Exhibit 10.01
FOURTH AMENDMENT AND RESTATEMENT OF
CERTAIN OPERATIVE AGREEMENTS
Dated as of September 26, 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.
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FOURTH AMENDMENT AND RESTATEMENT OF
CERTAIN OPERATIVE AGREEMENTS
This FOURTH AMENDMENT AND RESTATEMENT OF CERTAIN OPERATIVE AGREEMENTS
(this "Amendment") dated as of September 26, 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 $139.4 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. Clause (iv) of Section 8.3A(a) of the Participation Agreement is
amended in its entirety to read as follows:
(iv) [Intentionally Left Blank].
2. Clause (v) of Section 8.3A(a) of the Participation Agreement is
amended in its entirety to read as follows:
(v) Accountant's Certificate; Other Agreements, Etc. Within 120
days after the close of each fiscal year of the Lessee, a certificate of
the accountants conducting the annual audit specifying the nature and
extent of any Default or Event of Default that they have become aware of
in their course of review (if the accountants are not aware of any
Default or Event of Default, no such certificate is required).
3. Clause (vi) of Section 8.3A(a) of the Participation Agreement is
amended in its entirety to read as follows:
(vi) Auditor's Reports. Promptly upon receipt thereof, a copy of
any other report or "management letter" submitted by independent
accountants to the Parent or any of its Consolidated Subsidiaries in
connection with any special audit of the books of such Person.
4. Clause (x) of Section 8.3A(a) of the Participation Agreement is
amended in its entirety to read as follows:
(x) Other Information. With reasonable promptness upon any such
request, such other instruments, agreements, certificates, opinions,
statements, documents and other information regarding the business,
operations, properties or financial condition of a Credit Party and any
of its Consolidated Subsidiaries as the Agent or the Majority Secured
Parties may from time to time reasonably request.
5. Section 8.3A(h) of the Participation Agreement is amended in its
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:
(A) From and including September 30, 2001 to and
including June 30, 2002, 2.75 to 1.0;
(B) From July 1, 2002 to and including September
30, 2003, 2.50 to 1.0; and
(C) From October 1, 2003 and thereafter, 2.0 to
1.0.
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(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
8.3(A)(a)(i), shall not be less than (i) $400,000,000 for the
twelve month period ending September 30, 2001, (ii) $500,000,000
for the twelve month period ending December 31, 2001 and Xxxxx
00, 0000, (xxx) $525,000,000 for the twelve month period ending
June 30, 2002 and September 30, 2002 and (iv) $600,000,000 for
the twelve month period ending December 31, 2002 and each March
31, June 30, September 30 and December 31 thereafter.
(iii) Quick Ratio. The Quick Ratio, as of the last day
of each fiscal quarter of the Lessee, shall be greater than or
equal to 1.20:1.0.
6. A new clause (i) is added to Section 8.3A of the Participation
Agreement to read as follows:
(i) Annual Meeting.
Within ninety (90) days following the end of each fiscal year of
the Lessee, the Lessee will hold an annual meeting with the Agent,
the Lenders and the Holders during which the Lessee will review with
the Agent, the Lenders and the Holders the business plans and
financial projections of the Lessee for the then-current fiscal year.
7. Clause (iii) of Section 8.3B(a) of the Participation Agreement is
amended in its entirety to read as follows:
(iii) purchase money Indebtedness (including obligations in
respect of Capital Leases) hereafter incurred by a Credit Party or any
of its Consolidated Subsidiaries to finance the purchase of fixed assets
provided that (i) the total of all such Indebtedness for all such
Persons taken together incurred in any fiscal year of the Lessee shall
not exceed $80,000,000, (ii) the total of all such Indebtedness for all
such Persons taken together (including any such Indebtedness referred to
in subsection (ii) above) shall not exceed $160,000,000 at any one time
outstanding; (iii) such Indebtedness when incurred shall not exceed the
purchase price of the asset(s) financed; and (iv) no such Indebtedness
shall be refinanced for a principal amount in excess of the principal
balance outstanding thereon at the time of such refinancing;
8. Clause (iv) of Section 8.3B(a) of the Participation Agreement is
amended in its entirety to read as follows:
(iv) other unsecured Indebtedness (exclusive of Indebtedness
permitted under subsection (v) and subsection (vi) of this Section
8.3B(a)) of the Credit Parties and their Consolidated Subsidiaries in an
aggregate amount not to exceed the sum of $725,000,000 plus twenty
percent (20%) of the Tangible Net Worth as of the last day of the
immediately preceding fiscal quarter on terms and conditions
satisfactory in form and substance to the Majority Secured Parties;
provided, however, the amount of Indebtedness permitted under this
subsection (iv) shall be reduced by an amount equal to the sum of (a)
