EXHIBIT 10.1
CONSENT AND SIXTH AMENDMENT AGREEMENT
This CONSENT AND SIXTH AMENDMENT AGREEMENT (this "Agreement") dated as
of June 6, 2003, is by and among VERITAS SOFTWARE GLOBAL CORPORATION, a Delaware
corporation (the "Lessee" or the "Construction Agent"); the various other Credit
Parties listed on the signature pages hereto, as guarantors (subject to the
definition of Guarantors in Appendix A to the Participation Agreement referenced
below, individually a "Guarantor" and collectively, the "Guarantors"); XXXXX
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, a national banking association, not
individually but solely as the Owner Trustee under the VS Trust 2000-1 (the
"Owner Trustee" or the "Lessor"); the various banks and other lending
institutions listed on the signature pages hereto (subject to the definition of
Lenders in Appendix A to the Participation Agreement referenced below,
individually, a "Lender" and collectively, the "Lenders"); BANK OF AMERICA,
N.A., a national banking association, as the agent for the Lenders and
respecting the Security Documents, as the agent for the Lenders and the Holders,
to the extent of their interests (in such capacity, the "Agent"); and the
various banks and other lending institutions listed on the signature pages
hereto as holders of certificates issued with respect to the VS Trust 2000-1
(subject to the definition of Holders in Appendix A to the Participation
Agreement referenced below, individually, a "Holder" and collectively, the
"Holders"). Capitalized terms used in this Agreement but not otherwise defined
herein shall have the meanings set forth in Appendix A to the Participation
Agreement (hereinafter defined).
W I T N E S S E T H
WHEREAS, the parties to this Agreement are parties to that certain
Participation Agreement dated as of March 9, 2000 (the "Participation
Agreement") and certain of the parties to this Agreement are parties to the
other Operative Agreements relating to a $41.2 million tax retention operating
lease facility (the "Facility") that has been established in favor of the
Lessee;
WHEREAS, on April 10, 2003, the Financing Parties consented to the
redemption by the Credit Parties of the 5.25% Convertible Subordinated Notes due
2004;
WHEREAS, the Credit Parties have requested that the Financing Parties
(i) consent to the prepayment or redemption of certain outstanding Indebtedness
of the Credit Parties and (ii) amend Section 8.3A(h)(i) of the Participation
Agreement;
WHEREAS, the Financing Parties have agreed to the requested consent and
amendment on the terms and conditions set forth herein;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
A. CONSENT
Notwithstanding Section 8.3B(h) of the Participation Agreement, the
Financing Parties hereby consent to the prepayment or redemption by the Credit
Parties of up to $465 million principal amount of 1.856% Convertible
Subordinated Notes due 2006 to occur on or before September 29, 2003. This is a
one-time consent and shall not be construed to be (i) a waiver as to future
compliance with the Operative Agreements, (ii) a waiver of any Default or Event
of Default that may exist or (iii) a waiver of any other rights or remedies the
Lenders or Holders may have under the Operative Agreements or under applicable
law.
B. AMENDMENTS
(a) Section 6.2. A new Section 6.2(x) is hereby added to the
Participation Agreement to read as follows:
(x) The Credit Parties do not intend to treat the Loans
and/or Holder Advances and related transactions as being a "reportable
transaction" (within the meaning of Treasury Regulation Section
1.6011-4). In the event any Credit Party determines to take any action
inconsistent with such intention, it will promptly notify the Agent
thereof. If a Credit Party so notifies the Agent, the Credit Parties
acknowledge that one or more of the Financing Parties may treat its
Loans and/or Holder Advances as part of a transaction that is subject
to Treasury Regulation Section 301.6112-1, and such Financing Party or
Financing Parties, as applicable, will maintain the lists and other
records required by such Treasury Regulation. Promptly after a Credit
Party has notified the Agent of any intention by such Credit Party to
treat the Loans and/or Holder Advances and related transactions as
being a "reportable transaction" (within the meaning of Treasury
Regulation Section 1.6011-4), the Credit Parties shall deliver to the
Agent a duly completed copy of IRS Form 8886 or any successor form.
(b) Section 8.3A. Section 8.3A(h)(i) of the Participation
Agreement is hereby amended to read as follows:
(h) Financial Covenants.
