1
EXHIBIT 10.31
JOINDER AGREEMENT
(Pursuant to Section 5.10(a) of the Participation Agreement)
THIS JOINDER AGREEMENT (as amended, modified, supplemented, restated
and/or replaced from time to time, the "Agreement"), dated as of March 3, 2000,
is by and between OPENVISION INTERNATIONAL, LTD., a Delaware corporation (the
"Company"), and BANK OF AMERICA, N.A. (as successor to NationsBank, N.A.), 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 (the "Agent").
Capitalized terms not otherwise defined herein shall have the meanings set forth
therefor in the Participation Agreement dated as of April 23, 1999 (as amended,
modified, supplemented, restated and/or replaced from time to time, the
"Participation Agreement") among VERITAS OPERATING CORPORATION (formerly known
as Veritas Software Corporation), as the Construction agent and the Lessee, the
various parties thereto from time to time, as the Guarantors, First Security
Bank, National Association, as the Owner Trustee under the VS Trust 1999-1, the
various banks and other lending institutions which are parties thereto from time
to time, as the Lenders, the various banks and other lending institutions which
are parties thereto from time to time, as the Holders, and the Agent.
The Company is either a Domestic Subsidiary or the Parent, and,
consequently, the Credit Parties are required by Section 8.3(s) of the
Participation Agreement to cause the Company to become a "Guarantor".
Accordingly, the Company hereby agrees as follows with the Agent, for
the benefit of the Financing Parties:
1. The Company hereby acknowledges, agrees and confirms that, by its
execution of this Agreement, the Company will be deemed to be a party to the
Participation Agreement and a "Guarantor" for all purposes of the Participation
Agreement and all other Operative Agreements, and shall have all of the
obligations of a Guarantor under the Operative Agreements as if the Company had
executed the Participation Agreement. The Company hereby ratifies, as of the
date hereof, and agrees to be bound by, all of the terms, provisions and
conditions applicable to the Guarantors contained in the Operative Agreements.
Without limiting the generality of the foregoing terms of this paragraph 1, the
Company hereby (i) jointly and severally together with the other Guarantors,
guarantees to each Financing Party, as provided in Sections 6B.1 through 6B.8 of
the Participation Agreement, the prompt payment and performance of the Company
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration or otherwise) strictly in accordance with the terms
thereof.
2. (a) The provisions of Section 6B of the Participation Agreement shall
remain in full force and effect notwithstanding (i) any release of any Credit
Party from any liability with respect to the Company Obligations; or (ii) any
release or subordination of any real or personal
2
property now or hereafter held by the Agent as security for the performance of
the Company Obligations:
(b) The Company expressly waives any and all benefits which might
otherwise be available to it under California Civil Code Sections 2809, 2810,
2819, 2839, 2845, 2849, 2850, 2899 and 3433;
(c) The Company hereby waives any and all defenses, including but not
limited to the Company's defense of estoppel discussed in Union Bank vs. Gradsky
(1968) 265 Cal.App.2d 40, based upon a foreclosure against all or any part of
the real property security for the indebtedness evidenced by the Notes or Holder
Certificates pursuant to the power of sale contained in any Operative Agreement
as opposed to proceeding by way of judicial foreclosure. The Company waives all
rights and defenses arising out of an election of remedies by the Agent, even
though that election of remedies, such as a nonjudicial foreclosure with respect
to security for a guaranteed obligation, has destroyed the Company's rights of
subrogation and reimbursement by the operation of Section 580d of the California
Code of Civil Procedure or otherwise;
(d) The Company hereby waives all rights and defenses that the
Company may have because any of the Company Obligations are secured by real
property. This means, among other things: (1) The Agent may collect from the
Company without first foreclosing on any real or personal property collateral
pledged by any other Person, including without limitation, Lessee or any of its
Subsidiaries; (2) If the Agent forecloses on any real property collateral
pledged by any Credit Party: (A) the amount of debt may be reduced only by the
price for which the collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price, (B) the Agent may collect from any
Credit Party even if the Agent, by foreclosing on the real property collateral,
has destroyed any right the Company may have to collect from any other Credit
Party. This is an unconditional and irrevocable waiver of any rights and
defenses the Company may have because the Company Obligations are secured by
real property. These rights and defenses include, but are not limited to, any
rights or defenses based upon Section 580a, 580b, 580d, or 726 of the California
Code of Civil Procedure.
(e) In the case of a power of sale foreclosure under any Operative
Agreement, the fair market value of the real property collateral shall be
conclusively deemed to be the amount of the successful bid at the foreclosure
sale. The Company waives any rights or benefits it may now or hereafter have to
a fair value hearing under Section 580a of the California Code of Civil
Procedure. The Agent shall have absolutely no obligation to make a bid at any
foreclosure sale, but rather may make no bid or bid any amount which the Agent,
in its sole discretion, deems appropriate.
(f) The Agent acknowledges that the provisions of this Section 6B.9
are intended to constitute a waiver of any rights and defenses the Company may
now or hereafter have as a "guarantor" to the extent any Operative Agreement
executed by the Company is construed to be in whole or in part a guaranty of the
Company Obligations.
3
3. THE COMPANY HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES TO THE
PROVISIONS OF SECTION 12.7 OF THE PARTICIPATION AGREEMENT, INCLUDING WITHOUT
LIMITATION THOSE PROVISIONS REGARDING GOVERNING LAW, SUBMISSION TO JURISDICTION,
WAIVER OF JURY TRIAL AND VENUE. THIS PROVISION HAS BEEN SPECIFICALLY REVIEWED BY
THE COMPANY.
4. The chief executive office and principal place of business of the
Company are located at the location(s) set forth on Schedule 1 attached hereto.
5. All notices and other communications to be delivered to the Company
shall be directed to the Company at its address set forth in Section 12.2 of the
Participation Agreement or such other address as may be specified, in accordance
with the terms of the Participation Agreement, by the Company from time to time.
6. The Company hereby waives acceptance by the Financing Parties of the
guaranty by the Company under Sections 6B.1 through 6B.8 of the Participation
Agreement upon the execution of this Agreement by the Company.
7. This Agreement may be executed in multiple counterparts, each of
which shall constitute an original but all of which when taken together shall
constitute one contract.
8. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
4
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its authorized officers, and the Agent, for the benefit of the
Financing Parties, has caused the same to be accepted by its authorized officer,
as of the day and year first above written.
OPENVISION INTERNATIONAL, LTD.
By: /s/ XXXXX XXXXX
----------------------------------
Name: Xxxxx Xxxxx
Title: Treasurer
Acknowledged and accepted:
BANK OF AMERICA, N.A.,
as the Agent
By: /s/ XXXXXXX X. XXXXXXXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President
5
Schedule 1
OpenVision International, Ltd.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
