FIRST MODIFICATION AGREEMENT (BUILDING 7)
Exhibit
10.37
FIRST MODIFICATION AGREEMENT
(BUILDING 7)
(BUILDING 7)
This FIRST MODIFICATION AGREEMENT (BUILDING 7) (this “Amendment”), dated as of April 9, 2008
(the “Amendment Date”), is made by and between BNP PARIBAS LEASING CORPORATION (“BNPPLC”), a
Delaware corporation, and NETAPP, INC. (“NAI”), a Delaware corporation which is a successor by
merger to Network Appliance, Inc.
RECITALS
BNPPLC and Network Appliance, Inc. executed an Amended and Restated Common Definitions and
Provisions Agreement (Building 7) dated as of November 29, 2007 (the “Common Definitions and
Provisions Agreement”), which by this reference is incorporated into and made a part of this
Amendment for all purposes. As used in this Amendment, capitalized terms defined in the Common
Definitions and Provisions Agreement and not otherwise defined in this Amendment are intended to
have the respective meanings assigned to them in the Common Definitions and Provisions Agreement.
BNPPLC and Network Appliance, Inc. also executed other Operative Documents, including an
Amended and Restated Closing Certificate and Agreement (Building 7) dated as of November 29, 2007
(the “Closing Certificate”), pursuant to which (among other things) NAI is currently bound by
certain financial covenants set forth therein.
Bank of America, N.A.; Xxxxxxx Xxxxx Credit Partners L.P.; JPMorgan Chase Bank, National
Association; Keybank National Association; Xxxxxx Xxxxxxx Bank; Sumitomo Mitsui Banking
Corporation; and Xxxxx Fargo Bank, N.A., as “Participants” (herein so called), and BNPPLC have all
previously become parties to a Participation Agreement (Building 7) dated as of November 29, 2007
(the “Participation Agreement”), in which the Participants have agreed with BNPPLC to participate
in the risks and rewards to BNPPLC of the Operative Documents.
BNPPLC and NAI now desire to amend the Common Definitions and Provisions Agreement and the
Closing Certificate as more particularly provided below in this Amendment.
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 Amendments to the Operative Documents.
(A) Amendments to the Closing Certificate. Effective as of the Amendment Date, but
subject to the satisfaction of the condition precedent set forth in Section 9 below, the Closing
Certificate is hereby amended as follows:
(1) The definition of “Consolidated EBITDA” in Subparagraph 3(A) of the
Closing Certificate is hereby amended and restated in its entirety as follows:
“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, (vii) share-based non-cash
compensation expense, and (viii) any non-cash charge with respect to the
amortization of the value or cost of any derivative instrument that is
excluded from the definition of “Swap Agreement” below by reason of clause
(b) or clause (c) of the proviso at the end of that definition, 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.
First Modification Agreement (Building 7) – Page 2
(2) The definition of “Swap Agreement” in Subparagraph 3(A) of the Closing
Certificate is hereby amended and restated in its entirety as follows:
“Swap Agreement” means any agreement entered into for the primary
purpose of hedging or mitigating risk or speculation 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 the following shall be excluded from
this definition: (a) any of the foregoing involving, or settled by reference
to, Equity Interests of NAI and entered into or issued in connection with
compensatory arrangements for directors, officers, employees or consultants
of NAI or any of the Subsidiaries, (b) any of the foregoing that is, or at
the election of the issuer may be, settled (after payment of any premium for
any option or any prepayment under any forward contract) through the
issuance of Equity Interests of NAI, and (c) any of the foregoing to the
extent it constitutes a derivative embedded in a convertible security issued
by NAI that involves, or is settled by reference to, Equity Interests of NAI
(including, for avoidance of doubt, “net share settled” convertible
securities).
(B) Amendment to the Common Definitions and Provisions Agreement. Effective as of the
Amendment Date, but subject to the satisfaction of the condition precedent set forth in Section 9
below, clause (F) of the definition of “Event of Default” in Article 1 of the Common Definitions
and Provisions Agreement is hereby amended and restated in its entirety as follows:
(F) NAI or any Subsidiary of NAI fails to pay any principal of or premium or
interest on any of its Indebtedness which is outstanding in a principal
amount of at least $25,000,000 when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure continues after the applicable grace period, if
any, specified in the agreement or instrument relating to such Indebtedness;
or any other event occurs or condition exists under any agreement or
instrument relating to any such Indebtedness and continues after the
applicable grace period, if any, specified in such agreement or instrument,
if the effect of such event or condition is to accelerate the maturity of
such Indebtedness (other than by conversion of any convertible debt
instrument pursuant to its terms); or any such Indebtedness is declared by
the creditor to be due and payable, or required to be prepaid (other than by
a regularly scheduled required prepayment), redeemed, purchased or defeased,
or an offer to prepay, redeem, purchase or defease such Indebtedness is
required to be made, in each case prior to the stated maturity thereof
(other than, in each case, by conversion of any convertible debt instrument
pursuant to its terms).
