Exhibit 10.04
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AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 27, 2001
among
VERITAS SOFTWARE GLOBAL CORPORATION,
as Borrower,
THE VARIOUS PARTIES HERETO
FROM TIME TO TIME,
as Guarantors,
ABN AMRO BANK N.V.,
as Administrative Agent for Lenders,
CREDIT SUISSE FIRST BOSTON,
as Documentation Agent,
and
CREDIT LYONNAIS LOS ANGELES BRANCH,
as Syndication Agent
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TABLE OF CONTENTS
PAGE
SECTION I INTERPRETATION.....................................................................2
Section 1.1 Definitions...............................................................2
Section 1.2 GAAP.....................................................................24
Section 1.3 Time.....................................................................24
Section 1.4 Construction.............................................................24
Section 1.5 Entire Agreement.........................................................24
Section 1.6 Calculation of Interest and Fees.........................................25
Section 1.7 Rules of Usage...........................................................25
Section 1.8 Amendment and Restatement................................................26
SECTION II CREDIT FACILITIES................................................................26
Section 2.1 Facility.................................................................26
Section 2.2 Notice of Borrowing......................................................28
Section 2.3 Interest.................................................................29
Section 2.4 Purpose..................................................................32
Section 2.5 Commitment Reductions, Etc...............................................32
Section 2.6 Fees.....................................................................33
Section 2.7 Prepayments..............................................................33
Section 2.8 Other Payment Terms......................................................34
Section 2.9 Loan Accounts; Notes.....................................................35
Section 2.10 Loan Funding.........................................................35
Section 2.11 Pro Rata Treatment...................................................36
Section 2.12 Change of Circumstances..............................................37
Section 2.13 Taxes on Payments....................................................40
Section 2.14 Funding Loss Indemnification.........................................41
Section 2.15 Replacement of Lenders...............................................42
SECTION III CONDITIONS PRECEDENT............................................................43
Section 3.1 Initial Conditions Precedent.............................................43
Section 3.2 Conditions Precedent to Term Loan Borrowing..............................43
Section 3.3 Conditions Precedent to Each Credit Event................................43
Section 3.4 Covenant to Deliver......................................................43
SECTION IV REPRESENTATIONS AND WARRANTIES...................................................44
Section 4.1 Representations and Warranties of the Credit Parties.....................44
Section 4.2 Reaffirmation............................................................47
SECTION V COVENANTS.........................................................................47
Section 5.1 Affirmative Covenants....................................................47
Section 5.2 Negative Covenants.......................................................54
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PAGE
SECTION VI DEFAULT..........................................................................59
Section 6.1 Events of Default........................................................59
Section 6.2 Remedies.................................................................61
SECTION VII AGENTS AND RELATIONS AMONG LENDERS..............................................62
Section 7.1 Appointment, Powers and Immunities of Administrative Agent...............62
Section 7.2 Reliance by Administrative Agent.........................................63
Section 7.3 Defaults.................................................................63
Section 7.4 Indemnification..........................................................63
Section 7.5 Non-Reliance.............................................................64
Section 7.6 Resignation or Removal of Administrative Agent...........................64
Section 7.7 Administrative Agent in its Individual Capacity..........................65
SECTION VIII MISCELLANEOUS..................................................................65
Section 8.1 Notices..................................................................65
Section 8.2 Expenses.................................................................66
Section 8.3 Indemnification..........................................................67
Section 8.4 Waivers; Amendments......................................................67
Section 8.5 Successors and Assigns...................................................68
Section 8.6 Setoff...................................................................71
Section 8.7 No Third Party Rights....................................................71
Section 8.8 Partial Invalidity.......................................................71
Section 8.9 Governing Law; Submission To Jurisdiction; Waiver Of Jury Trial;
Venue....................................................................72
Section 8.10 Confidentiality......................................................72
Section 8.11 Counterparts.........................................................73
SECTION IX GUARANTY.........................................................................74
Section 9.1 Guaranty of Payment and Performance......................................74
Section 9.2 Obligations Unconditional................................................74
Section 9.3 Modifications............................................................76
Section 9.4 Waiver of Rights.........................................................76
Section 9.5 Reinstatement............................................................77
