CLOSING CERTIFICATE AND AGREEMENT (MOFFETT BUSINESS CENTER) BETWEEN NETWORK APPLIANCE, INC. (“NAI”) AND BNP PARIBAS LEASING CORPORATION (“BNPPLC”) November 29, 2007
Exhibit 10.63
CLOSING CERTIFICATE
AND AGREEMENT
(▇▇▇▇▇▇▇ BUSINESS CENTER)
AND AGREEMENT
(▇▇▇▇▇▇▇ BUSINESS CENTER)
BETWEEN
NETWORK APPLIANCE, INC.
(“NAI”)
(“NAI”)
AND
BNP PARIBAS LEASING CORPORATION
(“BNPPLC”)
(“BNPPLC”)
November 29, 2007
TABLE OF CONTENTS
| Page | ||||||||||
| 1 | Representations, Covenants and Acknowledgments of NAI Concerning the Property | 2 | ||||||||
| (A) | Prior Inspections and Investigations Concerning the Property | 2 | ||||||||
| (B) | Title | 2 | ||||||||
| (C) | Title Insurance | 2 | ||||||||
| (D) | Condition of the Property | 2 | ||||||||
| (E) | Environmental Representations | 3 | ||||||||
| (F) | Cooperation by NAI and its Affiliates | 3 | ||||||||
| (G) | Compliance with Covenants and Laws | 4 | ||||||||
| 2 | Representations and Covenants by NAI | 4 | ||||||||
| (A) | Concerning NAI and the Operative Documents | 4 | ||||||||
| (1) | Entity Status | 4 | ||||||||
| (2) | Authority | 4 | ||||||||
| (3) | Solvency | 4 | ||||||||
| (4) | Financial Reports | 5 | ||||||||
| (5) | Pending Legal Proceedings | 5 | ||||||||
| (6) | No Default or Violation | 5 | ||||||||
| (7) | Use of Proceeds | 5 | ||||||||
| (8) | Enforceability | 6 | ||||||||
| (9) | Pari Passu | 6 | ||||||||
| (10) | Conduct of Business and Maintenance of Existence | 6 | ||||||||
| (11) | Investment Company Act, etc. | 6 | ||||||||
| (12) | Not a Foreign Person | 6 | ||||||||
| (13) | ERISA | 6 | ||||||||
| (14) | Compliance With Laws | 7 | ||||||||
| (15) | Payment of Taxes Generally | 7 | ||||||||
| (16) | Maintenance of Insurance Generally | 7 | ||||||||
| (17) | Franchises, Licenses, etc. | 7 | ||||||||
| (18) | Patents, Trademarks, etc. | 7 | ||||||||
| (19) | Labor | 8 | ||||||||
| (20) | Title to Properties Generally | 8 | ||||||||
| (21) | Books and Records | 8 | ||||||||
| (B) | Further Assurances | 8 | ||||||||
| (C) | Syndication | 9 | ||||||||
| (D) | Financial Statements; Required Notices; Certificates | 9 | ||||||||
| (F) | OFAC | 11 | ||||||||
| 3 | Financial Covenants and Negative Covenants of NAI | 12 | ||||||||
| (B) | Negative Covenants | 21 | ||||||||
| (1) | Subsidiary Indebtedness | 21 | ||||||||
| (2) | Liens | 22 | ||||||||
| (3) | Fundamental Changes and Asset Sales | 24 | ||||||||
TABLE OF CONTENTS
Continued
Continued
| Page | ||||||||||
| (4) | Speculative Swap Agreements | 25 | ||||||||
| (5) | Transactions with Affiliates | 25 | ||||||||
| (6) | Restrictive Agreements | 25 | ||||||||
| (C) | Financial Covenants | 26 | ||||||||
| (1) | Maximum Leverage Ratio | 26 | ||||||||
| (2) | Minimum Liquidity | 26 | ||||||||
| 4 | Limited Representations and Covenants of BNPPLC | 26 | ||||||||
| (A) | Concerning Accounting Matters | 26 | ||||||||
| (B) | Other Limited Representations | 29 | ||||||||
| (1) | Entity Status | 29 | ||||||||
| (2) | Authority | 29 | ||||||||
| (3) | Solvency | 29 | ||||||||
| (4) | Pending Legal Proceedings | 29 | ||||||||
| (5) | No Default or Violation | 30 | ||||||||
| (6) | Enforceability | 30 | ||||||||
| (7) | Conduct of Business and Maintenance of Existence | 30 | ||||||||
| (8) | Not a Foreign Person | 30 | ||||||||
| (C) | Further Assurances | 30 | ||||||||
| (D) | Actions Permitted by NAI Without BNPPLC’s Consent | 32 | ||||||||
| (E) | Waiver of Landlord’s Liens | 33 | ||||||||
| (F) | Estoppel Letters | 34 | ||||||||
| (G) | No Implied Representations or Promises by BNPPLC | 34 | ||||||||
| 5 | Usury Savings Provision | 34 | ||||||||
| 6 | Obligations of NAI Under Other Operative Documents Not Limited by this Certificate | 35 | ||||||||
| 7 | Obligations of NAI Hereunder Not Limited by Other Operative Documents | 35 | ||||||||
| 8 | Waiver of Jury Trial | 35 | ||||||||
(ii)
TABLE OF CONTENTS
(Continued)
(Continued)
Exhibits and Schedules
Exhibit A
|
Legal Description | |
Exhibit B
|
Permitted Encumbrances | |
Exhibit C
|
Quarterly Certificate | |
Exhibit D
|
Form of Disclosure Letter | |
Exhibit E
|
Certificate to be Provided by BNPPLC Re: Accounting |
(iii)
CLOSING CERTIFICATE
AND AGREEMENT
(▇▇▇▇▇▇▇ BUSINESS CENTER)
AND AGREEMENT
(▇▇▇▇▇▇▇ BUSINESS CENTER)
This CLOSING CERTIFICATE AND AGREEMENT (▇▇▇▇▇▇▇ BUSINESS CENTER) (this “Certificate”), 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 Certificate, BNPPLC and NAI are executing a
Common Definitions and Provisions Agreement (▇▇▇▇▇▇▇ 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 Certificate for all purposes. As used in this Certificate, capitalized
terms defined in the Common Definitions and Provisions Agreement and not otherwise defined in this
Certificate are intended to have the respective meanings assigned to them in the Common Definitions
and Provisions Agreement.
Also contemporaneously with this Certificate, BNPPLC is acquiring the Land described in
Exhibit A and existing Improvements on the Land pursuant to the Existing Contract.
Also contemporaneously with this Certificate, BNPPLC and NAI are executing a Lease Agreement
(▇▇▇▇▇▇▇ Business Center) dated as of the Effective Date (the “Lease”), pursuant to which NAI is
leasing from BNPPLC the Land, which is described in Exhibit A, and all Improvements on such
Land.
Also contemporaneously with this Certificate, BNPPLC and NAI are executing a Purchase
Agreement (▇▇▇▇▇▇▇ Business Center) dated as of the Effective Date (the “Purchase Agreement”),
pursuant to which NAI may purchase or arrange for the purchase of the Property and BNPPLC may
collect a Supplemental Payment from NAI sufficient to cover all or a substantial portion of the
Lease Balance not otherwise repaid to BNPPLC from the proceeds of any sale of the Property.
As a condition to BNPPLC’s acquisition of the Land and its execution of the other Operative
Documents, BNPPLC requires the representations and covenants of NAI set out below.
AGREEMENTS
In consideration of the premises and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1 Representations, Covenants and Acknowledgments
of NAI Concerning the Property. To induce BNPPLC to purchase the Property from the Prior
Owner and to enter into this Certificate and the other Operative Documents, NAI represents,
covenants and acknowledges as follows:
(A) Prior Inspections and Investigations Concerning the Property. NAI has thoroughly
inspected, investigated and evaluated the condition of and title to the Property and Applicable
Laws which will govern the use and operation of the Property required or permitted by the Operative
Documents, as necessary to make the representations concerning the Property set forth in this
Certificate and other Operative Documents.
(B) Title. Because of the conveyance from the Prior Owner to BNPPLC contemporaneously
with the execution of this Certificate, good and indefeasible title to the Land and Improvements is
currently vested in BNPPLC, subject only to the Permitted Encumbrances described in Exhibit
B, the rights of NAI itself under the Operative Documents and any Liens Removable by BNPPLC.
NAI will not, without the prior consent of BNPPLC, create, place or authorize, or through any act
or failure to act, acquiesce to or suffer the placing of, any deed of trust, mortgage or other
Lien, whether statutory, constitutional or contractual against or covering the Property or any part
thereof (other than Permitted Encumbrances and Liens Removable by BNPPLC), regardless of whether
the same are expressly or otherwise subordinate to the Operative Documents or BNPPLC’s interest in
the Property.
(C) Title Insurance. Without limiting NAI’s obligations under the preceding
subparagraph, contemporaneously with the execution of this Certificate NAI must provide to BNPPLC a
title insurance policy or binder committing the applicable title insurer to issue a title insurance
policy, without the payment of further premiums (as the case may be, the “Title Policy”) in an
amount equal to the purchase price paid by BNPPLC to the Prior Owner for the Property, in form and
substance satisfactory to BNPPLC (including comprehensive, survey, variable rate, access, and such
other endorsements as may be requested by BNPPLC), written by one or more title insurance companies
satisfactory to BNPPLC and insuring BNPPLC’s fee estate in the Land and Improvements.
(D) Condition of the Property. The Land described in Exhibit A is the
same as the land described in the Title Policy and as shown on the plat included as part of the
ALTA/ACSM Survey prepared by ▇▇▇▇ & ▇▇▇▇▇▇, Civil Engineers & Surveyors, Inc., dated October 8,
2007, Job No. A07175 (the “Survey”), which survey was delivered to BNPPLC at the request of NAI.
All material improvements on the Land as of the Effective Date are as shown on the Survey, and
except as shown on the Survey there are no easements or encroachments encumbering or affecting the
Property. No part of the Land is within a flood plain as designated by any governmental authority.
The Improvements are in good condition, free from latent or patent defects or deficiencies that,
either individually or in the aggregate, could materially and adversely
affect the use or occupancy of the Property as permitted by the Lease or could
reasonably be
anticipated to cause injury or death to any person. The Property and use thereof permitted by the
Lease comply in all material respects with all Applicable Laws, including laws regarding access and
use by disabled persons and local zoning ordinances. Adequate provision has been made for the
Property to be served by electric, gas, storm and sanitary sewers, sanitary water supply, telephone
and other utilities required for the use thereof. All streets, alleys and easements necessary to
serve the Property for the uses permitted by the Lease have been completed and are serviceable. No
extraordinary circumstances (including any use of the Land as a habitat for endangered species)
exist that would materially and adversely affect such uses of the Property. The Improvements are
useable for their intended purpose without the need to obtain any additional easements,
rights-of-way or concessions from any third party or parties.
(E) Environmental Representations. Except as otherwise disclosed in the Environmental
Report, to the knowledge of NAI: (i) no Hazardous Substances Activity has occurred prior to the
Effective Date; (ii) no owner or operator of the Property has reported or been required to report
any release of any Hazardous Substances on or from the Property pursuant to any Environmental Law;
and (iii) no owner or operator of the Property has received from any federal, state or local
governmental authority any warning, citation, notice of violation or other communication regarding
a suspected or known release or discharge of Hazardous Substances on or from the Property or
regarding a suspected or known violation of Environmental Laws concerning the Property. Further,
NAI represents, to its knowledge, that the Environmental Report taken as a whole is not misleading
or inaccurate in any material respect.
(F) Cooperation by NAI and its Affiliates.
(1) After the Designated Sale Date, if neither NAI nor an Applicable Purchaser has
purchased BNPPLC’s interest in the Property pursuant to the Purchase Agreement, and if a use
of the Property by BNPPLC or any new Improvements or any removal or modification of
Improvements proposed by BNPPLC would violate any Permitted Encumbrance or Applicable Law
unless NAI or any of its Affiliates, as an owner of adjacent property or otherwise, gave its
consent or approval thereto or agreed to join in a modification of a Permitted Encumbrance,
then NAI must give and cause its Affiliates to give such consent or approval or join in such
modification.
(2) After the Designated Sale Date, if neither NAI nor an Applicable Purchaser
has purchased BNPPLC’s interest in the Property pursuant to the Purchase Agreement, and if
any Permitted Encumbrance or Applicable Law requires the consent or approval of NAI or any
of its Affiliates or of any other Person to an assignment of any interest in the Property by
BNPPLC or by any of its successors or assigns, NAI will without charge give and cause its
Affiliates to give such consent or approval and will cooperate in any way
reasonably requested by BNPPLC to assist BNPPLC to obtain such consent or approval from
the other Person.
(3) NAI’s obligations under this subparagraph 1(F) will be binding upon any successor
or assign of NAI or its Affiliates with respect to the Land and other properties encumbered
or benefitted by the Permitted Encumbrances, and such obligations will survive any sale of
the Property by BNPPLC, other than to NAI or an Applicable Purchaser under the Purchase
Agreement, for the benefit of BNPPLC’s assignees.
(G) Compliance with Covenants and Laws. The use of the Property permitted by the Lease
complies, or will comply after NAI obtains readily available permits ( as the tenant under the
Lease), in all material respects with all Applicable Laws. NAI has obtained or can and will
promptly obtain all utility, building, health and operating permits required by any governmental
authority or municipality having jurisdiction over the Property for the use of the Property
permitted by the Lease.
