Exhibit 4.15
AMENDMENT NO. 3 AND WAIVER
TO
NOTE AGREEMENT
This Amendment No. 3 and Waiver (the "Amendment") to that certain Note
Agreement, dated as of August 30, 1991, between Storage Technology
Corporation, a Delaware corporation (the "Company"), and the purchasers
listed in the Purchaser Schedule attached thereto, as amended by Amendment
No. 1, and dated as of April 1, 1994, and Amendment No. 2, dated as of April
2, 1994 (the "Note Agreement") is entered into as of January 25, 1996 by and
between the Company, StorageTek Financial Services Corporation, a Delaware
corporation ("SFSC") and the holders of the Company's 9.53% Senior Secured
Notes due August 31, 1996 ("Notes") which are signatories hereto.
Capitalized terms defined in the Note Agreement which are used herein shall
have the meanings set forth in the Note Agreement unless otherwise specified
herein.
WITNESSETH:
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WHEREAS, pursuant to paragraph 11C of the Note Agreement, the Company
and SFSC have requested certain amendments to the prepayment provisions set
forth in paragraphs 4A and 4B and the covenants contained in paragraphs 5P
and 6B of the Note Agreement and the holders of the Notes ("Holders") which
are signatories hereto have agreed, subject to the terms and conditions
contained herein, to amend such provisions as set forth herein.
NOW, THEREFORE, in consideration of the premises set forth above, the
mutual covenants contained herein and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
the parties hereto agree as follows:
1. AMENDMENTS TO NOTE AGREEMENT. Subject to the terms and conditions
specified herein, the Agreement is amended as of January 25, 1996 as
follows:
1.1 Certain subparagraphs set forth in paragraph 4 of the Note
Agreement are hereby amended as follows:
(a) Paragraph 4A of the Note Agreement is hereby amended and restated
in its entirety as set forth below:
"4A. OPTIONAL PREPAYMENT WITH YIELD-MAINTENANCE
PREMIUM. The Notes shall be subject to prepayment, in
whole or in part (in multiples of $5,000,000), upon
delivery of written notice pursuant to paragraph 4B
given no later than the fifth Business Day prior to the
proposed prepayment date, at the option of the Obligors,
at 100% of the principal amount so prepaid plus interest
thereon to the prepayment date and the Yield-Maintenance
Premium, if any, with respect to each Note."
(b) Paragraph 4B of the Note Agreement is hereby amended and restated
in its entirety as set forth below:
"4B. NOTICE OF OPTIONAL PREPAYMENT. The Obligors
making any prepayment under this paragraph 4 shall give
the Holder of each Note irrevocable written notice of
any prepayment pursuant to paragraph 4A not less than 5
Business Days prior to the prepayment date, specifying
such prepayment date and the principal amount of the
Notes, and of the Notes held by such Holder, to be
prepaid on such date and stating that such prepayment is
to be made pursuant to paragraph 4A and setting forth in
reasonable detail such Obligor's calculation of the
Yield-Maintenance Premium, if any, which is required to
be paid to such Holder on such prepayment date. Notice
of prepayment having been given as aforesaid, the
principal amount of the Notes specified in such notice,
together with interest thereon to the prepayment date
and together with the Yield-Maintenance Premium, if any,
herein provided, shall become due and payable on such
prepayment date.
1.2 Paragraph 6B of the Note Agreement is hereby amended by amending
the definition of "Consolidated Net Income Available for Restricted
Payments" by inserting the parenthetical "(excluding restructuring charges
of up to $150,000,000 taken by the Company during the fiscal quarter ended
December 29, 1995)" at the end of clause (i) thereof.
2. WAIVER. Subject to the terms and conditions specified herein, the
Holders which are signatories hereto hereby waive the Obligor's compliance
with paragraph 5P of the Note Agreement solely with respect to the scheduled
termination of the Revolving Loan Agreement, and the Obligors entering into
another revolving credit agreement in lieu thereof on or before March 31,
1996, secured by certain assets of the Obligors, including but not limited
to sales agreements and the related equipment, with Bank of America,
National Trust and Savings Association, and certain other parties; provided,
however, that this waiver shall be effective only if (i) such revolving
credit agreement contains substantially the same terms as those in the
Revolving Loan Agreement relating to the release of property from the
security interest of the Bank Agent in order to permit the Company or SFSC
to grant a security interest in such property to the Collateral Agent and
(ii) a copy of such revolving credit agreement is delivered to the holders
of the Notes promptly after its execution.
3. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment
is subject to satisfaction of the following conditions on or before January
25, 1996 (the date upon which such conditions are satisfied being called the
"Effective Date"):
3.1 EXECUTION AND DELIVERY OF AMENDMENT BY HOLDERS. This Amendment
shall have been executed and delivered by the Company, SFSC and holders of
all of the outstanding Notes.
3.2 REPRESENTATIONS AND WARRANTIES BY THE COMPANY; NO DEFAULT. The
representations and warranties contained in Section 4 hereof and in
paragraph 8 of the Note Agreement shall be true on and as of the Effective
Date (and for purposes of this Amendment all references in such
representations and warranties to "date of closing" or "closing" shall mean
the Effective Date), both before and after giving effect to the
effectiveness of this Amendment; there shall exist on the Effective Date no
Event of Default or Default, both before and after giving effect to the
effectiveness of this Amendment; and the Company and SFSC shall have
delivered to the Holders an Officer's Certificate, dated the Effective Date,
to both such effects and demonstrating (with computations in reasonable
detail) compliance as of the last fiscal month or quarter as the case may be
with Paragraphs 6E, 6F, 6G, 6H and 6I (after taking into effect this
Amendment) of the Note Agreement.
3.3 CERTAIN PAYMENTS. The Obligors shall have paid all expenses
payable by the Obligors pursuant to paragraph 11B of the Agreement relating
to the fees and expenses of the Holders to the extent the Obligors have
received an invoice therefor.
3.4 AMENDMENT PERMITTED BY APPLICABLE LAWS. The transactions
contemplated by this Amendment shall not violate any applicable law or
governmental regulation and shall not subject the Holders to any tax,
penalty, liability or other onerous condition under or pursuant to any
applicable law or governmental regulation, and the Holders shall have
received such certificates or other evidence as you may request to establish
compliance with this condition.
3.5 PROCEEDINGS. All corporate and other proceedings taken or to be
taken in connection with the transactions contemplated hereby and all
documents incident thereto shall be satisfactory in form and substance to
the Holders which are signatories hereto, and the Holders shall have
received all such counterpart originals or certified or other copies of such
documents as the Holders which are signatories hereto may reasonably
request.
4. REPRESENTATIONS AND WARRANTIES. Each of the Company and SFSC
represents, covenants and warrants:
4.1 POWER AND AUTHORITY. Each of the Company and SFSC is a
corporation duly organized and existing in good standing under the laws of
the state of its incorporation. Each of the Company and SFSC has all
requisite corporate power to conduct its business as currently conducted and
as currently proposed to be conducted. Each of the Company and SFSC has all
requisite corporate power to execute, deliver and perform its obligations
under this Amendment. The execution, delivery and performance by the
Company and SFSC of this Amendment has been duly authorized by all requisite
corporate action on the part of the Company and SFSC. Each of the Company
and SFSC has duly executed and delivered this Amendment, and this Amendment
constitutes the legal, valid and binding obligation of the Company and SFSC,
enforceable against the Company and SFSC in accordance with its terms.
4.2 NO CONFLICTS. Neither the execution and delivery of this
Amendment by the Company and SFSC, nor the consummation of the transactions
contemplated hereby, nor fulfillment of nor compliance with the terms and
provisions hereof will conflict with, or result in a breach of the terms,
conditions or provisions of, or constitute a default under, or result in any
violation of, or result in the creation of any Lien upon any of the
properties or assets of the Company, SFSC or any Subsidiary pursuant to, the
charter or by-laws of the Company or SFSC, or any such Subsidiary, any award
of any arbitrator or any agreement (including any Assigned Contract and
agreement with stockholders), instrument, order, judgment, decree, statute,
law, rule or regulation to which the Company, SFSC or any such Subsidiary is
subject.
4.3 GOVERNMENTAL CONSENT. No circumstance in connection with this
Amendment is such as to require any authorization, consent, approval,
exemption or other action by or notice to or filing with any court or
administrative or governmental body in connection with the execution and
delivery of this Amendment or fulfillment of or compliance with the terms
and provisions hereof or thereof.