Section 9.6 Remedies.................................................................77
Section 9.7 Limitation on Guaranty...................................................77
Section 9.8 Payment of Amounts to the Administrative Agent...........................77
Section 9.9 Joinder Agreement Requirements...........................................78
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SCHEDULES
Schedule I Lenders
Schedule 3.1 Initial Conditions Precedent
Schedule 4.1(e) Litigation
Schedule 4.1(n) Subsidiaries
Schedule 5.1(a)(iii) Form of Officer's Compliance Certificate
Schedule 5.2(a)(ii) Schedule of Indebtedness
Schedule 5.2(e) Schedule of Insignificant Lines of Business
Schedule 5.2(f) Schedule of Permitted Investments
EXHIBITS
Exhibit A Form of Joinder Agreement
Exhibit B Form of Notice of Revolving Loan Borrowing
Exhibit C Form of Notice of Term Loan Borrowing
Exhibit D Form of Notice of Interest Period Selection
Exhibit E Form of Notice of Term Loan Conversion
Exhibit F Form of Revolving Loan Note
Exhibit G Form of Term Loan Note
Exhibit H Form of Assignment Agreement
Exhibit I Form of Officer's Certificate
Exhibit J Form of Secretary's Certificate
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AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of September 27,
2001, is entered into by and among:
(1) VERITAS SOFTWARE GLOBAL CORPORATION, a Delaware corporation
("Borrower");
(2) Each of the various parties hereto from time to time as guarantors
(such parties to be referred to herein individually as a "Guarantor" and
collectively as "Guarantors");
(3) Each of the financial institutions from time to time listed in
Schedule I hereto, as amended from time to time (such financial institutions to
be referred to herein individually as a "Lender" and collectively as "Lenders");
(4) CREDIT SUISSE FIRST BOSTON, as documentation agent (in such
capacity, "Documentation Agent");
(5) CREDIT LYONNAIS LOS ANGELES BRANCH, as syndication agent (in such
capacity, "Syndication Agent"); and
(6) ABN AMRO BANK N.V., as agent for Lenders (in such capacity,
"Administrative Agent").
RECITALS
A. Pursuant to that certain Credit Agreement dated as of September 6,
2000 among Borrower, the Guarantors party thereto from time to time,
Administrative Agent, Documentation Agent, Syndication Agent, and the Lenders
party thereto from time to time (as amended from time to time, the "Original
Credit Agreement"), Lenders provided certain credit facilities to Borrower.
B. Borrower has requested that Lenders renew such credit facilities.
C. Lenders are willing to renew such credit facilities upon the terms
and subject to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION I
INTERPRETATION
SECTION 1.1 DEFINITIONS. Unless otherwise indicated in this Agreement or
any other Credit Document, each term set forth below, when used in this
Agreement or any other Credit Document, shall have the respective meaning given
to that term below or in the provision of this Agreement or other document,
instrument or agreement referenced below.
"ABN AMRO" shall mean ABN AMRO Bank N.V.
"ACCORD Evidence of Insurance" shall mean an ACCORD Evidence of
Insurance or other similar evidence of insurance reasonably acceptable to the
Administrative Agent.
"Administrative Agent" shall have the meaning given to that term in
clause (6) of the introductory paragraph hereof.
"Administrative Agent's Fee Letter" shall mean the letter agreement
dated as of September 27, 2001, between Borrower and Administrative Agent
regarding certain fees payable by Borrower to Administrative Agent.
"Affected Lender" shall have the meaning given to that term in Section
2.15.
"Affiliate" shall mean, with respect to any Person, any Person or group
acting in concert in respect of the Person in question that, directly or
indirectly, controls, is controlled by or is under common control with such
Person; provided, however, that in no case shall the Administrative Agent or any
Lender be deemed to be an Affiliate of Borrower or any of its Subsidiaries for
purposes of this Agreement.
"Agreement" shall mean this Amended and Restated Credit Agreement, as
the same may be amended, restated, modified or otherwise supplemented from time
to time.
"Applicable Lending Office" shall mean, with respect to any Lender, (a)
in the case of its Base Rate Loans and Base Rate Portions, its Domestic Lending
Office, and (b) in the case of its LIBOR Loans and LIBOR Portions, its
Euro-Dollar Lending Office.
"Applicable Percentage" shall mean for LIBOR Loans, Base Rate Loans and
Commitment Fees, the appropriate applicable percentages corresponding to the
Pricing Level in effect as of the most recent Calculation Date as shown below:
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APPLICABLE APPLICABLE APPLICABLE
LEVERAGE PERCENTAGE FOR PERCENTAGE FOR PERCENTAGE FOR
PRICING LEVEL RATIO LIBOR LOANS BASE RATE LOANS COMMITMENT FEE
--------------- ---------------------- ----------------- ------------------ ---------------------
I .75 but 1.50 but 2.00 1.50% 0% .375%
--------------- ---------------------- ----------------- ------------------ ---------------------
The Applicable Percentage for LIBOR Loans, Base Rate Loans 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 Administrative Agent in accordance with the provisions of
Section 5.1(a)(iii); provided, however, that (i) the Applicable Percentage from
the Effective Date shall be based on Pricing Level II (as shown above) and shall
remain at Pricing Level II until the next occurring Calculation Date and,
thereafter, the Pricing Level shall be determined as shown above, (ii) if the
Borrower fails to provide the annual and quarterly compliance certificates
required pursuant to Sections 5.1(a)(iii) to the Administrative 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 and (iii) each Applicable Percentage determined
pursuant to this definition shall be increased by two percent (2.00%) per annum
on the date an Event of Default occurs and shall continue at such increased rate
unless and until such Event of Default is waived or cured in accordance with
this Agreement. 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 LIBOR Loans and Base
Rate Loans as well as any new LIBOR Loans and Base Rate Loans made or issued.