2 Representations and Covenants by NAI. NAI also represents and covenants to BNPPLC as
follows:
(A) Concerning NAI and the Operative Documents.
(1) Entity Status. NAI is a corporation duly incorporated and validly existing in the
State of Delaware and is authorized to do business in and is in good standing under the laws
of California.
(2) Authority. The Constituent Documents of NAI permit the execution, delivery and
performance of the Operative Documents by NAI, and all actions and approvals necessary to
bind NAI under the Operative Documents have been taken and obtained. Without limiting the
foregoing, the Operative Documents will be binding upon NAI when signed on behalf of NAI by
Ingemar Lanevi, Vice President and Corporate Treasurer of NAI. NAI has all requisite power
and all governmental certificates of authority, licenses, permits and qualifications to
carry on its business as now conducted and contemplated to be conducted and to perform the
Operative Documents.
(3) Solvency. NAI is not “insolvent” on the Effective Date (that is, the sum of
NAI’s absolute and contingent liabilities — including the obligations of NAI under the
Operative Documents — does not exceed the fair market value of NAI’s assets), and NAI has no
outstanding liens, suits, garnishments or court actions which could render NAI insolvent or
bankrupt. NAI’s capital is adequate for the businesses in which NAI is
engaged and intends to be engaged. NAI has not incurred (whether by the Operative
Documents or otherwise), nor does NAI intend to incur or believe that it will incur, debts
which will be beyond its ability to pay as such debts mature. No petition or answer has been
filed by or, to NAI’s knowledge, against NAI in bankruptcy or other legal proceedings that
seeks an assignment for the benefit of creditors, the appointment of a receiver, trustee,
custodian or liquidator with respect to NAI or any significant portion of
NAI’s property, a
reorganization, arrangement, rearrangement, composition, extension, liquidation or
dissolution of NAI or similar relief under the federal Bankruptcy Code or any state law.
(4) Financial Reports. All reports, financial statements and other data furnished by
NAI to BNPPLC in connection with the agreements set forth in the Operative Documents are
true and correct in all material respects and do not omit to state any fact or circumstance
necessary to make the statements contained therein not misleading. No material adverse
change has occurred since the dates of such reports, statements and other data in the
financial condition of NAI.
(5) Pending Legal Proceedings. No judicial or administrative investigations, actions,
suits or proceedings are pending or, to the knowledge of NAI, threatened against or
affecting NAI by or before any court or other Governmental Authority that have or could
reasonably be expected to have a Material Adverse Effect. NAI is not in default with
respect to any order, writ, injunction, decree or demand of any court or other Governmental
Authority in a manner that has or could reasonably be expected to have a Material Adverse
Effect.
(6) No Default or Violation. The execution and performance by NAI of the Operative
Documents do not and will not contravene or result in a breach of or default under any other
agreement to which NAI is a party or by which NAI is bound or which affects any assets of
NAI. Such execution and performance by NAI do not contravene any law, order, decree, rule
or regulation to which NAI is subject. Further, such execution and performance by NAI will
not result in the creation or imposition of (or the obligation to create or impose) any
lien, charge or encumbrance on, or security interest in, any property of NAI pursuant to the
provisions of any such other agreement.
(7) Use of Proceeds. In no event will the funds from any Funding Advance be used
directly or indirectly for personal, family, household or agricultural purposes or for the
purpose, whether immediate, incidental or ultimate, of purchasing, acquiring or carrying any
“margin stock” or any “margin securities” (as such terms are defined in Regulation U
promulgated by the Board of Governors of the Federal Reserve System) or to extend credit to
others directly or indirectly for the purpose of purchasing or carrying
any such margin stock or margin securities. NAI represents that NAI is not engaged
principally, or as one of NAI’s important activities, in the business of extending credit to
others for the purpose of purchasing or carrying such margin stock or margin securities.
(8) Enforceability. The Operative Documents constitute the legal, valid and
binding obligations of NAI enforceable in accordance with their terms, subject to the effect
of bankruptcy, insolvency, reorganization, receivership and other similar laws affecting the
rights of creditors generally.
(9) Pari Passu. The claims of BNPPLC against NAI under the Operative Documents rank at
least pari passu with the claims of all its other unsecured creditors, except those whose
claims are preferred solely by any laws of general application having effect in relation to
bankruptcy, insolvency, liquidation or other similar events.
(10) Conduct of Business and Maintenance of Existence. So long as any obligations of
NAI under the Operative Documents remain outstanding, NAI will continue to engage in
business of the same general type as now conducted by it and will preserve, renew and keep
in full force and effect its corporate existence and its rights, privileges and franchises
necessary or desirable in the normal conduct of business.
(11) Investment Company Act, etc. NAI is not and will not become, by reason of the
Operative Documents or any business or transactions in which it participates voluntarily,
(a) an “investment company” or a company “controlled” by an “investment company” (as each
of the quoted terms is defined or used in the Investment Company Act of 1940, as amended),
or (b) subject to regulation under the Federal Power Act, or any foreign, federal or local
statute or regulation limiting NAI’s ability to incur or guarantee indebtedness or
obligations, or to pledge its assets to secure indebtedness or obligations, as contemplated
by any of the Operative Documents.
(12) Not a Foreign Person. NAI is not a “foreign person” within the meaning of Sections
1445 and 7701 of the Code (i.e. NAI is not a non-resident alien, foreign corporation,
foreign partnership, foreign trust or foreign estate as those terms are defined in the Code
and regulations promulgated thereunder).
(13) ERISA. NAI is not and will not become an “employee benefit plan” (as
defined in Section 3(3) of ERISA) which is subject to Title I of ERISA. The assets of NAI do
not and will not in the future constitute “plan assets” of one or more such plans within the
meaning of 29 C.F.R. Section 2510.3-101. NAI is not and will not become a “governmental
plan” within the meaning of Section 3(32) of ERISA. Transactions by or with NAI are not
subject to state statutes regulating investments of and fiduciary
obligations with respect to governmental plans. No ERISA Termination Event has
occurred with respect to any Plan, and NAI and its Subsidiaries are in compliance with
ERISA. Neither NAI nor its Subsidiaries are required to contribute to, or has any other
absolute or contingent liability in respect of, any Multiemployer Plan. As of the Effective
Date no “accumulated funding deficiency” (as defined in Section 412(a) of the Code) exists
with respect to any Plan, whether or not waived by the Secretary of the Treasury or his
delegate, and there are no Unfunded Benefit Liabilities with respect to any Plan.
(14) Compliance With Laws. NAI and its Subsidiaries comply and will comply with all
Applicable Laws (including environmental laws and ERISA and the rules and
regulations
thereunder), except when the necessity of compliance is contested in good faith by
appropriate proceedings which do not have and could not reasonably be expected to have a
Material Adverse Effect. Neither NAI nor its Subsidiaries have received any notice
asserting or describing a material failure on the part of NAI or any Subsidiary to comply
with Applicable Laws, other than failures that have been fully rectified by NAI or the
Subsidiary, as the case may be, in a manner approved or accepted by Governmental Authorities
responsible for the enforcement of the Applicable Laws.
(15) Payment of Taxes Generally. Except when the failure to do so does not have and
could not reasonably be expected to have a Material Adverse Effect (taking into account any
appropriate contest of taxes), NAI and its Subsidiaries have filed and will file all tax
declarations, reports and returns which are required by (and in the form required by)
Applicable Laws and have paid and will pay all taxes or other charges shown to be due and
payable on such declarations, reports and returns and all assessments made against it or its
assets by any Governmental Authority; and no liens have been filed or established by any
Governmental Authority against NAI or its assets or against any Subsidiary or its assets to
secure the payment of taxes or assessments that are past due or claimed to be past due.
(16) Maintenance of Insurance Generally. Except when the failure to do so does not
have and could not reasonably be expected to have a Material Adverse Effect, NAI and its
Subsidiaries have maintained and will maintain insurance with respect to its properties and
businesses, with financially sound and reputable insurers, having coverages against losses
or damages of the kinds customarily insured against by reputable companies in the same or
similar businesses, such insurance being the types, and in amounts no less than the amounts,
which are customary for such companies under similar circumstances.
(17) Franchises, Licenses, etc. Except when the failure to do so does not have and
could not reasonably be expected to have a Material Adverse Effect, NAI and its Subsidiaries
have and comply with, and will have and will comply with, all franchises,
certificates, licenses, permits and other authorizations from Governmental Authorities
that are necessary for the ownership, maintenance and operation of its properties and
assets.
(18) Patents, Trademarks, etc. Except when the failure to do so does not have
and could not reasonably be expected to have a Material Adverse Effect, NAI and its
Subsidiaries have and will have and maintain in full force and effect all patents,
trademarks, service marks, trade names, copyrights, licenses and other such rights, free
from burdensome restrictions, which are necessary for the operation of its businesses.
Without limiting the foregoing, to the knowledge of NAI, no product, process, method,
service or other item presently sold by or employed by NAI or any Subsidiary in
connection
with its business as presently conducted infringes any patents, trademark, service ▇▇▇▇,
trade name, copyright, license or other right owned by any other Person. No claim or
litigation is presently pending, or to the knowledge of NAI, threatened against or affecting
NAI or any Subsidiary that contests its right to sell or use any such product, process,
method, substance or other item and that has or could reasonably be expected to have a
Material Adverse Effect.
(19) Labor. Neither NAI nor any of its Subsidiaries has experienced strikes, labor
disputes, slow downs or work stoppages due to labor disagreements that currently have or
could reasonably be expected to have a Material Adverse Effect, and to the knowledge of NAI
there are no such strikes, disputes, slow downs or work stoppages threatened against it or
against any Subsidiary. The hours worked and payment made to employees of NAI and its
Subsidiaries have not been in violation in any material respect of the Fair Labor Standards
Act or any other Applicable Laws dealing with such matters. All material payments due on
account of wages or employee health and welfare insurance and other benefits from NAI or
from any Subsidiary have been paid or accrued as liabilities on its books.
(20) Title to Properties Generally. Except when the failure to do so does not have and
could not reasonably be expected to have a Material Adverse Effect, NAI and its Subsidiaries
have and will have and maintain good and indefeasible fee simple title to or valid leasehold
interests in all of its real property and good title to or a valid leasehold interest in all
of its other material assets, as such properties and assets are reflected in the most recent
financial statements delivered to BNPPLC, other than properties or assets disposed of in the
ordinary course of business since such date; subject, however, in the case of the Property,
to Permitted Encumbrances and Liens created by the Operative Documents. NAI enjoys peaceful
and undisturbed possession under all of its leases.
(21) Books and Records. NAI will keep proper books of record and account, containing
complete and accurate entries of all its financial and business transactions.
(B) Further Assurances. NAI will, upon the reasonable request of BNPPLC, (i)
execute, acknowledge, deliver and record or file such further instruments and do such further acts
as may be necessary, desirable or proper to carry out more effectively the purposes of the
Operative Documents and to subject to any of the Operative Documents any property intended by the
terms thereof to be covered thereby, including specifically, but without limitation, any renewals,
additions, substitutions, replacements or appurtenances to the Property; (ii) execute, acknowledge,
deliver, procure and record or file any document or instrument deemed advisable by BNPPLC to
protect its rights in and to the Property against the rights or interests of third persons; and
(iii) provide such certificates, documents, reports, information, affidavits and other instruments
and do such further acts as may be necessary, desirable or proper in the reasonable determination
of BNPPLC to enable BNPPLC to comply with the requirements or requests of
any agency or authority
having jurisdiction over it.
(C) Syndication. Without limiting the foregoing, NAI will cooperate with BNPPLC as
reasonably required to allow BNPPLC to induce banks not affiliated with BNPPLC to become
Participants. Such cooperation will include the execution of any modification proposed by BNPPLC to
any of the Operative Documents at the request of a prospective Participant; subject, however, to
the conditions that (i) in no event will NAI be required to approve or accept an increase in the
Spread or other modifications that change the economics of the transactions contemplated by the
Operative Documents to NAI, and (ii) in other respects the form and substance of any such
modification agreement must not be reasonably objectionable to NAI.
