AMENDMENT NO. 1 Dated as of April 10, 2008 to CREDIT AGREEMENT Dated as of November 2, 2007
Exhibit 10.78
EXECUTION COPY
AMENDMENT NO. 1
Dated as of April 10, 2008
to
Dated as of November 2, 2007
THIS AMENDMENT NO. 1 (“Amendment”) is made as of April 10, 2008 (the “Effective
Date”) by and among NetApp, Inc. (f/k/a Network Appliance, Inc.), a Delaware corporation (the
“Borrower”), the financial institutions listed on the signature pages hereof and JPMorgan
Chase Bank, National Association, as Administrative Agent (the “Administrative Agent”),
under that certain Credit Agreement dated as of November 2, 2007 by and among the Borrower, the
Lenders from time to time party thereto, Bank of America, N.A., Citicorp USA, Inc. and Standard
Chartered Bank, as Co-Documentation Agents, BNP Paribas, as Syndication Agent and the
Administrative Agent (as amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”). Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings given to them in the Credit Agreement.
WHEREAS, the Borrower has requested that certain modifications be made to the Credit
Agreement;
WHEREAS, the Borrower, the Lenders party hereto, constituting the Required Lenders under the
Credit Agreement, and the Administrative Agent have agreed to amend the Credit Agreement on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Borrower, the Lenders party hereto and the Administrative Agent hereby
agree to the following amendments to the Credit Agreement.
1. Amendments to Credit Agreement. Effective as of the Effective Date but subject to
the satisfaction of the conditions precedent set forth in Section 2 below, the Credit
Agreement is hereby amended as follows:
(a) The definition of “Consolidated EBITDA” in Section 1.01 of the Credit Agreement 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 the Borrower 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 the Borrower 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 the Borrower 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 the Borrower 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 the Borrower or any of its
Subsidiaries in excess of $50,000,000.
(b) The definition of “Swap Agreement” in Section 1.01 of the Credit Agreement 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 the Borrower and entered into or
issued in connection with compensatory arrangements for directors, officers, employees or
consultants of the Borrower 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
the Borrower, and (c) any of the foregoing to the extent it constitutes a derivative
embedded in a convertible security issued by the Borrower that involves, or is settled by
reference to, Equity Interests of the Borrower (including, for avoidance of doubt, “net
share settled” convertible securities).
2. Conditions of Effectiveness. The effectiveness of this Amendment is subject to the
conditions precedent that the Administrative Agent shall have received (i) counterparts of this
Amendment duly executed by the Borrower, the Required Lenders and the Administrative Agent and (ii)
evidence reasonably satisfactory to it that the certain Secured Credit Agreement dated as of
October 5, 2007 by and among the Borrower and JPMorgan Chase Bank, National Association is amended
on terms and conditions substantially similar to this Amendment.
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3. Representations and Warranties of the Borrower. The Borrower hereby represents and
warrants as follows:
(a) This Amendment and the Credit Agreement as amended hereby constitute legal, valid and
binding obligations of the Borrower and are enforceable against the Borrower in accordance with
their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.
(b) As of the date hereof and giving effect to the terms of this Amendment, (i) no Default
shall have occurred and be continuing and (ii) the representations and warranties of the Borrower
set forth in the Credit Agreement, as amended hereby, are true and correct in all material respects
as of the date hereof, except to the extent such representation and warranty specifically refers to
an earlier date, in which case it was true and correct in all material respects as of such earlier
date.
4. Reference to and Effect on the Credit Agreement.
(a) Upon the effectiveness hereof, each reference to the Credit Agreement in the Credit
Agreement or any other Loan Document shall mean and be a reference to the Credit Agreement as
amended hereby.
(b) Except as specifically amended above, the Credit Agreement and all other documents,
instruments and agreements executed and/or delivered in connection therewith shall remain in full
force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver
of any right, power or remedy of the Administrative Agent or the Lenders, nor constitute a waiver
of any provision of the Credit Agreement or any other documents, instruments and agreements
executed and/or delivered in connection therewith.
5. Governing Law. This Amendment shall be construed in accordance with and governed
by the law of the State of New York.
6. Headings. Section headings in this Amendment are included herein for convenience
of reference only and shall not constitute a part of this Amendment for any other purpose.
7. Counterparts. This Amendment may be executed by one or more of the parties hereto
on any number of separate counterparts, and all of said counterparts taken together shall be deemed
to constitute one and the same instrument.
[Signature Pages Follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first above
written.
| NETAPP, INC. (f/k/a Network Appliance, Inc.), | ||||
| as the Borrower | ||||
| By: | /s/ Ingemar Lanevi | |||
| Name: Ingemar Lanevi | ||||
| Title: VP and Corporate Treasurer | ||||
| JPMORGAN CHASE BANK, | ||||
| NATIONAL ASSOCIATION, | ||||
| individually as a Lender and as Administrative Agent | ||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: Xxxxxxx Xxxxx | ||||
| Title: Vice President | ||||
| BNP PARIBAS, | ||||
| individually as a Lender and as Syndication Agent | ||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: Xxxxxx Xxxxxx | ||||
| Title: Managing Director | ||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: Xxxxxx Xxxxx | ||||
| Title: Director | ||||
| BANK OF AMERICA, N.A., | ||||
| individually as a Lender and as a Co-Documentation Agent | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| CITICORP USA, INC., | ||||
| individually as a Lender and as a Co-Documentation Agent | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| STANDARD CHARTERED BANK, | ||||
| individually as a Lender and as a Co-Documentation Agent | ||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: Xxxx Xxxxx | ||||
| Title: Director | ||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxxxxx | ||||
| Title: AVP/Credit Documentation Credit Risk Control | ||||
| XXXXXXX XXXXX BANK USA, | ||||
| as a Lender | ||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: Xxxxxxx Xxxxxxxx | ||||
| Title: Vice President | ||||
| XXXXXXX XXXXX BANK USA, | ||||||
| as a Lender | ||||||
| By: | /s/ Xxxxx Xxxxx | |||||
| Name: Xxxxx Xxxxx | ||||||
| Title: First Vice President | ||||||
| DEUTSCHE BANK AG New York Branch, | ||||
| as a Lender | ||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: Xxxxxxx Xxxxxxxx | ||||
| Title: Managing Director | ||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: Xxxxxx Xxxxxx | ||||
| Title: Director | ||||
Signature Page to Amendment No. 1 to
Credit Agreement dated as of November 2, 2007
NetApp, Inc.
Credit Agreement dated as of November 2, 2007
NetApp, Inc.
| XXXXX FARGO BANK, N.A., | ||||
| as a Lender | ||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: Xxxxxx Xxxxxxxxx | ||||
| Title: Assistant Vice President | ||||
Signature Page to Amendment No. 1 to
Credit Agreement dated as of November 2, 2007
NetApp, Inc.
Credit Agreement dated as of November 2, 2007
NetApp, Inc.
| KEYBANK NATIONAL ASSOCIATION, | ||||
| as a Lender | ||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: Xxxx X. Xxxxxxxxx | ||||
| Title: Vice President | ||||
Signature Page to Amendment No. 1 to
Credit Agreement dated as of November 2, 2007
NetApp, Inc.
Credit Agreement dated as of November 2, 2007
NetApp, Inc.
