Exhibit 10.04
EXECUTION VERSION
VERITAS FIFTH AMENDMENT TO
PARTICIPATION AGREEMENT AND LEASE
This FIFTH AMENDMENT TO PARTICIPATION AGREEMENT AND LEASE (this
"Agreement") dated as of October 11, 2002, is by and among VERITAS SOFTWARE
GLOBAL CORPORATION, a Delaware corporation, as lessee and borrower (the "Lessee"
or the "Construction Agent"), the various parties to the Participation
Agreement, as guarantors (the "Guarantors"), XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION (formerly known as First Security Bank, National
Association), a national banking association, not individually, but solely as
the Owner Trustee under the VS Trust 2000-2 (the "Owner Trustee" or the
"Lessor"), the various banks and other lending institutions which are parties to
the Operative Documents from time to time as holders of certificates issued with
respect to the VS Trust 2000-2 and lenders (individually, a "Holder" or a
"Lender" and collectively "Holders" or "Lenders"), ABN AMRO BANK N.V., as Agent
for the Lenders and the Holders (the "Agent") as of the date hereof signatory
hereto. Capitalized terms used herein and not otherwise defined shall have the
meaning assigned such term in Appendix A to the Participation Agreement (as
defined below).
RECITALS:
A. The Lessee, the Guarantors, the Lessor, the Lenders, the Holders, the
Documentation Agent, the Syndication Agent and the Agent are parties to that
certain Participation Agreement (the "Participation Agreement") dated as of
July 28, 2000 as previously amended and as further amended, restated,
supplemented, or otherwise modified from time to time;
B. The Lessee and the Lessor are parties to that certain Master Lease
Agreement (the "Lease") dated as of July 28, 2000 as amended, restated,
supplemented or otherwise modified from time to time;
C. The Lessee, as Construction Agent and Lessor are parties to that
certain Construction Agency Agreement (the "Construction Agency Agreement")
dated as of July 28, 2000 as amended, restated, supplemented or otherwise
modified from time to time, and
D. The parties desire to amend certain provisions of the Participation
Agreement and the Lease on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. Amendment to Participation Agreement. Appendix A to the Participation
Agreement is hereby amended by deleting the defined term "Completion" in its
entirety and replacing such term with the following:
"Completion" shall mean with respect to the Initial Improvements or any
Subsequent Improvements, such time as the acquisition, installation,
testing and
final completion of such Improvements has been substantially achieved in
accordance with the Plans and Specifications therefor, the Construction
Agency Agreement and/or the Lease and in compliance with all Legal
Requirements and Insurance Requirements (except if non-compliance,
individually or in the aggregate, shall not have and could not reasonably
be expected to have a Material Adverse Effect) and the Lessee shall have
the obligation under the Lease to pay rent in respect of such Improvements
as of such date.
2. Amendment to Lease. Section 20.1 of the Lease is hereby amended by
inserting the following provision as the third sentence therein:
Notwithstanding anything contained in this Section 20.1, the Lessee shall
be prohibited from purchasing the building commonly known as Building A
until such time as certificates of occupancy have been issued with respect
to Buildings B and C; provided, however, that the Lessee shall not be
prohibited from purchasing any of the buildings commonly known as
Buildings A, B or C provided Lessee has received a certificate of
occupancy for all of the buildings remaining under lease.
3. Waiver. To the extent that the Construction Agent may be in Default or
an Event of Default may have occurred as a result of the definition of
"Completion" prior to the effective date of this Agreement, any such Default or
Event of Default is hereby waived and, to the extent cured by the amended
definition of the defined term "Completion" set forth above, deemed cured as of
the date that the Initial Improvements satisfied the amended definition of such
term set forth in Section 1 above.
4. Representation and Warranties. Each Credit Party hereby represents
and warrants to the Agent, the Lessor, the Lenders and the Holders that the
following are true and correct on the date of this Agreement and that, after
giving effect to the amendments set forth in Section 1 and Section 2 above, the
following will be true and correct on the Effective Date (as defined below);
(a) The representations and warranties of the Credit Parties set
forth in Section 6 of the Participation Agreement and in the other Operative
Documents are true and correct (except as pertains to a Default that would be
cured upon the effectiveness of this Agreement) in all material respects as if
made on such date (except for representations and warranties expressly made as
of a specified date, which shall be true as of such date);
(b) No Default (other than a Default that would be cured upon the
effectiveness of this Agreement) has occurred and is continuing; and
(c) Each of the Operative Documents to which any Credit Party is a
party is in full force and effect as to such Credit Party.