(D) Financial Statements; Required Notices; Certificates. Throughout the Term of the
Lease, NAI will deliver to BNPPLC and to each Participant of which NAI has been notified:
(1) as soon as available and in any event within 45 days after the end of each of the
first three fiscal quarters of each fiscal year of NAI, the unaudited consolidated balance
sheet of NAI and its Subsidiaries as of the end of such quarter and consolidated unaudited
statements of income, stockholders’ equity and cash flow of NAI and its Subsidiaries for the
period commencing at the end of the previous fiscal year and ending with the end of such
quarter, setting forth in comparative form figures for the corresponding period in the
preceding fiscal year, in the case of such statements of income, stockholders’ equity and
cash flow, and figures for the preceding fiscal year in the case of such balance sheet, all
in reasonable detail, in accordance with GAAP, and certified in a manner acceptable to
BNPPLC by a Responsible Financial Officer of NAI (subject to normal year-end adjustments);
provided, that so long as NAI is a company subject to the periodic reporting requirements of
Section 12 of the Securities Exchange Act of 1934, as amended, NAI will be deemed to have
satisfied its obligations under this clause (1) if NAI delivers to BNPPLC the same quarterly
reports, certified by a Responsible Financial Officer of NAI
(subject to year-end adjustments), that NAI delivers to its shareholders;
(2) as soon as available and in any event within ninety days after the end of
each fiscal year of NAI, the consolidated balance sheet of NAI and its Subsidiaries as of
the end of such fiscal year and consolidated statements of income, stockholders’ equity and
cash flow of NAI and its Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such fiscal year, setting forth in comparative form
figures for the preceding fiscal year, all in reasonable detail, in accordance with GAAP,
and certified in a manner acceptable to BNPPLC by independent public accountants of
recognized national standing reasonably acceptable to BNPPLC; provided, that so long as NAI
is a company subject to the periodic reporting requirements of Section 12 of the Securities
Exchange Act of 1934, as amended, NAI will be deemed to have satisfied its obligations under
this clause (ii) if NAI delivers to BNPPLC the
same annual report and report and opinion of
accountants that NAI delivers to its shareholders;
(3) in each case if requested in writing by BNPPLC, together with the financial
statements furnished in accordance with subparagraph 2(D)(1) and 2(D)(2), a certificate of a
Responsible Financial Officer of NAI in the form of certificate attached hereto as
Exhibit C (a) representing that no Event of Default or material Default by NAI has
occurred (or, if an Event of Default or material Default by NAI has occurred, stating the
nature thereof and the action which NAI has taken or proposes to take to rectify it), (b)
stating that the representations and warranties by NAI contained herein are true and
complete in all material respects on and as of the date of such certificate as though made
on and as of such date, and (c) setting forth calculations which show whether NAI is
complying with financial covenants set forth in subparagraph 3(C);
(4) as soon as possible and in any event within five days after the occurrence of each
Event of Default or material Default known to a Responsible Financial Officer of NAI, a
statement of NAI setting forth details of such Event of Default or material Default and the
action which NAI has taken and proposes to take with respect thereto;
(5) promptly after the sending or filing thereof, copies of all such financial
statements, proxy statements, notices and reports which NAI or any Subsidiary sends to its
public stockholders, and copies of all reports and registration statements (without
exhibits) which NAI or any Subsidiary files with the Securities and Exchange Commission (or
any governmental body or agency succeeding to the functions of the Securities and Exchange
Commission) or any national securities exchange;
(6) as soon as practicable and in any event within thirty days after a Responsible
Financial Officer of NAI knows or has reason to know that any ERISA
Termination Event with respect to any Plan has occurred, a statement of a Responsible
Financial Officer of NAI describing such ERISA Termination Event and the action, if any,
which NAI proposes to take with respect thereto;
(7) upon request by BNPPLC, a statement in writing certifying that the Operative
Documents are unmodified and in full effect (or, if there have been modifications, that the
Operative Documents are in full effect as modified, and setting forth such modifications)
and either stating that no Default exists under the Operative Documents or specifying each
such Default; it being intended that any such statement by NAI may be relied upon by any
prospective purchaser or mortgagee of the Property or any prospective Participant; and
(8) such other information respecting the condition or operations, financial or
otherwise, of NAI, of its Subsidiaries or of the Property as BNPPLC or BNPPLC’s Parent
or any Participant through BNPPLC may from time to time reasonably request.
Reports and financial statements required to be delivered pursuant to paragraphs (1), (2) and (5)
of this subparagraph 2(D) shall be deemed to have been delivered on the date on which such reports,
or reports containing such financial statements, are posted for downloading (in a “PDF” or other
readily available format) on one of NAI’s internet websites at ▇▇▇.▇▇▇▇▇▇.▇▇▇ or
▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇.▇▇▇ or on the SEC’s internet website at ▇▇▇.▇▇▇.▇▇▇; provided, however, that
after being posted they remain available for downloading at the applicable website for at least 90
days.
BNPPLC is hereby authorized to deliver a copy of any information or certificate delivered to it
pursuant to this subparagraph 2(D) to any Participant and to any regulatory body having
jurisdiction over BNPPLC, BNPPLC’s Parent or any Participant that requires or requests it.
(E) Omissions. None of NAI’s representations in the Operative Documents or in any
other document, certificate or written statement furnished to BNPPLC by or on behalf of NAI
contains any untrue statement of a material fact or omits a material fact necessary in order to
make the statements contained herein or therein (when taken in their entireties) not misleading.
(F) OFAC. None of NAI or any subsidiary or affiliate of NAI: (i) is a person named on
the list of Specially Designated Nationals or Blocked Persons maintained by the U.S. Department of
the Treasury’s Office of Foreign Assets Control available at
▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇/▇▇▇▇/▇▇▇/▇▇▇▇▇.▇▇▇▇, or as otherwise published from time to
time; or (ii) is (A) an agency of the government of a country, (B) an organization controlled by a
country, or (C) a person resident in a country that is subject to a sanctions program identified on
the list maintained by OFAC and available at
▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇/▇▇▇▇/▇▇▇▇▇▇▇▇▇/▇▇▇▇▇.▇▇▇▇, or as otherwise published from
time to time, as such program may be applicable to such agency, organization or person; or (iii)
derives more than 15% of its assets or operating income from investments in or transactions with
any such country, agency, organization or person. Further, none of the proceeds from the Initial
Advance will be used to finance any operations, investments or activities in, or make any payments
to, any such country, agency, organization, or person.
(G) U.S. Patriot Act. NAI acknowledges that BNPPLC, BNPPLC’s Parent and
Participants may be required, pursuant to the USA Patriot Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)) (the “Patriot Act”), to obtain, verify, record and disclose to law
enforcement authorities information that identifies the NAI, including the name and address of NAI.
NAI will provide to BNPPLC and Participants any such information they may request pursuant to the
Patriot Act, and NAI agrees that any of BNPPLC, BNPPLC’s Parent and Participants may disclose such
information to law enforcement authorities if the authorities make a request or demand for
disclosure pursuant to the Patriot Act. NAI also acknowledges that, in such event, none of BNPPLC,
BNPPLC’s Parent or Participants may be required or even
permitted by the Patriot Act to notify NAI
of the request or demand for disclosure.
3 Financial Covenants and Negative Covenants of NAI. NAI represents and covenants as
follows:
(A) Definitions Applicable in this Paragraph. As used in (and only for purposes of)
this Paragraph 3:
“Accepted Contest Requirements” means, with respect to any Tax or other payment due or
claimed to be due from NAI or any Subsidiary or any demand for payment made upon NAI or any
Subsidiary, that (a) NAI or such Subsidiary must contest the validity or amount thereof in
good faith by appropriate proceedings, (b) NAI or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make
payment thereof pending such contest could not reasonably be expected to result in a
Material Adverse Effect.
“Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use)
real or personal property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof determined in
accordance with GAAP.
“Change in Control” means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the meaning of
the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission
thereunder as in effect on the date hereof), of Equity Interests representing more than 40%
of the aggregate ordinary voting power represented by the issued and outstanding Equity
Interests of NAI; (b) occupation of a majority of the seats (other than vacant seats) on the
board of directors of NAI by Persons who were neither (i) nominated by the board of
directors of NAI nor (ii) appointed by directors so nominated; or (c) NAI ceasing to own,
directly or indirectly, 100% of the issued and outstanding Equity Interests of each Material
Domestic Subsidiary except in accordance with subparagraph 3(B)(3) below.
“Consolidated Debt for Borrowed Money” means at any time (1) the sum, without
duplication, of (a) items that, in accordance with GAAP, would be classified as indebtedness
on the consolidated balance sheet of NAI and its Subsidiaries and (b) the capitalized
portion of any synthetic leases, minus (2) the then aggregate outstanding principal amount
of Indebtedness under NAI’s Secured Revolver and under that certain Loan Agreement dated as
of March 31, 2006 by and among Network Appliance Global Ltd. and JPMorgan Chase Bank,
National Association as initial lender and as
administrative agent. (In clause (b) of this
definition, “capitalized portion” means, with respect to any synthetic lease, the price for
which the lessee can purchase the leased property or could purchase it if the synthetic
lease expired on the date of the applicable calculation of the Consolidated Debt for
Borrowed Money. Thus, for example, the “capitalized portion” of the transactions governed
by the Operative Documents will equal the Lease Balance.)
“Consolidated EBITDA” means, with reference to any period, the sum of the
following: (a) Consolidated Net Income for such period, plus (b) without duplication and to
the extent deducted from revenues in determining such Consolidated Net Income, the sum of
(i) Consolidated Interest Expense for such period, (ii) expense for taxes paid or accrued
during such period, (iii) all amounts attributable to depreciation, (iv) amortization during
such period, (v) extraordinary non-cash charges incurred other than in the ordinary course
of business during such period, (vi) nonrecurring extraordinary non-cash restructuring
charges, and (vii) share-based non-cash compensation expense minus without duplication and
to the extent included in determining such Consolidated Net Income, (c) interest income, (d)
extraordinary non-cash gains realized other than in the ordinary course of business and (e)
any cash payments made during such period in respect of the item described in clause (vii)
above subsequent to the fiscal quarter in which the relevant share-based non-cash
compensation expense was incurred, all calculated for NAI and its Subsidiaries in accordance
with GAAP on a consolidated basis. For the purposes of calculating Consolidated EBITDA for
any period of four consecutive fiscal quarters
(each, a “Reference Period”), (i) if at any time during such Reference Period NAI or
any Subsidiary shall have made any Material Disposition, the Consolidated EBITDA for such
Reference Period shall be reduced by an amount equal to the Consolidated EBITDA (if
positive) attributable to the property that is the subject of such Material Disposition for
such Reference Period or increased by an amount equal to the Consolidated EBITDA (if
negative) attributable thereto for such Reference Period, and (ii) if during such Reference
Period NAI or any Subsidiary shall have made a Material Acquisition, Consolidated EBITDA for
such Reference Period shall be calculated after giving pro forma effect thereto as if such
Material Acquisition occurred on the first day of such Reference Period. As used in this
definition, “Material Acquisition” means any acquisition of property or series of related
acquisitions of property that (a) constitutes (i) assets comprising all or substantially all
or any significant portion of a business or operating unit of a business, or (ii) all or
substantially all of the common stock or other Equity Interests of a Person, and (b)
involves the payment of consideration by NAI and its Subsidiaries in excess of $50,000,000;
and “Material Disposition” means any sale, transfer or disposition of property or series of
related sales, transfers, or dispositions of property that yields gross proceeds to NAI or
any of its Subsidiaries in excess of $50,000,000.
“Consolidated Interest Expense” means, with reference to any period, the
interest
expense (including without limitation interest expense under Capital Lease Obligations that
is treated as interest in accordance with GAAP) of NAI and its Subsidiaries calculated on a
consolidated basis for such period with respect to (a) all outstanding Indebtedness of NAI
and its Subsidiaries allocable to such period in accordance with GAAP and (b) Swap
Agreements (including, without limitation, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers acceptance financing and net
costs under interest rate Swap Agreements to the extent such net costs are allocable to such
period in accordance with GAAP). In addition, for purposes of calculating the Leverage
Ratio only, rents payable for any period pursuant to NAI’s synthetic leases shall be
included in Consolidated Interest Expense for such period; excluding, however, any amounts
(whether on not designated as rents) paid or to be paid as compensation for or reimbursement
of any Losses, and also excluding any payments which reduce or will reduce the outstanding
lease balance of any synthetic lease. For example, Base Rents payable under the Lease will
be included in Consolidated Interest Expense, but not Additional Rents.
“Consolidated Net Income” means, with reference to any period, the net income (or loss)
of NAI and its Subsidiaries calculated in accordance with GAAP on a consolidated basis
(without duplication) for such period.
“Consolidated Total Assets” means, as of the date of any determination thereof,
total assets of NAI and its Subsidiaries calculated in accordance with GAAP on a
consolidated basis as of such date.
“Disclosure Letter” means the disclosure letter (the form of which is attached to this
Certificate as Exhibit D) given by NAI to Chase Bank, National Association, as
Administrative Agent, in connection with NAI’s recently executed Credit Agreement dated as
of November 2, 2007, as amended or supplemented from time to time by NAI with the written
consent of BNPPLC.
“Domestic Subsidiary” means any Subsidiary that is incorporated or organized
under the laws of the United States of America, any state thereof or in the District of
Columbia.
“Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity
ownership interests in a Person, and any warrants, options or other rights entitling the
holder thereof to purchase or acquire any such equity interest.
“Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of the guarantor, direct or
indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other obligation or (d) as an account party in
respect of any letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for collection
or deposit in the ordinary course of business.
“Indebtedness” of any Person means, without duplication, (a) all obligations of
such Person for borrowed money, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person upon which
interest charges are paid or payable, (d) all obligations of such Person under conditional
sale or other title retention agreements relating to property acquired by such Person, (e)
all obligations of such Person in respect of the deferred purchase price of property or
services (excluding accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has been assumed,
(g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as
an account party in respect of letters of credit and letters of guaranty, (j) all
obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (k)
the Net ▇▇▇▇-to Market Exposure of all Swap Obligations of such Person, and (l) any other
Off-Balance Sheet Liability. The Indebtedness of any Person shall include the Indebtedness
of any other entity (including any partnership in which such Person is a general partner) to
the extent such Person is liable therefor as a result of such Person’s ownership interest in
or other relationship with such entity, except to the extent the terms of such Indebtedness
provide that such Person is not liable therefor.
