicable Law, or that any
action may be taken against BNPPLC because the Property does not comply with any Applicable Law,
NAI must promptly furnish a copy of such notice or claim to BNPPLC.




     Notwithstanding the foregoing, NAI may in good faith, by appropriate proceedings, contest the
validity and applicability of any Applicable Law with respect to the Property, and pending such
contest NAI will not be deemed in default hereunder because of the violation of such Applicable
Law, if NAI diligently prosecutes such contest to completion in a manner reasonably satisfactory to
BNPPLC, and if NAI promptly causes the Property to comply with any such Applicable Law upon a final
determination by a court of competent jurisdiction that the same is valid and applicable to the
Property; provided, however, in any event such contest must be concluded and the violation of such
Applicable Law must be corrected by NAI and any claims asserted against BNPPLC or the Property
because of such violation must be paid by NAI, all prior to the earliest of (i) the date that any
criminal prosecution is instituted or overtly threatened against BNPPLC or any of its directors,
officers or employees because of such violation, (ii) the date that any action is taken or overtly
threatened by any Governmental Authority against BNPPLC or any property owned by BNPPLC (including
the Property) because of such violation, or (iii) a Designated Sale Date upon which, for any
reason, NAI or an Affiliate of NAI or any Applicable Purchaser does not purchase BNPPLC’s interest
in the Property pursuant to the Purchase Agreement for a price to BNPPLC (when taken together with
any Supplemental Payment paid by NAI pursuant to the Purchase Agreement, in the case of a purchase
by an Applicable Purchaser) equal to the Break Even Price.



     (B) Debts for Construction, Maintenance, Operation or Development. NAI must cause all
debts and liabilities incurred in the construction, maintenance, operation or



 




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development of the Property, including invoices for labor, material and equipment and all debts and
charges for utilities servicing the Property, to be promptly paid.




     Notwithstanding the foregoing, NAI may in good faith, by appropriate proceedings,
contest the validity, applicability or amount of any asserted statutory liens in the nature of
contractors’, mechanics’ or materialmens’ liens, and pending such contest NAI will not be deemed in
default under this subparagraph because of the contested lien if (1) within thirty days after being
asked to do so by BNPPLC, NAI bonds over to BNPPLC’s reasonable satisfaction all such contested
liens against the Property alleged to secure an amount in excess of $1,000,000 (individually or in
the aggregate), (2) NAI diligently prosecutes such contest to completion in a manner reasonably
satisfactory to BNPPLC, and (3) NAI promptly causes to be paid any amount adjudged by a court of
competent jurisdiction to be due, with all costs and interest thereon, promptly after such judgment
becomes final; provided, however, that in any event each such contest must be concluded and the
lien, interest and costs must be paid by NAI prior to the earliest of (i) the date that any
criminal prosecution is instituted or overtly threatened against BNPPLC or its directors, officers
or employees because of the nonpayment thereof, (ii) the date that any writ or order is issued
under which the Property or any other property in which BNPPLC has an interest may be seized or
sold or any other action is taken or overtly threatened against BNPPLC or any property in which
BNPPLC has an interest because of the nonpayment thereof, or (iii) a Designated Sale Date upon
which, for any reason, NAI or an Affiliate of NAI or any Applicable Purchaser does not purchase
BNPPLC’s interest in the Property pursuant to the Purchase Agreement for a price to BNPPLC (when
taken together with any Supplemental Payment paid by NAI pursuant to the Purchase Agreement, in the
case of a purchase by an Applicable Purchaser) equal to the Break Even Price.



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



     However, during the Term, so long as no Event of Default has occurred and is continuing,
BNPPLC will not unreasonably withhold a consent requested by NAI pursuant to the preceding sentence
for the construction or alteration of Improvements. NAI acknowledges,



 




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




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



     (D) Permitted Encumbrances. NAI must comply with and will cause to be performed
all of the covenants, agreements and obligations imposed upon the owner of any interest in the
Property by the Permitted Encumbrances. Without limiting the foregoing, NAI must cause all amounts
to be paid when due, the payment of which is secured by any Lien against the Property created by
the Permitted Encumbrances. Without the prior consent of BNPPLC, NAI will not create any new
Permitted Encumbrance or enter into, initiate, approve or consent to any modification of any
Permitted Encumbrance that would create or expand or purport to create or expand obligations or
restrictions which would encumber BNPPLC’s interest in the Property or be binding upon BNPPLC
itself. (Whether BNPPLC must give any such consent requested by NAI during the Term of this Lease
will be governed by subparagraph 4(C) of the Closing Certificate.)



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


12 Assignment and Subletting by NAI.




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



 




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




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



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



     (C) Consent Not a Waiver. No consent by BNPPLC to a sale, assignment, transfer,
mortgage, pledge or hypothecation of this Lease or NAI’s interest hereunder, and no assignment



 




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or subletting of the Property or any part thereof in accordance with this Lease or otherwise with
BNPPLC’s consent, will release NAI from liability hereunder; and any such consent will apply only
to the specific transaction thereby authorized and will not relieve NAI from any requirement of
obtaining the prior consent of BNPPLC to any further sale, assignment, transfer, mortgage, pledge
or hypothecation of this Lease or any interest of NAI hereunder.



13 Assignment by BNPPLC.




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



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


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




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



     (B) Performance for NAI. If NAI fails to perform any act or to take any action
required of it by this Lease or the Closing Certificate, or to pay any money which NAI is required
by this Lease or the Closing Certificate to pay, and if such failure or action constitutes an Event
of Default or renders BNPPLC or any director, officer, employee or Affiliate of BNPPLC at risk of
criminal prosecution or renders BNPPLC’s interest in the Property or any part



 




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thereof at risk of forfeiture by forced sale or otherwise, then in addition to any other remedies
specified herein or otherwise available, BNPPLC may, perform or cause to be performed such act or
take such action or pay such money. Any expenses so incurred by BNPPLC, and any money so paid by
BNPPLC, will be a demand obligation owing by NAI to BNPPLC. Further, upon making such payment,
BNPPLC will be subrogated to all of the rights of the person, corporation or body politic receiving
such payment. But nothing herein will imply any duty upon the part of BNPPLC to do any work which
under any provision of this Lease NAI may be required to perform, and the performance thereof by
BNPPLC will not constitute a waiver of NAI’s default. BNPPLC may during the progress of any such
work by BNPPLC keep and store upon the Property all necessary materials, tools, and equipment.
BNPPLC will not in any event be liable for inconvenience, annoyance, disturbance, loss of business,
or other damage to NAI or the subtenants or invitees of NAI by reason of the performance of any
such work, or on account of bringing materials, supplies and equipment into or through the Property
during the course of such work, and the obligations of NAI under this Lease will not thereby be
excused in any manner.




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




     (1) BNPPLC will give NAI at least 24 hours notice, unless BNPPLC believes in good faith
that an emergency may exist or a Default has occurred and is continuing, because of which
significant damage to the Property or other significant Losses may be sustained if BNPPLC
delays entry to the Property; and




     (2) if then requested to do so by NAI in order to maintain NAI’s security, BNPPLC or
its representative will: (i) sign in at NAI’s security or information desk if NAI has such a
desk on the premises, (ii) wear a visitor’s badge or other reasonable identification, (iii)
permit an employee of NAI to observe such inspection or work, and (iv) comply with other
similar reasonable nondiscriminatory security requirements of NAI that do not, individually
or in the aggregate, significantly interfere with inspections or work of BNPPLC authorized
by this Lease.


In addition, such inspections shall be subject to the rights of tenants under Existing Space
Leases.



15 Remedies.




     (A) Traditional Lease Remedies. At any time after an Event of Default and after BNPPLC
has given any notice required by subparagraph 15(C), BNPPLC will be entitled at BNPPLC’s option
(and without limiting BNPPLC in the exercise of any other right or remedy BNPPLC may have, and
without any further demand or notice except as expressly described in



 




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this subparagraph 15(A)), to exercise any one or more of the following remedies:





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




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




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




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




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




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




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




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




     3) any other amount necessary to compensate BNPPLC for all the
detriment proximately caused by NAI’s failure to perform NAI’s obligations
under this Lease or which in the ordinary course of things would be likely
to result therefrom, including the costs and expenses of



 




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preparing and altering the Property for reletting and all other costs and
expenses of reletting (including Attorneys’ Fees, advertising costs and
brokers’ commissions), and




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




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




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




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




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




     (b) The appointment of a receiver upon the initiative of BNPPLC to protect
BNPPLC’s interest under this Lease; or




     (c) Reasonable withholding of consent to an assignment or subletting,



 




Lease Agreement (Moffett Business Center) — Page 41





 









 








or terminating a subletting or assignment by NAI.



