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EXHIBIT 10.04
SECOND AMENDMENT AND RESTATEMENT OF
CERTAIN OPERATIVE AGREEMENTS AND OTHER AGREEMENTS
Dated as of April 5, 2001
among
VERITAS SOFTWARE GLOBAL CORPORATION,
as the Construction Agent and as the Lessee
THE VARIOUS PARTIES TO THE PARTICIPATION AGREEMENT AND OTHER
OPERATIVE AGREEMENTS FROM TIME TO TIME,
as the Guarantors,
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, except as expressly stated in the Operative Agreements,
but solely as the Owner Trustee under the VS Trust 2000-1,
THE VARIOUS BANKS AND OTHER LENDING INSTITUTIONS
WHICH ARE PARTIES TO THE PARTICIPATION AGREEMENT AND OTHER
OPERATIVE AGREEMENTS FROM TIME TO TIME,
as the Holders,
THE VARIOUS BANKS AND OTHER LENDING INSTITUTIONS
WHICH ARE PARTIES TO THE PARTICIPATION AGREEMENT AND OTHER
OPERATIVE AGREEMENTS FROM TIME TO TIME,
as the Lenders,
and
BANK OF AMERICA, N.A.,
as the Agent for the Secured Parties
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SECOND AMENDMENT AND RESTATEMENT OF
CERTAIN OPERATIVE AGREEMENTS AND OTHER AGREEMENTS
This SECOND AMENDMENT AND RESTATEMENT OF CERTAIN OPERATIVE
AGREEMENTS AND OTHER AGREEMENTS (this "Amendment") dated as of April 5, 2001, is
by and among VERITAS SOFTWARE GLOBAL CORPORATION, a Delaware corporation (the
"Lessee" or the "Construction Agent"); the various 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"); FIRST SECURITY BANK, 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 Amendment 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 Amendment are parties to that certain
Participation Agreement dated as of March 9, 2000 (the "Participation
Agreement") and certain of the parties to this Amendment are parties to that
certain Credit Agreement dated as of March 9, 2000 (the "Credit Agreement"),
certain of the parties to this Amendment are parties to that certain Trust
Agreement dated as of March 9, 2000 (the "Trust Agreement"), and certain of the
parties to this Amendment are parties to the other Operative Agreements relating
to a $40 million tax retention operating lease facility (the "Facility") that
has been established in favor of the Lessee;
WHEREAS, the Lessee has requested certain modifications to the
Participation Agreement, the Credit Agreement, the Trust Agreement, the Security
Agreement, the Lease and the other Operative Agreements in connection with the
Lessee's request to increase the size of the Facility from $40,000,000 to
$41,462,000;
WHEREAS, the Financing Parties have agreed to the requested consents and
modifications 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:
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PARTICIPATION AGREEMENT
1. Appendix A to the Participation Agreement is hereby amended to
modify or add the following defined terms as follows:
"Holder Commitments" shall mean $1,243,860, as such amount may be
increased or reduced from time to time in accordance with the provisions of the
Operative Agreements; provided, if there shall be more than one (1) Holder, the
Holder Commitment of each Holder shall be as set forth in Schedule I to the
Trust Agreement as such Schedule I may be amended and restated from time to
time.
"Lender Commitments" shall mean $40,218,140, as such amount may be
increased or reduced from time to time in accordance with the provisions of the
Operative Agreements; provided, if there shall be more than one (1) Lender, the
Lender Commitment of each Lender shall be as set forth in Schedule 2.1 to the
Credit Agreement as such Schedule 2.1 may be amended and restated from time to
time.
2. Section 8.3(h) of the Participation Agreement is hereby amended
and restated to read as follows:
(h) The Lessee hereby covenants and agrees that as of Completion (i) the
aggregate Property Cost shall not exceed $41,462,000 and (ii) each
parcel of the Property shall be a Permitted Facility.
CREDIT AGREEMENT
1. Schedule 2.1 of the Credit Agreement is hereby deemed amended and
restated in its entirety to read as Schedule 2.1 attached hereto as EXHIBIT 1.
TRUST AGREEMENT
1. Schedule I of the Trust Agreement is hereby deemed amended and
restated in its entirety to read as Schedule I attached hereto as EXHIBIT 2.
