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EXHIBIT 10.19
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CONTINGENT
MULTICURRENCY NOTE PURCHASE COMMITMENT AGREEMENT
THIS AMENDMENT (this "Amendment"), dated as of November 20, 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 Definition of "LIBOR Fixing Date". Section
1.02(a)(ii) of the Agreement is hereby amended and restated to read in its
entirety as follows:
"LIBOR Fixing Date" means each date which is specified as a "LIBOR Fixing
Date" on Schedule II hereto, as in effect from time to time, and is also
designated in any Supplement as a LIBOR Fixing Date, provided, that Borrower
shall specify LIBOR Fixing Dates so that the LIBOR Fixing Date applicable to any
Purchase Date shall be the third Eurodollar Business Day preceding such Purchase
Date.
Section 1.2 Amendment to Definition of "Maturity Date". Section
1.02(a)(iv)(A) of the Agreement is hereby amended and restated to read in its
entirety as follows:
(A) No Maturity Date shall fall less than four Eurodollar Business Days
after the immediately preceding Determination Date, unless otherwise agreed by
Borrower and BofA, it being hereby agreed that (i) the Determination Date
falling on December 23, 1998 will have a related Maturity Date falling on
December 28, 1998, and (ii) the Determination Date falling on December 29, 1999
will have a related Maturity Date falling on January 4, 2000;
Section 1.3 Amendment to Section 1.02(a). The last sentence of Section
1.02(a) of the Agreement is hereby amended and restated to read in its entirety
as follows:
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In the event that the date specified as a LIBOR Fixing Date, a
Determination Date or a Maturity Date in Schedule II differs from the date so
specified in any Supplement, the Supplement shall control.
Section 1.4 Amendment to Section 6.01(h)(ii)(A). Section 6.01(h)(ii)(A)
of the Agreement is hereby amended and restated to read in its entirety as
follows:
(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
$85,000,000;
Section 1.5 Amendment to Section 6.01(h)(ii)(C). Section 6.01(h)(ii)(C)
of the Agreement is hereby amended and restated to read in its entirety as
follows:
(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 $200,000,000; and
Section 1.6 Amendment to Schedule II. Schedule II to the Agreement is
hereby amended and restated in its entirety to read as set forth in Exhibit A
attached hereto.
Section 1.7 Amendment to Supplements. Annex 1 to each of the Supplements
dated August 27, 1997, January 7, 1998, May 19, 1998, August 26, 1998, August
28, 1998 and October 9, 1998, is hereby amended and restated in its entirety to
read as set forth in Exhibit X-0, Xxxxxxx X-0, Xxxxxxx X-0, Exhibit B-4, Exhibit
B-5 and Exhibit B-6, respectively.
Section 1.8 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
Exhibit C attached hereto.
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.
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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.
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/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Assistant Treasurer
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ Xxxxx XxXxxxx
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Name: Xxxxx XxXxxxx
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Title: Managing Director
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SCHEDULE II
to the Second Amended and Restated Contingent Multicurrency Note Purchase
Commitment Agreement
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EXHIBIT B-1
TO SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
CONTINGENT MULTICURRENCY NOTE PURCHASE COMMITMENT AGREEMENT
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EXHIBIT B-2
TO SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
CONTINGENT MULTICURRENCY NOTE PURCHASE COMMITMENT AGREEMENT
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EXHIBIT B-3
TO SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
CONTINGENT MULTICURRENCY NOTE PURCHASE COMMITMENT AGREEMENT
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EXHIBIT B-4
TO SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
CONTINGENT MULTICURRENCY NOTE PURCHASE COMMITMENT AGREEMENT
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EXHIBIT B-5
TO SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
CONTINGENT MULTICURRENCY NOTE PURCHASE COMMITMENT AGREEMENT
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EXHIBIT B-6
TO SECOND AMENDMENT TO SECOND AMENDED AND RESTATED
CONTINGENT MULTICURRENCY NOTE PURCHASE COMMITMENT AGREEMENT