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



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



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



     (E) Remedies Cumulative. No right or remedy herein conferred upon or reserved
to BNPPLC is intended to be exclusive of any other right or remedy, and each and every such right
and remedy will be cumulative and in addition to any other right or remedy given to BNPPLC under
this Lease or other Operative Documents or now or hereafter existing in favor of BNPPLC under
Applicable Laws, except as otherwise expressly provided in the last provision of subparagraph
15(A)(3) above. In addition to other remedies provided in this Lease, BNPPLC



 




Lease Agreement (Moffett Business Center) — Page 42






 









 








will be entitled, to the extent permitted by Applicable Law or in equity, to injunctive relief in
case of the violation, or attempted or threatened violation, of any of the covenants, agreements,
conditions or provisions of this Lease, or to a decree compelling performance of any of the other
covenants, agreements, conditions or provisions of this Lease to be performed by NAI, or to any
other remedy allowed to BNPPLC at law or in equity. Nothing contained in this Lease will limit or
prejudice the right of BNPPLC to prove for and obtain in proceedings for bankruptcy or insolvency
of NAI by reason of the termination of this Lease, an amount equal to the maximum allowed by any
statute or rule of law in effect at the time when, and governing the proceedings in which, the
damages are to be proved, whether or not the amount be greater, equal to, or less than the amount
of the loss or damages referred to above. Without limiting the generality of the foregoing, nothing
contained herein will modify, limit or impair any of the rights and remedies of BNPPLC under the
Purchase Agreement, and BNPPLC will not be required to give the thirty day notice described in
subparagraph 15(C) as a condition precedent to any acceleration of the Designated Sale Date or to
taking any action to enforce the Purchase Agreement. However, to prevent a double recovery, BNPPLC
acknowledges that BNPPLC’s right to recover Lease Termination Damages may be limited by the last
provision of subparagraph 15(A)(3) above in the event BNPPLC collects or remains entitled to
collect a Supplemental Payment as provided in the Purchase Agreement.



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



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



18 Surrender Upon Termination. Unless NAI or an Applicable Purchaser is purchasing or has
purchased BNPPLC’s entire interest in the Property pursuant to the terms of the Purchase Agreement,
NAI must, upon the termination of NAI’s right to occupancy, surrender to BNPPLC the Property,
including Improvements constructed by NAI and fixtures and furnishings included in the Property,
free of all Hazardous Substances (including Permitted Hazardous Substances) and tenancies and with
all Improvements in substantially the same condition as of the date the




 




Lease Agreement (Moffett Business Center) — Page 43






 









 








same were initially completed, excepting only (i) ordinary wear and tear that occurs between
the maintenance, repairs and replacements required by other provisions of this Lease, and (ii)
demolition, alterations and additions which are expressly permitted by the terms of this Lease and
which have been completed by NAI in a good and workmanlike manner in accordance with all Applicable
Laws. Any movable furniture or movable personal property belonging to NAI or any party claiming
under NAI, if not removed at the time of such termination and if BNPPLC so elects, will be deemed
abandoned and become the property of BNPPLC without any payment or offset therefor. If BNPPLC does
not so elect, BNPPLC may remove such property from the Property and store it at NAI’s risk and
expense. NAI must bear the expense of repairing any damage to the Property caused by such removal
by BNPPLC or NAI.



19 Holding Over by NAI. Should NAI not purchase BNPPLC’s right, title and interest in the
Property as provided in the Purchase Agreement, but nonetheless continue to hold the Property after
the termination of this Lease without objection by BNPPLC, whether such termination occurs by lapse
of time or otherwise, such holding over will constitute and be construed as a tenancy from day to
day only on and subject to all of the terms, provisions, covenants and agreements on the part of
NAI hereunder; except that the Base Rent required for each day the holding over continues will be
due and payable by NAI to BNPPLC upon demand and will equal the difference computed by subtracting
(a) any interest accruing on such day under the Purchase Agreement on any past due Supplemental
Payment, from (b) an amount equal to (i) the difference computed by subtracting any Supplemental
Payment previously made by NAI to BNPPLC from the Lease Balance, times (ii) the per annum Default
Rate computed as of such day, divided by (iii) three hundred sixty. No payments of money by NAI to
BNPPLC after the termination of this Lease will reinstate, continue or extend the Term of this
Lease and no extension of this Lease after the termination thereof will be valid unless and until
the same is reduced to writing and signed by both BNPPLC and NAI.



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



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



22 Proprietary Information and Confidentiality.




     (A) Proprietary Information. NAI will have no obligation to provide proprietary



 




Lease Agreement (Moffett Business Center) — Page 44






 









 








information (as defined in the next sentence) to BNPPLC, except and to the extent (1) expressly
required by other terms and conditions of the Operative Documents, or (2) requested by BNPPLC in
connection with any inspection of the Property pursuant to the various provisions hereof and, in
BNPPLC’s reasonably determination, required to allow BNPPLC to accomplish the purposes of such
inspection. (Before NAI delivers any such proprietary information in connection with any inspection
of the Property, NAI may require that BNPPLC confirm and ratify the confidentiality agreements
covering such proprietary information set forth herein.) For purposes of this Lease and the other
Operative Documents, “proprietary information” means NAI’s intellectual property, trade secrets and
other confidential information of value to NAI (including, among other things, information about
NAI’s manufacturing processes, products, marketing and corporate strategies) that (1) is received
by any representative of BNPPLC at the time of any on-site visit to the Property or (2) otherwise
delivered to BNPPLC by or on behalf of NAI and labeled “proprietary” or “confidential” or by some
other similar designation to identify it as information which NAI considers to be proprietary or
confidential.




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



 




Lease Agreement (Moffett Business Center) — Page 45






 









 








example, BNPPLC’s agreement not to oppose a motion by NAI to seal records containing proprietary
information in any court proceeding initiated because of a dispute between the parties over the
Property or the Operative Documents).



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




[The signature pages follow.]




 




Lease Agreement (Moffett Business Center) — Page 46






 









 









     IN WITNESS WHEREOF, this Lease Agreement (Moffett Business Center) is executed to be effective
as of November 29, 2007.



	 	 	 	 	 
	 	BNP PARIBAS LEASING CORPORATION, a Delaware corporation
 	 
	 
	 	By:  	 	 
	 	 	Lloyd G. Cox, Managing Director 	 
	 	 	 	 
	 



 




Lease Agreement (Moffett Business Center) — Signature Page






 









 








[Continuation of signature pages for Lease Agreement (Moffett Business Center) dated as of November
29, 2007]




	 	 	 	 	 
	 	NETWORK APPLIANCE, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Ingemar Lanevi, Vice President and Corporate Treasurer  	 
	 	 	 	 
	 



 




Lease Agreement (Moffett Business Center) — 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:




PARCEL ONE:



All of Parcel 1 as shown upon that certain Map entitled, “Parcel Map being a resubdivision of
Parcel 6 as shown on Map recorded in Book 214 of Maps, at Page 23, 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 1, 1978 in Book 413, at Page 53.




PARCEL TWO:



All of Parcel A, as shown upon that certain Map entitled, “Parcel Map being a resubdivision of
Parcels 2 and 3, as shown on that certain Map recorded March 1, 1978 in Book 413 of Maps, at Page
53, 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 August 21, 1979 in Book 448 of Maps, at Pages 18
and 19.




APN: 110-36-014, 110-36-015







 









 









Exhibit B




California Foreclosure Provisions



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




GRANT OF LIEN AND SECURITY INTEREST.





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






 









 







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



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



FORECLOSURE BY POWER OF SALE




     Upon the occurrence of any Event of Default, the Trustee, its successor or substitute,
and/or BNPPLC is authorized and empowered to execute all written notices then required by law to
cause the Security to be sold under power of sale to satisfy the Secured Obligations. Trustee will
give and record such notices as the law then requires as a condition precedent to a trustee’s sale.
When the minimum period of time required by law after giving all required notices has elapsed,
Trustee, without notice to or demand upon NAI except as otherwise required by law, will sell the
Security at the time and place of sale fixed by it in the notice of sale, at one or several sales,
either as a whole or in separate parcels and in such manner and order, all as BNPPLC or Trustee in
its sole discretion may determine, at public auction to the highest bidder



 




Exhibit B to Lease Agreement (Moffett Business Center) — Page 2






 









 








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



BNPPLC may elect to cause the Security or any part thereof to be sold under the power
of sale herein granted in any manner permitted by applicable law. In connection with any sale or
sales hereunder, BNPPLC may elect to treat any portion of the Security which consists of a right in
action or which is property that can be severed from the Security without causing structural damage
thereto as if the same were personal property, and dispose of the same in accordance with
applicable law, separate and apart from the sale of the real property. Any sale of any




 




Exhibit B to Lease Agreement (Moffett Business Center) — Page 3






 