“Leverage Ratio” means the ratio, determined as of the end of each fiscal quarter of
NAI, of Consolidated Debt for Borrowed Money as of the end of such fiscal quarter to
Consolidated EBITDA for the period of 4 consecutive fiscal quarters ending with the end
of such fiscal quarter.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or other security interest in, on or of such asset and
(b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease
or title retention agreement (or any financing lease having substantially the same economic
effect as any of the foregoing) relating to such asset.
“Liquidity” means, with respect to NAI and its Subsidiaries as of any date of
determination, the sum of all unrestricted cash and unrestricted Permitted Investments which
are not subject to any Lien (other than Liens permitted under subparagraph 3(B)(2)(e)) and
which would be included on the consolidated balance sheet of NAI and such Subsidiaries in
accordance with GAAP as of such date of determination.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations or condition, financial or otherwise, of NAI and its Subsidiaries taken as a
whole, or (b) the ability of NAI or any Material Domestic Subsidiary to perform any of
its obligations under any of the Operative Documents or (c) the rights of or benefits
available to BNPPLC under any of the Operative Documents.
“Material Domestic Subsidiary” means each Material Subsidiary that is a Domestic
Subsidiary. The Material Domestic Subsidiaries on the Effective Date are identified as such
in Schedule 3.01 to the Disclosure Letter.
“Material Subsidiary” means each Subsidiary (a) which, as of the most recent
fiscal quarter of NAI, for the period covering the then most recently ended fiscal year and
the portion of the then current fiscal year ending at the end of such fiscal quarter, for
which financial statements have been delivered pursuant to subparagraph 2(D), contributed
greater than five percent (5%) of NAI’s Consolidated EBITDA for such period or (b) which
contributed greater than five percent (5%) of NAI’s Consolidated Total Assets as of such
date.
“Moody’s” means ▇▇▇▇▇’▇ Investors Service, Inc.
“NAI’s Secured Revolver” means the Secured Credit Agreement dated as of October 5, 2007
by and among NAI, certain lenders and JPMorgan Chase Bank, National Association, as
administrative agent, as it exists and is in force on the Effective Date.
“Net ▇▇▇▇-to-Market Exposure” of a Person means, as of any date of determination, the
excess (if any) of all unrealized losses over all unrealized profits of such Person arising
from each Swap Agreement transaction. “Unrealized losses” means the fair market value of
the cost to such Person of replacing such transaction as of the
date of determination
(assuming such transaction were to be terminated as of that date), and “unrealized profits”
means the fair market value of the gain to such Person of replacing such transaction as of
the date of determination (assuming such transaction was to be terminated as of that date).
“Off-Balance Sheet Liability” of a Person means (a) any repurchase obligation or
liability of such Person with respect to accounts or notes receivable sold by such Person
that is related to retained credit risk, or (b) any indebtedness, liability or obligation
under any so-called “synthetic lease” transaction entered into by such Person.
“Permitted Liens or Encumbrances” means:
(a) Liens imposed by law for Taxes or other governmental charges that are not
yet due or are being contested in accordance with Accepted Contest Requirements;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s,
landlord’s and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than sixty (60) days
or are being contested in accordance with Accepted Contest Requirements;
(c) pledges and deposits made in the ordinary course of business in compliance
with workers’ compensation, unemployment insurance and other social security laws or
regulations;
(d) deposits to secure the performance of bids, trade contracts, leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature, in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (J) of the definition thereof in the Common
Definitions and Provisions Agreement;
(f) easements, zoning restrictions, rights-of-way and similar encumbrances on
real property imposed by law or arising in the ordinary course of business that do
not secure any monetary obligations and do not materially detract from the value of
the affected property or interfere in any material respect with the ordinary conduct
of business of NAI or any Subsidiary;
(g) leases or subleases granted to other Persons and not interfering in any
material respect with the business of the lessor or sublessor;
(h) Liens arising from precautionary Uniform Commercial Code filings or
similar filings relating to operating leases;
(i) Liens in favor of customs and revenue authorities arising as a matter of
law to secure payment of customs duties in connection within the importation of
goods;
(j) Liens on insurance proceeds securing the premium of financed insurance
proceeds;
(k) Liens incurred in the ordinary course of business on cash collateral to
secure letters of credit, bank guarantees and banker’s acceptances and Swap
Agreements;
(l) licenses of intellectual property in the ordinary course of business;
(m) any interest or title of a lessor or sublessor under any lease of real
property or personal property; and
(n) other Liens on assets securing Indebtedness or other obligations not
prohibited under provisions of the Operative Documents other than this Paragraph 3
in an aggregate amount not to exceed $50,000,000 at any time outstanding;
provided that the term “Permitted Liens or Encumbrances” shall not include any Lien securing
Indebtedness.
“Permitted Investments” means:
(a) direct obligations of, or obligations the principal of and interest
on which are unconditionally guaranteed by, the United States of America (or by any
agency thereof to the extent such obligations are backed by the full faith and
credit of the United States of America), in each case maturing within one year from
the date of acquisition thereof;
(b) investments in commercial paper maturing within 365 days from the date of
acquisition thereof and having, at such date of acquisition, a rating of “A-2” (or
better) from S&P or “P-2” (or better) from Moody’s;
(c) investments in certificates of deposit, banker’s acceptances and time
deposits maturing within 180 days from the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered
by, any domestic office of any commercial bank organized under the laws of the
United States of America or any State thereof or any other country which has a
combined capital and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more than
thirty (30) days for securities described in clause (a) above and entered into with
a financial institution satisfying the criteria described in clause (c) above;
(e) money market funds that (i) comply with the criteria set forth in
Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of
1940, as amended, to the extent such money market fund is governed thereby, (ii) are
rated AA by S&P and Aa by Moody’s and (iii) have portfolio assets of at least
$5,000,000,000;
(f) investments made pursuant to a cash management investment policy approved
by the board of directors of the Person making such investment and as in effect on
the Effective Date, as such policy may be amended or otherwise modified from time to
time with the written consent of BNPPLC; and
(g) investments described in the following table:
| Remaining Maturity/ S&P/ Moody's | ||
| Type of Security | Rating | |
JPMorgan Certificates of Deposit |
||
US Treasury Treasuries |
||
US Agency Securities |
Less than 30 years | |
USD Commercial Paper |
A1/P1 Less than or equal to 270 days | |
Money Market
Funds (Must be through JPMorgan) |
US Gov’t | |
| Treasury Plus | ||
| Cash Management | ||
| 100% US Treasury | ||
| Federal Money Market | ||
Medium Term
Notes, Corporate Bonds, Corporate Debentures,
Floating Rate Notes, and Auction
Rate Securities |
A or better |
“S&P” means Standard & Poor’s, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies.
“Sale and Leaseback Transaction” means any sale or other transfer of assets or property
by any Person with the intent to lease any such asset or property as lessee.
“Subordinated Indebtedness” means any Indebtedness of NAI or any Subsidiary the payment
of which is subordinated to payment of the obligations under the Operative Documents to the
written satisfaction of BNPPLC.
“subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the
accounts of which would be consolidated with those of the parent in the parent’s
consolidated financial statements if such financial statements were prepared in accordance
with GAAP as of such date, as well as any other corporation, limited liability company,
partnership, association or other entity (a) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership interests
are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one
or more subsidiaries of the parent.
“Subsidiary” means any subsidiary of NAI.
“Swap Agreement” means any agreement with respect to any swap, forward, future
or derivative transaction or option or similar agreement involving, or settled by reference
to, one or more rates, currencies, commodities, equity or debt instruments or securities, or
economic, financial or pricing indices or measures of economic, financial or pricing risk or
value or any similar transaction or any combination of these transactions; provided that no
phantom stock or similar plan providing for payments only on account of services provided by
current or former directors, officers, employees or consultants of NAI or the Subsidiaries
shall be a Swap Agreement.
“Swap Obligations” of a Person means any and all obligations of such Person, whether
absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions therefor),
under (a) any and all Swap Agreements, and (b) any and all cancellations, buy backs,
reversals, terminations or assignments of any such Swap Agreement transaction.
“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.
(B) Negative Covenants. Prior to the Designated Sale Date and so long thereafter as
any amount shall continue to be due and payable by NAI to BNPPLC pursuant to any of the Operative
Documents, NAI covenants and agrees as follows:
(1) Subsidiary Indebtedness. NAI will not permit any Subsidiary to create, incur,
assume or permit to exist any Indebtedness, except:
(a) by Guarantee or assumption of any obligations evidenced or created by (x)
any of the Operative Documents, (y) or other comparable agreements between
BNPPLC and NAI covering other properties, or (z) the Credit Agreement
referenced on the first page of the Disclosure Letter;
(b) Indebtedness existing on the date hereof and set forth in Schedule 6.01 to
the Disclosure Letter and extensions, renewals and replacements of any such
Indebtedness that do not increase the then outstanding principal amount thereof;
(c) Indebtedness of (i) any Subsidiary to any Material Domestic Subsidiary and
(ii) any Subsidiary that is not a Material Domestic Subsidiary to any other
Subsidiary that is not a Material Domestic Subsidiary;
(d) Guarantees by any Subsidiary of Indebtedness of NAI or any other
Subsidiary;
(e) Indebtedness of any Subsidiary incurred to finance the acquisition,
construction or improvements of any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection with the acquisition of any
such assets or secured by a Lien on any such assets (and additions, accessions,
parts, improvement and attachments thereto and the proceeds thereof) prior to the
acquisition thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the then outstanding principal amount thereof;
provided that such Indebtedness is incurred prior to or within 120 days after such
acquisition or the completion of such construction or improvement; and extensions,
renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof;
(f) Indebtedness of any Person that becomes a Subsidiary after the date
hereof; provided that such Indebtedness exists at the time such Person becomes a
Subsidiary and is not created in contemplation of or in connection with such Person
becoming a Subsidiary, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof;
(g) Indebtedness of any Subsidiary as an account party in respect of
letters of credit, bank guarantees and bankers’ acceptances;
(h) Indebtedness in respect of Swap Agreements permitted under subparagraph
3(B)(4);
(i) Indebtedness of Subsidiaries which are not Material Domestic Subsidiaries
in an aggregate principal amount not exceeding 5% of Consolidated
Total Assets at any time outstanding; and
(j) other Indebtedness of any Subsidiary which is a Material Domestic
Subsidiary so long as, at the time of the incurrence thereof and after giving effect
thereto (on a pro forma basis), NAI is in pro forma compliance with the maximum
Leverage Ratio permitted under subparagraph 3(C)(1).
(2) Liens. NAI will not, and will not permit any Subsidiary to, create, incur, assume
or permit to exist any Lien on any property or asset now owned or hereafter acquired by it
(and for purposes hereof, any capital stock issued by NAI which is held by NAI as treasury
stock shall not be deemed to be property or an asset of NAI and shall not be subject to this
subparagraph 3(B)(2)), or assign or sell any income or revenues (including accounts
receivable) or rights in respect of any thereof, except that the following shall be
permitted so long as they do not encumber any interest in the Property in violation of other
provisions of the Operative Documents:
(a) Permitted Liens or Encumbrances;
(b) any Lien on any property or asset of NAI or any Subsidiary existing
on the date hereof and set forth in Schedule 6.02 to the Disclosure Letter; provided
that (i) such Lien shall not apply to any other property or asset of NAI or any
Subsidiary and (ii) such Lien shall secure only those obligations which it secures
on the date hereof and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the acquisition
thereof by NAI or any Subsidiary or existing on any property or asset of any Person
that becomes a Subsidiary after the date hereof prior to the time such Person
becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of
or in connection with such acquisition or such Person becoming a Subsidiary, as the
case may be, (ii) such Lien shall not apply to any other property or assets of NAI
or any Subsidiary and (iii) such Lien shall secure only those obligations which it
secures on the date of such acquisition or the date such Person becomes a
Subsidiary, as the case may be, and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount
thereof;
(d) Liens on fixed or capital assets (and additions, accessions, parts,
improvements and attachments thereto and the proceeds thereof) acquired, constructed
or improved by NAI or any Subsidiary; provided that:
(i) such security interests secure Indebtedness not otherwise
prohibited under the Operative Documents;
(ii) such security interests and the Indebtedness secured thereby are
either (A) incurred prior to or within one hundred twenty (120) days after
such acquisition or the completion of such construction or improvement, or
(B) granted and incurred to extend, renew or replace any security interest
and Indebtedness secured thereby that are permitted by this clause (d) and
do not increase the outstanding principal amount thereof by more than 5%;
(iii) the Indebtedness secured thereby does not exceed 105% of the cost
of acquiring, constructing or improving such fixed or capital assets; and
(iv) such security interests shall not apply to any other property or
assets of NAI or any Subsidiary;
(e) customary bankers’ Liens and rights of setoff arising by operation
of law or contract and incurred on deposits made in the ordinary course of business;
(f) assignments of the right to receive income effected (i) as a part of the
sale of a Subsidiary or a business unit or (ii) for factoring in the ordinary course
of business;
(g) Liens on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposit made by NAI or any Subsidiary in
connection with any letter of intent or acquisition agreement that is not prohibited
by the Operative Documents;
(h) customary Liens granted in favor a trustee to secure fees and other
amounts owing to such trustee under an indenture or other agreement pursuant to
Indebtedness not otherwise prohibited under the Operative Documents; and
(i) Liens granted as provided in and securing Indebtedness under NAI’s Secured
Revolver, provided such Liens do not at any time secure an outstanding principal
balance of more than $500,000,000.
