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EXHIBIT 10.29
FIRST AMENDMENT AND RESTATEMENT OF
CERTAIN OPERATIVE AGREEMENTS AND OTHER AGREEMENTS
Dated as of March 3, 2000
among
VERITAS OPERATING 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,
FIRST SECURITY BANK, 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 succesor 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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FIRST AMENDMENT AND RESTATEMENT OF
CERTAIN OPERATIVE AGREEMENTS AND OTHER AGREEMENTS
This FIRST AMENDMENT AND RESTATEMENT OF CERTAIN OPERATIVE AGREEMENTS AND
OTHER AGREEMENTS (this "Amendment") dated as of March 3, 2000, is by and among
VERITAS OPERATING CORPORATION (formerly known as Veritas Software 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"); 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"), certain of the parties to this Amendment are parties to that
certain Credit Agreement dated as of April 23, 1999 (the "Credit Agreement"),
certain of the parties to this Amendment are parties to that certain Trust
Agreement dated as of April 23, 1999 (the "Trust Agreement"), certain of the
parties to this Amendment are parties to that certain Master Lease Agreement
dated as of April 23, 1999 (the "Lease") and certain of the parties to this
Amendment are parties to the other Operative Agreements relating to a $72
million tax retention operating lease facility (the "Facility") that has been
established in favor of the Lessee;
WHEREAS, the Lessee has requested certain modifications to the
Participation Agreement, the Credit Agreement, the Trust Agreement, the Security
Agreement, the Lease and the other Operative Agreements in connection with the
Lessee's request to increase the size of the Facility from $72 million to $139.4
million and to add additional banks and other lending institutions as Lenders
(each, a "New Lender") and/or Holders (each, a "New Holder");
WHEREAS, the Lessee has requested a waiver of certain covenants and
related non-compliance with certain reporting requirements and other agreements
and obligations under the Participation Agreement and the other Operative
Agreements;
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WHEREAS, the Financing Parties have agreed to the requested modifications
and waivers 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. Appendix A to the Participation Agreement is hereby amended to
modify or add the following defined terms as follows:
"Applicable Percentage" shall mean for Eurodollar Loans, Eurodollar Holder
Advances and Commitment Fees, the appropriate applicable percentages
corresponding to the Pricing Level in effect as of the most recent Calculation
Date as shown below:
=================================================================================================
Applicable Applicable
Ratio of Funded Applicable Percentage for Percentage for
Pricing Level Indebtedness Percentage for Eurodollar Commitment
To EBITDA Eurodollar Holder Fee
Loans Advances
--------------- ---------------------------- ----------------- ---------------- -----------------
I Funded Indebtedness/ 1.25% 2.25% .30%
EBITDA .75 but 1.25 but 2.00
=================================================================================================
The Applicable Percentage for Eurodollar Loans, Eurodollar Holder Advances
and the Commitment Fees shall, in each case, be determined and adjusted on the
date (the "Calculation Date") by which the compliance certificate is required to
be delivered to the Agent in accordance with the provisions of Section
8.3A(a)(iii) of the Participation Agreement; provided, however, that (i) the
Applicable Percentage from the Initial Closing Date through February 9, 2000
shall be based on Pricing Level II (as shown above), (ii) the Applicable
Percentage from February 9, 2000 through March 3, 2000 shall be based on Pricing
Level I (as shown above), (iii) the Applicable Percentage on March 3, 2000 shall
be based on Pricing Level III (as shown
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above) and shall remain at Pricing Level III until the next occurring
Calculation Date and, thereafter, the Pricing Level shall be determined as shown
above, and (iv) if the Lessee fails to provide the annual and quarterly
compliance certificates required pursuant to Sections 8.3A(a)(iii) of the
Participation Agreement to the Agent on or before such Calculation Date, the
Applicable Percentage, in each case, from such Calculation Date shall be based
on Pricing Level IV until such time that such compliance certificates are
provided whereupon the Pricing Level shall be determined as specified herein.
Each Applicable Percentage shall be effective from one Calculation Date until
the next Calculation Date. Any adjustment in the Applicable Percentage shall be
applicable to all existing Eurodollar Loans and Eurodollar Holder Advances as
well as any new Eurodollar Loans and Eurodollar Holder Advances made or issued.
"Expiration Date" shall mean either (a) the Basic Term Expiration Date or
(b) the last day of the applicable Renewal Term; provided, in no event shall the
Expiration Date be later than March 3, 2007, unless such later date has been
expressly agreed to in writing by each of the Lessor, the Lessee, the Agent, the
Lenders and the Holders.
"Holder Commitments" shall mean $4,182,000, as such amount may be
increased or reduced from time to time in accordance with the provisions of the
Operative Agreements; provided, if there shall be more than one (1) Holder, the
Holder Commitment of each Holder shall be as set forth in Schedule I to the
Trust Agreement as such Schedule I may be amended and replaced from time to
time.
"Lender Commitments" shall mean $135,218,000, as such amount may be
increased or reduced from time to time in accordance with the provisions of the
Operative Agreements; provided, if there shall be more than one (1) Lender, the
Lender Commitment of each Lender shall be as set forth in Schedule 2.1 to the
Credit Agreement as such Schedule 2.1 may be amended and replaced from time to
time.