 








personal property hereunder will be conducted in any manner permitted by the California Uniform
Commercial Code (in this Exhibit called the “Code”). Where any portion of the Security consists of
real property and personal property or fixtures, whether or not such personal property is located
on or within the real property, BNPPLC may elect in its discretion to exercise its rights and
remedies against any or all of the real property, personal property and fixtures, in such order and
manner as is now or hereafter permitted by applicable law. Without limiting the generality of the
foregoing, BNPPLC may, in its sole and absolute discretion and without regard to the adequacy of
its security, elect to proceed against any or all of the real property, personal property and
fixtures in any manner permitted by the Code; and if BNPPLC elects to sell both personal property
and real property together as permitted by the Code, the power of sale herein granted will be
exercisable with respect to all or any of the real property, personal property and fixtures covered
hereby, as designated by BNPPLC, and Trustee is hereby authorized and empowered to conduct any such
sale of any real property, personal property and fixtures in accordance with the procedures
applicable to real property. Where any portion of the Security consists of real property and
personal property, any reinstatement of the Secured Obligations, following default and an election
by BNPPLC to accelerate the maturity of said obligations, which is made by NAI or any other person
or entity permitted to exercise the right of reinstatement under § 2924c of the California Civil
Code or any successor statute, will, in accordance with the terms of Code, not prohibit BNPPLC or
Trustee from conducting a sale or other disposition of any personal property or fixtures or from
otherwise proceeding against or continuing to proceed against any personal property or fixtures in
any manner permitted by the Code, nor will any such reinstatement invalidate, rescind or otherwise
affect any sale, disposition or other proceeding held, conducted or instituted with respect to any
personal property or fixtures prior to such reinstatement or pending at the time of such
reinstatement. Any sums paid to BNPPLC in effecting any reinstatement pursuant to § 2924c of the
California Civil Code will be applied to the indebtedness secured hereby, and to BNPPLC’s
reasonable costs and expenses in the manner required by § 2924c. Should BNPPLC elect to sell any
portion of the Security which is real property, or which is personal property or fixtures that
BNPPLC has elected to sell together with the real property in accordance with the laws governing a
sale of real property, BNPPLC or Trustee will give such notice of default and election to sell as
may then be required by law, and without the necessity of any demand on NAI, Trustee, at the
time(s) and place(s) specified in the notice of sale, will sell said real property, and all estate,
right, title, interest, claim and demand therein, and equity and right of redemption thereof, at
such times and places as required or permitted by law, upon such terms as BNPPLC or Trustee may fix
and specify in the notice of sale or as may be required by law. If the Security consists of
several lots, parcels or items of property, BNPPLC may: (i) designate the order in which such
lots, parcels or items will be offered for sale or sold, or (ii) elect
to sell such lots, parcels or items through a single sale, or through two or more successive sales,
or in any other manner BNPPLC deems in its best interest. Should BNPPLC desire that more than one
sale or other disposition of the Mortgaged Property be conducted, BNPPLC may, at its option, cause
the same to be conducted simultaneously, or successively, on the same day, or on such different
days or times and in such order as BNPPLC may deem to be in its best interests, and no such sale
will exhaust the power
 of sale herein granted or terminate or otherwise affect the lien granted by
NAI herein on, or the security




 




Exhibit B to Lease Agreement (Moffett Business Center) — Page 4






 









 








interests of BNPPLC in, any part of the Security not sold, until all of the indebtedness
secured hereby has been fully paid and satisfied. In the event BNPPLC elects to dispose of the
Security through more than one sale, NAI agrees to pay the costs and expenses of each such sale and
of any judicial proceedings wherein the same may be made, including reasonable compensation to
BNPPLC and Trustee, their agents and counsel, and to pay all expenses, liabilities and advances
made or incurred by BNPPLC and Trustee (or either of them) in connection with such sale or sale,
together with interest on all such advances made by BNPPLC and Trustee (or either of them) at the
Default Rate..




JUDICIAL FORECLOSURE




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



BNPPLC AS PURCHASER




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



UNIFORM COMMERCIAL CODE REMEDIES




     Upon the occurrence of an Event of Default, BNPPLC may exercise its rights of enforcement with
respect to the Collateral under the California Uniform Commercial Code, as amended, and in
conjunction with, in addition to or in substitution for those rights and remedies:




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




     (b) BNPPLC may require NAI to assemble the Collateral and make it



 




Exhibit B to Lease Agreement (Moffett Business Center) — Page 5






 









 










available at a place BNPPLC designates which is mutually convenient to allow BNPPLC to take
possession or dispose of the Collateral; and




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




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




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




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




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




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




     (i) BNPPLC may appoint or delegate any one or more persons as agent to perform any act
or acts necessary or incident to any sale held by BNPPLC, including the sending of notices
and the conduct of the sale, but in the name and on behalf of BNPPLC.



APPOINTMENT OF A RECEIVER




     In addition to all other remedies herein provided for, if any Event of Default occurs or
continues after the Designated Sale Date, BNPPLC will as a matter of right be entitled to the



 




Exhibit B to Lease Agreement (Moffett Business Center) — Page 6






 









 








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




PROVISIONS CONCERNING THE TRUSTEE




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



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



     BNPPLC may appoint a substitute to replace and act as the Trustee hereunder in any
manner now or hereafter provided by law, or in lieu thereof, BNPPLC may from time to time, by an
instrument in writing, appoint substitutes as successor or successors to any Trustee named herein
or acting hereunder, which instrument, executed and acknowledged by BNPPLC and recorded in the
Office of the Recorder of the county in which the Property is located, will be conclusive proof of
proper substitution of such successor Trustee or Trustees, who will thereupon and without
conveyance from the predecessor Trustee, succeed to all its title, estate, rights, powers and
duties. Such instrument must contain the name of the original NAI, Trustee and BNPPLC hereunder,
the instrument number of this Deed of Trust, and the name and address of the successor Trustee. In
the event the Secured Obligations are at any time owned by more than one person or entity, the
holder or holders of not less than a majority in the amount of such Secured Obligations will have
the right and authority to make the appointment of a successor or substitute trustee provided for
in the preceding sentences. Such appointment and designation by BNPPLC or by the holder or holders
of not less than a majority of the Secured Obligations will be full evidence of the right and
authority to make the same and of all facts therein recited. If



 




Exhibit B to Lease Agreement (Moffett Business Center) — Page 7






 









 








BNPPLC is a corporation and such appointment is executed in its behalf by an officer of such
corporation, such appointment will be conclusively presumed to be executed with authority and will
be valid and sufficient without proof of any action by the board of directors or any superior
officer of the corporation. Upon the making of any such appointment and designation, all of the
estate and title of the Trustee in the Security will vest in the named successor or substitute
trustee and he will thereupon succeed to and will hold, possess and execute all the rights, powers,
privileges, immunities and duties herein conferred upon the Trustee; but nevertheless, upon the
written request of BNPPLC or of the successor or substitute Trustee, the Trustee ceasing to act
must execute and deliver an instrument transferring to such successor or substitute Trustee all of
the estate and title in the Security of the Trustee so ceasing to act, together with all the
rights, powers, privileges, immunities and duties herein conferred upon the Trustee, and must duly
assign, transfer and deliver any of the properties and moneys held by said Trustee hereunder to
said successor or substitute Trustee. All references herein to the Trustee will be deemed to refer
to the Trustee (including any successor or substitute appointed and designated as herein provided)
from time to time acting hereunder. NAI hereby ratifies and confirms any and all acts which the
herein named Trustee or his successor or successors, substitute or substitutes, in this trust, do
lawfully by virtue hereof.




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



MISCELLANEOUS




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



 




Exhibit B to Lease Agreement (Moffett Business Center) — Page 8







 









 









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



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



     NAI agrees to pay BNPPLC for each statement of BNPPLC (as beneficiary) regarding the
obligations secured hereby the maximum fee allowed by law or, if there is no maximum fee, such
reasonable fee as is then charged by BNPPLC for rendering such statement.



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



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



 




Exhibit B to Lease Agreement (Moffett Business Center) — Page 9







 











 











COMMON DEFINITIONS

AND PROVISIONS AGREEMENT

(MOFFETT BUSINESS CENTER)




between




BNP PARIBAS LEASING CORPORATION




and




NETWORK APPLIANCE, INC.




