EXHIBIT 10.02
THIRD 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 2000-1,
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 the Agent for the Secured Parties
THIRD AMENDMENT AND RESTATEMENT OF
CERTAIN OPERATIVE AGREEMENTS
This THIRD 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 2000-1 (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, 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 2000-1 (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 March 9, 2000 (the "Participation
Agreement"), and certain of the parties to this Amendment are parties to the
other Operative Agreements relating to a $40 million tax retention operating
lease facility (the "Facility") that has been established in favor of the
Lessee;
WHEREAS, the Lessee has requested amendments and modifications to
certain of the covenants set forth in the Participation Agreement; and
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 Mountain View
Participation Agreement) under the Mountain View Lease Financing, plus
(f) the aggregate
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outstanding Holder Advances (as such term is defined in Appendix A to
the Mountain View Participation Agreement) under the Mountain View Lease
Financing plus (g) accrued and unpaid Interest or Holder Yield (in each
case, as defined in Appendix A to the Mountain View 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 Mountain View 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,
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patents, trade names, trademarks, copyrights, franchises, organizational
expense, deferred 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
[signature pages continue]
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 2000-1
By: /s/ XXX X. XXXXX
-------------------------------------
Name: Van X. Xxxxx
Title: Vice President
[signature pages continue]
BANK OF AMERICA, N.A., as a Holder,
as a Lender and as the Agent
By: /s/ XXXXX XXXXXXXX
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
[signature pages continue]
KEYBANK NATIONAL ASSOCIATION,
as a Holder and as a Lender
By: /s/ XXXXXX XXXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
[signature pages continue]
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
[signature pages continue]
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Holder and as a Lender
By: /s/ XXX X. XXXXX
-------------------------------------
Name: Xxx X. Xxxxx
Title: Vice President
[signature pages end]