"Leverage Ratio" shall mean, as of the end of each fiscal quarter of the
Lessee, with respect to the Credit Parties and their Consolidated Subsidiaries
on a consolidated basis, the ratio of (a) Funded Indebtedness on such date to
(b) EBITDA for the twelve month period ending on such date.
"Majority Secured Parties" shall mean at any time, Lenders and Holders
whose Loans and Holder Advances outstanding represent at least fifty-one percent
(51%) of (a) the aggregate Advances outstanding or (b) to the extent there are
no Advances outstanding, the sum of the aggregate Holder Commitments plus the
aggregate Lender Commitments; provided, however, any amendment to Section
8.3A(h)(iii) shall require the consent of Lenders and Holders whose Loans and
Holder Advances outstanding represent at least sixty-six and two-thirds percent
(66 2/3%) of (x) the aggregate Advances outstanding or (y) to the extent there
are no Advances outstanding, the sum of the aggregate Holder Commitments plus
the aggregate Lender Commitments.
"Material Domestic Subsidiary" shall mean any Domestic Subsidiary which
has either (i) for the fiscal year of such Domestic Subsidiary most recently
ended, total annual revenues of at least $1,000,000 or (ii) total assets of at
least $5,000,000; provided, that (a) the aggregate total
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assets (as determined in accordance with GAAP) at any time of all Domestic
Subsidiaries of the Credit Parties (taken as a whole) that are excluded from
this definition of "Material Domestic Subsidiary" and are not otherwise
Guarantors shall not exceed $50,000,000 and (b) the aggregate annual revenues
for the most recently ended fiscal years of all Domestic Subsidiaries of the
Credit Parties (taken as a whole) that are excluded from this definition of
"Material Domestic Subsidiary" and are not otherwise Guarantors shall not exceed
$10,000,000.
"Permitted Acquisition" shall mean a statutory merger, the acquisition of
all of the Capital Stock of another Person or all or substantially all of the
assets of another Person, provided that each of the following conditions are
satisfied: (a) prior to such acquisition, the Lessee shall deliver to the Agent
and the Majority Secured Parties a Pro Forma Compliance Certificate
demonstrating that after giving effect to such acquisition on a pro forma basis,
as if such acquisition had occurred on the first day of the twelve month period
ending on the last day of the Lessee's most recently completed fiscal year, the
Credit Parties would have been in compliance with all the financial covenants
set forth in Section 8.3A(h) of the Participation Agreement, (b) the acquisition
is consummated pursuant to a negotiated acquisition agreement and involves the
purchase of a business similar to the business of the Lessee as of the Initial
Closing Date, (c) after giving effect to the acquisition, the representations
and warranties set forth in Section 6 hereof shall be true and correct in all
material respects on and as of the date of such acquisition with the same effect
as though made on and as of such date and (d) no Default or Event of Default
exists and is continuing or would result from such acquisition.
"Permitted Investments" shall mean Investments which are (i) cash and Cash
Equivalents; (ii) accounts receivable created, acquired or made by the Lessee or
any of its Consolidated Subsidiaries in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms; (iii)
Investments consisting of Capital Stock, obligations, securities or other
property received by the Lessee or any of its Consolidated Subsidiaries in
settlement of accounts receivable (created in the ordinary course of business)
from bankrupt obligors; (iv) Investments existing as of the Closing Date and set
forth in Schedule 8.3B(f); (v) advances or loans to directors, officers,
employees, agents, customers or suppliers that do not exceed $5,000,000 in the
aggregate at any one time outstanding for the Lessee and its Consolidated
Subsidiaries; (vi) Permitted Acquisitions; (vii) Investments in any other
Person, other than Permitted Acquisitions, provided that, in the event any
particular Investment exceeds $20,000,000, such Investment shall only be
permitted if each of the following conditions are satisfied: (a) after giving
effect to the Investment, the representations and warranties set forth in
Section 6.2 of the Participation Agreement shall be true and correct in all
material respects on and as of the date of such Investment with the same effect
as though made on and as such date, (b) no Default or Event of Default would
result from such Investment and (c) the Lessee shall have provided the Agent
with satisfactory evidence demonstrating that after giving effect to any such
Investment on a pro forma basis, as if such transaction had occurred on the last
day of the Lessee's most recently completed fiscal quarter, the Credit Parties
and their Subsidiaries would have been in compliance with all the financial
covenants set forth in Section 8.3A(h) of the Participation Agreement; and
(viii) such other Investments as are reasonably acceptable to the Agent.
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"Roseville Lease Financing" shall mean the transactions contemplated by
the Roseville Participation Agreement and the other Operative Agreements, as
such term is defined in the Roseville Participation Agreement.