the aggregate outstanding Loans, plus (b) the aggregate outstanding
Holder Advances, plus (c) accrued and unpaid Interest or Holder Yield
due and owing on such Loans or Holder Advances, plus (d) any other
amounts due and owing by the Lessee or the Construction Agent to any
Person under any Operative Agreement, plus (e) the aggregate outstanding
Loans (as such term is defined in Appendix A to the Roseville
Participation Agreement) under the Roseville Lease Financing, plus (f)
the aggregate outstanding
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Holder Advances (as such term is defined in Appendix A to the Roseville
Participation Agreement) under the Roseville Lease Financing plus (g)
accrued and unpaid Interest or Holder Yield (in each case, as defined in
Appendix A to the Roseville Participation Agreement) due and owing on
such Loans or Holder Advances, plus (h) any other amounts due and owing
by the Lessee or the Construction Agent to any Person under the
Roseville Lease Financing, plus (i) any Indebtedness outstanding and all
other amounts due and owing by any Credit Party under the Milpitas Lease
Financing, plus (j) any Indebtedness outstanding and all other amounts
due and owing by any Credit Party under the Revolving Credit Agreement;
9. In Section 8.3B(a), clauses (vii) and (viii) are renumbered as
clauses (ix) and (x) thereof, and new clauses (vii) and (viii) are added thereto
to read as follows:
(vii) Indebtedness of a Credit Party and its Consolidated
Subsidiaries arising from the endorsement of instruments for collection
in the ordinary course of business (other than any such Indebtedness
arising under any asset securitization program);
(viii) Indebtedness of a Credit Party and its Consolidated
Subsidiaries with respect to surety, appeal, indemnity, performance or
other similar bonds in the ordinary course of business in an aggregate
outstanding principal amount not to exceed $50,000,000 at any time;
10. In Section 8.3B(b) of the Participation Agreement, the "." at the
end thereof is deleted and replaced with the following:
, and (vi) additional Liens provided that the Indebtedness
secured thereby is permitted under Section 8.3B(a) and the aggregate
principal amount of the Indebtedness secured thereby does not exceed an
amount equal to the sum of $100,000,000 plus ten percent of Tangible Net
Worth as of the last day of the immediately preceding fiscal quarter.
11. In Section 8.3B(m) of the Participation Agreement, the "." at the
end thereof is deleted and replaced with the following:
(any such transaction being a "Sale-Leaseback Transaction"); provided,
however, that the Credit Parties and their Consolidated Subsidiaries may
enter into a Sale-Leaseback Transaction to the extent that the aggregate
amount of the sales proceeds of the properties subject to all
Sale-Leaseback Transactions does not exceed an amount equal to the sum
of $100,000,000 plus ten percent of Tangible Net Worth as of the last
day of the fiscal quarter immediately preceding such Sale-Leaseback
Transaction.
12. Clause (vii) of the definition of "Permitted Investments" in
Appendix A to the Participation Agreement is amended to read as follows:
(vii) Investments in any other Person provided that the
aggregate outstanding amount of all such Investments shall not exceed an
amount equal to the sum of $175,000,000 plus ten percent of Tangible Net
Worth as of the last day of the immediately preceding fiscal quarter.
13. The definition of "Tangible Net Worth" is added to Appendix A to the
Participation Agreement to read as follows:
"Tangible Net Worth" means, as of any date, shareholders' equity
or net worth of the Credit Parties and their Consolidated Subsidiaries
on a consolidated basis minus goodwill, patents, trade names,
trademarks, copyrights, franchises, organizational expense, deferred
4
expenses and other assets in each case as are shown as "intangible
assets" on a balance sheet of the Credit Parties and their Consolidated
Subsidiaries on a consolidated basis, as determined in accordance with
GAAP.
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 of legal opinions of counsel to the Credit
Parties relating to this Amendment in form and substance reasonably satisfactory
to the Agent; and
(d) receipt by the Agent, for the ratable benefit of each Lender and
each Holder, of an amendment fee equal to the product of twelve and one half
basis points (0.125%) 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. 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/ XXXXXX X. WAYS
-------------------------------------
Name: Xxxxxx X. Ways
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/ XXXXXX XXXX
-------------------------------------
Name: Xxxxxx Xxxx
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/ XXX X. XXXXX
-------------------------------------
Name: Xxx X. Xxxxx
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
as a Lender
By: /s/ XXXXX XXXXXXXX
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President &
Senior Manager
IBJTC LEASING CORPORATION-BSC,
as a Holder
By: /s/ XXXXXX XXXX
-------------------------------------
Name: Xxxxxx Xxxx
Title: Senior Vice President
[signature pages end]
