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EXHIBIT 10.20
FOURTH AMENDMENT TO THE SECOND AMENDED
AND RESTATED CONTINGENT
MULTICURRENCY NOTE PURCHASE COMMITMENT AGREEMENT
THIS AMENDMENT (this "Amendment"), dated as of January 5, 2000, is made
to the Second Amended and Restated Contingent Multicurrency Note Purchase
Commitment Agreement, dated as of January 15, 1998 (as heretofore or hereafter
amended, modified or supplemented from time to time, the "Agreement"), between
STORAGE TECHNOLOGY CORPORATION ("Borrower") and BANK OF AMERICA, N.A. (formerly
Bank of America National Trust and Savings Association) ("BofA"). Capitalized
terms used but not otherwise defined herein shall have the meanings assigned to
such terms by the Agreement.
WHEREAS, Borrower and BofA desire to amend and supplement the Agreement
as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS TO AGREEMENT
Section 1.1 Amendment to Section 1.04. Section 1.04 of the Agreement is
hereby amended and restated to read in its entirety as follows:
"Section 1.04 Disbursement of Purchase Price into Collateral
Account; Notice of Collateral Status and Excess Purchase Price Amounts.
The Borrower will notify BofA in writing no later than 10:00 a.m. (San
Francisco time) on each LIBOR Fixing Date (i) whether Borrower will be
in Collateral Status or an Excess Purchase Price Amount will exist, in
either case, on the Purchase Date immediately following such LIBOR
Fixing Date, and (ii) if Borrower will be in Collateral Status or an
Excess Purchase Price Amount will exist, in either case, on such
Purchase Date, the amount to be deposited into the Collateral Account
on such Purchase Date in order to enable the Borrower to meet its
obligations under Section 6.01(h).".
Section 1.2 Amendment to Definition of "Applicable Margin". Section
1.05(f) of the Agreement is hereby amended and restated to read in its entirety
as follows:
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"(f) The "Applicable Margin" on each day during the Period to Maturity
of any Note shall be:
(1) if on the Purchase Date of such Note Borrower is in
Collateral Status, 0.350%,
(2) if on the Purchase Date of such Note Borrower is not in
Collateral Status and no Excess Purchase Price Amount exists, the
Applicable Margin will be determined by BofA on such Purchase Date in
accordance with the table set forth below. Such determination shall be
based on the calculations of the ratio of (x) Consolidated Total Debt
on the last day of the most recent Fiscal Quarter of the Borrower and
its Subsidiaries for which a Compliance Certificate shall have been
delivered pursuant to Section 6.01(g)(vii), as shown in such
Compliance Certificate, to (y) the sum of EBITDA of the Borrower and
its Subsidiaries for the period of four Fiscal Quarters ending on such
last day, as shown in such Compliance Certificate.
Consolidated Total Debt
to EBITDA
(rolling four quarter) Applicable Margin
---------------------- -----------------
If Less than 1.50 +2.000%
If Less than 2.00 but greater than +2.125%
or equal to 1.50
If Less than 2.50 but greater than +2.250%
or equal to 2.00
If Greater than or equal to 2.50 +2.500%
(iii) if on the Purchase Date of such Note Borrower is not in
Collateral Status, but an Excess Purchase Price Amount exists, the
Applicable Margin will be a percentage, calculated according to the
following formula:
Applicable Margin = EPPA * 0.350% + (APP - EPPA) * AM
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APP APP
WHERE:
EPPA = the Excess Purchase Price Amount on such
Purchase Date, provided, that, in the event
the Borrower has not deposited, and for so
long (but
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only for so long) as Borrower has
not deposited an amount equal to such Excess
Purchase Price Amount into the Collateral
Account on such Purchase Date in accordance
with Section 6.01(h), "EPPA" on such
Purchase Date shall be an amount equal to
the amount on deposit in the Collateral
Account on such Purchase Date;
APP = the aggregate of the Purchase Prices of
all Notes which are outstanding or to be
issued on such Purchase Date (after giving
effect to any Notes which will be repaid on
such Purchase Date); and
AM = the Applicable Margin that would have been
in effect on such Purchase Date pursuant to
Section 1.05(f)(ii) if the Excess Purchase
Price Amount on such Purchase Date had not
been greater than zero.