"Roseville Participation Agreement" shall mean that certain Participation
Agreement dated as of March 3, 2000 (as amended, modified, extended,
supplemented, restated and/or replaced from time to time) as yet undated and to
be entered into among VSC, the various parties thereto from time to time, as
guarantors, First Security Bank, National Association, as Owner Trustee under
the VS Trust 2000-1, the various banks and other lending institutions parties
thereto from time to time, as lenders, the various banks and other lending
institutions parties thereto from time to time, as holders of certificates
issued with respect to the VS Trust 2000-1, and Bank of America, N.A., as agent.
2. Section 5.4(k) of the Participation Agreement is hereby amended to
read as follows:
(k) since the date of the most recent audited financial statements of
the Lessee, there shall not have occurred any event, condition or state of
facts which shall have or could reasonably be expected to have a Material
Adverse Effect, other than as specifically contemplated by the Operative
Agreements;
3. Section 5.3(t) of the Participation Agreement is hereby deleted.
4. The parenthetical phrase reading "(including without limitation the
Incorporated Representations and Warranties)" in the first sentence of Section
5.5 of the Participation Agreement is hereby deleted.
5. Section 5.10 of the Participation Agreement is hereby amended to
read as follows:
5.10 JOINDER AGREEMENT REQUIREMENTS.
The Parent and each Material Domestic Subsidiary of each Credit Party
formed or acquired subsequent to the Initial Closing Date shall become a
Guarantor and shall satisfy the following conditions within thirty (30) days
after its formation or acquisition (or, in the case of a Domestic Subsidiary
that was not a Material Domestic Subsidiary at the time of its formation or
acquisition, within thirty (30) days after such Domestic Subsidiary becomes a
Material Domestic Subsidiary of any Credit Party):
(a) the Parent or such Material Domestic Subsidiary, as the case
may be, shall execute and deliver to the Agent a Joinder Agreement in the
form attached hereto as Exhibit K;
(b) the Parent or such Material Domestic Subsidiary, as the case
may be, shall have delivered to the Agent (x) an Officer's Certificate of
the Parent or such Material Domestic Subsidiary, as the case may be, in
the form attached hereto as Exhibit C, (y) a certificate of the Secretary
or an Assistant Secretary of the Parent or such Material
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Domestic Subsidiary, as the case may be, in the form attached hereto as
Exhibit D and (z) good standing certificates (or local equivalent) from
the respective states where the Parent or such Material Domestic
Subsidiary, as the case may be, is incorporated or organized and where the
principal place of business of the Parent or such Material Domestic
Subsidiary, as the case may be, is located as to its good standing in each
such state;
(c) the Parent or such Material Domestic Subsidiary, as the case
may be, shall have delivered to the Agent an opinion of counsel
(reasonably acceptable to the Agent) in the form attached hereto as
Exhibit H-1 or such other form as is reasonably acceptable to the Agent
and the Parent or such Material Domestic Subsidiary, as the case may be;
and
(d) the Agent shall have received such other documents,
certificates and information as the Agent shall have reasonably requested.
Notwithstanding any provision of this Section 5.10 or any other Operative
Agreement to the contrary, in the event that either (i) the aggregate total
assets (as determined in accordance with GAAP) of all Domestic Subsidiaries of
the Credit Parties (when taken as a whole) that are not Material Domestic
Subsidiaries and are not otherwise Guarantors exceeds $50,000,000, or (ii) the
aggregate annual revenues for the most recently ended fiscal years of all
Domestic Subsidiaries of the Credit Parties (taken as a whole) that are not
Material Domestic Subsidiaries and are not otherwise Guarantors exceeds
$10,000,000, the Credit Parties shall cause additional Domestic Subsidiaries to
become Guarantors and satisfy the conditions set forth in subsections (a)-(d) of
this Section 5.10 such that neither the level of aggregate assets nor the level
of aggregate revenues, as the case may be, attributable to such Domestic
Subsidiaries that are not Material Domestic Subsidiaries and are not otherwise
Guarantors shall no longer exceed the aggregate levels of assets and revenues
set forth in clauses (i) and (ii) of this sentence, respectively.
6. Section 6.1(f) of the Participation Agreement is hereby amended to
read as follows:
(f) No Default or Event of Default under the Operative Agreements
attributable to it has occurred and is continuing;
7. The following is hereby added as Section 6B.9 of the Participation
Agreement:
6B.9 ADDITIONAL GUARANTOR WAIVERS.
