LEASE AGREEMENT (1299 ORLEANS) BETWEEN NETWORK APPLIANCE, INC. (“NAI”) AND BNP PARIBAS LEASING CORPORATION (“BNPPLC”) November 29, 2007
(1299 ORLEANS)
(“NAI”)
(“BNPPLC”)
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 |
(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 Xxxxx | 00 | ||||||
(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)
(Continued)
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(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)
(Continued)
Page | ||||||
Exhibits and Schedules | ||||||
Exhibit A | Legal Description | |||||
Exhibit B | California Lien and Foreclosure Provisions |
(iv)
(1299 ORLEANS)
• | 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. |
• | 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; |
• | 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. |
• | appraisal fees; | ||
• | Uniform Commercial Code search fees; | ||
• | filing and recording fees; | ||
• | inspection fees and expenses; | ||
• | brokerage fees and commissions; |
• | 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. |
• | 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 |
• | 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. |
BNP PARIBAS LEASING CORPORATION, a Delaware
corporation |
||||
By: | ||||
Xxxxx X. Xxx, Managing Director | ||||
NETWORK APPLIANCE, INC., a Delaware corporation |
||||
By: | ||||
Ingemar Lanevi, Vice President and Corporate Treasurer | ||||
AND PROVISIONS AGREEMENT
(1299 ORLEANS)
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 | 9 | |||||
ERISA | 10 |
(Continued)
Page | ||||||
ERISA Affiliate | 10 | |||||
ERISA Termination Event | 10 | |||||
Escrowed Proceeds | 10 | |||||
Established Misconduct | 11 | |||||
Eurocurrency Liabilities | 11 | |||||
Eurodollar Rate Reserve Percentage | 11 | |||||
Event of Default | 12 | |||||
Excluded Taxes | 14 | |||||
Fed Funds Rate | 15 | |||||
Fixed Rate | 15 | |||||
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 | 16 | |||||
Fixed Rate Swap | 17 | |||||
Floating Rate Payor | 17 | |||||
Fully Subordinated or Removable | 17 | |||||
Funding Advances | 17 | |||||
GAAP | 17 | |||||
Hazardous Substance | 17 | |||||
Hazardous Substance Activity | 18 | |||||
Improvements | 18 | |||||
Indebtedness | 18 | |||||
Initial Advance | 20 | |||||
Interested Party | 20 | |||||
Interest Rate Swap | 20 | |||||
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)
(Continued)
Page | ||||||
Losses | 24 | |||||
Market Quotation | 24 | |||||
Maximum Remarketing Obligation | 25 | |||||
Multiemployer Plan | 25 | |||||
NAI | 25 | |||||
Operative Documents | 25 | |||||
Participant | 25 | |||||
Participation Agreement | 26 | |||||
Permitted Encumbrances | 26 | |||||
Permitted Hazardous Substance Use | 26 | |||||
Permitted Hazardous Substances | 27 | |||||
Permitted Transfer | 27 | |||||
Person | 28 | |||||
Personal Property | 28 | |||||
Plan | 28 | |||||
Prime Rate | 28 | |||||
Prior Owner | 28 | |||||
Property | 28 | |||||
Purchase Agreement | 28 | |||||
Purchase Option | 28 | |||||
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 | 31 | |||||
Supplemental Payment | 32 | |||||
Supplemental Payment Obligation | 32 | |||||
Tangible Personal Property | 32 | |||||
Term | 32 | |||||
Transaction Expenses | 32 | |||||
Unfunded Benefit Liabilities | 32 | |||||
Upfront Fees | 32 |
(iii)
(Continued)
Page | ||||||
ARTICLE II — SHARED PROVISIONS | 32 | |||||
1.
|
Notices | 32 | ||||
2.
|
Severability | 34 | ||||
3.
|
No Merger | 34 | ||||
4.
|
No Implied Waiver | 34 | ||||
5.
|
Entire and Only Agreements | 35 | ||||
6.
|
Binding Effect | 35 | ||||
7.
|
Time is of the Essence | 35 | ||||
8.
|
Governing Law | 35 | ||||
9.
|
Paragraph Headings | 35 | ||||
10.
|
Negotiated Documents | 35 | ||||
11.
|
Terms Not Expressly Defined in an Operative Document | 35 | ||||
12.
|
Other Terms and References | 36 | ||||
13.
|
Execution in Counterparts | 36 | ||||
14.
|
Not a Partnership, Etc | 37 | ||||
15.
|
No Fiduciary Relationship Intended | 37 |
Annex 1
|
ABR Period Election Form | |
Annex 2
|
Fixed Rate Lock Notice Form | |
Annex 3
|
LIBOR Period Election Form |
(iv)
AND PROVISIONS AGREEMENT
(1299 ORLEANS)
• | 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; |
• | September 2007 Phase I Environmental Site Assessment by WSP Environmental Strategies, 0000 Xxxxxxx Xxxxx Xxxxxxxxx, XX; | ||
• | XXXXXXX Corp. Phase I Environmental Site Assessment 1299 Orleans Drive, Sunnyvale, CA., September 1997; and | ||
• | November 2007 Phase I Environmental Site Assessment by WSP Environmental Strategies, 0000 Xxxxxxx Xxxxx Xxxxxxxxx, XX. |
• | 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 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. |
collection or application of such payments; |
Ratio of Consolidated Debt for | ||||
Borrowed Money to | ||||
Levels | Consolidated EBITDA | Spread | ||
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 |
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
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxx, Managing Director
Telecopy: (000) 000-0000
0000 Xxx Xxxxx Xxxx
Xxxxxxxx Xxxxxxxx Xxxx, XX 00000
Attention: Ingemar Lanevi
Telecopy: (000) 000-0000
000 Xxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxx Xxxxxx
Telecopy: (000)-000-0000
BNP PARIBAS LEASING CORPORATION, a Delaware corporation |
||||
By: | ||||
Xxxxx X. Xxx, Managing Director | ||||
NETWORK APPLIANCE, INC., a Delaware corporation |
||||
By: | ||||
Ingemar Lanevi, Vice President and Corporate Treasurer | ||||
12000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Xttention: Xxxxx X. Xxx, Managing Director
Telecopy: (000) 000-0000
NETWORK APPLIANCE, INC., a Delaware corporation |
||||
By: | ||||
Name: | ||||
Title: | ||||
12000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Xttention: Xxxxx X. Xxx, Managing Director
Telecopy: (000) 000-0000
NETWORK APPLIANCE, INC., a Delaware corporation |
||||
By: | ||||
Name: | ||||
Title: | ||||
Annex 2 — Page 2
12000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Xttention: Xxxxx X. Xxx, Managing Director
Telecopy: (000) 000-0000
NETWORK APPLIANCE, INC., a Delaware corporation |
||||
By: | ||||
Name: | ||||
Title: | ||||