(iv) Except to the extent provided in the definition of "EPPA"
above, the determination of the Applicable Margin for any Note for
purposes of this Section 1.05(f) shall be made on the Purchase Date of
such Note and such determination shall apply to each day during the
Period to Maturity of such Note.".
Section 1.3 Amendment to Definition of "Applicable Facility Fee Rate".
Section 3.01(b) of the Agreement is hereby amended and restated to read in its
entirety as follows:
"(b) The "Applicable Facility Fee Rate" shall be:
(i) 0.150% on any day when Borrower is in Collateral Status.
(ii) on any day when Borrower is not in Collateral Status and
no Excess Purchase Price Amount exists, the Applicable Facility Fee
Rate will be determined by BofA on such day in accordance with the
table set forth below. Such determination shall be based on the
calculations of (i) the ratio of (x) Consolidated Total Debt on the
last day of the most recent Fiscal Quarter of the Borrower and its
Subsidiaries for which a Compliance Certificate shall have been
delivered pursuant to Section 6.01(g)(vii), as shown in such Compliance
Certificate, to (y) the sum of EBITDA of the Borrower and its
Subsidiaries for the period of four Fiscal Quarters ending on such last
day, as shown in such Compliance Certificate, and (ii) the Leverage
Ratio on such last day, as set forth in such Compliance Certificate.
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Applicable Facility Fee Rate
Consolidated Total Debt If Leverage Ratio
to EBITDA is less than or If Leverage Ratio
(rolling four quarter) equal to 0.35 is greater than 0.35
---------------------- ------------------ --------------------
If Less than .50 +0.200% +0.250%
If Less than 1.00 but greater than +0.275% +0.325%
or equal to .50
If Less than 1.50 but greater than +0.325% +0.350%
or equal to 1.00
If Greater than or equal to 1.50 +0.350% +0.375%
(iii) on any day when Borrower is not in Collateral Status,
but an Excess Purchase Price Amount exists, the Applicable Facility Fee
Rate will be a percentage, calculated according to the following
formula:
Applicable Facility Fee Rate = EPPA * 0.150% + (APP - EPPA) * AF
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APP APP
WHERE:
EPPA = the Excess Purchase Price Amount on such
day, provided, that, in the event the
Borrower has not deposited, and for so long
(but only for so long) as Borrower has not
deposited an amount equal to such Excess
Purchase Price Amount into the Collateral
Account on such day in accordance with
Section 6.01(h), "EPPA" on such day shall be
an amount equal to the amount on deposit in
the Collateral Account on such day;
APP = the aggregate of the Purchase Prices of
all Notes which are outstanding or, if such
day is a Purchase Date, to be issued on such
Purchase Date (after giving effect to any
Notes which will be repaid on such Purchase
Date); and
AF = the Applicable Facility Fee Rate that
would have been in effect on such day
pursuant to Section 3.01(b)(ii) if the
Excess Purchase Price Amount on such day had
not been greater than zero.
(iv) Except to the extent provided in the definition of "EPPA"
above, the determination of the Applicable Facility Fee Rate for
purposes of this Section 3.01(b) shall be made on each Purchase Date
and such determination shall apply to each day during the period from
such Purchase Date to, but excluding, the next succeeding Purchase
Date.".