Dated as of November 29, 2007













 









 






TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I — LIST OF DEFINED TERMS
	 	 	1	 
	ABR
	 	 	1	 
	ABR Period Election
	 	 	1	 
	Active Negligence
	 	 	2	 
	Additional Rent
	 	 	2	 
	Administrative Fees
	 	 	2	 
	Affiliate
	 	 	2	 
	After Tax Basis
	 	 	2	 
	Applicable Laws
	 	 	2	 
	Applicable Purchaser
	 	 	3	 
	Arrangement Fee
	 	 	3	 
	Attorneys’ Fees
	 	 	3	 
	Banking Rules Change
	 	 	3	 
	Base Rent
	 	 	3	 
	Base Rent Date
	 	 	3	 
	Base Rent Period
	 	 	4	 
	BNPPLC
	 	 	4	 
	BNPPLC’s Parent
	 	 	4	 
	Breakage Costs
	 	 	4	 
	Break Even Price
	 	 	5	 
	Business Day
	 	 	5	 
	Capital Adequacy Charges
	 	 	5	 
	Closing Certificate
	 	 	5	 
	Closing Letter
	 	 	5	 
	Code
	 	 	5	 
	Common Definitions and Provisions Agreement
	 	 	6	 
	Consolidated Debt for Borrowed Money
	 	 	6	 
	Consolidated EBITDA
	 	 	6	 
	Constituent Documents
	 	 	6	 
	Default
	 	 	6	 
	Default Rate
	 	 	6	 
	Designated Sale Date
	 	 	6	 
	Effective Date
	 	 	7	 
	Effective Rate
	 	 	7	 
	Eligible Financial Institution
	 	 	8	 
	Environmental Cutoff Date
	 	 	8	 
	Environmental Laws
	 	 	8	 
	Environmental Losses
	 	 	9	 
	Environmental Report
	 	 	9	 
	Existing Space Leases
	 	 	10	 
	ERISA
	 	 	10	 








 









 







TABLE OF CONTENTS
(Continued)





	 	 	 	 	 
	 	 	Page	 
	 
	ERISA Affiliate
	 	 	10	 
	ERISA Termination Event
	 	 	10	 
	Escrowed Proceeds
	 	 	10	 
	Established Misconduct
	 	 	11	 
	Eurocurrency Liabilities
	 	 	12	 
	Eurodollar Rate Reserve Percentage
	 	 	12	 
	Event of Default
	 	 	12	 
	Excluded Taxes
	 	 	14	 
	Fed Funds Rate
	 	 	16	 
	Fixed Rate
	 	 	16	 
	Fixed Rate Lock
	 	 	16	 
	Fixed Rate Lock Date
	 	 	16	 
	Fixed Rate Lock Termination
	 	 	16	 
	Fixed Rate Lock Termination Date
	 	 	16	 
	Fixed Rate Lock Notice
	 	 	16	 
	Fixed Rate Loss
	 	 	16	 
	Fixed Rate Settlement Amount
	 	 	17	 
	Fixed Rate Swap
	 	 	17	 
	Floating Rate Payor
	 	 	17	 
	Fully Subordinated or Removable
	 	 	17	 
	Funding Advances
	 	 	17	 
	GAAP
	 	 	17	 
	Hazardous Substance
	 	 	18	 
	Hazardous Substance Activity
	 	 	18	 
	Improvements
	 	 	18	 
	Indebtedness
	 	 	19	 
	Initial Advance
	 	 	20	 
	Interested Party
	 	 	20	 
	Interest Rate Swap
	 	 	21	 
	Land
	 	 	21	 
	Lease
	 	 	21	 
	Lease Balance
	 	 	21	 
	Lease Termination Damages
	 	 	21	 
	Liabilities
	 	 	21	 
	LIBOR
	 	 	21	 
	LIBOR Period Election
	 	 	22	 
	Lien
	 	 	23	 
	Liens Removable by BNPPLC
	 	 	23	 
	Local Impositions
	 	 	24	 





 


(ii)









 







TABLE OF CONTENTS
(Continued)





	 	 	 	 	 
	 	 	Page	 
	 
	Losses
	 	 	24	 
	Market Quotation
	 	 	25	 
	Maximum Remarketing Obligation
	 	 	25	 
	Multiemployer Plan
	 	 	25	 
	NAI
	 	 	25	 
	Operative Documents
	 	 	25	 
	Participant
	 	 	26	 
	Participation Agreement
	 	 	26	 
	Permitted Encumbrances
	 	 	26	 
	Permitted Hazardous Substance Use
	 	 	27	 
	Permitted Hazardous Substances
	 	 	27	 
	Permitted Transfer
	 	 	27	 
	Person
	 	 	28	 
	Personal Property
	 	 	28	 
	Plan
	 	 	28	 
	Prime Rate
	 	 	28	 
	Prior Owner
	 	 	28	 
	Property
	 	 	29	 
	Purchase Agreement
	 	 	29	 
	Purchase Option
	 	 	29	 
	Qualified Affiliate
	 	 	29	 
	Qualified Income Payments
	 	 	29	 
	Qualified Prepayments
	 	 	29	 
	Real Property
	 	 	30	 
	Remedial Work
	 	 	30	 
	Rent
	 	 	30	 
	Responsible Financial Officer
	 	 	30	 
	Rolling Four Quarters Period
	 	 	30	 
	Spread
	 	 	30	 
	Subsidiary
	 	 	32	 
	Supplemental Payment
	 	 	32	 
	Supplemental Payment Obligation
	 	 	32	 
	Tangible Personal Property
	 	 	32	 
	Term
	 	 	32	 
	Transaction Expenses
	 	 	32	 
	Unfunded Benefit Liabilities
	 	 	33	 
	Upfront Fees
	 	 	33	 









(iii)









 







TABLE OF CONTENTS
(Continued)





	 	 	 	 	 
	 	 	Page	 
	 
	ARTICLE II — SHARED PROVISIONS
	 	 	33	 
	1.   Notices
	 	 	33	 
	2.   Severability
	 	 	35	 
	3.   No Merger
	 	 	35	 
	4.   No Implied Waiver
	 	 	35	 
	5.   Entire and Only Agreements
	 	 	35	 
	6.   Binding Effect
	 	 	35	 
	7.   Time is of the Essence
	 	 	36	 
	8.   Governing Law
	 	 	36	 
	9.   Paragraph Headings
	 	 	36	 
	10. Negotiated Documents
	 	 	36	 
	11. Terms Not Expressly Defined in an Operative Document
	 	 	36	 
	12. Other Terms and References
	 	 	36	 
	13. Execution in Counterparts
	 	 	37	 
	14. Not a Partnership, Etc
	 	 	37	 
	15. No Fiduciary Relationship Intended
	 	 	37	 
	 
	 	 	 	 
	Annexes
	 
	 	 	 	 
	Annex 1
	ABR Period Election Form 	 
	Annex 2 
	Fixed Rate Lock Notice Form	 
	Annex 3 
	LIBOR Period Election Form	 









(iv) 











 






COMMON DEFINITIONS

AND PROVISIONS AGREEMENT

(MOFFETT BUSINESS CENTER)




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



AGREEMENTS




ARTICLE I — LIST OF DEFINED TERMS




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



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



     “ABR Period Election” means an election to have the Effective Rate for any Base Rent
Period calculated by reference to the ABR, rather than by reference to LIBOR or a Fixed Rate.
NAI may (subject to the limitations and qualifications set forth in this definition) make any Base
Rent Period after the first Base Rent Period subject to an ABR Period Election by a notice given to
BNPPLC in the form attached as Annex 1 at least five Business Days prior to the
commencement of such period. After an ABR Period Election becomes effective, it will remain
in effect for all subsequent Base Rent Periods until the Fixed Rate Lock Date for any Fixed Rate
Lock or a different election is made in accordance with the provisions of this definition and the



 












 








definition of LIBOR Period Election. In no event will changes in any ABR Period Election or LIBOR
Period Election become effective except upon the commencement of a new Base Rent Period. (For
purposes of the Operative Documents, an ABR Period Election for any Base Rent Period will also be
considered in effect on the Effective Date or Base Rent Date upon which such period begins.)



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



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



     “Administrative Fees” means the fees identified as such in subparagraph 3(F) of the
Lease.



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



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



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



     “Applicable Purchaser” means any third party designated to purchase BNPPLC’s



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 2




 











 








interest
in the Property and in any Escrowed Proceeds as provided in the Purchase Agreement.




     “Arrangement Fee” has the meaning indicated in subparagraph 3(E) of the Lease.



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



     “Banking Rules Change” means either: (1) the introduction of or any change after the Effective
Date (other than any change by way of imposition or increase of reserve requirements included in
the Eurodollar Rate Reserve Percentage) in any law or regulation applicable to BNPPLC, BNPPLC’s
Parent or any Participant, or in the generally accepted interpretation by the institutional lending
community of any such law or regulation, or in the interpretation of any such law or regulation
asserted by any regulator, court or other governmental authority (other than any change by way of
imposition or increase of reserve requirements included in the Eurodollar Rate Reserve Percentage)
or (2) the compliance by BNPPLC, BNPPLC’s Parent or any Participant with any new guideline or new
request issued after the Effective Date from any central bank or other governmental authority
(whether or not having the force of law).