First Modification Agreement (Building 7) – Page 3
2 Confirmation of Operative Documents by NAI. NAI confirms that it is, as successor by
merger to Network Appliance, Inc., a party to and bound by the Operative Documents as was Network
Appliance, Inc. Further, NAI ratifies and confirms all terms and conditions of the Operative
Documents, as hereby amended, including the representations made by Network Appliance, Inc.
concerning the Property in the Ground Lease. NAI also confirms that (a) all such representations
which concern the Property would continue to be accurate and complete in all material respects if
made as of the Amendment Date, and (b) NAI is not currently aware of any Default or Event of
Default which has occurred and is continuing or of any defense, counterclaim, set-off, right of
recoupment, abatement or other claim which NAI may now have against BNPPLC under the Operative
Documents.
3 Other Representations and Covenants of NAI. NAI also represents and covenants to BNPPLC
as follows:
(A) Concerning NAI and this Amendment.
(1) Authority. The Constituent Documents of NAI permit the execution, delivery and
performance of this Amendment by NAI, and all actions and approvals necessary to bind NAI
under this Amendment have been taken and obtained. Without limiting the foregoing, this
Amendment will be binding upon NAI when signed on behalf of NAI by Ingemar Lanevi, Vice
President and Corporate Treasurer of NAI.
(2) Truth of Information. Any reports, financial statements or other data furnished by
NAI to BNPPLC in connection with the agreements set forth in this Amendment 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.
(3) No Default or Violation. The execution and performance by NAI of this Amendment 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.
(4) Enforceability. This Amendment constitutes the legal, valid and binding
obligations of NAI enforceable in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership and other similar laws affecting the
rights of creditors generally.
First Modification Agreement (Building 7) – Page 4
(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 this Amendment and to
subject to this Amendment any property intended to be covered hereby, 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) Reimbursement of Costs. NAI will pay or reimburse BNPPLC, upon demand, for all
reasonable out-of-pocket costs and expenses (including the reasonable fees, charges and
disbursements of counsel) incurred by BNPPLC in connection with the preparation, negotiation,
execution and delivery of this Amendment.
4 Reservation of Rights. The execution and delivery by BNPPLC of this Amendment will not
be deemed to create a course of dealing or otherwise obligate BNPPLC to enter into amendments under
the same, similar, or any other circumstances in the future. NAI is entering into this Amendment
on the basis of its own investigation and for its own reasons, without reliance upon BNPPLC or
Participants or any other Person. Except as expressly provided above, this Amendment will not
limit, modify or otherwise affect any of NAI’s obligations under any of the Operative Documents, as
heretofore amended.
5 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 subject matter of this Amendment except as expressly set forth herein.
6 Provisions Incorporated by Reference from the Common Definitions and Provisions
Agreement. All terms and conditions set forth in Article II of the Common Definitions and
Provisions Agreement will apply to this Amendment as if this Amendment was one of the Operative
Documents referenced therein.
7 References to Operative Documents. From and after the Amendment Date, all references to
any of the Operative Documents in the Operative Documents or in other documents related to the
transactions contemplated therein are intended to mean the Operative Documents, as modified by this
Amendment, unless the context shall otherwise require.
First Modification Agreement (Building 7) – Page 5
8 Successors and Assigns. All of the covenants, agreements, terms and conditions to be
observed and performed by the parties hereto shall be applicable to and binding upon their
respective heirs, personal representatives and successors and, to the extent assignment is
permitted under the Operative Documents, their respective assigns.
9 Condition Precedent — Consents of Participants. The Participation Agreement requires
that BNPPLC obtain approval of a Majority (as defined in the Participation Agreement) before it
becomes bound by one or more amendments set forth in Section 1 above. The Participation Agreement
defines “Majority” by reference to the Percentages (as defined therein) of the parties thereto.
More specifically, the Participation Agreement defines “Majority” as parties to the Participation
Agreement (i.e., Participants or BNPPLC and Participants), the aggregate Percentages of which equal
or exceed sixty-seven percent (67%) of the Percentages of BNPPLC and of all the Participants then
entitled to vote on certain matters specified in the Participation Agreement. For purposes of such
voting, the Percentages of BNPPLC and the Participants under the Participation Agreement are
currently as follows:
BNP PARIBAS LEASING CORPORATION: |
23.1124807397 | % | ||
BANK OF AMERICA, N.A.: |
4.6224961479 | % | ||
XXXXXXX XXXXX CREDIT PARTNERS L.P. |
3.0816640986 | % | ||
JPMORGAN CHASE BANK |
9.2449922958 | % | ||
KEYBANK NATIONAL ASSOCIATION |
22.1879815100 | % | ||
XXXXXX XXXXXXX BANK |
8.0000000000 | % | ||
SUMITOMO MITSUI BANKING CORPORATION |
6.1633281972 | % | ||
XXXXX FARGO BANK, N.A. |
23.1124807396 | % |
In order to comply with the requirements of the Participation Agreement, BNPPLC and NAI agree that
the amendments set forth in Section 1 above shall not become effective until Participants with
aggregate Percentages of at least 43.888% (i.e., 67% less the Percentage of BNPPLC itself) have
executed this Amendment in the spaces provided below to evidence their consents. However, so long
as Participants with aggregate percentages of at least 43.888% do sign this Amendment to evidence
their consents, then the amendments in Section 1 above will become effective even if other
Participants fail or refuse to sign this Amendment or give their consents.