Section 1.4 Amendment to Section 4.02(c). Section 4.02(c) of the
Agreement is hereby amended and restated to read in its entirety as follows:
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"(c) On such Purchase Date (i)(x) the Borrower is not in Collateral
Status, and (y) no Excess Purchase Price Amount will exist, or (ii) the
aggregate amount of cash and Qualifying Investment (or in the case of
Qualifying Investments, principal equivalent amount) contained in the
Collateral Account (including any proceeds of payment of the Purchase
Prices of Notes on such Purchase Date which are to be disbursed into
the Collateral Account pursuant to Section 1.04) shall be not less than
(A) in the event Borrower is in Collateral Status on such Purchase
Date, the aggregate of the Purchase Prices of all Notes purchased on
any Purchase Date on which Borrower was in Collateral Status and which
are outstanding or to be issued on such Purchase Date (after giving
effect to any Notes which will be repaid on such Purchase Date), or (B)
in the event an Excess Purchase Price Amount will exist on such
Purchase Date, such Excess Purchase Price Amount.".
Section 1.5 Amendment to Section 6.01(h). Section 6.01(h) of the
Agreement is hereby amended and restated to read in its entirety as follows:
"(h) Maintenance of Collateral Account.
(i) Borrower agrees to:
(A) as specified in the Collateral Account
Agreement, maintain the Collateral Account at BofA;
(B) execute and deliver to BofA the Collateral
Account Agreement in form and substance satisfactory to BofA
covering all cash, Cash Equivalent Investments and other
investments which are from time to time maintained in the
Collateral Account (which investments shall be in form and
substance approved by BofA at the time such Collateral Account
Agreement is delivered, shall be of the Required Credit
Quality, and shall, if required by BofA, be made in the name
of BofA);
(C) (i) on each Purchase Date, deposit or maintain
cash and other such Qualifying Investments in such Collateral
Account at BofA in an aggregate amount (or, in the case of
Qualifying Investments, principal equivalent amounts) which is
not less than (x) if the Borrower is in Collateral Status on
such Purchase Date, the aggregate of the Purchase Prices of
all Notes purchased on any Purchase Date on which Borrower was
in Collateral Status and which are outstanding or to be issued
on such Purchase Date (after giving effect to any Notes which
will be repaid on such day), and (y) if an Excess Purchase
Price Amount will exist on such Purchase Date, such Excess
Purchase Price Amount, and (ii) not withdraw
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any amounts or investments from such Collateral Account
except as permitted by the Collateral Account Agreement;
(D) deliver to BofA such consents as may be required
under the Bank Credit Agreement and Bank Revolver (and all
other agreements or instruments affecting Borrower) to the
delivery of such Collateral Account Agreement and collateral;
and
(E) deliver to BofA such resolutions, incumbency
certificates, opinions of counsel and other documents as BofA
may require with respect to authorization, enforceability,
legality, perfection, lack of conflict and other matters
required by BofA with respect to such Collateral Account
Agreement and the collateral covered thereby.
