FIRST AMENDMENT TO THE SECOND AMENDED AND RESTATED CONTINGENT
MULTICURRENCY NOTE PURCHASE COMMITMENT AGREEMENT
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THIS AMENDMENT (this "Amendment"), dated as of May 28, 1998, 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 and in effect, the "Agreement"), between Storage Technology
Corporation ("Borrower") and 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 to incorporate the changes shown below:
Section 1.04 Disbursement of Purchase Price into
Collateral Account; Notice of Collateral Status. The
Borrower will notify BofA in writing no later than 10:00
a.m. (San Francisco time) on each LIBOR Fixing Date (i)
whether or not Borrower will be in Collateral Status on the
next succeeding Purchase Date for which such Notice of
Borrowing was delivered, and (ii) if Borrower will be in
Collateral Status on such next succeeding Purchase Date,
the amount to be deposited into the Collateral Account on
such next succeeding 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:
(f) The "Applicable Margin" on each day during the Period to
Maturity of any Note shall be:
(i) if on the Purchase Date of such Note Borrower is in
Collateral Status, 0.350%,
(ii) if on the Purchase Date of such Note Borrower is not
in Collateral Status, 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
(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.
Applicable Margin
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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 +0.625% +0.875%
If Less than 1.00 but greater than
or equal to .50 +1.000% +1.250%
If Less than 1.50 but greater than
or equal to 1.00 +1.250% +1.500%
If Greater than or equal to 1.50 +1.500% +1.750%
(iii) the determination of whether or not Borrower is in
Collateral Status and 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 "Scheduled Termination
Date". Section 1.08(a) of the Agreement is hereby amended to change
the Scheduled Termination Date set forth therein to January 1, 2000.
Section 1.4 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) .150% on any day when Borrower is in Collateral
Status, and
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(ii) on any day when Borrower is not in Collateral
Status, the Applicable Facility Fee Rate 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
(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.
Applicable Facility Fee Rate
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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
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If Less than .50 +0.200% +0.250%
If Less than 1.00 but greater than
or equal to .50 +0.275% +0.325%
If Less than 1.50 but greater than
or equal to 1.00 +0.325% +0.350%
If Greater than or equal to 1.50 +0.350% +0.375%
(iii) the determination of whether or not Borrower is in
Collateral Status for purposes of this Section 3.01(b) shall be
made on each Purchase Date and such determination shall apply
from such Purchase Date to, but excluding, the next succeeding
Purchase Date.
Section 1.5 Amendment to Section 4.02(c). Section 4.02(c) of the
Agreement is hereby amended to incorporate the changes shown below:
(c) On such Purchase Date, (i) the Borrower is in compliance
with the requirements of Section 6.01(h)(ii), 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 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.
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Section 1.6 Amendment to Section 6.01(h)(i)(C). Section
6.01(h)(i)(C) of the Agreement is hereby amended to incorporate the
changes shown below:
(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
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 (ii) not withdraw any amounts or investments from such
Collateral Account except as permitted by the Collateral Account
Agreement;
Section 1.7 Amendment to Section 6.01(h). Section 6.01(h) of the
Agreement is hereby amended by inserting after the end of Section
6.01(h)(i)(E) and before the beginning of Section 6.02 the following:
(ii) Notwithstanding the provisions of Section
6.01(h)(i), the Borrower will not be required to deposit or
maintain cash and Qualifying Investments in the Collateral
Account as required by clause (h)(i) on any Purchase Date, if:
(A) on such Purchase Date, after giving effect to any
payment of Purchase Price and any payment of principal and
interest on any outstanding Notes on such Purchase Date, the
Aggregate Purchase Price does not exceed $70,000,000;
(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 Consolidated Net
Income and Consolidated Operating Income of the Borrower and its
Subsidiaries, as shown in such Compliance Certificate, is greater
than zero;
(C) 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
$275,000,000; and
(D) Borrower shall have delivered, prior to 10:00 a.m.
(San Francisco time) on the LIBOR Fixing Date for such Purchase
Date, a Notice of Borrowing pursuant to Section 1.03(b)
indicating that Borrower will not be in Collateral Status as of
such Purchase Date; provided, that for the Purchase Date
occurring on May 29, 1998 Borrower shall be entitled to deliver
an amended Notice of Borrowing prior to 5:00 p.m. (San Francisco
time) on or before May 28, 1998; provided, further, that such
amended Notice of Borrowing shall relate solely to Clause (4) of
the Notice of Borrowing.
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(iii) For purpose of clause (h)(ii) above, (A) the term
"Available Cash Amount" means, with respect to the last day of
any Fiscal Quarter, the excess, as set forth in the Compliance
Certificate as of such last day which was delivered pursuant to
Section 6.01(g)(vii), of (1) the sum of (x) 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 (including, without
duplication, (i) any portion of unrestricted cash and
unrestricted Cash Equivalent Investments of which such portion
was received by the Borrower in respect of the Purchase Price for
any outstanding Note, and (ii) any portion of restricted cash and
restricted Cash Equivalent Investments for which the only
restrictions are that such portion has been deposited in the
Collateral Account and is subject to a lien of BofA under the
Collateral Account Agreement), as shown on the most recent
Consolidated balance sheet of the Borrower and its Subsidiaries
which was delivered pursuant to Section 6.01(g)(i) or (ii), plus
(y) the Available Revolver Amount as of the last day of such
Fiscal Quarter, over (2) the Aggregate Purchase Price as of the
last day of such Fiscal Quarter and (B) the term "Available
Revolver Amount" means, with respect to the last day of any
Fiscal Quarter, the excess, 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 (x) the net of all 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.