(3) Fundamental Changes and Asset Sales.
(a) NAI will not, and will not permit any Subsidiary to, merge into,
consolidate with, or otherwise be acquired by, any other Person, or sell, transfer,
lease or otherwise dispose (including pursuant to a Sale and Leaseback
Transaction) of (in one transaction or in a series of transactions) all or
substantially all of its assets, or all or substantially all of the stock of any of
its Subsidiaries (in each case, whether now owned or here-after acquired, and for
purposes hereof, any capital stock issued by NAI which is held by NAI as treasury
stock shall not be deemed to be property or an asset of NAI and shall not be subject
to this subparagraph 3(B)(3), or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have occurred
and be continuing (i) any Subsidiary may merge into a Material Domestic Subsidiary
in a transaction in which the surviving entity is such Material Domestic Subsidiary,
(ii) any wholly owned Subsidiary may merge into or consolidate with any wholly owned
Subsidiary in a transaction in which the surviving entity is a wholly owned
Subsidiary and no Person other than NAI or a wholly owned Subsidiary receives any
consideration, provided that if any such merger described in this clause (ii) shall
involve a Material Domestic Subsidiary, the surviving entity of such merger shall be
a Material Domestic Subsidiary, (iii) any Subsidiary may sell, transfer, lease or
otherwise dispose of its assets to a Material Domestic Subsidiary or any wholly
owned Subsidiary pursuant to a transaction not otherwise prohibited under the
Operative Documents, (iv) any Subsidiary may liquidate or dissolve if NAI determines
in good faith that such liquidation or dissolution is in the best interests of NAI,
(v) NAI may merge with any other Person so long as NAI is the surviving entity, (vi)
any Subsidiary may merge with any other Person so long as the surviving entity is,
in the case of a Subsidiary Guarantor, the Subsidiary Guarantor, and in all other
cases, a wholly owned Subsidiary and (vii) any Subsidiary other than a Subsidiary
Guarantor may merge into, and NAI or any Subsidiary may dispose of assets to, any
other Person so long as NAI delivers a certificate to BNPPLC demonstrating pro forma
compliance with subparagraph 3(C) after giving effect to such transaction.
(b) NAI will not, and will not permit any of its Subsidiaries to, engage to
any material extent in any business other than businesses of the type conducted by
NAI and its Subsidiaries on the date of execution of the Operative Documents and
businesses reasonably related thereto.
(c) NAI will not, and will not permit any of its Subsidiaries to, change its
fiscal year to end on a day other than as such fiscal year end is currently
determined or change NAI’s method of determining fiscal quarters.
(4) Speculative Swap Agreements. NAI will not, and will not permit any of its
Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to
hedge or mitigate risks to which NAI or any Subsidiary has actual exposure (other than
those in respect of Equity Interests or Subordinated Indebtedness of NAI or any of its
Subsidiaries), and (b) Swap Agreements entered into in order to effectively cap, collar or
exchange interest rates (from fixed to floating rates, from one floating rate to another
floating rate or otherwise) with respect to any interest-bearing liability or investment of
NAI or any Subsidiary.
(5) Transactions with Affiliates. NAI will not, and will not permit any of its
Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase,
lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of business at
prices and on terms and conditions not less favorable to NAI or such Subsidiary than could
be obtained on an arm’s-length basis from unrelated third parties, (b) transactions between
or among NAI and its wholly owned Subsidiaries not involving any other Affiliate, (c) to
enter into indemnification arrangements with or to pay customary fees and reimburse
out-of-pocket expenses of directors or (d) as set forth on the Disclosure Letter.
(6) Restrictive Agreements. NAI will not, and will not permit any of its
Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement
or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability
of NAI or any Subsidiary to create, incur or permit to exist any Lien upon any of its
property or assets, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to any shares of its capital stock or to make or repay loans or
advances to NAI or any other Subsidiary or to Guarantee Indebtedness of NAI or any other
Subsidiary; provided that (i) the foregoing shall not apply to restrictions and conditions imposed by law, by any Operative Document, by any document relating to NAI’s unsecured
syndicated revolving credit facility from certain lenders and JPMorgan Chase Bank, National
Association as administrative agent, by NAI’s Secured Revolver, or by any document relating
to NAI’s synthetic lease facilities, (ii) the foregoing shall not apply to restrictions and
conditions existing on the date hereof identified on Schedule 6.06 to the Disclosure Letter
(but shall apply to any extension or renewal of, or any amendment or modification expanding
the scope of, any such restriction or condition), (iii) the
foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of assets
or of a Subsidiary pending such sale, provided such restrictions and conditions apply only
to such assets or such Subsidiary that are to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions imposed by
any agreement relating to secured Indebtedness permitted by the Operative Documents if such
restrictions or conditions apply only to the property or assets securing such Indebtedness,
and (v) clause (a) of the
foregoing shall not apply to customary provisions in leases,
licenses, joint venture agreements and other agreements entered into in the ordinary course
of business restricting the assignment thereof.
(C) Financial Covenants. Prior to the Designated Sale Date and so long thereafter as
any amount shall continue to be due and payable by NAI to BNPPLC pursuant to any of the Operative
Documents:
(1) Maximum Leverage Ratio. NAI will not permit the Leverage Ratio to be greater than
3.0 to 1.0.
(2) Minimum Liquidity. NAI and its Subsidiaries on a consolidated basis shall
maintain, at all times, Liquidity of not less than $300,000,000.
4 Limited Representations and Covenants of BNPPLC
(A) Concerning Accounting Matters.
(1) To permit NAI to determine the appropriate accounting for NAI’s relationship
with BNPPLC under FASB Interpretation No. 46(R), Consolidation of Variable Interest Entities
(“FIN 46”), BNPPLC represents that to the knowledge of BNPPLC the fair value of the Property
and of other properties, if any, leased to NAI by BNPPLC (collectively, whether one or more,
the “Properties Leased to NAI”) are, as of the Effective Date, less than half of the total
of the fair values of all assets of BNPPLC, excluding any assets of BNPPLC held within a
silo. Further, none of the Properties Leased to NAI are, as of the Effective Date, held
within a silo. Consistent with the directions of NAI (based upon the current interpretation
of FIN 46 by NAI and its auditors), and for purposes of this representation only:
| • | “held within a silo” means, with respect to any asset or group of assets leased by BNPPLC to a single lessee or group of affiliated lessees, that BNPPLC has obtained funds equal to or in excess of 95% of the fair value of the leased asset or group of assets to acquire or maintain its investment in such asset or group of assets through non-recourse financing or other contractual arrangements (such as targeted equity or bank participations), the effect of which is to leave such asset or group of assets (or proceeds thereof) as the only significant asset or assets of BNPPLC at risk for the repayment of such funds; | ||
| • | “fair value” means, with respect to any asset, the amount for which the asset could be bought or sold in a current transaction |
| negotiated at arms length between willing parties (that is, other than in a forced or liquidation sale); |
| • | with respect to the Properties Leased to NAI (regardless of how BNPPLC accounts for the leases of the Properties Leased to NAI), and with respect to other assets that are subject to leases accounted for by BNPPLC as operating leases pursuant to Financial Accounting Standards Board Statement 13 (“FAS 13”), fair value is determined without regard to residual value guarantees, remarketing agreements, non-recourse financings, purchase options or other contractual arrangements, whether made by BNPPLC with NAI or with other parties, that might otherwise impact the fair value of such assets; | ||
| • | with respect to assets, other than Properties Leased to NAI, that are subject to leases accounted for by BNPPLC as leveraged leases pursuant to FAS 13, fair value is determined on a gross basis prior to the application of leveraged lease accounting, recognizing that equity investments made by BNPPLC in its assets subject to leveraged lease accounting should be grossed up in applying this test (however, equity investments made by BNPPLC through another legal entity should not be so grossed up in applying this test); | ||
| • | with respect to assets, other than Properties Leased to NAI, that are subject to leases accounted for by BNPPLC as direct financing leases pursuant to FAS 13, fair value is determined as the sum of the fair values (considering current interest rates at which similar loans would be made to borrowers with similar credit ratings and for the same remaining maturities) of the corresponding finance lease receivables and related unguaranteed residual values. |
(2) BNPPLC also represents that BNPPLC’s Parent is, as of the Effective Date, including
BNPPLC as a consolidated subsidiary in the audited financial statements issued by BNPPLC’s
Parent.
(3) BNPPLC covenants that, as reasonably requested by NAI from time to time with
respect to any accounting period during which the Lease is or was in effect, BNPPLC will
provide to NAI confirmation of facts concerning BNPPLC and its assets as necessary to permit
NAI to determine the proper accounting for the Lease (including updates of the facts set
forth in clauses (1) and (2) above); except that BNPPLC will not
be required by this provision to (w) provide any information that is not in the
possession
or control of BNPPLC or its Affiliates, (x) disclose the specific terms and
conditions of its leases or other transactions with other parties or the names of such
parties, (y) make disclosures prohibited by any law applicable to BNPPLC or BNPPLC’s Parent,
or (z) disclose any other information that is protected from disclosure by confidentiality
provisions in favor of such other parties or would be protected if their agreements with
BNPPLC contained confidentiality provisions similar in scope and substance to any
confidentiality provisions set forth in the Operative Documents for the benefit of NAI or
its Affiliates. BNPPLC will represent that information provided by it pursuant to this
clause is true and complete in all material respects, but only to the knowledge of BNPPLC as
of the date it is provided, utilizing the form of the certificate attached hereto as
Exhibit E (signed by an officer of BNPPLC), which certificate will be provided
periodically by BNPPLC within five business days of reasonable written request therefor by
NAI as provided above, or such longer period of time as may be reasonably necessary under
the circumstances in order for BNPPLC to confirm such information.
(4) Although the representations required of BNPPLC by this subparagraph are intended
to cover facts, it is understood and agreed (consistent with subparagraph 4(C) of
the Lease) that BNPPLC has not made and will not make any representation or warranty as to
the proper accounting by NAI or its Affiliates of the Lease or as to other accounting
conclusions.
(B) Other Limited Representations. BNPPLC represents that:
(1) Entity Status. BNPPLC is a corporation duly incorporated, validly existing and in
good standing under the laws of Delaware.
(2) Authority. The Constituent Documents of BNPPLC permit the execution, delivery and
performance of the Operative Documents by BNPPLC, and all actions and approvals necessary to
bind BNPPLC under the Operative Documents have been taken and obtained. Without limiting
the foregoing, the Operative Documents will be binding upon BNPPLC when signed on behalf of
BNPPLC by ▇▇▇▇▇ ▇. ▇▇▇, Managing Director of BNPPLC. BNPPLC has all requisite power and all
governmental certificates of authority, licenses, permits and qualifications to carry on its
business as now conducted and contemplated to be conducted and to perform the Operative
Documents, except that BNPPLC makes no representation as to whether it has obtained
governmental certificates of authority, licenses, permits, qualifications or other
documentation required by state or local Applicable Laws. With regard to any such state or
local requirements, NAI may require that BNPPLC obtain a specific governmental certificates
of authority, licenses, permits, qualifications or other documentation pursuant to
subparagraph 4(C), subject to the conditions set forth in that subparagraph.
(3) Solvency. BNPPLC is not “insolvent” on the Effective Date (that is, the
sum of BNPPLC’s absolute and contingent liabilities — including the obligations of BNPPLC under the
Operative Documents — does not exceed the fair market value of BNPPLC’s assets), and BNPPLC
has no outstanding liens, suits, garnishments or court actions which could render BNPPLC
insolvent or bankrupt. BNPPLC’s capital is adequate for the businesses in which BNPPLC is
engaged and intends to be engaged. BNPPLC has not incurred (whether by the Operative
Documents or otherwise), nor does BNPPLC intend to incur or believe that it will incur,
debts which will be beyond its ability to pay as such debts mature. No petition or answer
has been filed by or, to BNPPLC’s knowledge, against BNPPLC in bankruptcy or other legal
proceedings that seeks an assignment for the benefit of creditors, the appointment of a
receiver, trustee, custodian or liquidator with respect to BNPPLC or any significant portion
of BNPPLC’s property, a reorganization, arrangement, rearrangement, composition, extension,
liquidation or dissolution of BNPPLC or similar relief under the federal Bankruptcy Code or
any state law. (As used in the Operative Documents, “BNPPLC’s knowledge” and words of like
effect mean the present actual knowledge of ▇▇▇▇▇ ▇. ▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, the current
officers of BNPPLC having primary responsibility for the negotiation of the Operative
Documents.)
(4) Pending Legal Proceedings. No judicial or administrative investigations,
actions, suits or proceedings are pending or, to the knowledge of BNPPLC, threatened against
or affecting BNPPLC by or before any court or other Governmental Authority. BNPPLC is not
in default with respect to any order, writ, injunction, decree or demand of any court or
other Governmental Authority in a manner that has or could reasonably be expected to have a
a material adverse effect on BNPPLC or its ability to perform its obligations under the
Operative Documents.
(5) No Default or Violation. The execution and performance by BNPPLC of the Operative
Documents do not and will not contravene or result in a breach of or default under any other
agreement to which BNPPLC is a party or by which BNPPLC is bound or which affects any assets
of BNPPLC. Such execution and performance by BNPPLC do not contravene any law, order,
decree, rule or regulation to which BNPPLC is subject. Further, such execution and
performance by BNPPLC will not result in the creation or imposition of (or the obligation to
create or impose) any lien, charge or encumbrance on, or security interest in, any property
of BNPPLC pursuant to the provisions of any such other agreement.