(ii) As used in herein:
(A) "Collateral Status" means any Purchase Date on
which any of the following conditions have not been satisfied:
(I) as of the last day of the immediately
preceding Fiscal Quarter for which a Compliance
Certificate has been delivered pursuant to Section
6.01(g)(vii) (a) if such Fiscal Quarter is the fourth
Fiscal Quarter of 1999 or the first Fiscal Quarter of
2000, the Consolidated Net Loss of the Borrower and
its Subsidiaries, as shown in such Compliance
Certificate, is less than $42,500,000 for such fourth
Fiscal Quarter or $35,000,000 for such first Fiscal
Quarter, and (b) if such Fiscal Quarter is any other
subsequent Fiscal Quarter, the Consolidated Net
Income and Consolidated Operating Income of the
Borrower and its Subsidiaries, as shown in such
Compliance Certificate, is at least zero;
(II) (a) as of the last day of the
immediately preceding Fiscal Quarter, for which a
Compliance Certificate has been delivered pursuant to
Section 6.01(g)(vii), the Available Cash Amount, as
shown in such Compliance Certificate, is greater than
$125,000,000, or (b) as of the last day of the
immediately preceding Fiscal Quarter, for which a
Compliance Certificate has been delivered pursuant to
Section 6.01(g)(vii), the Available Revolver Amount,
as shown in such Compliance Certificate, is greater
than $50,000,000, or
(III) Borrower shall have delivered, prior
to 10:00 a.m. (San Francisco time) on the LIBOR
Fixing Date for such Purchase Date, a Notice
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of Borrowing pursuant to Section 1.03(b) indicating
that Borrower will not be in Collateral Status as of
such Purchase Date;
(B) "Available Cash Amount" means, with respect to
the last day of any Fiscal Quarter, the U.S. Dollar equivalent
(determined in accordance with GAAP) of all unrestricted cash
and unrestricted Cash Equivalent Investments owned by the
Borrower and its Subsidiaries, all as set forth in the
Compliance Certificate as of such last day which was delivered
pursuant to Section 6.01(g)(vii). It is understood and agreed
that, with respect to this Section 6.01(h)(ii)(B), the
"Available Cash Amount" shall include, without duplication (i)
any unrestricted cash which is received by the Borrower in
respect of the Purchase Price for any outstanding Note
(provided, however, that under no circumstances shall the
"Available Cash Amount" include any cash or Cash Equivalent
Investments deposited into the Cash Collateral Account), and
(ii) any cash or Cash Equivalent Investments for which the
only restriction on such cash or Cash Equivalent Investments
is that they are subject to a lien of the Collateral Agent and
the other Secured Parties as proceeds of the Collateral (as
used in clause (II) of this Section 6.01(h)(ii)(B),
"Collateral Agent," "Secured Parties" and "Collateral" each
have the meanings assigned to such terms in the Bank Credit
Agreement).
(C) "Available Revolver Amount" means, with respect
to the last day of any Fiscal Quarter, the sum, as set forth
in the most recent Compliance Certificate as of such last day
which was delivered pursuant to Section 6.01(g)(vii), of (I)
the excess of (x) the aggregate of the lender commitments
under the Bank Credit Agreement as of the last day of such
Fiscal Quarter, over (y) the sum of (1) the outstanding
principal amount of all loans, advances and outstanding letter
of credit reimbursement obligations under the Bank Credit
Agreement as of the last day of such Fiscal Quarter, plus (2)
the aggregate outstanding face amount of all letters of credit
under the Bank Credit Agreement as of the last day of such
Fiscal Quarter, and (II) the excess of (x) the aggregate of
the lender commitments under the Bank Revolver as of the last
day of such Fiscal Quarter, over (y) the outstanding principal
amount of all loans, advances and other extensions of credit
to the Borrower under the Bank Revolver as of the last day of
such Fiscal Quarter.
(iv) The determination of whether or not Borrower is in
Collateral Status for purposes of this Section 6.01(h) shall be made on
each Purchase Date and such determination shall apply from such
Purchase Date to the next succeeding Purchase Date.
(v) For purposes of determining whether or not Borrower is in
compliance with clauses (I), (II) and (III) of the definition of
Collateral Status, the Consolidated Net Income, Consolidated Net Loss,
Consolidated Operating Income, Consolidated Operating Loss, Available
Cash Amount and Available Revolver Amount shall be calculated as set
forth in
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this Section 6.01(h) and such calculation shall be used in determining
whether or not Borrower is in Collateral Status from the first
Purchase Date after the delivery of such Compliance Certificate to,
but excluding, the first Purchase Date after which Borrower has
delivered a new Compliance Certificate for the next Fiscal Quarter of
the Borrower as provided herein."