(a) The provisions of Section 6B of the Participation Agreement
shall remain in full force and effect notwithstanding (i) any release of
any Credit Party from any liability with respect to the Company
Obligations; or (ii) any release or subordination of any real or personal
property now or hereafter held by the Agent as security for the
performance of the Company Obligations;
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(b) Each Guarantor expressly waives any and all benefits which
might otherwise be available to it under California Civil Code Sections
2809, 2810, 2819, 2839, 2845, 2849, 2850, 2899 and 3433;
(c) Each Guarantor hereby waives any and all defenses, including
but not limited to such Guarantor's defense of estoppel discussed in Union
Bank vs. Gradsky (1968) 265 Cal.App.2d 40, based upon a foreclosure
against all or any part of the real property security for the indebtedness
evidenced by the Notes or Holder Certificates pursuant to the power of
sale contained in any Operative Agreement as opposed to proceeding by way
of judicial foreclosure. Such Guarantor waives all rights and defenses
arising out of an election of remedies by the Agent, even though that
election of remedies, such as a nonjudicial foreclosure with respect to
security for a guaranteed obligation, has destroyed such Guarantor's
rights of subrogation and reimbursement by the operation of Section 580d
of the California Code of Civil Procedure or otherwise;
(d) Each Guarantor hereby waives all rights and defenses that such
Guarantor may have because any of the Company Obligations are secured by
real property. This means, among other things: (1) The Agent may collect
from any Guarantor without first foreclosing on any real or personal
property collateral pledged by any other Person, including without
limitation, Lessee or any of its Subsidiaries; (2) If the Agent forecloses
on any real property collateral pledged by any Guarantor: (A) the amount
of debt may be reduced only by the price for which the collateral is sold
at the foreclosure sale, even if the collateral is worth more than the
sale price, (B) the Agent may collect from any Guarantor even if the
Agent, by foreclosing on the real property collateral, has destroyed any
right such Guarantor may have to collect from any other Credit Party. This
is an unconditional and irrevocable waiver of any rights and defenses any
Guarantor may have because the Company Obligations are secured by real
property. These rights and defenses include, but are not limited to, any
rights or defenses based upon Section 580a, 580b, 580d, or 726 of the
California Code of Civil Procedure.
(e) In the case of a power of sale foreclosure under any Operative
Agreement, the fair market value of the real property collateral shall be
conclusively deemed to be the amount of the successful bid at the
foreclosure sale. Each Guarantor waives any rights or benefits it may now
or hereafter have to a fair value hearing under Section 580a of the
California Code of Civil Procedure. The Agent shall have absolutely no
obligation to make a bid at any foreclosure sale, but rather may make no
bid or bid any amount which the Agent, in its sole discretion, deems
appropriate.
(f) The Agent acknowledges that the provisions of this Section
6B.9 are intended to constitute a waiver of any rights and defenses any
Guarantor may now or hereafter have as a "guarantor" to the extent any
Operative Agreement executed by such Guarantor is construed to be in whole
or in part a guaranty of the Company Obligations.
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8. Section 7.4 of the Participation Agreement is hereby amended to read
as follows:
During the Commitment Period, the Lessee agrees to pay or to cause to be
paid to the Agent for the account of (a) the Lenders, respectively, a commitment
fee (the "Lender Commitment Fee") equal to the product of the average daily
Available Commitment of each Lender during the applicable portion of the
Commitment Period multiplied by a per annum rate equal to the Applicable
Percentage (determined as of the applicable Calculation Date) for the Lender
Commitment Fee and (b) the Holders, respectively, a commitment fee (the "Holder
Commitment Fee") equal to the product of the average daily Available Holder
Commitment of each Holder during the applicable portion of the Commitment Period
multiplied by a per annum rate equal to the Applicable Percentage (determined as
of the applicable Calculation Date) for the Holder Commitment Fee. Such
Commitment Fees shall be calculated on the basis of a year of three hundred
sixty (360) days for the actual days elapsed and shall be payable quarterly in
arrears on each Commitment Fee Payment Date. If all or a portion of any such
Commitment Fee shall not be paid when due, such overdue amount shall bear
interest, payable by the Lessee on demand, at a rate per annum equal to the ABR
(or in the case of overdue amounts relating to Holder Commitment Fees, the ABR
plus 1.00%) plus two percent (2%) from the date of such non-payment until such
amount is paid in full.
9. Section 8.3(h) of the Participation Agreement is hereby amended to
read as follows:
(h) The Lessee hereby covenants and agrees that as of Completion (i) the
aggregate Property Cost shall not exceed $139,400,000 and (ii) each parcel
of the Property shall be a Permitted Facility.
10. Section 8.3(k) of the Participation Agreement is hereby amended to
read as follows:
(k) Beginning with the fiscal quarter of the Lessee that begins on
January 1, 2000 and ends on March 31, 2000, and for each fiscal quarter of
the Lessee thereafter, Lessee shall furnish to the Agent a written notice
setting forth the Lessee's calculation, in reasonable detail, of the ratio
of Funded Indebtedness to EBITDA as of the last day of each such period
and the level of EBITDA for such fiscal quarter of the Lessee in the form
of the officer's compliance certificate provided in Schedule 8.3A(a)(iii)
and by the date required pursuant to Section 8.3A(a)(iii).
11. Section 8.3(s) of the Participation Agreement is hereby amended to
read as follows:
(s) Each Credit Party hereby covenants and agrees (i) to cause the
Parent and each Material Domestic Subsidiary of each Credit Party formed
or acquired after the Initial Closing Date to execute a Joinder Agreement
and to observe the terms of Sections 5.10(a)-(d), all within thirty (30)
days of the formation or acquisition of the Parent or such Material
Domestic Subsidiary, as the case may be (or, in the case of a Domestic
Subsidiary that was not a Material Domestic Subsidiary at the time of its
formation or
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acquisition, within thirty (30) days after such Domestic Subsidiary
becomes a Material Domestic Subsidiary of any Credit Party), and (ii) to
cause such additional Domestic Subsidiaries of any Credit Party to execute
a Joinder Agreement and observe the terms of Section 5.10(a)-(d) as
required in accordance with Section 5.10.