5. REFERENCE TO THE EFFECT ON THE AGREEMENT.
(a) Upon the effectiveness of this Amendment, (i) each reference, if
any, in the Note Agreement to "this Agreement," "hereunder," "hereof," or
words of like import shall mean and be a reference to the Note Agreement as
amended hereby and (ii) each reference to the Note Agreement in the other
Transaction Documents shall mean and be a reference to the Note Agreement,
as amended hereby.
(b) Except as specifically amended above, the Agreement shall remain
in full force and effect, and is hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as an amendment to any
provision of the Note Agreement nor a waiver of any right, power or remedy
of the Holders, nor constitute a waiver of any provision of the Note
Agreement or any other document, instrument or agreement executed and
delivered in connection with the Note Agreement.
6. DESCRIPTIVE HEADINGS. The descriptive headings of the several
paragraphs of this Amendment are inserted for convenience only and do not
constitute a part of this Amendment.
7. GOVERNING LAW. This Amendment has been delivered in and shall be
construed and enforced in accordance with, and the rights of the parties
shall be governed by, the law of the State of Illinois.
8. COUNTERPARTS. This Amendment may be executed simultaneously in
two or more counterparts, each of which 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.
[Signature pages to follow]
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
as of the day and year first written above.
STORAGE TECHNOLOGY CORPORATION
By: /s/ Xxxx X. XxXxxxxx
-----------------------------
Xxxx X. XxXxxxxx
Title: Treasurer
STORAGETEK FINANCIAL SERVICES CORPORATION
By: /s/ Xxxxxx X. Kali
-----------------------------
Xxxxxx X. Kali
Title: Vice President and Chief Operating Officer
AGGREGATE PRINCIPAL
AMOUNT OF NOTES HELD
THE TRAVELERS INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxxxx $ 19,000,000
-----------------------------
Xxxx X. Xxxxxxxx
Title: Second Vice President
THE TRAVELERS INDEMNITY COMPANY
By: /s/ Xxxx X. Xxxxxxxx $ 2,000,000
-----------------------------
Xxxx X. Xxxxxxxx
Title: Second Vice President
THE PHOENIX INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxxxx $ 7,000,000
-----------------------------
Xxxx X. Xxxxxxxx
Title: Second Vice President
THE TRAVELERS INDEMNITY COMPANY OF
CONNECTICUT, SUCCESSOR OF THE TRAVELERS
INDEMNITY COMPANY OF RHODE ISLAND
By: /s/ Xxxx X. Xxxxxxxx $ 1,000,000
-----------------------------
Xxxx X. Xxxxxxxx
Title: Second Vice President
THE TRAVELERS LIFE AND ANNUITY COMPANY
By: /s/ Xxxx X. Xxxxxxxx $ 1,000,000
-----------------------------
Xxxx X. Xxxxxxxx
Title: Second Vice President
PRINCIPAL MUTUAL LIFE INSURANCE
COMPANY
By: /s/ Xxxxx X. Xxxxxxx $ 20,000,000
-----------------------------
Xxxxx X. Xxxxxxx
Title: Counsel
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
-----------------------------
Xxxxxxxxxxx X. Xxxxxxxxx
Title: Counsel
XXXXXXXX & CO.
FOR THE TRUSTEED ASSETS OF
CANADA LIFE INSURANCE COMPANY
OF AMERICA
By: /s/ Xxxxxxxx Xxxxxx $ 500,000
-----------------------------
Xxxxxxxx Xxxxxx
Title: Partner
INCE & CO.
FOR THE TRUSTEED ASSETS OF
CANADA LIFE INSURANCE COMPANY
OF NEW YORK
By: /s/ Xxxxx Xxx Xxxxx $ 500,000
-----------------------------
Xxxxx Xxx Xxxxx
Title: Partner
INCE & CO.
FOR THE TRUSTEED ASSETS OF
THE CANADA LIFE ASSURANCE COMPANY
By: /s/ Xxxxx Xxx Xxxxx $ 4,000,000
-----------------------------
Xxxxx Xxx Xxxxx
Title: Partner