Section 1.6 Amendment to Section 6.02(a). Section 6.02(a) of
the Agreement is hereby amended and restated to read in its entirety as
follows:
"(a) Profitability. Not permit (a) with respect to the fourth
Fiscal Quarter of 1999 and the first Fiscal Quarter of 2000, the
Consolidated Net Loss of the Borrower and its Subsidiaries to be
greater than $42,500,000 for such fourth Fiscal Quarter or $35,000,000
for such first Fiscal Quarter, and (b) with respect to any other
subsequent Fiscal Quarter of the Borrower and its Subsidiaries, the
Consolidated Net Income or Consolidated Operating Income of the
Borrower and its Subsidiaries to be less than zero.".
Section 1.7 Amendment to Definition of Facility Limit. The definition
of Facility Limit in Schedule I to the Agreement is hereby amended and restated
in its entirety as follows:
"`Facility Limit' means $120,000,000, as such amount may be reduced
pursuant to Section 1.07.".
Section 1.8 Amendment to Schedule I. Schedule I to the Agreement is
hereby amended by inserting the following definitions in their alphabetically
determined places, and to the extent any such definition is already defined in
Schedule I, such definitions are amended and restated in their entirety:
"Available Cash Amount" is defined in Section 6.01(h)(ii)(B).
"Available Revolver Amount" is defined in Section 6.01(h)(ii)(C).
"Collateral Status" is defined in Section 6.01(h)(ii)(A).
"EBITDA" means, with respect to any period, for the Borrower and its
Subsidiaries on a consolidated basis, determined in accordance with GAAP, the
sum of (a) Net Income (or Net Loss) for such period determined without giving
effect to the proviso to the definition of Net Income or Net Loss, as the case
may be, plus (b) all amounts treated as expenses for depreciation, interest and
the amortization of intangibles of any kind to the extent included in the
determination of such Net Income (or Net Loss), plus (c) all accrued taxes on or
measured by income to the extent included in the determination of such Net
Income (or Net Loss), plus (d) all restructuring and litigation charges recorded
during any Fiscal Quarter of 1999 and the first and
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second Fiscal Quarters of 2000 to the extent included in the determination of
such Net Income (or Net Loss).
"Excess Purchase Price Amount" means, with respect to any Purchase
Date, an amount equal to the excess, if any, of (x) the aggregate of the
Purchase Prices of all Notes which are outstanding or to be issued on such
Purchase Date (after giving effect to any Notes which will be repaid on such
Purchase Date), over (y) $50,000,000.
"Leverage Ratio" means, with respect to any Person, the ratio that (i)
Consolidated Total Debt of such Person bears to (ii) the Consolidated Total
Capital of such Person.
"Net Income" means, with respect to any Person for any period, net
income of such Person, as determined by such Person in accordance with GAAP,
provided, that, with respect to the fourth Fiscal Quarter of 1999, the first
Fiscal Quarter of 2000, and the second Fiscal Quarter of 2000, cumulative
pre-tax non-cash restructuring charges, and write-offs and write-downs of assets
classified as non-cash assets, in each case, recognized in accordance with GAAP
during such Fiscal Quarter and in an amount not to exceed $50,000,000 in the
aggregate during such Fiscal Quarters, shall be excluded from the calculation of
the Consolidated Net Income of Borrower and its Subsidiaries for such Fiscal
Quarter.
"Net Loss" means, with respect to any Person for any period, net loss
of such Person, as determined by such Person in accordance with GAAP, provided,
that, with respect to the fourth Fiscal Quarter of 1999, the first Fiscal
Quarter of 2000, and the second Fiscal Quarter of 2000, cumulative pre-tax
non-cash restructuring charges, and write-offs and write-downs of assets
classified as non-cash assets, in each case, recognized in accordance with GAAP
during such Fiscal Quarter and in an amount not to exceed $50,000,000 in the
aggregate during such Fiscal Quarters, shall be excluded from the calculation of
the Consolidated Net Loss of Borrower and its Subsidiaries for such Fiscal
Quarter.