(6) Enforceability. The Operative Documents constitute the legal, valid and binding
obligations of BNPPLC enforceable in accordance with their terms, subject to the
effect of bankruptcy, insolvency, reorganization, receivership and other similar laws
affecting the rights of creditors generally.
(7) Conduct of Business and Maintenance of Existence. So long as any of the
Operative Documents remains in force, BNPPLC will continue to engage in business of the same general
type as now conducted by it and will preserve, renew and keep in full force and effect its
corporate existence and its rights, privileges and franchises necessary or desirable in the
normal conduct of business.
(8) Not a Foreign Person. BNPPLC is not a “foreign person” within the meaning of
Sections 1445 and 7701 of the Code (i.e. BNPPLC is not a non-resident alien, foreign
corporation, foreign partnership, foreign trust or foreign estate as those terms are defined
in the Code and regulations promulgated thereunder).
Notwithstanding the foregoing, however or any other provision herein or in other Operative
Documents to the contrary, it is understood that NAI is not relying upon BNPPLC for any evaluation
of California or local Applicable Laws upon the transactions contemplated in the Operative
Documents, and BNPPLC makes no representation and will not make any representation that conditions
imposed by zoning ordinances or other state or local Applicable Laws to the purchase, ownership,
lease or operation of the Property have been satisfied.
(C) Further Assurances. During the Term of the Lease BNPPLC will take any
action reasonably requested by NAI to facilitate the use of the Property permitted by the Lease;
subject, however, to the following terms and conditions:
(1) This subparagraph 4(C) will not impose upon BNPPLC the obligation to take any
action that can be taken by NAI, NAI’s Affiliates or anyone else other than BNPPLC in its
capacity as the owner of the Property.
(2) BNPPLC will not be required by this subparagraph 4(C) to incur any expense or to
make any payments to another Person unless BNPPLC has received funds from NAI, in excess of
any other amounts due from NAI under any of the Operative Documents, sufficient to cover all
such expenses or payments or other Persons.
(3) BNPPLC will not be required by this subparagraph 4(C) to incur or assume any
significant potential liability to another Person.
(4) BNPPLC will have no obligations whatsoever under this subparagraph 4(C) at any time
when a Default has occurred and is continuing.
(5) NAI must request any action to be taken by BNPPLC pursuant to this subparagraph
4(C), and such request must be specific and in writing, if required by BNPPLC at the time
the request is made.
(6) No action may be required of BNPPLC pursuant to this subparagraph 4(C) that could
constitute a violation of any Applicable Laws or compromise or constitute a
waiver of BNPPLC’s rights under other provisions of this Certificate or any of the other Operative
Documents or that for any other reason is reasonably objectionable to BNPPLC.
The actions BNPPLC will take pursuant to this subparagraph 4(C) if reasonably requested
by NAI will include, subject to the conditions listed in the proviso above, executing or consenting
to, or exercising or assisting NAI to exercise rights under any: (I) grant of easements, licenses,
rights of way, and other rights in the nature of easements encumbering the Land or the
Improvements, (II) release, relocation or termination of easements, licenses, rights of way or
other rights in the nature of easements which are for the benefit of the Land or Improvements or
any portion thereof, (III) dedication or transfer of portions of the Land not improved with a
building, for road, highway or other public purposes, (IV) agreements (other than with NAI or its
Affiliates) for the use and maintenance of common areas, for reciprocal rights of parking, ingress
and egress and amendments to any covenants and restrictions affecting the Land or any portion
thereof, (V) documents required to create or administer a governmental special benefit district or
assessment district for public improvements and collection of special assessments, (VI) instruments
necessary or desirable for the exercise or enforcement of rights or performance of obligations
under any Permitted Encumbrance or any contract, permit, license, franchise or other right included
within the term “Property”, (VII) modifications of Permitted Encumbrances, (VIII) permit
applications or other documents required to accommodate any construction permitted by the Lease,
(IX) confirmations of NAI’s rights under any particular provisions of the Operative Documents which
NAI may wish to provide to a third party, or (X) tract or parcel map subdividing the Land into lots
or parcels. However, the determination of whether any such action is reasonably requested or
reasonably objectionable to BNPPLC may depend in whole or in part upon the extent to which the
requested action may result in a lien to secure payment or performance obligations against BNPPLC’s
interest in the Property, may cause the value of the Property to be less than the Lease Balance
after any Qualified Prepayments that may result from such action are taken into account, or may
impose upon BNPPLC any present or future obligations greater than the obligations BNPPLC is willing
to accept, taking into consideration the indemnifications provided by NAI under the Lease. In
addition, with respect to any request made by NAI to facilitate a relocation of any easements, the
following will be relevant to the determination of whether the request is reasonable:
(i) whether material encroachments will result from the relocation, and
whether title to the land over or under which any such easement is to be relocated is
encumbered by Liens other than those which are Fully Subordinated or Removable or which
otherwise constitute Permitted Encumbrances;
(ii) whether the relocation will result in any interruption of access or services
provided to the Property which is likely to extend beyond the Designated Sale Date (it being
understood, however, that any such interruption which is not likely to extend beyond the
Designated Sale Date will not be a reason for BNPPLC to decline the
request); and
(iii) whether the relocation is to be accomplished in a manner that will not, when the
relocation is complete, result in a material adverse change in the access to or services
provided to the Improvements or the Land.
Any and all Losses incurred by BNPPLC because of any action taken pursuant to this
subparagraph 4(C) will be covered by the indemnification set forth in subparagraph 5(C) of
the Lease. Further, for purposes of such indemnification, any such action taken by BNPPLC will be
deemed to have been made at the request of NAI if made pursuant to any request of counsel to or any
officer of NAI (or with their knowledge, and without their objection) in connection with the
execution or administration of the Lease or the other Operative Documents.
(D) Actions Permitted by NAI Without BNPPLC’s Consent. No refusal by BNPPLC to
execute or join in the execution of any agreement, application or other document requested by NAI
pursuant to the preceding subparagraph 4(C) will prevent NAI from itself executing such agreement,
application or other document, so long as NAI is not purporting to act for BNPPLC and does not
thereby create or expand any obligations or restrictions that encumber BNPPLC’s title to the
Property. Further, subject to the other terms and conditions of the Lease and other Operative
Documents, NAI may do any of the following in NAI’s own name and to the exclusion of BNPPLC during
the Term of the Lease, so long as no Default has occurred and is continuing, and provided NAI is
not purporting to act for BNPPLC and does not thereby create or expand any obligations or
restrictions that encumber BNPPLC’s title to the Property:
(1) perform obligations arising under and exercise and enforce the rights of NAI or the
owner of the Property under the Permitted Encumbrances;
(2) perform obligations arising under and exercise and enforce the rights of NAI or the
owner of the Property with respect to any other contracts or documents (such as building
permits) included within the Personal Property; and
(3) recover and retain any monetary damages or other benefit inuring to NAI
or the owner of the Property through the enforcement of any rights, contracts or other
documents included within the Personal Property (including the Permitted Encumbrances);
provided, that to the extent any such monetary damages may become payable as compensation
for an adverse impact on value of the Property, the rights of BNPPLC and NAI under the other
Operative Documents with respect to the collection and application of such monetary damages
will be the same as for condemnation proceeds payable because of a taking of all or any part
of the Property.
(E) Waiver of Landlord’s Liens. BNPPLC waives any security interest, statutory
landlord’s lien or other interest BNPPLC may have in or against computer equipment and other
tangible personal property placed on the Land from time to time that NAI or its Affiliates own or
lease from other lessors; however, BNPPLC does not waive its interest in or rights with respect to
equipment or other property included within the “Property” as described in Paragraph 7 of
the Lease. Although computer equipment or other tangible personal property may be “bolted down” or
otherwise firmly affixed to Improvements, it will not by reason thereof become part of the
Improvements if it can be removed without causing structural or other material damage to the
Improvements and without rendering HVAC or other major building systems inoperative and if it does
not otherwise constitute “Property” as provided in Paragraph 7 of the Lease.
Without limiting the foregoing, BNPPLC acknowledges that NAI may obtain financing from
other parties for inventory, furnishings, equipment, machinery and other personal property that is
located in or about the Improvements, but that is not included in or integral to the Property, and
to secure such financing NAI may grant a security interest under the California Uniform Commercial
Code in such inventory, furnishings, equipment, machinery and other personal property. Further,
BNPPLC acknowledges that the lenders providing such financing may require confirmation from BNPPLC
of its agreements concerning landlord’s liens and other matters set forth in this subparagraph
4(E), and NAI may obtain such confirmation in any statement required of BNPPLC by the next
subparagraph.
(F) Estoppel Letters. Upon thirty days written request by NAI at any time and from
time to time prior to the Designated Sale Date, BNPPLC must provide a statement in writing
certifying that the Operative Documents are unmodified and in full effect (or, if there have been
modifications, that the Operative Documents are in full effect as modified, and setting forth such
modifications), certifying the dates to which the Base Rent payable by NAI under the Lease has been
paid, stating whether BNPPLC is aware of any Default by NAI that may exist under the Operative
Documents and confirming BNPPLC’s agreements concerning landlord’s liens and other matters set
forth in subparagraph 4(E). Any such statement by BNPPLC may be relied upon by anyone with whom NAI
may intend to enter into an agreement for construction of the Improvements or other significant
agreements concerning the Property.
(G) No Implied Representations or Promises by BNPPLC. NAI acknowledges and agrees
that neither BNPPLC nor its representatives or agents have made any representations or promises
with respect to the Property or the transactions contemplated in the Operative Documents except as
expressly set forth in the Operative Documents, and no rights, easements or licenses are being
acquired by NAI from BNPPLC by implication or otherwise, except as expressly set forth in the other
Operative Documents.
5 Usury Savings Provision. Notwithstanding anything to the contrary in any of the
Operative Documents, BNPPLC does not intend to contract for, charge or collect any amount of money
from NAI that constitutes interest in excess of the maximum nonusurious rate of interest, if any,
allowed by applicable usury laws (the “Maximum Rate”). BNPPLC and NAI agree that
it is their intent in the execution of the Lease, the Purchase Agreement and other Operative Documents to contract in
strict compliance with applicable usury laws, if any. In furtherance thereof, BNPPLC and NAI
stipulate and agree that none of the provisions of the Lease, the Purchase Agreement or the other
Operative Documents shall ever be construed to create a contract requiring compensation for the
use, forbearance or detention of money at a rate in excess of the Maximum Rate, and the provisions
of this paragraph shall control over all other provisions of this Certificate or other Operative
Documents which may be in apparent conflict herewith. All interest paid or agreed to be paid by
NAI to BNPPLC shall, to the extent permitted by applicable usury laws, be amortized, prorated,
allocated, and spread throughout the period that any principal upon which such interest accrues is
expected to be outstanding (including without limitation any renewal or extension of the term of
the Lease) so that the amount of interest included in such payments does not exceed the maximum
nonusurious amount permitted by applicable usury laws. If the Designated Sale Date is accelerated
and as a result thereof amounts paid by NAI to BNPPLC as interest are determined to exceed the
interest that would have accrued at the Maximum Rate for the period prior to the Designated Sale
Date, then BNPPLC shall, at its option, either refund to NAI the amount of such excess or credit
such excess as a Qualified Prepayment (and thus reduce the Lease Balance and other amounts, the
determination of which depend upon Qualified Prepayments credited to NAI) and thereby shall render
inapplicable any and all penalties of any kind provided by applicable usury laws as a result of
such excess interest. If BNPPLC receives money (or anything else) that is determined to constitute
interest and that would, but for this provision, increase the effective interest rate received by
BNPPLC under or in connection with the Operative Documents to a rate in excess of the Maximum Rate,
then the amount determined to constitute interest in excess of the maximum nonusurious interest
shall, immediately following such determination, be returned to NAI or be credited as a Qualified
Prepayment, in which event any and all penalties of any kind under applicable usury law shall be
inapplicable. If BNPPLC does not actually receive, but shall contract for, request or demand, a
payment of money (or anything else) which is determined to constitute interest and to increase the
effective interest rate contracted for or charged to a rate in excess of the Maximum Rate,
BNPPLC shall be entitled, following such determination, to waive or rescind the contractual claim,
request or demand for the amount determined to exceed the Maximum Rate, in which event any and all
penalties of any kind under applicable usury law shall be inapplicable. If at any time NAI should
have reason to believe that the transactions evidenced by the Operative Documents are in fact
usurious, NAI shall promptly give BNPPLC notice of such condition, after which BNPPLC shall have
ninety days in which to make appropriate refund or other adjustment in order to correct such
condition if it in fact exists.
6 Obligations of NAI Under Other Operative Documents Not Limited by this Certificate.
Except as provided above in Paragraph 5, nothing contained in this Certificate will limit, modify
or otherwise affect any of NAI’s obligations under the other Operative Documents. Subject to
Paragraph 5, those obligations are intended to be separate, independent and in addition to, and not
in lieu of, those established by this Certificate.
7 Obligations of NAI Hereunder Not Limited by Other Operative Documents. Recognizing that
but for this Certificate (including the representations of NAI set forth in Paragraph 1) BNPPLC
would not acquire the Property or enter into the other Operative Documents, NAI agrees that
BNPPLC’s rights for any breach of this Certificate (including a breach of such representations)
will not be limited by any provision of the other Operative Documents that would limit NAI’s
liability thereunder.