[The signature pages follow.]
First Modification Agreement (Building 7) – Page 6
IN WITNESS WHEREOF, this First Modification Agreement (Building 7) is executed to be effective
as of April 9, 2008.
| BNP PARIBAS LEASING
CORPORATION, a Delaware corporation |
||||
| By: | /s/ Xxxxx X. Xxx | |||
| Xxxxx X. Xxx, Managing Director | ||||
First Modification Agreement (Building 7) – Signature Page
[Continuation of signature pages for First Modification Agreement (Building 7) dated as of April 9,
2008]
| NETAPP, INC., a Delaware corporation, which is the successor by merger to Network Appliance, Inc. |
||||
| By: | /s/ Ingemar Lanevi | |||
| Ingemar Lanevi, Vice President and Corporate | ||||
| Treasurer | ||||
First Modification Agreement (Building 7) – Signature Page
[Continuation of signature pages for First Modification Agreement (Building 7) dated as of April 9,
2008]
Consent of Participant
The undersigned, BANK OF AMERICA, N.A., joins in the execution of this First Modification Agreement
(Building 7) as a Participant solely to evidence its consent to this First Modification Agreement
(Building 7).
| BANK OF AMERICA, N.A. |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Managing Director | |||
First Modification Agreement (Building 7) – Signature Page
[Continuation of signature pages for First Modification Agreement (Building 7) dated as of April 9,
2008]
Consent of Participant
The undersigned, XXXXXXX XXXXX CREDIT PARTNERS L.P., joins in the execution of this First
Modification Agreement (Building 7) as a Participant solely to evidence its consent to this First
Modification Agreement (Building 7).
| XXXXXXX SACHS CREDIT PARTNERS L.P. |
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Authorized Signatory | |||
First Modification Agreement (Building 7) – Signature Page
[Continuation of signature pages for First Modification Agreement (Building 7) dated as of April 9,
2008]
Consent of Participant
The undersigned, JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, joins in the execution of this First
Modification Agreement (Building 7) as a Participant solely to evidence its consent to this First
Modification Agreement (Building 7).
| JPMORGAN CHASE BANK, NATIONAL ASSOCIATION |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Vice President | |||
First Modification Agreement (Building 7) – Signature Page
[Continuation of signature pages for First Modification Agreement (Building 7) dated as of April 9,
2008]
Consent of Participant
The undersigned, KEYBANK NATIONAL ASSOCIATION, joins in the execution of this First Modification
Agreement (Building 7) as a Participant solely to evidence its consent to this First Modification
Agreement (Building 7).
| KEYBANK NATIONAL ASSOCIATION |
||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxx | |||
| Title: | Vice President | |||
First Modification Agreement (Building 7) – Signature Page
[Continuation of signature pages for First Modification Agreement (Building 7) dated as of April 9,
2008]
Consent of Participant
The undersigned, XXXXXX XXXXXXX BANK, joins in the execution of this First Modification Agreement
(Building 7) as a Participant solely to evidence its consent to this First Modification Agreement
(Building 7).
| XXXXXX XXXXXXX BANK |
||||
| By: | /s/ Xxxxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxxxx Xxxxxxxxx | |||
| Title: | Authorized Signatory | |||
First Modification Agreement (Building 7) – Signature Page
[Continuation of signature pages for First Modification Agreement (Building 7) dated as of April 9,
2008]
Consent of Participant
The undersigned, SUMITOMO MITSUI BANKING CORPORATION, joins in the execution of this First
Modification Agreement (Building 7) as a Participant solely to evidence its consent to this First
Modification Agreement (Building 7).
| SUMITOMO MITSUI BANKING CORPORATION |
||||
| By: | /s/ Xxx X. Xxxxxxxxx | |||
| Name: | Xxx X. Xxxxxxxxx | |||
| Title: | General Manager | |||
First Modification Agreement (Building 7) – Signature Page
[Continuation of signature pages for First Modification Agreement (Building 7) dated as of April 9,
2008]
Consent of Participant
The undersigned, XXXXX FARGO BANK, N.A., joins in the execution of this First Modification
Agreement (Building 7) as a Participant solely to evidence its consent to this First Modification
Agreement (Building 7).
| XXXXX FARGO BANK, N.A. |
||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxx | |||
| Title: | Assistant Vice President | |||
First Modification Agreement (Building 7) – Signature Page
