Exhibit 10.79
EXECUTION COPY
AMENDMENT NO. 2
to
SECURED CREDIT AGREEMENT
THIS AMENDMENT NO. 2 (“
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
October 5, 2007 by and among the Borrower, the
Lenders from time to time party thereto 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 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 Credit Agreement dated as of
November 2,
2007 by and among the Borrower, the lenders party thereto from time to time and JPMorgan Chase
Bank, National Association is amended on terms and conditions substantially similar to this
Amendment.
3. Representations and Warranties of the Borrower. The Borrower hereby represents and
warrants as follows:
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(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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