(i) Leverage Ratio. The Leverage Ratio, as of
the last day of each fiscal quarter of the Lessee, shall be
less than or equal to:
(A) From and including December 31,
2001 to and including March 31, 2003, 2.50
to 1.0;
(B) From and including April 1, 2003 to
and including June 30, 2003, 3.00 to 1.0;
(C) From and including July 1, 2003 to
and including September 30, 2003, 2.25 to
1.0; and
(D) From October 1, 2003 and
thereafter, 2.0 to 1.0.
(c) Section 12.13. The following paragraph is hereby added to the
end of Section 12.13 to read as follows:
Notwithstanding anything herein to the contrary, "information"
shall not include, and the Agent and each Financing Party may disclose
without limitation of any kind, any information with respect to the
"tax treatment" and "tax structure" (in each case, within the meaning
of Treasury Regulation Section 1.6011-4) of the transactions
contemplated hereby and all materials of any kind (including opinions
or other tax analyses) that are provided to the Agent or such Financing
Party relating to such tax treatment and tax structure; provided that
with respect to any document or similar item that in either case
contains information concerning the tax treatment or tax structure of
the transaction as well as other information, this sentence shall only
apply to such portions of the document or similar item that relate to
the tax treatment or tax structure of the Loans, Holder Advances and
transactions contemplated hereby.
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C. MISCELLANEOUS
1. This Agreement shall be effective as of June 6, 2003.
2. All of the terms and provisions of the Operative Agreements
(including Schedules and Exhibits) are hereby ratified and confirmed and remain
in full force and effect according to their terms.
3. Each of the Credit Parties hereby represents and warrants that
(i) it has taken all necessary action to authorize the execution, delivery and
performance of this Agreement, (ii) this Agreement has been duly executed and
delivered by such party and constitutes such party's legal, valid and binding
obligations, enforceable in accordance with its terms, except as such
enforceability may be subject to (a) bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or similar laws affecting
creditors' rights generally and (b) general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in equity,
(iii) no consent, approval, authorization or order of, or filing, registration
or qualification with, any court or governmental authority or third party is
required in connection with the execution, delivery or performance by such party
of this Agreement, (iv) no Default or Event of Default exists, and (v) the
representations and warranties of such Credit Party set forth in the
Participation Agreement are true and correct as of the date hereof (except for
any such representations and warranties which relate solely to an earlier time).
4. The Lessee, agrees to pay all reasonable costs and expenses of
the Agent in connection with the preparation, execution and delivery of this
Agreement, including without limitation the reasonable fees and expenses of
Xxxxx & Xxx Xxxxx, PLLC.
5. This Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original and it
shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart. Each of the Credit Parties agrees to execute
and deliver such other documents, agreements or instruments deemed necessary or
advisable by the Agent to carry out and effectuate the intent and purpose of
this Agreement.
6. This Agreement shall be deemed to be a contract made under,
and for all purposes shall be construed in accordance with the laws of the State
of New York.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
VERITAS SOFTWARE GLOBAL CORPORATION, as
the Construction Agent and as the Lessee
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Treasurer
VERITAS SOFTWARE CORPORATION, as a
Guarantor
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Treasurer
VERITAS SOFTWARE TECHNOLOGY CORPORATION,
as a Guarantor
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Treasurer
VERITAS SOFTWARE TECHNOLOGY HOLDING
CORPORATION, as a Guarantor
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Treasurer
VERITAS OPERATING CORPORATION, as a
Guarantor
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Treasurer
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Consent and Sixth Amendment
VS Trust 2000-1
XXXXX FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION (as successor to First
Security Bank, National Association),
not individually, but solely as the
Owner Trustee under the VS Trust 2000-1
By: /s/ Xxx X. Xxxxx
------------------------------------
Name: Xxx X. Xxxxx
Title: Vice President
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Consent and Sixth Amendment
VS Trust 2000-1
BANK OF AMERICA, N.A., as a Holder, as a
Lender and as the Agent
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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Consent and Sixth Amendment
VS Trust 2000-1
KEYBANK NATIONAL ASSOCIATION, as a
Holder and as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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Consent and Sixth Amendment
VS Trust 0000-0
XXXXX XXXX XX XXXXXXXXXX, N.A., as a
Holder and as a Lender
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
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Consent and Sixth Amendment
VS Trust 2000-1
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Holder and as a Lender
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
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Consent and Sixth Amendment
VS Trust 2000-1