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



     “Base Rent Date” means a date upon which Base Rent must be paid under the Lease, all of which
dates will be the first Business Day of a calendar month. The first Base Rent Date will be the
first Business Day of the first calendar month following the Effective Date. Each
successive Base Rent Date after the first Base Rent Date will be the first Business Day of the
first or third calendar month following the calendar month which includes the preceding Base Rent
Date, determined as follows:




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




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


Thus, for example, if a Base Rent Date falls on the first Business Day of September, 2008
and a




 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 3




 











 








LIBOR Period Election of three months commences on such Base Rent Date, then the first Base
Rent Date thereafter will be the first Business Day of December, 2008.




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




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




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


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





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




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



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



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



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



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 4




 











 










     (1) the resulting liquidation or redeployment of deposits or other funds that were used
to make or maintain Funding Advances upon application of a Qualified Prepayment or upon any
sale of the Property pursuant to the Purchase Agreement, if such application or sale occurs
on any day other than the last day of a Base Rent Period; or




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


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




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



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



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



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



     “Closing Letter” means the letter agreement dated as of the Effective Date between
BNPPLC and NAI confirming the amount of the Initial Advance and the Transactions Expenses paid
from the Initial Advance.



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



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



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 5




 











 








accordance with its terms.




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



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



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



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



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



     “Designated Sale Date” means the earliest of:




     (1) the date upon which the Term is scheduled to expire as provided in Paragraph
1(A) of the Lease (i.e., the first Business Day of December, 2012); or




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




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



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 6




 












 










	 	•	 	when an Event of Default has occurred and is continuing; or
	 
	 	•	 	following any change in the zoning or other Applicable Laws affecting the
permitted use or development of the Property that, in BNPPLC’s judgment, materially
reduces the value of the Property; or
	 
	 	•	 	following any discovery of conditions or circumstances on or about the Property,
such as the presence of an endangered species, which are likely to substantially
impede the use or development of the Property and thereby, in BNPPLC’s judgment,
materially reduce the value of the Property;






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




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



     “Effective Date” means November 29, 2007.



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




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




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




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


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




 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 7




 












 








increased or decreased, as the case may be, without prior notice to NAI.



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




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



     “Environmental Cutoff Date” means the later of the dates upon which (i) the Lease
terminates or NAI’s interests in the Property are sold at foreclosure as provided in
Exhibit B attached to the Lease, or (ii) NAI surrenders possession and control of the
Property and ceases to have interest in the Land or Improvements or rights with respect thereto
under any of the Operative Documents.



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



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 8




 












 









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



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




	 	•	 	September 2007 Phase I Environmental Site Assessment by WSP Environmental Strategies, 549
Baltic Way, 603-611 Baltic Way, 641 Baltic Way and 632-634 Caribbean Drive Sunnyvale , CA;
	 
	 	•	 	Clayton Environmental Consultants. Phase I Environmental Site Assessment of the Four
Building Complex at 549 and 611 Baltic Way and 632 Caribbean, Sunnyvale, CA. May 6, 1993;
	 
	 	•	 	Clayton Environmental Consultants. Phase I Environmental Site Assessment of the Four
Building Complex at 549, 611 and 641 Baltic and 632 and 646 Caribbean Drive, Sunnyvale, CA.
March 20, 1996;
	 
	 	•	 	Versar, Inc. Phase I Environmental Site Assessment of Moffett Business Center at
549, 603-611 Baltic Way and 632 and 646 Caribbean Drive, Sunnyvale, CA. November 20, 1996;
and
	 
	 	•	 	Versar, Inc. Asbestos Survey of Moffett Business Center at 549, 603-611 Baltic Way and 632
and 646 Caribbean Drive, Sunnyvale, CA. November 1996.





 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 9





 












 









     “Existing Space Leases” means leases or subleases from NAI of space within the Improvements,
if any, which are existing as of the Effective Date and are included in the list of Permitted
Encumbrances attached as Exhibit B to the Closing Certificate.



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



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



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



     “Escrowed Proceeds” means, subject to the exclusions specified in the next sentence,
any money that is received by BNPPLC from time to time during the Term (and any interest earned
thereon) from any party (1) under any property insurance policy as a result of damage to the
Property, (2) as compensation for any restriction imposed by any Governmental Authority upon
the use or development of the Property or for the condemnation of the Property or any portion
thereof, (3) because of any judgment, decree or award for physical damage to the Property or (4) as
compensation under any title insurance policy or otherwise as a result of any title defect or
claimed title defect with respect to the Property; provided, however, in determining the amount of
“Escrowed Proceeds” there will be deducted all expenses and costs of every type, kind and nature
(including Attorneys’ Fees) incurred by BNPPLC to collect such proceeds. Notwithstanding the
foregoing, “Escrowed Proceeds” will not include (A) any payment to BNPPLC by a Participant or an
Affiliate of BNPPLC that is made to compensate BNPPLC for the Participant’s or Affiliate’s share of
any Losses BNPPLC may incur as a result of any of the events described in the preceding clauses (1)
through (4), (B) any money or proceeds that have been applied as a Qualified Prepayment or to pay
any Breakage Costs, Fixed Rate Settlement Amount or other costs incurred in connection with a
Qualified Prepayment, (C) any money or proceeds that, after no less than ten days notice to NAI,
BNPPLC returns or pays to a third party because of BNPPLC’s good faith belief that such return or
payment is required by law, (D) any



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 10




 












 








money or proceeds paid by BNPPLC to NAI or offset against any
amount owed by NAI, or (E) any money or proceeds used by BNPPLC in accordance with the Lease for
repairs or the restoration of the Property or to obtain development rights or the release of
restrictions that will inure to the benefit of future owners or occupants of the Property. Until
Escrowed Proceeds are paid to NAI pursuant to Paragraph 10 of the Lease, transferred to a
purchaser under the Purchase Agreement as therein provided or applied as a Qualified Prepayment or
as otherwise described in the preceding sentence, BNPPLC will keep the same deposited in one or
more interest bearing accounts, and all interest earned on such account will be added to and made a
part of Escrowed Proceeds.




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




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




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


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




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



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 11




 












 









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



     “Event of Default” means any of the following:



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



     (B) NAI fails to pay the full amount of any Supplemental Payment as provided in the Purchase
Agreement on the Designated Sale Date.



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



     (D) NAI fails to cause any representation or warranty of NAI contained in any of the
Operative Documents that was false or misleading in any material respect when made to be made
true and not misleading (other than as described in the other clauses of this definition), or
NAI fails to comply with any provision of the Operative Documents (other than as described in the
other clauses of this definition), and in either case does not cure such failure prior to the
earlier of (A) thirty days after notice thereof is given to NAI or (B) the date any writ or order
is issued for the levy or sale of any property owned by BNPPLC (including the Property) or any
criminal prosecution is instituted or overtly threatened against BNPPLC or any of its directors,
officers or employees because of such failure; provided, however, that so long as no such writ or
order is issued and no such criminal prosecution is instituted or overtly threatened, the period
within which such failure may be cured by NAI will be extended for a further period (not to exceed
an additional one hundred twenty days) as is necessary for the curing thereof with diligence, if
(but only if) (x) such failure is susceptible of cure but cannot with reasonable diligence be cured
within such thirty day period, (y) NAI promptly commences to cure such failure and thereafter
continuously prosecutes the curing thereof with reasonable diligence and (z) the extension of the
period for cure will not, in any event, cause the period for cure to extend to or beyond the
Designated Sale Date.



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



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 12





 












 









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



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



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



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



     (J) A judgment or order for the payment of money in an amount (not covered by



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 13





 












 








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




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



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



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



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



     “Excluded Taxes” means:



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



     (B) transfer or change of ownership taxes assessed because of BNPPLC’s transfer or
conveyance to any third party of any rights or interest in the Improvements Lease, the Purchase
Agreement or the Property (other than any such taxes assessed because of any Permitted Transfer
under clauses (1), (4) or (5) of the definition of Permitted Transfer in this Agreement);



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



     (D) income taxes that are (i) payable by BNPPLC in respect of any Qualified



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 14





 












 








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




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



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


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



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




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



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



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 15






 












 









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



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



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



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



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



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



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




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




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



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 16




 











 









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



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



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




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




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


provided, however, a Lien will not qualify as Fully Subordinated or Removable under clause (2)
preceding if it provides or includes a power of sale or other right or remedy in favor of the
holder of such Lien which could result in a foreclosure sale or other forfeiture of BNPPLC’s rights
or interests in the Property.




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



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



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



     “Hazardous Substance” means (i) any chemical, compound, material, mixture or substance that is
now or hereafter defined or listed in, regulated under, or otherwise classified pursuant to, any
Environmental Laws as a “hazardous substance,” “hazardous material,” “hazardous waste,” “extremely
hazardous waste or substance,” “infectious waste,” “toxic substance,” “toxic pollutant,” or any
other formulation intended to define, list or classify substances by reason of deleterious
properties, including ignitability, corrosiveness, reactivity, carcinogenicity, toxicity or
reproductive toxicity; (ii) petroleum, any fraction of petroleum,



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 17




 











 








natural gas, natural gas liquids,
liquified natural gas, synthetic gas usable for fuel (or mixtures of natural gas and such synthetic
gas), and ash produced by a resource recovery facility utilizing a municipal solid waste stream,
and drilling fluids, produced waters and other wastes associated with the exploration, development
or production of crude oil, natural gas or geothermal resources; (iii) asbestos and any asbestos
containing material; and (iv) any other material that, because of its quantity, concentration or
physical or chemical characteristics, is the subject of regulation under Applicable Law or poses a
significant present or potential hazard to human health or safety or to the environment if released
into the workplace or the environment.




