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EXHIBIT 10.03
THIRD 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 1999-1,
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 successor to NATIONSBANK, N.A.,
as the Agent for the Secured Parties
--------------------------------------------------------------------------------
BANK OF AMERICA, N.A. and KEY BANK,
as Agents,
and
THE BANK OF NOVA SCOTIA, COMERICA BANK - CALIFORNIA,
UNION BANK OF CALIFORNIA, N.A., and XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Co-Agents.
--------------------------------------------------------------------------------
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THIRD AMENDMENT AND RESTATEMENT OF
CERTAIN OPERATIVE AGREEMENTS AND OTHER AGREEMENTS
This THIRD 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 1999-1 (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, which is the
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 (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 1999-1 (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 April 23, 1999 (the "Participation
Agreement"), certain of the parties to this Amendment are parties to that
certain Credit Agreement dated as of April 23, 1999 (the "Credit Agreement"),
certain of the parties to this Amendment are parties to that certain Trust
Agreement dated as of April 23, 1999 (the "Trust Agreement"), and certain of the
parties to this Amendment are parties to the other Operative Agreements relating
to a $139.4 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 $139,400,000 to
$147,802,000;
WHEREAS, the Financing Parties have agreed to the requested
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 $4,434,060, 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 $143,367,940, 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 $147,802,000 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
----------------------------------
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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
1999-1
By: /s/ XXXXX X. XXXX
-------------------------------------
Name: Xxxxx X. Xxxx
-----------------------------------
Title: Vice President
----------------------------------
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BANK OF AMERICA, N.A. (which is the
successor to NationsBank, N.A.), as a
Holder, as a Lender and as the Agent
By: /s/ XXXXX XXXXXXXX
-------------------------------------
Name: Xxxxx Xxxxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
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COMERICA BANK - CALIFORNIA, as a Holder
and as a Lender
By: /s/ XXX XXXXXXX
-------------------------------------
Name: Xxx Xxxxxxx
-----------------------------------
Title: Corporate Banking Officer
----------------------------------
Signed on behalf of Xxxxxx X. Ways
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KEYBANK NATIONAL ASSOCIATION, as a
Holder and as a Lender
By: /s/ XXXXXX XXXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
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FLEET NATIONAL BANK, as a Lender
By: /s/ XXXXXXX X. XXXX
-------------------------------------
Name: Xxxxxxx X. Xxxx
-----------------------------------
Title: Vice President
----------------------------------
00
XXX XXXX XX XXXX XXXXXX, as a Lender
By: /s/ XXX XXXXXX
-------------------------------------
Name: Xxx Xxxxxx
-----------------------------------
Title: Director
----------------------------------
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THE FUJI BANK, LIMITED, as a Lender
By: /s/ XXXXXXXX XXXXXX
-------------------------------------
Name: Xxxxxxxx Xxxxxx
-----------------------------------
Title: SVP and Group Head
----------------------------------
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FBTC LEASING CORP., as a Lender
By: /s/ XXXXXX XXXX
-------------------------------------
Name: Xxxxxx Xxxx
-----------------------------------
Title: Vice President
----------------------------------
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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
----------------------------------
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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
----------------------------------
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THE INDUSTRIAL BANK OF JAPAN, LIMITED,
as a Lender
By: /s/ XXXXX XXXXXXXX
------------------------------------------
Name: Xxxxx Xxxxxxxx
----------------------------------------
Title: Senior Vice President & Senior Manager
---------------------------------------
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IBJTC LEASING CORPORATION-BSC, as a
Holder
By: /s/ XXXXXX XXXX
-------------------------------------
Name: Xxxxxx Xxxx
-----------------------------------
Title: Senior 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. $18,795,069.57 14.786492776% $2,404,020.74 14.786494065%
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
Comerica Bank - California $14,589,350.93 11.477761836% $1,866,079.77 11.477761836%
000 Xxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Rob Ways
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
KeyBank National Association $18,795,069.57 14.786492776% $2,404,020.74 14.786494065%
Xxxxx 0000
0 Xxxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Fleet National Bank $10,340,390.14 8.135011344% $1,322,608.42 8.135013695%
Information Technology Division
Mail Code: XX XX 00000X
000 Xxxxxxx Xxxxxx
XX XX 00000X
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
00
Xxxxxxx X Xxxxxxx X
Commitment Commitment
---------- ----------
Name and Address of Lenders Amount/Percentage Amount/Percentage
--------------------------- ----------------- -----------------
The Bank of Nova Scotia $15,040,569.02 11.000000000% $1,923,792.53 11.832737707%
x/x Xxxxxx Xxxxxxx
Xxxxx 0000
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx, Director
Tech & Electronics Group
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Fuji Bank, Limited $10,340,390.14 8.135011344% $-0- 0%
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Mano Xxxxxxxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
FBTC Leasing Corp. $-0- 0% $1,322,608.42 8.135013695%
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Union Bank of California, N.A. $14,589,350.93 11.477761836% $1,866,079.77 11.477761836%
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 $14,589,350.93 11.477761836% $1,866,079.77 11.477761836%
Association
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
00
Xxxxxxx X Xxxxxxx X
Commitment Commitment
---------- ----------
Name and Address of Lenders Amount/Percentage Amount/Percentage
--------------------------- ----------------- -----------------
The Industrial Bank of Japan, $10,030,178.77 7.890961263% $1,282,929.84 7.890961263%
Limited
Xxxxx 0000
Xxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
TOTAL $127,109,720 100% $16,258,220 100%
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EXHIBIT 2
SCHEDULE 1
HOLDER COMMITMENTS
Holder Commitment
-----------------
Name of Holder Amount/Percentage
-------------- -----------------
Bank of America, N.A. $1,278,688.75 28.837876614%
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 $1,278,688.75 28.837876614%
Xxxxx 0000
0 Xxxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Comerica Bank - California $508,930.85 11.477761836%
000 Xxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Rob Ways
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Union Bank of California, N.A. $508,930.85 11.477761836%
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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Holder Commitment
-----------------
Name of Holder Amount/Percentage
-------------- -----------------
Xxxxx Fargo Bank, National Association $508,930.85 11.477761836%
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
IBJTC Leasing Corporation-BSC $349,889.96 7.890961263%
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
TOTAL $4,434,060 100%