8 Waiver of Jury Trial. Each of the parties hereto hereby waives its right to a
jury trial of any claim or cause of action based upon or arising out of this Agreement, the other
Operative Documents or any of the transactions contemplated hereby or thereby, including contract
claims, tort claims, breach of duty claims, and all other common law or statutory claims
(collectively, the “Claims”). If and to the extent that the foregoing waiver of the right to a
jury trial is unenforceable for any reason in such forum, each of the parties hereto hereby
consents to the adjudication of all Claims pursuant to judicial reference as provided in California
Code of Civil Procedure Section 638, and the judicial referee shall be empowered to hear and
determine all issues in such reference, whether fact or law. Each of the parties hereto represents
that each has reviewed this waiver and consent and each knowingly and voluntarily waives its jury
trial rights and consents to judicial reference following consultation with legal counsel on such
matters. In the event of litigation, a copy of this Agreement may be filed as a written consent to
a trial by the court or to judicial reference under California Code of Civil Procedure Section 638
as provided herein.
[The signature pages follow.]
IN WITNESS WHEREOF, this Closing Certificate and Agreement (▇▇▇▇▇▇▇ Business Center) is
executed to be effective as of November 29, 2007.
| BNP PARIBAS LEASING CORPORATION, a Delaware corporation |
||||
| By: | ||||
| ▇▇▇▇▇ ▇. ▇▇▇, Managing Director | ||||
[Continuation of signature pages for Closing Certificate and Agreement (▇▇▇▇▇▇▇ Business Center)
dated as of November 29, 2007.]
| NETWORK APPLIANCE, INC., a Delaware corporation |
||||
| By: | ||||
| Ingemar Lanevi, Vice President and Corporate Treasurer | ||||
Exhibit A
Legal Description
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SUNNYVALE, COUNTY OF SANTA ▇▇▇▇▇,
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 ▇▇▇▇▇ County Records”,
which Map was filed for record in the Office of the Recorder of the County of Santa ▇▇▇▇▇, 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 ▇▇▇▇▇ County Records”, which Map was filed for record in the Office of the Recorder of
the County of Santa ▇▇▇▇▇, State of California on August 21, 1979 in Book 448 of Maps, at Pages 18
and 19.
APN: ▇▇▇-▇▇-▇▇▇, ▇▇▇-▇▇-▇▇▇
Exhibit B
Permitted Encumbrances
1. Property taxes, which are a lien not yet due and payable, including any assessments collected
with taxes to be levied for the fiscal year 2007-2008.
2. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Chapter 3.5
(Commencing with Section 75) of the Revenue and Taxation code of the State of California. (None
currently assessed.)
3. Easement(s) for the purpose(s) shown below and rights incidental thereto as granted in a
document:
Granted to:
|
City of Sunnyvale, A Municipal Corporation | |
Purpose:
|
Slope easement | |
Recorded:
|
October 9, 1964, Book 6695, Page 389, of Official Records | |
Affects:
|
as described therein |
4. Easement(s) for the purpose(s) shown below and rights incidental thereto as granted in a
document:
Granted to:
|
City of Sunnyvale, A Municipal Corporation | |
Purpose:
|
Slope easement | |
Recorded:
|
October 9, 1964, Book 6695, Page 409, of Official Records | |
Affects:
|
A portion of Parcel One |
5. Easement(s) for the purpose(s) shown below and rights incidental thereto as granted in a
document:
Granted to:
|
City of Sunnyvale, A Municipal Corporation | |
Purpose:
|
Public Utilities | |
Recorded:
|
October 9, 1964, Book 6695, Page 457, of Official Records | |
Affects:
|
A portion of Parcel One |
6. Easement(s) for the purpose(s) shown below and rights incidental thereto as granted in a
document:
Granted to:
|
City of Sunnyvale, A Municipal Corporation | |
Purpose:
|
Public Utilities | |
Recorded:
|
September 24, 1965, Book 7116, Page 489, of Official Records | |
Affects:
|
As described therein |
7. Easement(s) for the purpose(s) shown below and rights incidental thereto as delineated or as
offered for dedication, on the Map Recorded in Book 413 of Maps, Page 53:
Purpose:
|
Public Utility Easement | |
Affects:
|
The Southwesterly 10 feet and the Northwesterly 9 feet of Parcel One; and the Southwesterly 15 feet of the Northeasterly 31 feet of the Northwesterly 492.14 feet and a portion of a strip 10 feet wide across a Southerly portion of Parcel Two | |
Purpose:
|
Ingress and Egress | |
Affects:
|
the Southeasterly 15 feet of Parcel One and the Northwesterly 15 feet of Parcel Two |
8. Covenants, conditions and restrictions in the declaration of restrictions:
Recorded:
|
March 8, 1978, Instrument No. 5947371, Book D511, Page 396, of Official Records |
Modifications of said covenants, conditions and restrictions:
Recorded:
|
August 19, 1980, Instrument No. 6808622, Book F514, Page 328, of Official Records | |
Affects:
|
Parcel One and other property |
9. Easement(s) for the purpose(s) shown below and rights incidental thereto as granted in a
document:
Granted to:
|
The Prudential Insurance Company of America, a New Jersey Corporation | |
Purpose:
|
Ingress and Egress | |
Recorded:
|
August 24, 1978, Book D908, Page 20, of Official Records | |
Affects:
|
A portion of Parcel Two |
10. Covenants, conditions and restrictions in the declaration of restrictions:
Recorded:
|
November 17, 1978, Book E102, Page 686, of Official Records |
Said covenants, conditions and restrictions provide that a violation thereof shall not defeat the
lien of any mortgage or deed of trust made in good faith and for value.
The provisions of said covenants, conditions and restrictions were extended to include the herein
described land by an instrument:
Recorded:
|
August 22, 1979, Instrument No. 6477044, of Official Records | |
Affects:
|
Parcel Two and other property |
11. Easement(s) for the purpose(s) shown below and rights incidental thereto as granted in a
document:
Granted to:
|
Pacific Gas and Electric Company, a California corporation | |
Purpose:
|
One or more underground pipes with suitable service pipes and connections for the conveyance of gas by Pacific Gas and Electric Company | |
Recorded:
|
April 20, 1979, Book E434, Page 278, of Official Records |
The exact location and extent of said easement is not disclosed of record.
12. Covenants, conditions and restrictions in the declaration of restrictions:
Recorded:
|
August 22, 1979, Book E740, Page 437, of Official Records |
Said covenants, conditions and restrictions provide that a violation thereof shall not defeat the
lien of any mortgage or deed of trust made in good faith and for value.
The provisions of said covenants, conditions and restrictions were extended to include the herein
described land by an instrument:
Recorded:
|
May 5, 1980, Book F309, Page 39, of Official Records |
13. An unrecorded lease with certain terms, covenants, conditions and provisions set forth therein
as disclosed by the document:
Entitled:
|
Subordination, Non-Disturbance and Attornment Agreement | |
Lessor:
|
▇▇▇▇▇▇▇ Business Center, Inc., a Delaware Corporation | |
Lessee:
|
Harmonic Lightwaves, Inc. | |
Recorded:
|
December 18, 1996, Instrument No. 13555124, of Official Records |
An agreement (and the provisions contained therein) which states that said lease is subordinate to
the Deed of Trust:
Recorded:
|
December 17, 1996, Instrument No. 13553142, of Official Records | |
By document Recorded: |
December 18, 1996, Instrument No. 13555124, of Official Records |
14. An unrecorded lease with certain terms, covenants, conditions and provisions set forth therein
as disclosed by the document:
Entitled:
|
Subordination, Non-Disturbance and Attornment Agreement | |
Lessor:
|
▇▇▇▇▇▇▇ Business Center, Inc., a Delaware Corporation | |
Lessee:
|
Volex Group, P.L.C. | |
Recorded:
|
December 18, 1996, Instrument No. 13555120, of Official Records |
An agreement (and the provisions contained therein) which states that said lease is subordinate to
the Deed of Trust:
Recorded:
|
December 17, 1996, Instrument No. 13553142, of Official Records | |
By document Recorded: |
December 18, 1996, Instrument No. 13555120, of Official Records |
15. An unrecorded lease with certain terms, covenants, conditions and provisions set forth therein
as disclosed by the document:
Entitled:
|
Subordination, Non-Disturbance and Attornment Agreement | |
Lessor:
|
▇▇▇▇▇▇▇ Business Center, Inc., a Delaware Corporation | |
Lessee:
|
TRW Inc. | |
Recorded:
|
December 18, 1996, Instrument No. 13555122, of Official Records |
An agreement (and the provisions contained therein) which states that said lease is subordinate to
the Deed of Trust:
Recorded:
|
December 17, 1996, Instrument No. 13553142, of Official Records | |
By document Recorded: |
December 18, 1996, Instrument No. 13555122, of Official Records |
16. An unrecorded lease with certain terms, covenants, conditions and provisions set forth therein
as disclosed by the document:
Entitled:
|
Subordination, Non-Disturbance and Attornment Agreement | |
Lessor:
|
▇▇▇▇▇▇▇ Business Center, Inc., a Delaware Corporation | |
Lessee:
|
TRW Inc. | |
Recorded:
|
December 18, 1996, Instrument No. 13555123, of Official Records |
An agreement (and the provisions contained therein) which states that said lease is subordinate to
the Deed of Trust:
Recorded:
|
December 17, 1996, Instrument No. 13553142, of Official Records | |
By document Recorded: |
December 18, 1996, Instrument No. 13555123, of Official Records |
17. An unrecorded lease with certain terms, covenants, conditions and provisions set forth
therein as disclosed by the document:
Entitled:
|
Subordination, Non-Disturbance and Attornment Agreement | |
Lessor:
|
▇▇▇▇▇▇▇ Business Center, Inc., a Delaware Corporation |
Lessee:
|
Digital Equipment Corporation | |
Recorded:
|
December 18, 1996, Instrument No. 13555121, of Official Records |
An agreement (and the provisions contained therein) which states that said lease is subordinate to
the Deed of Trust:
Recorded:
|
December 17, 1996, Instrument No. 13553142, of Official Records | |
By document Recorded: |
December 18, 1996, Instrument No. 13555121, of Official Records |
18. An unrecorded lease with certain terms, covenants, conditions and provisions set forth therein
as disclosed by the document:
Entitled:
|
Notice of Non-Responsibility | |
Lessor:
|
AMB Property, L.P., a Delaware limited partnership | |
Lessee:
|
Harmonics, Incorporated | |
Recorded:
|
July 19, 2006, Instrument No. 19026667, of Official Records |
Exhibit C
Quarterly Certificate
BNP Paribas Leasing Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇, Managing Director
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇, Managing Director
Gentlemen:
This Certificate is furnished pursuant to subparagraph 2(D)(3) of the Closing Certificate and
Agreement (▇▇▇▇▇▇▇ Business Center) dated as of November 29, 2007 between Network Appliance, Inc.
and BNP Paribas Leasing Corporation(as amended, the “Closing Certificate”). Terms defined in the
Closing Certificate and used but not otherwise defined in this Certificate are intended to have the
respective meanings ascribed to them in the Closing Certificate.
The undersigned, being a Responsible Financial Officer of Network Appliance, Inc., represents
and certifies the following to BNP Paribas Leasing Corporation:
(a) No Event of Default or material Default by NAI has occurred except as follows:
[If an Event of Default or material Default by NAI has occurred, insert a
description of the nature thereof and the action which NAI has taken or
proposes to take to rectify it; otherwise, insert the word “none”.]
(b) The representations and warranties by NAI in the Closing Certificate are true and
complete in all material respects on and as of the date of this Certificate as though made
on and as of such date.
(c) the calculations set forth in the attachment to this Certificate, which show
whether NAI is complying with financial covenants set forth in subparagraph 3(C) of the
Closing Certificate based upon the most recent information available, are true and complete.
Executed this ___ day of , 20___.
[INSERT SIGNATURE BLOCK FOR A
RESPONSIBLE FINANCIAL OFFICER]
RESPONSIBLE FINANCIAL OFFICER]
Exhibit D
Form of Disclosure Letter
NETWORK APPLIANCE, INC.
DISCLOSURE LETTER
To: JPMorgan Chase Bank, National Association, as Administrative Agent (“Agent”), under
that certain Credit Agreement dated as of November ___, 2007 (as such agreement may be amended,
restated or otherwise modified in writing from time to time, the “Credit Agreement”) among
Network Appliance, Inc. (the “Borrower”), the lenders from time to time party thereto, BNP
Paribas, as syndication agent, and Agent.
This Disclosure Letter is delivered to you pursuant to the Credit Agreement. The items set forth
in the attached Schedules represent exceptions, qualifications, permitted items and disclosures
that are listed herein pursuant to the terms of the Credit Agreement. Capitalized terms used
herein (or in the attached schedules) and defined in the Credit Agreement shall have the meanings
ascribed in the Credit Agreement, unless the context otherwise requires.