"Operating Income" means, with respect to any Person for any period,
operating income of such Person, as determined by such Person in accordance with
GAAP, provided, that, with respect to the fourth Fiscal Quarter of 1999, the
first Fiscal Quarter of 2000, and the second Fiscal Quarter of 2000, cumulative
pre-tax non-cash restructuring charges, and write-offs and write-downs of assets
classified as non-cash assets, in each case, recognized in accordance with GAAP
during such Fiscal Quarter and in an amount not to exceed $50,000,000 in the
aggregate during such Fiscal Quarters, shall be excluded from the calculation of
the Consolidated Operating Income of Borrower and its Subsidiaries for such
Fiscal Quarter.
"Operating Loss" means, with respect to any Person for any period,
operating loss of such Person, as determined by such Person in accordance with
GAAP, provided, that, with respect to the fourth Fiscal Quarter of 1999, the
first Fiscal Quarter of 2000, and the second Fiscal Quarter of 2000, cumulative
pre-tax non-cash restructuring charges, and write-offs and write-downs of assets
classified as non-cash assets, in each case, recognized in accordance with GAAP
during
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such Fiscal Quarter and in an amount not to exceed $50,000,000 in the aggregate
during such Fiscal Quarters, shall be excluded from the calculation of the
Consolidated Operating Loss of Borrower and its Subsidiaries for such Fiscal
Quarter.
Section 1.9 Amendment to Exhibit 1.03(b). Exhibit 1.03(b) to the
Agreement is hereby amended and restated to read in its entirety as set forth in
Schedule A attached hereto.
Section 1.10 Amendment to Exhibit 6.01(g)(vii). Annex I to Exhibit
6.01(g)(vii) to the Agreement is hereby amended and restated to read in its
entirety as set forth in Schedule B attached hereto.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties. Borrower hereby represents
and warrants to BofA that:
(a) Representations and Warranties. The representations and
warranties of Borrower contained in the Agreement are true and correct
on and as of the date of this Amendment as though made on and as of
such date, and
(b) No Termination Event. Both before and after giving effect
to this Amendment, no event shall exist that constitutes a Termination
Event or an Unmatured Termination Event.
ARTICLE III
MISCELLANEOUS
Section 3.1 Agreement Document Pursuant to Agreement. This Amendment is
an Agreement Document executed pursuant to the Agreement and shall be construed,
administered and applied in accordance with all of the terms and provisions of
the Agreement.
Section 3.2 Successors, Transferees and Assigns. This Amendment shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors, transferees and assigns.
Section 3.3 Execution in Counterparts. This Amendment may be executed
by the parties hereto in several counterparts, each of which shall be deemed to
be an original and all of which shall be taken together as one agreement.
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Section 3.4 Governing Law. THIS AMENDMENT SHALL BE A CONTRACT MADE
UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF CALIFORNIA WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
Section 3.5 Reaffirmation of Agreement. As amended and supplemented by
this Amendment, the Agreement remains in full force and effect and is hereby
reaffirmed, ratified and confirmed in all respects. From and after the date
hereof, all references to the Agreement in any agreement, instrument or document
shall be references to the Agreement as amended and supplemented hereby.
Section 3.6 Headings. The various captions in this Amendment are
provided solely for convenience of reference and shall not affect the meaning or
interpretation of any provision of this Amendment.
Section 3.7 Complete Agreement. The Agreement (including this Amendment
and the Exhibits and Schedules to the Agreement and this Amendment) and the
other Agreement Documents contain the entire understanding of the parties with
respect to the transactions contemplated hereby and thereby and supersedes all
prior arrangements or understandings with respect thereto.
Section 3.8 Severability. Whenever possible, each provision of this
Amendment will be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Amendment is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Amendment, except to the extent that such
prohibition or invalidity would constitute a material change in the terms of
this Amendment taken as a whole.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
STORAGE TECHNOLOGY CORPORATION
By:
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Name:
Title:
BANK OF AMERICA, N.A.
(formerly Bank of America National
Trust and Savings Association)
By:
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Name:
Title:
S-1