12. The following is hereby added as Section 8.3(u) of the Participation
Agreement:
(u) If any credit facility, loan agreement or other financing
arrangement extended to any Credit Party or any Affiliate of any Credit
Party, other than pursuant to the Operative Agreements and other than
Indebtedness permitted under Sections 8.3B(a)(iii) and (vii), is ever
secured by any collateral, the Secured Parties shall share on a pari-passu
basis (based on the respective amounts outstanding under the Operative
Agreements relative to the amounts outstanding under any such credit
facility, loan agreement or other financing arrangement) in all such
collateral.
13. The following is hereby added as clause (xi) of Section 8.3A(a) of
the Participation Agreement:
(xi) Reports and financial statements required to be delivered
pursuant to subsections (a)(i), (a)(ii) and (a)(vii)(i) of this Section
8.3A(a) shall be deemed to have been delivered on the date on which such
report is posted on the Securities and Exchange Commission's website on
the internet at the website address xxx.xxx.xxx or the Free Xxxxx website
on the internet at the website xxx.xxxxxxxxx.xxx and after Lessee has
provided written notice to the Agent, each Lender and each Holder that
such report or financial statement has been so posted; provided that
Lessee shall deliver paper copies of such reports and financial statements
to the Agent and any Lender or Holder that requests Lessee to deliver such
paper copies until written notice to cease delivering paper copies is
given by the Agent or such Lender or Holder; provided further that,
notwithstanding the foregoing, Lessee shall be required to deliver paper
copies to each of the Agent and any Lender or Holder of any other
documentation required pursuant to this Section 8.3A(a). The Agent shall
have no obligation to request the delivery or to maintain copies of the
reports referred to in subsections (a)(i), (a)(ii) and (a)(vii)(i) of this
Section 8.3A(a) or to monitor compliance by Lessee with any such request
for delivery and each Lender or Holder shall be solely responsible for
requesting delivery to it or maintaining copies of such reports and
financial statements.
14. Section 8.3A(h) of the Participation Agreement is hereby amended 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:
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(A) From the Initial Closing Date to and including
September 30, 2000, 2.50 to 1.0;
(B) From October 1, 2000 to and including September
30, 2001, 2.25 to 1.0; and
(C) From October 1, 2001 and thereafter, 2.0 to 1.0.
(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) and (ii), shall
not be less than (i) $200,000,000 for each twelve month period ending
December 31, 1999, March 31, 2000, June 30, 2000 and September 30, 2000,
(ii) $250,000,000 for each twelve month period ending December 31, 2000,
March 31, 2001, June 30, 2001 and September 30, 2001 (iii) $375,000,000
for each twelve month period ending December 31, 2001, March 31, 2002,
June 30, 2002 and September 30, 2002, and (iv) $500,000,000 for each
twelve month period ending as of 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 1.50 to
1.0.
15. Section 8.3B(a) of the Participation Agreement is hereby amended to
read as follows:
(a) INDEBTEDNESS.
No Credit Party will, nor will it permit any of its Consolidated
Subsidiaries to, contract, create, incur, assume or permit to exist any
Indebtedness, except:
(i) Indebtedness arising under this Participation Agreement
and the other Operative Agreements;
(ii) Indebtedness of a Credit Party and its Consolidated
Subsidiaries set forth in Schedule 8.3B(a)(ii) (and renewals, refinancings
and extensions thereof on terms and conditions no less favorable to such
Person than such existing Indebtedness);
(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 (including any such Indebtedness referred to in subsection
(ii) above) shall not exceed (A) during fiscal year 1999 and 2000, an
aggregate principal amount of $25,000,000 at any one time outstanding and
(B) at any time subsequent to fiscal year 2000, $40,000,000 at any one
time outstanding; (ii) such Indebtedness when incurred shall not exceed
the purchase price of the asset(s) financed; and (iii) no such
Indebtedness
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shall be refinanced for a principal amount in excess of the principal
balance outstanding thereon at the time of such refinancing;
(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 $300,000,000 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 (as such term is defined in Appendix A to the
Roseville Participation Agreement) under the Roseville Lease Financing,
plus (b) the aggregate outstanding Holder Advances (as such term is
defined in Appendix A to the Roseville Participation Agreement) under the
Roseville Lease Financing, plus (c) 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 (d) any other amounts due and owing by the Lessee or the Construction
Agent to any Person under the Roseville Lease Financing;
(v) the Subordinated Debt;
(vi) Indebtedness of a Credit Party consisting of unsecured
convertible subordinated debentures on terms and conditions (including,
without limitation, the subordination terms) reasonably acceptable to the
Agent, and any renewal, refinancings or extensions thereof on terms and
conditions (including, without limitation, the subordinations terms)
reasonably acceptable to the Agent; and
(vii) Indebtedness arising under the Roseville Lease
Financing.