IN WITNESS WHEREOF, the undersigned has executed this Disclosure Letter as of November ___, 2007.
| NETWORK APPLIANCE, INC. |
||||
| By: | ||||
| Name: | Ingemar Lanevi | |||
| Title: | Treasurer | |||
Schedule 3.01
Subsidiaries
Subsidiaries
| Material Domestic | ||||||||
| Subsidiary | Subsidiary (Y/N) | Jurisdiction | Shareholder | Percentage Interest | ||||
Network Appliance |
N | Bermuda | Network Appliance | 100% | ||||
Global Ltd. |
Inc. | |||||||
Network Appliance |
N | Cyprus | Network Appliance | 100% | ||||
Holdings Ltd. |
Global Ltd. | |||||||
Network Appliance |
N | Netherlands | Network Appliance | 100% | ||||
Holding & Manufacturing |
Holdings Ltd. | |||||||
BV |
||||||||
Network Appliance BV |
N | Netherlands | Network Appliance | 100% | ||||
| Holding & Mfg BV | ||||||||
Network Appliance ApS |
N | Denmark | Network Appliance | 100% | ||||
| Holdings Ltd. | ||||||||
Network Appliance Ltd |
N | UK | Network Appliance BV | 100% | ||||
Network Appliance SAS |
N | France | Network Appliance BV | 100% | ||||
Network Appliance GmbH |
N | Germany | Network Appliance BV | 100% | ||||
Network Appliance Srl. |
N | Italy | Network Appliance BV | 100% | ||||
Network Appliance GmbH |
N | Switzerland | Network Appliance BV | 100% |
Certificate and Agreement (▇▇▇▇▇▇▇ Business Center) — Page 2
| Material Domestic | ||||||||
| Subsidiary | Subsidiary (Y/N) | Jurisdiction | Shareholder | Percentage Interest | ||||
Network Appliance |
N | Ireland | Network Appliance BV | 100% | ||||
(Sales) Limited |
||||||||
Network Appliance GesmbH |
N | Austria | Network Appliance BV | 100% | ||||
Network Appliance SL |
N | Spain | Network Appliance BV | 100% | ||||
Network Appliance BVBA |
N | Belgium | Network Appliance BV | 100% | ||||
Network Appliance |
N | Israel | Network Appliance BV | 100% | ||||
Israel Ltd. |
||||||||
Network Appliance |
N | Israel | Network Appliance | 100% | ||||
Israel R&D, Ltd. |
Inc. | |||||||
Network Appliance |
N | Poland | Network Appliance BV | 100% | ||||
Poland Sp. z.o.o. |
||||||||
Network Appliance |
N | Sweden | Network Appliance BV | 100% | ||||
Sweden AB |
||||||||
Network Appliance South |
N | South Africa | Network Appliance BV | 100% | ||||
Africa (Pty) Ltd. |
||||||||
Network Appliance |
N | Finland | Network Appliance BV | 100% | ||||
Finland Oy |
||||||||
Network Appliance |
N | Norway | Network Appliance BV | 100% | ||||
Norway AS |
||||||||
Network Appliance BV |
N | UAE | Network Appliance BV | 100% | ||||
(Representative Office) |
Certificate and Agreement (▇▇▇▇▇▇▇ Business Center) — Page 3
| Material Domestic | ||||||||
| Subsidiary | Subsidiary (Y/N) | Jurisdiction | Shareholder | Percentage Interest | ||||
Network Appliance BV |
N | Turkey | Network Appliance BV | 100% | ||||
(Representative Office) |
||||||||
Network Appliance BV |
N | Russia | Network Appliance BV | 100% | ||||
(Representative Office) |
||||||||
Network Appliance |
N | Luxembourg | Network Appliance BV | 100% | ||||
Luxembourg S.a.r.l. |
||||||||
Network Appliance BV |
N | Indonesia | Network Appliance BV | 100% | ||||
(Representative Office) |
||||||||
Network Appliance BV |
N | Philippines | Network Appliance BV | 100% | ||||
(Representative Office |
||||||||
Network Appliance KK |
N | Japan | Network Appliance | 100% | ||||
| Inc. | ||||||||
Network Appliance Pty. |
N | Australia | Network Appliance | 100% | ||||
Ltd. |
Global Ltd. | |||||||
Network Appliance |
N | Mexico | Network Appliance | 100% | ||||
Mexico S. de ▇.▇. de |
Inc. | |||||||
C.V. |
||||||||
Network Appliance |
N | Singapore | Network Appliance | 100% | ||||
Singapore Private Ltd. |
Inc. | |||||||
Network Appliance Sdn |
N | Malaysia | Network Appliance | 100% | ||||
Bhd |
Inc. | |||||||
Network Appliance |
N | India | Network Appliance | 100% | ||||
Systems Private Ltd. |
Inc. | |||||||
Network Appliance |
N | Argentina | Network Appliance | 100% | ||||
Argentina Srl |
Inc. |
Certificate and Agreement (▇▇▇▇▇▇▇ Business Center) — Page 4
| Material Domestic | ||||||||
| Subsidiary | Subsidiary (Y/N) | Jurisdiction | Shareholder | Percentage Interest | ||||
Network Appliance Ltd. |
N | Brazil | Network Appliance | 100% | ||||
| Inc. | ||||||||
Network Appliance |
N | Canada | Network Appliance | 100% | ||||
Canada Ltd. |
Inc. | |||||||
Network Appliance |
N | China | Network Appliance BV | 100% | ||||
(Shanghai) Commercial
Co., Ltd. |
||||||||
Network Appliance (Hong |
N | Hong Kong | Network Appliance BV | 100% | ||||
Kong) Limited |
||||||||
Network Appliance, Inc. |
N | China, Beijing | Network Appliance | 100% | ||||
(Representative Office) |
Inc. | |||||||
Network Appliance, Inc. |
N | China, Shanghai | Network Appliance | 100% | ||||
(Representative Office) |
Inc. | |||||||
Network Appliance, Inc. |
N | China, Guangzhou | Network Appliance | 100% | ||||
(Representative Office) |
Inc. | |||||||
Network Appliance, Inc. |
N | Korea | Network Appliance | 100% | ||||
(Representative Office) |
Inc. | |||||||
Network Appliance, Inc. |
N | Taiwan | Network Appliance | 100% | ||||
(Representative Office) |
Inc. | |||||||
Network Appliance, Inc. |
N | Hong Kong | Network Appliance | 100% | ||||
(Representative Office) |
Inc. | |||||||
Network Appliance |
N | California | Network Appliance | 100% | ||||
Federal Systems, Inc. |
Inc. | |||||||
Network Appliance |
N | Delaware | Network Appliance | 100% | ||||
Financial Solutions, |
Inc. | |||||||
Inc. |
Certificate and Agreement (▇▇▇▇▇▇▇ Business Center) — Page 5
| Material Domestic | ||||||||
| Subsidiary | Subsidiary (Y/N) | Jurisdiction | Shareholder | Percentage Interest | ||||
Spinnaker Networks, Inc. |
N | Delaware | Network Appliance | 100% | ||||
| Inc. | ||||||||
Spinnaker Networks, LLC |
N | Delaware | Network Appliance | 100% | ||||
| Inc. | ||||||||
Alacritus, Inc. |
N | Delaware | Network Appliance | 100% | ||||
| Inc. | ||||||||
Decru, Inc. |
N | Delaware | Network Appliance | 100% | ||||
| Inc. | ||||||||
Decru BV |
N | Netherlands | Network Appliance | 100% | ||||
| Holding & Mfg BV | ||||||||
Network Appliance |
N | Thailand | Network Appliance | 100% | ||||
Limited |
Inc. | |||||||
Network Appliance Saudi |
N | Saudi Arabia | Network Appliance BV | 100% | ||||
Arabia LLFC |
||||||||
Decru Ltd. |
N | U.K. | Decru Inc. | 100% | ||||
Topio, Inc. |
N | Delaware | Network Appliance | 100% | ||||
| Inc. |
Commitments or Obligations of Borrower or any Subsidiary to issue capital or other equity
interests:
None.
Options, warrants or other rights to acquire capital or other equity interests of Borrower or any
Subsidiary:
None.
Certificate and Agreement (▇▇▇▇▇▇▇ Business Center) — Page 6
Schedule 3.06
Disclosed Matters
Disclosed Matters
None.
Certificate and Agreement (▇▇▇▇▇▇▇ Business Center) — Page 7
Schedule 6.01
Existing Indebtedness
Existing Indebtedness
Secured Credit Agreement, dated as of October 5, 2007, by and among Network Appliance, Inc., the
lenders party thereto and JPMorgan Chase Bank, National Association, as administrative agent.
Loan Agreement, dated as of March 31, 2006, by and among Network Appliance Global, Ltd., as the
borrower, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent.
See attached schedule of existing letters of credit and bank guarantees.
See attached schedule of existing letters of credit and bank guarantees.
Lease Agreements, dated as of December 15, 2005, December 16, 2006, and July 17, 2007, by and
between BNP Paribas Leasing Corporation and Network Appliance, Inc., and those certain Closing
Certificates executed in connection with such Lease Agreements, dated as of December 15, 2005,
December 16, 2006, and July 17, 2007, by and between BNP Paribas Leasing Corporation and Network
Appliance, Inc.
Certificate and Agreement (▇▇▇▇▇▇▇ Business Center) — Page 8
Schedule 6.02
Existing Liens
Existing Liens
Liens in connection with items disclosed on Schedule 6.01.
Certificate and Agreement (▇▇▇▇▇▇▇ Business Center) — Page 9
Schedule 6.05
Existing Affiliate Transactions
Existing Affiliate Transactions
Transaction arising in connection with commissionaire agreements between Network Appliance B. V.
and each of its subsidiaries and related arrangements with respect to payment of value added taxes.
Transactions arising in connection that certain Technology License Agreement, effective as of May
1, 2000, by and between Network Appliance Global Ltd. and Network Appliance B.V.
Transactions arising in connection that certain Technology License Agreement, effective as of May
1, 2000, by and between Network Appliance Global Ltd. and Network Appliance Inc.
Transactions arising in connection with that certain Technology License Agreement, entered into as
of April 27, 2002, by and between Network Appliance, Inc. and Network Appliance Global Ltd.
Transactions arising in connection with that certain Technology License Agreement, entered into as
of May 1, 2004, by and between Network Appliance Global Ltd. and Spinnaker Networks Inc.
Transactions arising in connection with that certain Technology License Agreement, entered into as
of May 3, 2005, by and between Network Appliance Inc. and Alacritus Inc.
Transactions arising in connection with that certain Technology License Agreement, entered into as
of April 29, 2006, by and between Network Appliance Global Ltd. and Decru Inc.
Certificate and Agreement (▇▇▇▇▇▇▇ Business Center) — Page 10
Schedule 6.06
Existing Restrictive Agreements
Existing Restrictive Agreements
Secured Credit Agreement, dated as of October 5, 2007, by and among Network Appliance, Inc., the
lenders party thereto and JPMorgan Chase Bank, National Association, as administrative agent.
Loan Agreement dated as of March 31, 2006, by and among Network Appliance Global, Ltd., as the
borrower, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent
Lease Agreements, dated as of December 15, 2005, December 16, 2006, and June 17, 2007, by and
between BNP Paribas Leasing Corporation and Network Appliance, Inc., and those certain
Closing Certificates executed in connection with such Lease Agreements, dated as of December 15,
2005, December 16, 2006, and June 17, 2007, by and between BNP Paribas Leasing Corporation and
Network Appliance, Inc.
Letter Agreement between ▇▇▇▇▇ Fargo Bank, National Association, and Borrower, dated as of December
1, 2006, providing Borrower with a revolving line of credit for the issuance of letters of credit
in an aggregate principal amount not to exceed $5,000,000.
Certificate and Agreement (▇▇▇▇▇▇▇ Business Center) — Page 11
Exhibit E
Certificate of BNPPLC Re: Accounting
Network Appliance, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Ingemar Lanevi
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Ingemar Lanevi
Gentlemen:
This certificate is furnished pursuant to subparagraph 4(A) of the Closing Certificate and
Agreement (▇▇▇▇▇▇▇ Business Center) dated as of November 29, 2007 between BNP Paribas Leasing
Corporation and Network Appliance, Inc. (as amended, the “Closing Certificate”). Terms defined in
the Closing Certificate and used but not otherwise defined in this certificate are intended to have
the respective meanings ascribed to them in the Closing Certificate.
BNP Paribas Leasing Corporation (“ BNPPLC”) certifies that the following are true and complete
in all material respects, but only to the knowledge of BNPPLC as of the date hereof:
(A) The facts disclosed in any financial statements or other documents listed in the
Annex attached to this certificate were (as of their respective dates) true and complete in
all material respects. Copies of such statements or other documents were provided by or behalf of
BNPPLC to NAI prior to the date hereof to permit NAI to determine the appropriate accounting for
NAI’s relationship with BNPPLC under FASB Interpretation No. 46(R), Consolidation of Variable
Interest Entities (“FIN 46”).
(B The fair value of the Property and of other properties, if any, leased to NAI by BNPPLC
(collectively, whether one or more, the “Properties Leased to NAI”) are, as of the date hereof,
less than half of the total of the fair values of all assets of BNPPLC, excluding any assets of
BNPPLC which are held within a silo. Further, none of the Properties Leased to NAI are, as of the
date hereof, held within a silo.
Although the representations required of BNPPLC by this certificate are intended to cover
facts, it is understood and agreed (consistent with subparagraph 4(C) of the Lease) that
BNPPLC has not made and will not make any representation or warranty as to the proper accounting by
NAI or its Affiliates of the Lease or other Operative Documents or as to other accounting
conclusions.
Executed
this ___ day of ______, 20___.
| BNP PARIBAS LEASING CORPORATION, a Delaware
corporation |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||