(iv) If the Borrower has not met all of the conditions
contained in Section 6.01(h)(ii), the Borrower shall be deemed to
be in "Collateral Status". 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 Sections 6.01(h)(ii)(B) and (C) above, the
Consolidated Net Income, Consolidated Operating Income, Available
Cash Amount and Available Revolver Amount shall be calculated as
set forth in 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 1.8 Amendment to Schedule I. Schedule I to the Agreement
is hereby amended by inserting the following definitions in their
alphabetically determined places:
"Available Cash Amount" is defined in Section 6.01(h)(iii).
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"Available Revolver Amount" is defined in Section 6.01(h)(iii).
"Collateral Account Agreement" means the Collateral Account
Agreement dated as of January 15, 1998, as the same may be amended,
supplemented or otherwise modified from time to time, and any
replacement, renewal or replacement thereof.
"Collateral Status" is defined in Section 6.01(h)(iv).
"EBITDA" means, for 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, 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).
"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.
"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.
"Total Capital" is defined in Section 1.1 of the Bank Credit
Agreement, as in effect on the date hereof.
"Total Debt" is defined in Section 1.1 of the Bank Credit
Agreement, as in effect on the date hereof.
Section 1.9 Amendment to Exhibit 1.03(b). Exhibit 1.03(b) to the
Agreement is hereby amended and restated in its entirety to read 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
in its entirety to read as set forth in Schedule B attached hereto.
Section 1.11 Amendment to Exhibit 5.01(d). Exhibit 5.01(d) to
the Agreement is hereby amended and restated in its entirety to read
as set forth in Schedule C attached hereto.
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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.
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.
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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: /s/ Xxxx X. XxXxxxxx
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Name: Xxxx X. XxXxxxxx
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Title: Vice President & Treasurer
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ Xxxxx XxXxxxx
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Name: Xxxxx XxXxxxx
--------------------------------
Title: Managing Director
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SCHEDULE A
EXHIBIT 1.03(B)
TO SECOND AMENDED AND RESTATED CONTINGENT
MULTICURRENCY NOTE PURCHASE COMMITMENT AGREEMENT
FORM OF
NOTICE OF BORROWING
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Date:
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To: Bank of America National Trust and
Savings Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx XxXxxxx
Facsimile No.: (000) 000-0000
Re: Storage Technology Corporation
Ladies and Gentlemen:
The undersigned, Storage Technology Corporation (the "Borrower"),
refers to the Second Amended and Restated Contingent Multicurrency
Note Purchase Commitment Agreement dated as of January 15, 1998 (as
amended, modified, renewed or extended from time to time, the
"Agreement"), between the Borrower and Bank of America National Trust
and Savings Association ("BofA"), for full particulars of the matters
herein described. All capitalized terms used in this Notice of
Borrowing and not otherwise defined herein shall have the meanings
assigned to such terms in the Agreement. The Borrower hereby gives
you irrevocable notice, pursuant to Section 1.03(b) of the Agreement,
that:
(1) the Purchase Date of the Note is , ;
(2) the Maturity Date of the Note is . ;
(3) the Purchase Price of the Note to be issued and sold on
the above Purchase Date is $ ;
(4) [the Borrower will not be in Collateral Status as of the
Purchase Date] [the Borrower will be in Collateral Status as
of the Purchase Date and the amount to be deposited into the
Collateral Account is $ ].
STORAGE TECHNOLOGY CORPORATION
By:
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Name:
--------------------------------
Title:
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SCHEDULE B
ANNEX I TO
COMPLIANCE CERTIFICATE
1. Consolidated Net Income and
Consolidated Operating Income Actual Required/Permitted
--------------------------------- -------- --------------------
No (i) Consolidated Net
(A) Consolidated Net Income/(Loss) $ Loss or Consolidated
Operating Loss of the
Borrower and its
(B) Consolidated Operating
Income/(Loss) $ Subsidiaries to occur
for each of any two
consecutive Fiscal
Quarters (calculated
as of the last day of
each such Fiscal
Quarter); or (ii)
Consolidated Net Loss
or Consolidated
Operating Loss of the
Borrower and its
Subsidiaries for any
Fiscal Quarter
greater than
$25,000,000.
Note: Provided that there shall be excluded from Consolidated
Net Loss and Consolidated Operating Loss for any Fiscal Quarter the
amount of costs and expenses in respect of mergers and acquisitions
consummated in such quarter and recognized in accordance with GAAP.
2. EBITDA
--------
The EBITDA of Borrower and its Subsidiaries for the four
consecutive Fiscal Quarters ending with the Fiscal Quarter set forth
above, was US $ .
3. Consolidated Total Debt
-------------------------
The Consolidated Total Debt of Borrower and its Subsidiaries as
of the last day of the Fiscal Quarter set forth above, was US
$ .
4. Consolidated Total Capital
----------------------------
The Consolidated Total Capital of Borrower and its Subsidiaries
as of the last day of the Fiscal Quarter set forth above, was US
$ .
5. Leverage Ratio
----------------
The Leverage Ratio (Consolidated Total Debt divided by
Consolidated Total Capital) of Borrower and its Subsidiaries as of the
last day of the Fiscal Quarter set forth above, was .
6. Available Cash Amount
-----------------------
The Available Cash Amount as of the last day of the Fiscal
Quarter set forth above, was .
7. Available Revolver Amount
---------------------------
The Available Revolver Amount as of the last day of the Fiscal
Quarter set forth above, was .