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



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



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




     (A) Liabilities for borrowed money;




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




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




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



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 18




 












 










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




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




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




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




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




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




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




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




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


For purposes of this definition, the amount of Liabilities described in the last clause of the
preceding sentence with respect to any lease classified according to GAAP as an “operating lease,”
will equal the sum of (1) the present value of rentals and other minimum lease payments required in
connection with such lease [calculated in accordance with SFAS 13 and other GAAP




 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 19




 












 








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



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




     “Initial Advance” means, collectively, all advances made by BNPPLC’s Parent (directly or
through one or more of its Affiliates) and by Participants to or on behalf of BNPPLC on or prior
to the Effective Date to cover the purchase price payable by BNPPLC to the for its interest
in the Land and Improvements and other Property, if any, and to cover the cost to BNPPLC of
certain Transaction Expenses and other amounts confirmed in the Closing Letter.



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



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



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 20




 












 









     “Land” means the land described in Exhibit A attached to the Closing Certificate, the
Lease and the Purchase Agreement.



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



     “Lease Balance” as of any date means the amount equal to the sum of the Initial Advance,
minus all funds actually received by BNPPLC and applied as Qualified Prepayments on or prior
to such date. Under no circumstances will any payment of Base Rent or other Qualified Income
Payments reduce the Lease Balance.



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



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



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




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




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




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




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



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 21




 












 










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


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




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




	 	•	 	No LIBOR Period Election will be effective that would cause a Base Rent Period
to extend beyond the end of the scheduled Term or beyond a Fixed Rate Lock Date.
	 
	 	•	 	No LIBOR Period Election will commence or continue during any period that
begins on or after the Fixed Rate Lock Date applicable to a Fixed Rate Lock and that
ends before or on the date such Fixed Rate Lock is terminated as provided in
subparagraph 3(C) of the Lease.
	 
	 	•	 	Changes in any ABR Period Election or LIBOR Period Election will become
effective only upon the commencement of a new Base Rent Period.
	 
	 	•	 	In the event BNPPLC determines that it would be unlawful (or any central bank





 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 22




 











 










or governmental authority asserts that it would be unlawful) for BNPPLC, BNPPLC’s
Parent or any Participant to provide or maintain Funding Advances during a Base Rent
Period if the Base Rent accrued during such period at a rate based upon LIBOR, NAI
will be deemed to have made such Base Rent Period subject to an ABR Period Election,
not a LIBOR Period Election.




	 	•	 	If for any reason (including BNPPLC’s receipt of a notice from NAI purporting
to make a LIBOR Period Election that is contrary to the foregoing provisions), BNPPLC
is unable to determine with certainty whether a particular Base Rent Period is subject
to a specific LIBOR Period Election of one month, three months or six months, or if any
Event of Default has occurred and is continuing on the third Business Day preceding the
commencement of a particular Base Rent Period, NAI will be deemed to have made an ABR
Period Election for that particular Base Rent Period.





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



     “Liens Removable by BNPPLC” means, and is limited to, Liens encumbering the Property
that are asserted (1) other than as contemplated in the Operative Documents, by BNPPLC itself or by
BNPPLC’s Parent, (2) by third parties lawfully claiming through or under BNPPLC (which for purposes
of the Operative Documents will include any judgment liens established against the Property because
of a judgment rendered against BNPPLC and will also include any liens established against the
Property to secure past due Excluded Taxes), or (3) by third parties claiming under a deed or other
instrument duly executed by BNPPLC; provided, however, Liens Removable by BNPPLC will not include
(A) any Permitted Encumbrances (regardless of whether claimed through or under BNPPLC), (B) the
Operative Documents or any other document executed by BNPPLC with the knowledge of (and without
objection by) NAI or NAI’s counsel contemporaneously with the execution and delivery of the
Operative Documents, (C) Liens which are neither lawfully claimed through or under BNPPLC (as
described above) nor claimed under a deed or other instrument duly executed by BNPPLC, (D) Liens
claimed by NAI or claimed through or under a conveyance made by NAI, (E) Liens arising because of
BNPPLC’s compliance with Applicable Law, the Operative Documents, Permitted Encumbrances or any
written request made by NAI, (F) Liens securing the payment of property taxes or other amounts
assessed against the Property by any Governmental Authority, other than to secure the payment of
past due Excluded Taxes or to secure damages caused by (and attributed by any applicable
principles of comparative fault to) BNPPLC’s own Established Misconduct, (G) Liens resulting
from or arising in connection with any breach by NAI of the Operative Documents; or (H) Liens
resulting from or arising in connection with any Permitted Transfer that occurs more than thirty
days after any Designated Sale Date upon which, for any



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 23




 











 








reason, NAI or any Applicable Purchaser
does not purchase BNPPLC’s interest in the Property pursuant to the Purchase Agreement for a price
(when taken together with any Supplemental Payment paid by NAI pursuant to the Purchase Agreement,
in the case of a purchase by an Applicable Purchaser) equal
to the Break Even Price.




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



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



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



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 24






 











 








quotation has
the same highest value or lowest value, then one of such quotations will be disregarded. If fewer
than three quotations are provided, it will be deemed that the Market Quotation in respect of
such Fixed Rate Lock Termination cannot be determined.




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



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



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



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



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



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



     “Participation Agreement” means the Participation Agreement (Moffet Business



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 25




 











 








Center) dated as
of the Effective Date, pursuant to which BANK OF AMERICA, N.A.; GOLDMAN SACHS CREDIT PARTNERS L.P.;
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION; KEYBANK NATIONAL ASSOCIATION; MORGAN STANLEY BANK;
SUMITOMO MITSUI BANKING CORPORATION; and WELLS FARGO BANK, N.A. are agreeing with BNPPLC to
participate in the risks and rewards to BNPPLC of the Operative Documents, as such Participation
Agreement may be extended, supplemented, amended, restated or otherwise modified from time to time
in accordance with its terms. It is understood, however, that because the Participation Agreement
will expressly make NAI a third party beneficiary of each Participant’s obligations thereunder to
make advances to BNPPLC in connection with Construction Advances under the Construction Agreement,
NAI’s consent will be required to any amendment of the Participation Agreement that limits or
excuses such obligations.




     “Permitted Encumbrances” means (i) the encumbrances and other matters affecting the
Property that are set forth in Exhibit B attached to the Closing Certificate, (ii) any
easement agreement or other document affecting title to the Property executed by BNPPLC at the
request of or with the consent of NAI, (iii) any Liens securing the payment of Local Impositions
which are not delinquent or claimed to be delinquent or which are being contested in accordance
with subparagraph 5(A) of the Lease, and (iv) statutory liens, if any, in the nature of
contractors’, mechanics’ or materialmen’s liens for amounts not past due or claimed to be past due
for more than thirty days or which are being contested in accordance with subparagraph
11(B) of the Lease, (v) Liens which are Fully Subordinated or Removable.



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




     (1) exceed that reasonably required for the use and operation of the Property for the
purposes expressly permitted under subparagraph 2(A) of the Lease; or




     (2) include any disposal, discharge or other release of Hazardous Substances from the
Property in any manner that might allow such substances to reach surface water or
groundwater, except (i) through a lawful and properly authorized discharge (A) to a publicly
owned treatment works or (B) with rainwater or storm water runoff in accordance with
Applicable Laws and any permits obtained by NAI that govern such runoff; or (ii) any such
disposal, discharge or other release of Hazardous Substances for which no permits are
required and which are not otherwise regulated under applicable Environmental Laws.


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




 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 26





 











 








Recycling Act
of 1980, the Solid Waste Disposal Act Amendments of 1980, and the Hazardous and Solid Waste
Amendments of 1984..




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



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




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




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




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




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




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



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



 
Common Definitions and Provisions Agreement (Moffett Business Center) — Page 27





 











 






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



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



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



     “Prior Owner” means AMB Property, L.P., a Delaware limited partnership, which is at the
request and direction of NAI conveying the Property to BNPPLC contemporaneously with the execution
of the Operative Documents.



     “Property” means the Personal Property and the Real Property, collectively.



