EXHIBIT 10.01
LEASE SUPPLEMENT NO. 3
THIS LEASE SUPPLEMENT NO. 3 (this "Lease Supplement") dated as of this
27th day of February, 2002, and effective as May 30, 2001, between ▇▇▇▇▇ 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, as lessor (the
"Lessor"), and VERITAS SOFTWARE CORPORATION, a Delaware corporation (as
assignee of VERITAS Operating Corporation), as lessee (the "Lessee").
WHEREAS, Lessor is the owner or will be the owner of the Property
described on Schedule 1-A hereto (the "Leased Property") and wishes to lease
the same to Lessee;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS; RULES OF USAGE. For purposes of this Lease
Supplement, capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to them in Appendix A to the Participation
Agreement, dated as of March 9, 2000, among Lessee, the various parties thereto
from time to time, as the Guarantors, Lessor, not individually, except as
expressly stated therein, but solely as the Owner Trustee under the VS Trust
2000-1, the various banks and other lending institutions which are parties
thereto from time to time, as the Holders, the various banks and other lending
institutions which are parties thereto from time to time, as the Lenders, and
Bank of America, N.A., as the Agent for the Lenders and respecting the Security
Documents, as the Agent for the Lenders and Holders, to the extent of their
interests, as such may be amended, modified, extended, supplemented, restated
and/or replaced from time to time.
SECTION 2. THE PROPERTIES. Attached hereto as Schedule 1-A is the
description of the Leased Property, consisting of Improvements only, with an
Equipment Schedule attached hereto as Schedule 1-B, and a legal description of
the Land attached hereto as Schedule 1-C. Effective upon the execution and
delivery of this Lease Supplement by Lessor and Lessee, the Leased Property
shall be subject to the terms and provisions of the Lease. Without further
action, any and all additional Equipment funded under the Operative Agreements
and any and all additional Improvements made to the Land shall be deemed to be
titled to the Lessor and subject to the terms and conditions of the Lease and
this Lease Supplement.
SECTION 3. USE OF PROPERTY. At all times during the Term with respect to
each Property, Lessee will comply with all obligations under and (to the extent
no Event of Default exists and provided, that such exercise will not impair the
value of such Property) shall be permitted to exercise all rights and remedies
under, all operation and easement agreements and related or similar agreements
applicable to such Property.
SECTION 4. RATIFICATION; INCORPORATION BY REFERENCE. Except as
specifically modified hereby, the terms and provisions of the Lease and the
Operative Agreements are hereby
ratified and confirmed and remain in full force and effect. The Lease is hereby
incorporated herein by reference as though restated herein in its entirety.
SECTION 5. ORIGINAL LEASE SUPPLEMENT. The single executed original of this
Lease Supplement marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART"
on the signature page thereof and containing the receipt of the Agent therefor
on or following the signature page thereof shall be the original executed
counterpart of this Lease Supplement (the "Original Executed Counterpart"). To
the extent that this Lease Supplement constitutes chattel paper, as such term
is defined in the Uniform Commercial Code as in effect in any applicable
jurisdiction, no security interest in this Lease Supplement may be created
through the transfer or possession of any counterpart other than the Original
Executed Counterpart.
SECTION 6. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL BE GOVERNED BY AND
CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK, EXCEPT TO THE EXTENT THE LAWS OF THE STATE WHERE A PARTICULAR
PROPERTY IS LOCATED ARE REQUIRED TO APPLY.
SECTION 7. COUNTERPART EXECUTION. This Lease Supplement may be executed in
any number of counterparts and by each of the parties hereto in separate
counterparts, all such counterparts together constituting but one (1) and the
same instrument.
SECTION 8. MAXIMUM RESIDUAL GUARANTEE AMOUNT. The Maximum Residual
Guarantee Amount shall mean an amount equal to the product of the aggregate
Property Cost of the Leased Property (exclusive of any Land Cost) multiplied by
eighty-three and one-half percent (83.5%).
For purposes of the provisions of this Lease Supplement concerning this
Lease Supplement constituting a security agreement and fixture filing, the
addresses of the debtor (Lessee herein) and the secured party (Lessor herein),
from whom information may be obtained about this Lease Supplement, are as set
forth on the signature pages hereto.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Lease
Supplement to be duly executed by an officer thereunto duly authorized as of
the date and year first above written.
▇▇▇▇▇ FARGO BANK NORTHWEST, not
individually, but solely as the Owner Trustee
under the VS Trust 2000-1, as Lessor
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
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▇▇▇▇▇ Fargo Bank Northwest
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇
Vice President
VERITAS SOFTWARE GLOBAL
CORPORATION, as Lessee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
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Title: Treasurer
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c/o VERITAS Software Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
Receipt of this original counterpart
of the foregoing Lease Supplement
is hereby acknowledged as the date hereof.
BANK OF AMERICA, N.A., as the Agent
By: /s/ ▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇ ▇▇▇
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Title: Vice President
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Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Mail Code TX1-492-14-11
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
SCHEDULE 1-A
TO LEASE SUPPLEMENT NO. 3
(Description of the Leased Property)
The Improvements on the Land described in Schedule 1-C attached hereto and
incorporated herein by this reference.
SCHEDULE 1-B
TO LEASE SUPPLEMENT NO. 3
(Equipment)
The Equipment attached to, contained in or used or usable in connection with
the Improvements on the Land described in Schedule 1-C attached hereto and
incorporated herein by this reference.
SCHEDULE 1-C
TO LEASE SUPPLEMENT ▇▇. ▇
(▇▇▇▇)
▇▇▇▇ ▇, ▇ and ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, according to the
recorded plat thereof, ▇▇▇▇▇▇ County, Minnesota, except that part of said Lot 5
lying Northerly of a line described as follows:
Commencing at the most Northerly Northwest corner of said Lot 5; thence
South 00 degrees 00 minutes 00 seconds West, assumed bearing, along a West line
of said Lot 5, a distance of 46.92 feet to the beginning of the line to be
described; thence North 90 degrees 00 minutes 00 seconds East a distance of
265.37 feet to the Northeasterly line of said Lot 5 and said line there
terminating.