5. Effective Date. The amendments effected by Section 1 and Section 2
above and the waiver effected by Section 3 above shall become effective as of
the date of this Agreement (the "Effective Date"), subject to receipt by
McGuireWoods LLP ("MW"), counsel to the Agent, of a
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copy of this Agreement duly executed by the Lessee, each Guarantor, the
Majority Secured Parties, the Lessor and the Agent.
6. Miscellaneous.
(a) Except as specifically waived and amended above, the
Participation Agreement, the Lease and each of the Appendices, Schedules and
Exhibits thereto shall remain in full force and effect and the Participation
Agreement and the Lease are hereby ratified and confirmed in all respects.
(b) Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
(c) This Agreement may be executed in any number of separate
counterparts, each of which shall collectively and separately constitute one
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
7. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, INTERPRETED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[signature pages follow]
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duly
executed and delivered by its proper and duly authorized officer as of the date
first written above.
VERITAS SOFTWARE GLOBAL CORPORATION,
as 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 OPERATING 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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ABN AMRO BANK N.V., as Agent and as a
Lender
By: /s/ XXXXXXXXX X. XxXXXXXXX
-------------------------------------
Name: Xxxxxxxxx X. XxXxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------
Title: Vice President
----------------------------------
CREDIT SUISSE FIRST BOSTON, as a Lender
and as Documentation Agent
By: /s/ XXXXXX XXXX
-------------------------------------
Name: Xxxxxx Xxxx
-----------------------------------
Title: Director
----------------------------------
By: /s/ XXX X. XXXXX
-------------------------------------
Name: Xxx X. Xxxxx
-----------------------------------
Title: Associate
----------------------------------
CREDIT LYONNAIS NEW YORK BRANCH, as a
Lender and as Syndication Agent
By: /s/ F. XXXXX XXXXXXX
-------------------------------------
Name: F. Xxxxx Xxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
MIZUHO CORPORATE BANK, LTD., (as successor
to The Fuji Bank, Limited and as successor
to The Industrial Bank of Japan, Limited),
as a Lender
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
AIB INTERNATIONAL FINANCE, as a Lender
By: /s/ XXXXXX X. XXXX
-------------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------
Title: Manager
----------------------------------
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DEUTSCHE BANK AG NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH, as a Lender
By:
-----------------------------------
Name:
---------------------------------
Title:
---------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
---------------------------------
SUMITOMO MITSUI BANKING CORPORATION f/k/a
the Sumitomo Bank, Limited, as a Lender
By: /s/ XXXX XXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxx
----------------------------------
Title: Vice President and Manager
---------------------------------
COMERICA BANK - CALIFORNIA, as a Lender
By: /s/ XXXXXX X. WAYS
-----------------------------------
Name: Xxxxxx X. Ways
----------------------------------
Title: Vice President
---------------------------------
FLEET NATIONAL BANK, as a Lender
By: /s/ XXXXXXX X. XXXX
-----------------------------------
Name: Xxxxxxx X. Xxxx
----------------------------------
Title: Vice President
---------------------------------
XXXXX FARGO BANK N.A., as a Lender
By: /s/ XXXX X. XXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
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FBTC LEASING CORP., as a Lender
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
KEYBANK NATIONAL ASSOCIATION, as a Lender
By: /s/ XXXXXX XXXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
BNP PARIBAS, as a Lender
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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XXXXX FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION (formerly known as First
Security Bank, National Association),
not individually, but solely as the
Owner Trustee under the VS Trust 2000-2
By: /s/ XXX X. XXXXX
-------------------------------------
Name: Xxx X. Xxxxx
-----------------------------------
Title: Vice President
----------------------------------
ABN AMRO LEASING, INC., as a Holder
By: /s/ XXXXXXXXX X. XxXXXXXXX
-------------------------------------
Name: Xxxxxxxxx X. XxXxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
CREDIT SUISSE LEASING 92A, L.P., as a
Holder
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CREDIT LYONNAIS LEASING CORPORATION, as a
Holder
By: /s/ X. X. XXXXXXXX
-------------------------------------
Name: X. X. Xxxxxxxx
-----------------------------------
Title: President
----------------------------------
FBTC LEASING CORP., as a Holder
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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