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



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



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



     “Qualified Income Payments” means: (A) Base Rent; (B) payments of the following made to BNPPLC
to satisfy the Lease: the Upfront Fees, the Arrangement Fee, Administrative Fees, Increased Cost
Charges and Capital Adequacy Charges; (C) any interest paid to BNPPLC or any Participant pursuant
to subparagraph 3(H) of the Lease; and (D) payments by BNPPLC to Participants required under the Participation Agreements because of BNPPLC’s receipt of
payments described in the preceding clauses (A) through (C).



 
Comman Definitions and Provisions Agreement (Moffett Business Center) — Page 28





 










 









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




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




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




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




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




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


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




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



     “Remedial Work” means any investigation, monitoring, clean-up, containment, remediation,
removal, payment of response costs, or restoration work and the preparation and implementation of
any closure or other required remedial plans that any governmental agency or



 
Comman Definitions and Provisions Agreement (Moffett Business Center) — Page 29





 










 








political subdivision requires or approves (or could reasonably be expected to require if it was aware of all relevant
circumstances concerning the Property), whether by judicial order or otherwise, because of the
presence of or suspected presence of Hazardous Substances in, on, under or about the Property or
because of any prior Hazardous Substance Activity.




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



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



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



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




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




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




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



 
Comman Definitions and Provisions Agreement (Moffett Business Center) — Page 30





 










 










Rate less the Effective Rate.



	 	 	 	 	 
	Levels	 	Ratio of Consolidated Debt for Borrowed	 	Spread
	 	 	Money to Consolidated EBITDA	 	 
	 
	Level I

	 	less than 0.5
	 	35.0 basis points
	Level II

	 	greater than or equal to 0.5, but less
than 1.0
	 	45.0 basis points
	Level III

	 	greater than or equal to 1.0, but less
than 1.5
	 	55.0 basis points
	Level IV

	 	greater than or equal to 1.5, but less
than 2.0
	 	70.0 basis points
	Level IV

	 	greater than or equal to 2.0
	 	85.0 basis points





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




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



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



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



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



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



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




 
Comman Definitions and Provisions Agreement (Moffett Business Center)  — Page 31




 










 










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



     “Upfront Fees” has the meaning indicated in subparagraph 3(E) of the Lease.



ARTICLE II — SHARED PROVISIONS




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



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




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


Federal Reserve Bank of New York

BNP Paribas — New York Branch

Favor: BNP Paribas Leasing Corporation

ABA 026 007 689

/AC/ 0200-517000-070-78

Reference: Network Appliance, Inc./Building 9 Lease





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




     (ii) All notices, demands, approvals, consents and other communications to be made
under any Operative Document or Related Document to or by the parties thereto must, to be
effective for purposes thereof, be in writing. Notices, demands and other communications
required or permitted under any Operative Document or Related



 
Comman Definitions and Provisions Agreement (Moffett Business Center) — Page 32






 










 










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


Address of BNPPLC:



BNP Paribas Leasing Corporation

12201 Merit Drive, Suite 860

Dallas, Texas 75251

Attention: Lloyd G. Cox, Managing Director

Telecopy: (972) 788-9140



Address of NAI:



Network Appliance, Inc.

7301 Kit Creek Road

Research Triangle Park, NC 27709

Attention: Ingemar Lanevi

Telecopy: (919) 476-5750



With a copy to:



Network Appliance, Inc.

495 East Java Drive

Sunnyvale, California 94089

Attention: Mr. Thom Bryant

Telecopy: (408)-822-4463



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




 
Comman Definitions and Provisions Agreement (Moffett Business Center) — Page 33





 










 










provision.



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



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



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



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



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



 
Comman Definitions and Provisions Agreement (Moffett Business Center) — Page 34





 










 








assignment is permitted thereunder, their respective assigns.




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



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



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



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



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



     12. Other Terms and References. Words of any gender used in each
Operative Document will be held and construed to include any other gender, and words in the
singular number will be held to include the plural and vice versa, unless the context otherwise
requires. References in any Operative Document to Paragraphs, subparagraphs, Sections, subsections
or other subdivisions refer to the corresponding Paragraphs, subparagraphs, Sections, subsections
or subdivisions of that Operative Document, unless specific reference is made to another document
or instrument. References in any Operative Document to any Schedule or Exhibit refer to the
corresponding Schedule or Exhibit attached to that Operative Document, which are made a part
thereof by such reference. All capitalized terms used in each Operative Document which refer to
other documents will be deemed to refer to such other documents as they may be renewed, extended,
supplemented, amended or otherwise modified from time to time, provided such documents are not
renewed, extended or modified in breach of any provision contained in the
Operative Documents or, in the case of any other document to which BNPPLC or NAI is a party or
intended beneficiary, without its consent. All accounting terms used but not specifically defined
in any Operative Document will be construed in accordance with GAAP. The words “this [Agreement]”,
“herein”, “hereof”, “hereby”, “hereunder” and words of similar import when used in each Operative
Document refer to that Operative Document as a whole and not to any particular subdivision unless
expressly so limited. The phrases “this Paragraph”, “this subparagraph”, “this Section”, “this
subsection” and similar phrases used in any Operative



 
Comman Definitions and Provisions Agreement (Moffett Business Center)- Page 35






 










 








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




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



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



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



[The signature pages follow.]




 
Comman Definitions and Provisions Agreement (Moffett Business Center) — Page 36






 










 








     IN WITNESS WHEREOF, this Common Definitions and Provisions Agreement (Moffett Business Center)
is executed to be effective as of November 29, 2007.



	 	 	 	 	 
	 	BNP PARIBAS LEASING CORPORATION, a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Lloyd G. Cox, Managing Director 	 
	 	 	 	 
	 



 

Comman Definitions and Provisions Agreement (Moffett Business Center) — Signature Page





 










 








[Continuation of signature pages for Common Definitions and Provisions Agreement (Moffett Business
Center) dated as of November 29, 2007]




	 	 	 	 	 
	 	NETWORK APPLIANCE, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Ingemar Lanevi, Vice President and Corporate	 
	 	 	Treasurer 	 
	 



 
Comman Definitions and Provisions Agreement (Moffett Business Center) — Signature Page






 










 








Annex 1




Notice of ABR Period Election




[Date]




BNP Paribas Leasing Corporation

12201 Merit Drive, Suite 860

Dallas, Texas 75251

Attention: Lloyd G. Cox, Managing Director

Telecopy: (972) 788-9140




Gentlemen:





     Capitalized terms used in this letter are intended to have the meanings assigned to them in
the Common Definitions and Provisions Agreement (Moffett Business Center) dated as of November 29,
2007, between you, BNP Paribas Leasing Corporation, and the undersigned, Network Appliance, Inc.
This letter constitutes notice of our election to make the first Base Rent Period beginning on or
after                    , 20      subject to an ABR Period Election.



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


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




	 	 	 	 	 
	 	NETWORK APPLIANCE, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[cc all Participants]






 










 









Annex 2




Fixed Rate Lock Notice




[Date]




BNP Paribas Leasing Corporation

12201 Merit Drive, Suite 860

Dallas, Texas 75251

Attention: Lloyd G. Cox, Managing Director

Telecopy: (972) 788-9140




Gentlemen:





     Capitalized terms used in this letter are intended to have the meanings assigned to them in
the Common Definitions and Provisions Agreement (Moffett Business Center) dated as of November 29,
2007, between you, BNP Paribas Leasing Corporation, and the undersigned, Network Appliance, Inc..
By this letter, which is given pursuant to subparagraph 3(B)(4) of the Lease, NAI requests
that BNPPLC promptly establish a Fixed Rate for a notional amount equal to the Lease Balance as of
the date of this letter for use in the calculation of the Effective Rate for all Base Rent Periods
commencing on or after the following Fixed Rate Lock Date:                     , 20     .



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



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



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


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




 










 








	 	 	 	 	 
	 	NETWORK APPLIANCE, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[cc all Participants]







Annex 2 — Page 2









 









Annex 3




Notice of LIBOR Period Election




[Date]




BNP Paribas Leasing Corporation

12201 Merit Drive, Suite 860

Dallas, Texas 75251

Attention: Lloyd G. Cox, Managing Director

Telecopy: (972) 788-9140




Gentlemen:





     Capitalized terms used in this letter are intended to have the meanings assigned to them in
the Common Definitions and Provisions Agreement (Moffett Business Center) dated as of November 29,
2007, between you, BNP Paribas Leasing Corporation, and the undersigned, Network Appliance, Inc..
This letter constitutes notice of our election to make the first Base Rent Period beginning on or
after                    , 20      subject to a LIBOR Period Election of                      month(s).



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



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




	 	 	 	 	 
	 	NETWORK APPLIANCE, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[cc all Participants]





 












 






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



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



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



     “Prior Owner” means AMB Property, L.P., a Delaware limited partnership, which is at the
request and direction of NAI conveying the Property to BNPPLC contemporaneously with the execution
of the Operative Documents.



     “Property” means the Personal Property and the Real Property, collectively.