MISCELLANEOUS
1. This Amendment shall be effective upon satisfaction of the
following conditions:
(a) execution and delivery of this Amendment by the parties hereto
and execution and delivery of such other documents, agreements or instruments
reasonably deemed necessary or advisable by the Agent; and
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(b) (i) receipt by the Agent of an officer's certificate of
the Lessee and the Construction Agent (in form and in substance
reasonably satisfactory to the Agent) certifying that a resolution has
been adopted by Lessee's Board of Directors approving and authorizing
the execution, delivery and performance of this Amendment, specifying
that no Default or Event of Default shall have occurred and be
continuing, specifying that the representations and warranties of Lessee
set forth in the Participation Agreement are true and correct (except
for any such representations and warranties which relate solely to an
earlier time) and certifying as to the incumbency of the officer of
Lessee executing this Amendment and
(ii) receipt by the Agent of an officer's certificate of
each Credit Party (other than the Lessee and the Construction
Agent) certifying that the execution, delivery and performance of
this Amendment has been duly approved and authorized by such
Credit Party's Board of Directors, such officer's certificate to
be in form and substance reasonably satisfactory to the Agent and
certifying as to the incumbency of the officer of such Credit
Party executing this Amendment;
(c) receipt by the Agent of legal opinions of counsel to the
Credit Parties relating to this Amendment in form and substance
reasonably satisfactory to the Agent; and
(d) receipt by the Agent, for the ratable benefit of each
Lender and each Holder, of an amendment fee equal to the product of
seventeen and one-half basis points (0.175%) multiplied by the sum of
the aggregate Commitments of all Lenders and the aggregate Holder
Commitments of all Holders after giving effect to this Amendment.
2. Except as modified hereby, all of the terms and provisions of the
Operative Agreements (including Schedules and Exhibits) shall remain unmodified
and in full force and effect.
3. The Lessee agrees to pay all reasonable costs and expenses of the
Agent in connection with the preparation, execution and delivery of this
Amendment, including without limitation the reasonable fees and expenses of
Xxxxx & Xxx Xxxxx, PLLC.
4. This Amendment 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 Amendment to produce or account
for more than one such counterpart.
5. This Amendment 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.
[The remainder of this page has been left blank intentionally.]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment 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
----------------------------------
[signature pages continue]
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VERITAS OPERATING CORPORATION, as a
Guarantor
By: /s/ XXXXX XXXXX
-------------------------------------
Name: Xxxxx Xxxxx
-----------------------------------
Title: Treasurer
----------------------------------
[signature pages continue]
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FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, except as
expressly stated herein, but solely as
the Owner Trustee under the VS Trust
2000-1
By: /s/ XXXXX X. XXXX
-------------------------------------
Name: Xxxxx X. Xxxx
-----------------------------------
Title: Vice President
---------------------------------
[signature pages continue]
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BANK OF AMERICA, N.A., as a Holder, as a
Lender and as the Agent
By: /s/ XXXXX XXXXXXXX
-------------------------------------
Name: Xxxxx Xxxxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
[signature pages continue]
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KEYBANK NATIONAL ASSOCIATION, as a
Holder and as a Lender
By: /s/ XXXXXX XXXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
[signature pages continue]
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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
----------------------------------
[signature pages continue]
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XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Holder and as a Lender
By: /s/ XXXX X. XXXXXX
-------------------------------------
Name: Xxxx X. Xxxxxx
-----------------------------------
Title: Vice President
----------------------------------
[signature pages end]
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EXHIBIT 1
Schedule 2.1
Tranche A Tranche B
Commitment Commitment
---------- ----------
Name and Address of Lenders Amount/Percentage Amount/Percentage
--------------------------- ----------------- -----------------
Bank of America, N.A. $11,521,253.25 32.5% $1,549,642.25 32.5%
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Mail Code: CA5-705-12-08
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
KeyBank National Association $11,521,253.25 32.5% $1,549,642.25 32.5%
Xxxxx 0000
0 Xxxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Union Bank of California, N.A. $7,976,252.25 22.5% $1,072,829.25 22.5%
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxx Fargo Bank, National $4,431,251.25 12.5% $596,016.25 12.5%
Association
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
TOTAL $35,450,010 100% $4,768,130 100%
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EXHIBIT 2
SCHEDULE 1
HOLDER COMMITMENTS
Holder Commitment
-----------------
Name of Holder Amount/Percentage
-------------- -----------------
Bank of America, N.A. $404,254.50 32.5%
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Mail Code: CA5-705-12-08
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
KeyBank National Association $404,254.50 32.5%
Xxxxx 0000
0 Xxxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Union Bank of California, N.A. $279,868.50 22.5%
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxx Fargo Bank, National Association $155,482.50 12.5%
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
TOTAL $1,243,860 100%
