Exhibit 10.01
FIFTH AMENDMENT AND RESTATEMENT OF
CERTAIN OPERATIVE AGREEMENTS
Dated as of September 24, 2002
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,
XXXXX FARGO BANK NORTHWEST, 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
FIFTH AMENDMENT AND RESTATEMENT OF
CERTAIN OPERATIVE AGREEMENTS
This FIFTH AMENDMENT AND RESTATEMENT OF CERTAIN OPERATIVE
AGREEMENTS (this "Amendment") dated as of September 24, 2002 (the "Effective
Date"), 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"); XXXXX FARGO BANK
NORTHWEST, NATIONAL ASSOCIATION (as successor to 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).
WITNESSETH
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 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, the Lessee has requested amendments and modifications to
certain of the covenants set forth in the Participation Agreement; and
WHEREAS, the Financing Parties have agreed to the requested amendments
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:
PARTICIPATION AGREEMENT
1. Subsection (ii) of Section 8.3A(h) of the Participation Agreement is
amended in its entirety to read as follows:
(ii) EBITDA. EBITDA, for each period set forth below, as shown
on the financial statements of Credit Parties and their Consolidated
Subsidiaries delivered pursuant to Section 83A(a)(i), shall not be less
than (i) $400,000,000 for each of the twelve month periods ending
September 30, 2002, December 31, 2002, March 31, 2003, June 30, 2003,
September 30, 2003, December 31, 2003, March 31, 2004 and June 30, 2004
and (ii) $500,000,000 for the twelve month period ending September 30,
2004 and each December 31, March 31, June 30 and September 30
thereafter.
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
(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) specifying that no Default or Event of
Default (other than a Default or Event of Default that would be cured
upon the effectiveness of this Amendment) 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 as
pertains to a Default or Event of Default that would be cured upon the
effectiveness of this Amendment, and 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), 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, for the ratable benefit of each Lender and
each Holder that executes this Amendment on or prior to the Effective Date, of
an amendment fee equal to the product of five basis points (0.05%) multiplied by
the sum of the aggregate Commitments of such executing Lenders and the aggregate
Holder Commitments of such executing Holders.
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.
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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.
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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
[SEAL] 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
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VERITAS OPERATING CORPORATION, as
a Guarantor
By: /s/ XXXXX XXXXX
[SEAL] ---------------------------
Name: Xxxxx Xxxxx
Title: Treasurer
[signature pages continue]
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
[signature pages continue]
BANK OF AMERICA, N.A., as a Holder, as a
Lender and as the Agent
By: /s/ XXXXX X. XXXXXXX
--------------------------------
Name: Xxxxx X. XxXxxxx
Title: Managing Director
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KEYBANK NATIONAL ASSOCIATION, as a
Holder and as a Lender
By: /s/ XXXXXX X. XXXXXXXX
--------------------------------
Name: XXXXXX X. XXXXXXXX
Title: SENIOR VICE PRESIDENT
[signature pages continue]
UNION BANK OF CALIFORNIA, N.A., as a
Holder and as a Lender
By: /s/ XXXXX X. XXXXX
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
[signature pages continue]
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as a Holder and as a Lender
By: /s/ XXXX XXXXXX
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
[signature pages end]
