AND AGREEMENT
(“NAI”)
(“BNPPLC”)
Page | ||||
1Representations, Covenants and Acknowledgments of NAI Concerning the Property | 1 | |||
(A) Prior Inspections and Investigations Concerning the Property | 2 | |||
(B) Title | 2 | |||
(C) Compliance with Covenants and Laws | 2 | |||
2Representations and Covenants by NAI | 2 | |||
(A) Concerning NAI and the Operative Documents | 2 | |||
(1)Entity Status | 2 | |||
(2)Authority | 2 | |||
(3)Solvency | 3 | |||
(4)Financial Reports | 3 | |||
(5)Pending Legal Proceedings | 3 | |||
(6)No Default or Violation | 3 | |||
(7)Use of Proceeds | 4 | |||
(8)Enforceability | 4 | |||
(9)Pari Passu | 4 | |||
(10)Conduct of Business and Maintenance of Existence | 4 | |||
(11)Investment Company Act, etc. | 4 | |||
(12)Not a Foreign Person | 5 | |||
(13)ERISA | 5 | |||
(14)Compliance With Laws | 5 | |||
(15)Payment of Taxes Generally | 5 | |||
(16)Maintenance of Insurance Generally | 6 | |||
(17)Franchises, Licenses, etc. | 6 | |||
(18)Patents, Trademarks, etc. | 6 | |||
(19)Labor | 6 | |||
(20)Title to Properties Generally | 7 | |||
(21)Books and Records | 7 | |||
(B) Further Assurances | 7 | |||
(C) Syndication | 7 | |||
(D) Financial Statements; Required Notices; Certificates | 7 | |||
(F) OFAC | 10 | |||
3Financial Covenants and Negative Covenants of NAI | 10 | |||
(B) Financial Covenants | 12 | |||
(1)Minimum Unencumbered Cash and Short Term Investments | 12 | |||
(2)Maximum Leverage Ratio | 12 | |||
(C) Negative Covenants | 12 | |||
(1)Negative Pledge | 12 | |||
(2)Transactions with Affiliates | 14 | |||
(3)Capital Expenditures | 15 | |||
(4)Merger, Consolidation, Transfer of Assets | 15 | |||
(5)Change in Nature of Business | 15 |
(Continued)
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(6)Multiemployer ERISA Plans | 15 | |||
(7)Prohibited ERISA Transaction | 15 | |||
4Limited Representations and Covenants of BNPPLC | 15 | |||
(A) Concerning Accounting Matters | 15 | |||
(B) Other Limited Representations | 17 | |||
(1)Entity Status | 17 | |||
(2)Authority | 18 | |||
(3)Solvency | 18 | |||
(4)Pending Legal Proceedings | 18 | |||
(5)No Default or Violation | 19 | |||
(6)Enforceability | 19 | |||
(7)Conduct of Business and Maintenance of Existence | 19 | |||
(8)Not a Foreign Person | 19 | |||
(C) Further Assurances | 19 | |||
(D) Actions Permitted by NAI Without BNPPLC’s Consent | 23 | |||
(E) Waiver of Landlord’s Liens | 23 | |||
(F) Estoppel Letters | 24 | |||
(G) No Implied Representations or Promises by BNPPLC | 24 | |||
5Usury Savings Provision | 24 | |||
6Obligations of NAI Under Other Operative Documents Not Limited by this Certificate | 25 | |||
7Obligations of NAI Hereunder Not Limited by Other Operative Documents | 26 | |||
8Waiver of Jury Trial | 26 |
Exhibit A | Legal Description | |
Exhibit B | Quarterly Certificate | |
Exhibit C | Certificate to be Provided by BNPPLC Re: Accounting |
(ii)
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• | “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 |
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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. |
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BNP PARIBAS LEASING CORPORATION, a Delaware corporation | ||||
By: | ||||
Lloyd G. Cox, Managing Director | ||||
NETWORK APPLIANCE, INC., a Delaware corporation | ||||
By: | ||||
Ingemar Lanevi, Vice President and Corporate | ||||
Treasurer | ||||
Description of “Additional Leased Premises”
(1) | South 68° 46’ 54 East 412.64 feet to a right-of-way monument; and | ||
(2) | with a curve to the right having a radius of 924.83 feet, an arc length of 475.96, and a chord bearing and distance of South 54° 02’ 59” East 470.72 feet to a computed point; |
(1) | South 50° 41’ 31” West 100.00 feet to an iron pipe found, and | ||
(2) | South 83° 31’ 01” West 483.47 feet to an iron pipe found; |
(1) | North 12° 44’ 00” West 279.97 feet | ||
(2) | North 48° 55’ 31” West 50.30 feet; and | ||
(3) | North 32° 57’ 24” East 401.61 feet to a point alone the southern margin of said Kit Creek Road; |
12201 Merit Drive, Suite 860
Dallas, Texas 75251
Attention: Lloyd G. Cox, Managing Director
RESPONSIBLE FINANCIAL OFFICER]
7301 Kit Creek Road
Research Triangle Park, NC 27709
Attention: Ingemar Lanevi
BNP PARIBAS LEASING CORPORATION, a Delaware corporation | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||