16. Section 11.6 of the Participation Agreement is hereby amended to
read as follows:
Each and every Indemnified Person shall at all times have the rights and
benefits, and the Indemnity Provider shall have the obligations, in each case
provided pursuant to the Operative Agreements with respect to environmental
matters, violations of any Environmental Law, any Environmental Claim or other
loss of or damage to any property or the environment relating to any Property,
the Lease, the Agency Agreement or the Indemnity Provider (including without
limitation the rights and benefits provided pursuant to Section 11.1(c)).
LEASE AGREEMENT
17. Section 2.2 of the Lease is hereby amended to read as follows:
2.2 LEASE TERM.
The basic term of this Lease with respect to each Property (the
"Basic Term") shall begin upon the Property Closing Date for such Property (in
each case the "Basic Term Commencement Date") and shall end on March 3, 2005
(the "Basic Term Expiration Date"), unless
11
13
the Basic Term is earlier terminated or the term of this Lease is renewed (as
described below) in accordance with the provisions of this Lease.
Notwithstanding the foregoing, Lessee shall not be obligated to pay Basic Rent
until the Rent Commencement Date with respect to such Property.
Upon the written request of Lessee and with the consent of all of
the Financing Parties, in their sole discretion, the term of this Lease for each
Property may be extended for up to two (2) additional terms each of one (1)
year's duration from the Basic Term Expiration Date (each, a "Renewal Term");
provided, that the expiration date for the final Renewal Term for each Property
shall not be later than March 3, 2007, unless such later expiration date has
been expressly agreed to, at the request of Lessee, in writing by each of the
Lessor, the Agent, the Lenders and the Holders in their sole discretion.
18. The second sentence of Section 14.3(a) of the Lease is hereby
amended to read as follows:
All such insurance shall be at the cost and expense of Lessee and provided
by nationally recognized, financially sound insurance companies having a
rating by A.M. Best's Key Rating Guide of at least an (i) A- and a
Financial Performance Rating of at least a IX (regarding all hazard
insurance coverages) and (ii) A- and a Financial Performance Rating of at
least a IX (regarding all liability insurance coverages).
19. Section 15.2(b) of the Lease is hereby amended to read as follows:
(b) In light of the environmental condition of the Property (which
includes the Land) existing as of the Property Closing Date (the
"Pre-Existing Environmental Conditions"), the presence of Pre-Existing
Hazardous Substances on the Property (which includes the Land) shall not
violate the terms of this Lease. Responsibility for the cleanup and/or
remediation of the Pre-Existing Environmental Conditions shall be
allocated pursuant to the terms of the Purchase Agreement and the
Indemnity Agreement; provided, notwithstanding any of the provisions of
the Lease or any of the Operative Agreements, to the extent any
Pre-Existing Environmental Condition is not addressed by any third party
pursuant to the Purchase Agreement and/or the Indemnity Agreement so as to
remediate such Pre-Existing Environmental Condition in accordance with the
applicable Environmental Laws, then Lessee shall be responsible for the
cleanup and/or remediation of such Pre-Existing Environmental Condition in
accordance with the applicable terms of the Operative Agreements including
without limitation Section 15.2(c). Lessee shall in all events be
responsible for the environmental indemnification of the Financing Parties
in accordance with the Participation Agreement.
CREDIT AGREEMENT
20. Schedule 2.1 of the Credit Agreement is hereby deemed amended and
restated in its entirety to read as Schedule 2.1 attached hereto as EXHIBIT 1.
21. Section 7.7 of the Credit Agreement is hereby amended to read as
follows:
12
14
0.1 INDEMNIFICATION.
The Lenders agree to indemnify the Agent, in its capacity as such (to the
extent not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their respective Commitment Percentages
in effect on the date on which indemnification is sought under this Section 7.7
(or, if indemnification is sought after the date upon which the Commitments
shall have terminated and the Loans shall have been paid in full, ratably in
accordance with their Commitment Percentages immediately prior to such date),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including without limitation at any time
following the payment of the Notes) be imposed on, incurred by or asserted
against any of them in any way relating to or arising out of, the Commitments,
this Agreement, any of the other Operative Agreements or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by any of them
under or in connection with any of the foregoing; provided, that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or willful misconduct of the Agent. The
agreements in this Section 7.7 shall survive the payment of the Notes and all
other amounts payable hereunder.
TRUST AGREEMENT
22. Schedule I of the Trust Agreement is hereby deemed amended and
restated in its entirety to read as Schedule I attached hereto as EXHIBIT 2.