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



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



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



     “Qualified Income Payments” means: (A) Base Rent; (B) payments of the following made to BNPPLC
to satisfy the Lease: the Upfront Fees, the Arrangement Fee, Administrative Fees, Increased Cost
Charges and Capital Adequacy Charges; (C) any interest paid to BNPPLC or any Participant pursuant
to subparagraph 3(H) of the Lease; and (D) payments by BNPPLC to Participants required under the Participation Agreements because of BNPPLC’s receipt of
payments described in the preceding clauses (A) through (C).



 
Comman Definitions and Provisions Agreement (Moffett Business Center) — Page 28





 










 









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




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




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




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




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




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


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




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



     “Remedial Work” means any investigation, monitoring, clean-up, containment, remediation,
removal, payment of response costs, or restoration work and the preparation and implementation of
any closure or other required remedial plans that any governmental agency or



 
Comman Definitions and Provisions Agreement (Moffett Business Center) — Page 29





 










 








political subdivision requires or approves (or could reasonably be expected to require if it was aware of all relevant
circumstances concerning the Property), whether by judicial order or otherwise, because of the
presence of or suspected presence of Hazardous Substances in, on, under or about the Property or
because of any prior Hazardous Substance Activity.




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



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



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



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




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




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




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



 
Comman Definitions and Provisions Agreement (Moffett Business Center) — Page 30





 










 










Rate less the Effective Rate.



	 	 	 	 	 
	Levels	 	Ratio of Consolidated Debt for Borrowed	 	Spread
	 	 	Money to Consolidated EBITDA	 	 
	 
	Level I

	 	less than 0.5
	 	35.0 basis points
	Level II

	 	greater than or equal to 0.5, but less
than 1.0
	 	45.0 basis points
	Level III

	 	greater than or equal to 1.0, but less
than 1.5
	 	55.0 basis points
	Level IV

	 	greater than or equal to 1.5, but less
than 2.0
	 	70.0 basis points
	Level IV

	 	greater than or equal to 2.0
	 	85.0 basis points





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




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



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



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



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



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



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



 
Comman Definitions and Provisions Agreement (Moffett Business Center) — Page 31




 










 









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



     “Upfront Fees” has the meaning indicated in subparagraph 3(E) of the Lease.



ARTICLE II — SHARED PROVISIONS




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



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




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


Federal Reserve Bank of New York

BNP Paribas — New York Branch

Favor: BNP Paribas Leasing Corporation

ABA 026 007 689

/AC/ 0200-517000-070-78

Reference: Network Appliance, Inc./Building 9 Lease





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




     (ii) All notices, demands, approvals, consents and other communications to be made
under any Operative Document or Related Document to or by the parties thereto must, to be
effective for purposes thereof, be in writing. Notices, demands and other communications
required or permitted under any Operative Document or Related



 
Comman Definitions and Provisions Agreement (Moffett Business Center) — Page 32






 










 










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


Address of BNPPLC:



BNP Paribas Leasing Corporation

12201 Merit Drive, Suite 860

Dallas, Texas 75251

Attention: Lloyd G. Cox, Managing Director

Telecopy: (972) 788-9140



Address of NAI:



Network Appliance, Inc.

7301 Kit Creek Road

Research Triangle Park, NC 27709

Attention: Ingemar Lanevi

Telecopy: (919) 476-5750



With a copy to:



Network Appliance, Inc.

495 East Java Drive

Sunnyvale, California 94089

Attention: Mr. Thom Bryant

Telecopy: (408)-822-4463



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




 
Comman Definitions and Provisions Agreement (Moffett Business Center) — Page 33





 










 










provision.



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



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



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



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



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



 
Comman Definitions and Provisions Agreement (Moffett Business Center) — Page 34





 










 








assignment is permitted thereunder, their respective assigns.




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



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



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



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



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



     12. Other Terms and References. Words of any gender used in each
Operative Document will be held and construed to include any other gender, and words in the
singular number will be held to include the plural and vice versa, unless the context otherwise
requires. References in any Operative Document to Paragraphs, subparagraphs, Sections, subsections
or other subdivisions refer to the corresponding Paragraphs, subparagraphs, Sections, subsections
or subdivisions of that Operative Document, unless specific reference is made to another document
or instrument. References in any Operative Document to any Schedule or Exhibit refer to the
corresponding Schedule or Exhibit attached to that Operative Document, which are made a part
thereof by such reference. All capitalized terms used in each Operative Document which refer to
other documents will be deemed to refer to such other documents as they may be renewed, extended,
supplemented, amended or otherwise modified from time to time, provided such documents are not
renewed, extended or modified in breach of any provision contained in the
Operative Documents or, in the case of any other document to which BNPPLC or NAI is a party or
intended beneficiary, without its consent. All accounting terms used but not specifically defined
in any Operative Document will be construed in accordance with GAAP. The words “this [Agreement]”,
“herein”, “hereof”, “hereby”, “hereunder” and words of similar import when used in each Operative
Document refer to that Operative Document as a whole and not to any particular subdivision unless
expressly so limited. The phrases “this Paragraph”, “this subparagraph”, “this Section”, “this
subsection” and similar phrases used in any Operative



 
Comman Definitions and Provisions Agreement (Moffett Business Center)- Page 35






 










 








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




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



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



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



[The signature pages follow.]




 
Comman Definitions and Provisions Agreement (Moffett Business Center) — Page 36






 










 








     IN WITNESS WHEREOF, this Common Definitions and Provisions Agreement (Moffett Business Center)
is executed to be effective as of November 29, 2007.



	 	 	 	 	 
	 	BNP PARIBAS LEASING CORPORATION, a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Lloyd G. Cox, Managing Director 	 
	 	 	 	 
	 



 


Comman Definitions and Provisions Agreement (Moffett Business Center) — Signature Page





 










 








[Continuation of signature pages for Common Definitions and Provisions Agreement (Moffett Business
Center) dated as of November 29, 2007]




	 	 	 	 	 
	 	NETWORK APPLIANCE, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Ingemar Lanevi, Vice President and Corporate 	 
	 	 	Treasurer 	 
	 



 
Comman Definitions and Provisions Agreement (Moffett Business Center) — Signature Page






 










 








Annex 1




Notice of ABR Period Election




[Date]




BNP Paribas Leasing Corporation

12201 Merit Drive, Suite 860

Dallas, Texas 75251

Attention: Lloyd G. Cox, Managing Director

Telecopy: (972) 788-9140




Gentlemen:





     Capitalized terms used in this letter are intended to have the meanings assigned to them in
the Common Definitions and Provisions Agreement (Moffett Business Center) dated as of November 29,
2007, between you, BNP Paribas Leasing Corporation, and the undersigned, Network Appliance, Inc.
This letter constitutes notice of our election to make the first Base Rent Period beginning on or
after                    , 20      subject to an ABR Period Election.



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


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




	 	 	 	 	 
	 	NETWORK APPLIANCE, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[cc all Participants]




 
Comman Definitions and Provisions Agreement (Moffett Business Center) — Signature Page




 










 









Annex 2




Fixed Rate Lock Notice




[Date]




BNP Paribas Leasing Corporation

12201 Merit Drive, Suite 860

Dallas, Texas 75251

Attention: Lloyd G. Cox, Managing Director

Telecopy: (972) 788-9140




Gentlemen:





     Capitalized terms used in this letter are intended to have the meanings assigned to them in
the Common Definitions and Provisions Agreement (Moffett Business Center) dated as of November 29,
2007, between you, BNP Paribas Leasing Corporation, and the undersigned, Network Appliance, Inc..
By this letter, which is given pursuant to subparagraph 3(B)(4) of the Lease, NAI requests
that BNPPLC promptly establish a Fixed Rate for a notional amount equal to the Lease Balance as of
the date of this letter for use in the calculation of the Effective Rate for all Base Rent Periods
commencing on or after the following Fixed Rate Lock Date:                     , 20     .



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



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



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


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




 










 








	 	 	 	 	 
	 	NETWORK APPLIANCE, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[cc all Participants]







Annex 2 - Page 2









 









Annex 3




Notice of LIBOR Period Election




[Date]




BNP Paribas Leasing Corporation

12201 Merit Drive, Suite 860

Dallas, Texas 75251

Attention: Lloyd G. Cox, Managing Director

Telecopy: (972) 788-9140




Gentlemen:





     Capitalized terms used in this letter are intended to have the meanings assigned to them in
the Common Definitions and Provisions Agreement (Moffett Business Center) dated as of November 29,
2007, between you, BNP Paribas Leasing Corporation, and the undersigned, Network Appliance, Inc..
This letter constitutes notice of our election to make the first Base Rent Period beginning on or
after                    , 20      subject to a LIBOR Period Election of                      month(s).



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



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




	 	 	 	 	 
	 	NETWORK APPLIANCE, INC., a Delaware corporation

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[cc all Participants]