EXHIBIT 10.05
FIFTH AMENDMENT AND RESTATEMENT OF
CERTAIN OPERATIVE AGREEMENTS
Dated as of November 2, 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,
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 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
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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.
--------------------------------------------------------------------------------
FIFTH AMENDMENT AND RESTATEMENT OF
CERTAIN OPERATIVE AGREEMENTS
This FIFTH AMENDMENT AND RESTATEMENT OF CERTAIN OPERATIVE AGREEMENTS
(this "Amendment") dated as of November 2, 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"); 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 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"), and certain of the parties to this Amendment are parties to the
other Operative Agreements relating to a $147.8 million tax retention operating
lease facility (the "Facility") that has been established in favor of the
Lessee;
WHEREAS, the Lessee has requested certain amendments and modifications
to certain of the covenants set forth in the Participation Agreement;
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. Appendix A to the Participation Agreement is hereby amended to modify
the following defined term in its entirety as follows:
"Applicable Percentage" shall mean for Eurodollar Loans, Eurodollar
Holder Advances and Commitment Fees, the appropriate applicable percentages
corresponding to the Pricing Level in effect as of the most recent Calculation
Date as shown below:
=================================================================================================
Applicable Applicable
Ratio of Funded Percentage for Percentage for Applicable
Indebtedness Eurodollar Eurodollar Percentage for
Pricing Level To EBITDA Loans Holder Advances Commitment Fee
-------------------------------------------------------------------------------------------------
I Funded Indebtedness/ 1.25% 2.25% .30%
EBITDA (Greek alpha) .75
-------------------------------------------------------------------------------------------------
II Funded Indebtedness/EBITDA 1.50% 2.50% .375%
> .75 but (Greek alpha) 1.25
-------------------------------------------------------------------------------------------------
III Funded Indebtedness/EBITDA 1.75% 2.75% .45%
> 1.25 but (Greek alpha)
2.00
-------------------------------------------------------------------------------------------------
IV Funded Indebtedness/EBITDA 2.00% 3.00% .50%
> 2.00 but (Greek alpha) 2.25
-------------------------------------------------------------------------------------------------
V Funded Indebtedness/EBITDA 2.125% 3.125% .625%
> 2.25
=================================================================================================
The Applicable Percentage for Eurodollar Loans, Eurodollar Holder
Advances and the Commitment Fees shall, in each case, be determined and adjusted
on the date (the "Calculation Date") by which the compliance certificate is
required to be delivered to the Agent in accordance with the provisions of
Section 8.3A(a)(iii) of the Participation Agreement; provided, however, that (i)
the Applicable Percentage from the Initial Closing Date shall be based on
Pricing Level III (as shown above) and shall remain at Pricing Level III until
the next occurring Calculation Date and, thereafter, the Pricing Level shall be
determined as shown above, and (ii) if the Lessee fails to provide the annual
and quarterly compliance certificates required pursuant to Sections 8.3A(a)(iii)
of the Participation Agreement to the Agent on or before such Calculation Date,
the Applicable Percentage, in each case, from such Calculation Date shall be
based on Pricing Level V until such time that such compliance certificates are
provided whereupon the Pricing Level shall be determined as specified herein.
Each Applicable Percentage shall be effective from one Calculation Date until
the next Calculation Date. Any adjustment in the Applicable Percentage shall be
applicable to all existing Eurodollar Loans and Eurodollar Holder Advances as
well as any new Eurodollar Loans and Eurodollar Holder Advances made or issued.
2. Subsections (i) and (ii) of Section 8.3A(h) of the Participation
Agreement are amended in their entirety to read as follows:
(h) Financial Covenants.
(i) Leverage Ratio. The Leverage Ratio, as of the last
day of each fiscal quarter of the Lessee, shall be less than or
equal to:
2
(A) From and including December 31, 2001 to and
including June 30, 2003, 2.50 to 1.0; and
(B) From and including July 1, 2003 to and
including September 30, 2003, 2.25 to 1.0; and
(C) From October 1, 2003 and thereafter, 2.0 to
1.0.
(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 8.3A(a)(i), shall not be less than
(i) $400,000,000 for each of the twelve month periods
ending December 31, 2001, March 31, 2002, June 30, 2002,
September 30, 2002 and (ii) $500,000,000 for the twelve
month period ending December 31, 2002 and each March 31,
June 30, September 30 and December 31 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 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), 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, of an amendment fee equal to the product of five basis points
(0.05%) 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
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 the
Agent's legal counsel.
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]
VERITAS OPERATING CORPORATION,
as a Guarantor
By: /s/ XXXXX XXXXX
---------------------------------
Name: Xxxxx Xxxxx
---------------------------------
Title: Treasurer
---------------------------------
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 1999-1
By: /s/ XXX X. XXXXX
---------------------------------
Name: Xxx X. Xxxxx
---------------------------------
Title: Vice President
---------------------------------
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
---------------------------------
COMERICA BANK -- CALIFORNIA, as a Holder
and as a Lender
By: /s/ Xxx Xxxxxxx
---------------------------------
Name: Xxx Xxxxxxx
---------------------------------
Title: Assistant Vice President
---------------------------------
KEYBANK NATIONAL ASSOCIATION, as a
Holder and as a Lender
By: /s/ XXXXXX XXXXXXXX
---------------------------------
Name: Xxxxxx Xxxxxxxx
---------------------------------
Title: Vice President
---------------------------------
FLEET NATIONAL BANK, as a Lender
By: /s/ XXXXXXX X. XXXX
---------------------------------
Name: Xxxxxxx X. Xxxx
---------------------------------
Title: Vice President
---------------------------------
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ XXX XXXXXX
---------------------------------
Name: Xxx Xxxxxx
---------------------------------
Title: Director
---------------------------------
THE FUJI BANK, LIMITED, as a Lender
By: /s/ XXXXXXXX XXXXXX
---------------------------------
Name: Xxxxxxxx Xxxxxx
---------------------------------
Title: Senior Vice President
---------------------------------
FBTC LEASING CORP., as a Lender
By: /s/ XXXX XXXXXXXX
---------------------------------
Name: Xxxx Xxxxxxxx
---------------------------------
Title: Vice President
---------------------------------
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
---------------------------------
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Holder and as a Lender
By: /s/ XXXX XXXXXX
---------------------------------
Name: Xxxx Xxxxxx
---------------------------------
Title: Vice President
---------------------------------
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
as a Lender
By: /s/ XXXXX XXXXXXXX
---------------------------------
Name: Xxxxx Xxxxxxxx
---------------------------------
Title: Senior Vice President, Manager
---------------------------------
IBJTC LEASING CORPORATION-BSC, as a
Holder
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
[signature pages end]