WAIVERS
23. The Financing Parties hereby
(a) waive the requirement pursuant to Section 8.3(k) of the Participation
Agreement (as in effect prior to the effective date of this Amendment) that, on
or before the first Business Day of the fiscal quarters of the Lessee beginning
July 1, 1999, October 1, 1999 and January 1, 2000, respectively, the Lessee
provide to the Agent written notice of Lessee's calculation of the ratio of
Funded Indebtedness to EBITDA and the level of EBITDA for the fiscal quarter of
the Lessee immediately preceding such dates;
(b) waive the requirement pursuant to Section 8.3A(a)(ii) of the Participation
Agreement that the Lessee provide quarterly financial statements within 45 days
after the end of the fiscal quarters of the Lessee ending July 31, 1999 and
October 31, 1999 and the certificate of the Lessee's chief financial officer
described in such Section 8.3A(a)(ii) and Section 8.3A(a)(iii);
(c) waive Lessee's failure to cause each of Veritas Software Corporation
(formerly known as Veritas Holding Corporation), as Parent, and Seagate Software
Network & Storage Management Group, Inc. and OpenVision International, Inc., as
Domestic Subsidiaries of the Lessee or the Parent, to become Guarantors and to
otherwise comply with the provisions of
13
15
Sections 5.10 and 8.3(s) of the Participation Agreement within thirty (30) days
after such entity's formation or acquisition by the Lessee or the Parent;
(d) waive Lessee's failure to notify the Agent of the change of Lessee's name
effective as of May 28, 1999, as required pursuant to Section 8.3(i) of the
Participation Agreement;
(e) waive Lessee's failure to submit to the Agent the terms and conditions of
those certain 1.856% Convertible Subordinated Notes due 2006 in the aggregate
principal amount at maturity of $465,750,000 issued under that certain Indenture
dated as of August 13, 1999 by and among VERITAS Software Corporation, VERITAS
Operating Corporation and State Street Bank and Trust Company of California,
N.A., as trustee, and that certain First Supplemental Indenture dated as of
August 17, 1999 by and among VERITAS Software Corporation, VERITAS Operating
Corporation and State Street Bank and Trust Company of California, N.A., as
trustee, prior to their issuance, as required pursuant to Section 8.3B(a)(vi)of
the Participation Agreement; and
(f) agree that the Lessee's failure to comply with the provisions of Sections
8.3(k), 8.3A(a)(ii), 8.3A(a)(iii), 5.10, 8.3(s), 8.3(i) and 8.3B(a)(vi) of the
Participation Agreement for the periods and on the dates set forth in the
preceding subsections (a) through (e) only shall not constitute a Lease Default
or Lease Event of Default under Section 17.1(l)(iii) of the Lease Agreement or a
Credit Agreement Default or Credit Agreement Event of Default under Section 6(f)
of the Credit Agreement.
24. The waivers set forth herein are one-time waivers and shall not be
construed to be waivers as to future compliance with Sections 8.3(k),
8.3A(a)(ii), 8.3A(a)(iii), 5.10, 8.3(s), 8.3(i) or 8.3B(a)(vi) of the
Participation Agreement at all times after the effective date of this Agreement
(including, except as expressly provided herein, the fiscal quarter of the
Lessee beginning January 1, 2000) or the Lessee's obligation to comply fully
with any other duty, term, condition or covenant contained in any of the
Operative Agreements.
MISCELLANEOUS
25. 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 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) certifying that a resolution has been adopted
by Lessee's Board of Directors approving and authorizing the execution,
delivery, and performance of this Amendment, 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
14
16
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)
certifying that the execution, delivery and performance of this Amendment
has been duly approved and authorized by such Credit Party's Board of
Directors, 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; and
(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.
26. Each New Lender hereby acknowledges, agrees and confirms that, by
its execution of this Amendment, such New Lender will be deemed to be a party to
the Participation Agreement, the Credit Agreement and such other of the
Operative Agreements as are necessary or desirable to accomplish the purposes of
this Amendment and each of the other Operative Agreements. Each New Lender
further acknowledges, agrees and confirms that it shall have all of the
obligations of a Lender under any of the Operative Agreements as if such New
Lender had executed such Operative Agreement, and agrees to be bound by all of
the terms, provisions and conditions applicable to a Lender contained in any
Operative Agreement.
27. Each New Holder hereby acknowledges, agrees and confirms that, by
its execution of this Amendment, such New Holder will be deemed to be a party to
the Participation Agreement, the Trust Agreement and such other of the Operative
Agreements as are necessary or desirable to accomplish the purposes of this
Amendment and each of the other Operative Agreements. Each New Holder further
acknowledges, agrees and confirms that it shall have all of the obligations of a
Holder under any of the Operative Agreements as if such New Holder had executed
such Operative Agreement, and agrees to be bound by all of the terms, provisions
and conditions applicable to a Holder contained in any Operative Agreement.
28. Except as modified hereby, all of the terms and provisions of the
Operative Agreements (including Schedules and Exhibits) shall remain in full
force and effect.
29. 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
Xxxxx & Xxx Xxxxx, PLLC.
30. 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.
31. 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.]
15
17
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 OPERATING CORPORATION
(formerly known as Veritas Software
Corporation), as the Construction
Agent and as the Lessee
By: /s/ XXX XXXXXXX
----------------------------------
Name: Xxx Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
VERITAS SOFTWARE CORPORATION (formerly
known as Veritas Holding Corporation),
as a Guarantor
By: /s/ XXX XXXXXXX
----------------------------------
Name: Xxx Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
SEAGATE SOFTWARE NETWORK & STORAGE
MANAGEMENT GROUP, INC., as a Guarantor
By: /s/ XXX XXXXXXX
----------------------------------
Name: Xxx Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
OPENVISION INTERNATIONAL, INC., as a
Guarantor
By: /s/ XXX XXXXXXX
----------------------------------
Name: Xxx Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
[signature pages continue]
18
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, except
as expressly stated herein, but solely
as the Owner Trustee under the
VS Trust 1999-1
By: /s/ XXX X. XXXXX
----------------------------------
Name: Xxx X. Xxxxx
Title: Vice President
19
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/ XXXXXXX X. XXXXXXXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President
20
COMERICA BANK - CALIFORNIA, as a
Holder and as a Lender
By: /s/ XXXXXX X. WAYS
----------------------------------
Name: Xxxxxx X. Ways
Title: Corporate Banking Officer
21
KEYBANK NATIONAL--ASSOCIATION, as a
Holder and as a Lender
By: /s/ XXXX X. XXXXX
----------------------------------
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
22
FLEET NATIONAL BANK, as a Lender
By: /s/ XXXXXXX X. XXXXXX, XX.
----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Executive Vice President
00
XXX XXXX XX XXXX XXXXXX, as a Lender
By: /s/ XXXXXXXXXXX XXXXXX
----------------------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Director
24
THE FUJI BANK, LIMITED, as a Lender
By: /s/ XXXXXX, XXXXXXXX
----------------------------------
Name: Xx. Xxxxxx, Masahito
Title: Senior Vice President and
Group Head
25
FBTC LEASING CORP., as a Lender
By: /s/ XXXXXXXXX XXXXXXXX
----------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Treasurer
00
XXXXX XXXX XX XXXXXXXXXX, N.A., as a
Holder and as a Lender
By: /s/ XXXXX XXXXXX
----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
27
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Holder and as a Lender
By: /s/ XXXX X. XXXXXX
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
28
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
as a Lender
By: /s/ XXX XXXXX
----------------------------------
Name: Xxx Xxxxx
Title: Senior Vice President and
Manager
29
IBJTC LEASING CORPORATION-BSC, as a
Holder
By: /s/ XXXXXX XXXX
----------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
[signature pages end]
30
EXHIBIT 1
Schedule 2.1
Tranche A Tranche B
Commitment Commitment
---------- ----------
Name and Address of Lenders Amount/Percentage Amount/Percentage
--------------------------- ----------------------- -----------------------
Bank of America, N.A. $17,726,639 14.786% $2,267,361 14.786%
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Mail Code: CA5-705-41-01
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Comerica Bank - California $13,760,000 11.478% $1,760,000 11.478%
000 Xxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Rob Ways
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
KeyBank National Association $17,726,639 14.786% $2,267,361 14.786%
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Fleet National Bank $9,752,577 8.135% $1,247,423 8.135%
Information Technology Division
Mail Code: CA FML Palo Alto
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
00
Xxxxxxx X Xxxxxxx X
Commitment Commitment
---------- ----------
Name and Address of Lenders Amount/Percentage Amount/Percentage
--------------------------- ------------------------ -----------------------
The Bank of Nova Scotia $14,185,568 11.833% $1,814,432 11.833%
Atlanta Agency
000 Xxxxxxxxx Xxxxxx,
X.X. Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx,
Loan Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Fuji Bank, Limited $9,752,577 8.135% $0 0%
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx, Clerk
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
FBTC Leasing Corp. $0 0% $1,247,423 8.135%
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Union Bank of California, N.A. $13,760,000 11.478% $1,760,000 11.478%
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx,
Vice President
Telephone: (000)000-0000
Telecopy: (000)000-0000
Xxxxx Fargo Bank, National $13,760,000 11.478% $1,760,000 11.478%
Association
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000)000-0000
Telecopy: (000) 000-0000
00
Xxxxxxx X Xxxxxxx X
Commitment Commitment
---------- ----------
Name and Address of Lenders Amount/Percentage Amount/Percentage
--------------------------- ------------------------ ------------------------
The Industrial Bank of Japan, $9,460,000 7.891% $1,210,000 7.891%
Limited
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
TOTAL $119,884,000 100% $15,334,000 100%
33
SCHEDULE 1
HOLDER COMMITMENTS
Holder Commitment
-----------------
Name of Holder Amount/Percentage
-------------- -----------------
Bank of America, N.A. $1,206,000 28.8379%
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Mail Code: CA5-705-41-01
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
KeyBank National Association $1,206,000 28.838%
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx
Telephone: (000)000-0000
Telecopy: (000)000-0000
Comerica Bank - California $480,000 11.478%
000 Xxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Rob Ways
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Union Bank of California, N.A. $480,000 11.478%
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx,
Vice President
Telephone: (000)000-0000
Telecopy: (000)000-0000
Xxxxx Fargo Bank, National Association $480,000 11.478%
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000)000-0000
Telecopy: (000) 000-0000
34
Holder Commitment
-----------------
Name of Holder Amount/Percentage
-------------- -----------------
IBJTC Leasing Corporation-BSC $330,000 7.891%
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
TOTAL $4,182,000 100%