"Assignee Lender" shall have the meaning given to that term in
Subsection 8.5(c).
"Assignment" shall have the meaning given to that term in Subsection
8.5(c).
"Assignment Agreement" shall have the meaning given to that term in
Subsection 8.5(c).
"Assignment Effective Date" shall have, with respect to each Assignment
Agreement, the meaning set forth therein.
"Assignor Lender" shall have the meaning given to that term in
Subsection 8.5(c).
"Base Rate" shall mean, on any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such date and (b) the Federal Funds
Rate for such day plus one-half percent (0.50%).
"Base Rate Loan" shall mean, at any time, a Revolving Loan which then
bears interest as provided in clause (i) of Subsection 2.3(a).
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"Base Rate Portion" shall mean, at any time, a Portion of the Term Loan
Borrowing or a Term Loan, as the case may be, which then bears interest as
provided in clause (i) of Subsection 2.4(a).
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Borrower" shall have the meaning given to that term in clause (1) of
the introductory paragraph hereof.
"Borrowing" shall mean a Revolving Loan Borrowing or the Term Loan
Borrowing.
"Business Day" shall mean a day other than a Saturday, Sunday or other
day on which commercial banks in Illinois, California, New York or any other
states from which the Administrative Agent, any Lender or any Lender funds or
engages in administrative activities with respect to the transactions under the
Credit Documents are authorized or required by law to close; provided, however,
that when used in connection with a LIBOR Loan, the term "Business Day" shall
also exclude any day on which banks are not open for dealings in dollar deposits
in the London interbank market.
"Capital Adequacy Requirement" shall have the meaning given to that term
in Subsection 2.12(d)
"Capital Expenditures" shall mean all expenditures of the Credit Parties
and their Consolidated Subsidiaries which, in accordance with GAAP, would be
classified as capital expenditures, including, without limitation, Capitalized
Leases.
"Capital Stock" shall mean any nonredeemable capital stock of any Credit
Party or any of its Subsidiaries, whether common or preferred.
"Capitalized Lease" shall mean, as applied to any Person, any lease of
property (whether real, personal, tangible, intangible or mixed of such Person)
by such Person as the lessee which would be capitalized on a balance sheet of
such Person prepared in accordance with GAAP.
"Cash Equivalents" shall mean (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (b) U.S. dollar denominated
time and demand deposits and certificates of deposit of (i) any Lender, (ii) any
domestic commercial bank having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from ▇▇▇▇▇'▇ is at least P-1 or the equivalent
thereof (any such bank being an "Approved Bank"), in each case with maturities
of not more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within six
months of the date of acquisition, (d)
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repurchase agreements with a bank or trust company (including any of the
Lenders) or recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the United
States of America in which the Borrower shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations and (e) Investments, classified in accordance with GAAP
as current assets, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least $500,000,000 and the
portfolios of which are limited to Investments of the character described in the
foregoing subdivisions (a) through (d).
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., as
amended by the Superfund Amendments and Reauthorization Act of 1986.
"Change of Control" shall mean the occurrence of any of the following
events (a) (i) the Parent shall fail to own directly or indirectly 100% of the
outstanding Capital Stock of the Borrower, (ii) a "person" or a "group" (within
the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act)
(other than SSI) shall have acquired beneficial ownership, directly or
indirectly, of, or shall have acquired by contract or otherwise, or shall have
entered into a contract or arrangement that, upon consummation, will result in
its or their acquisition of, control over, 30% or more of the outstanding voting
stock of the Parent or (iii) SSI shall have acquired beneficial ownership,
directly or indirectly, of, or shall have acquired by contract or otherwise, or
shall have entered into a contract or arrangement that, upon consummation, will
result in its acquisition of, control over, 45% or more of the outstanding
voting stock of the Parent or (b) during any period of two consecutive calendar
years, individuals who at the beginning of such period constituted either the
board or the board of directors of the Parent, together with any new members of
such board or board of directors whose elections by such board or board of
directors or whose nomination for election by the stockholders of the Parent,
was approved by a vote of a majority of the members of such board or board of
directors then still in office who either were directors at the beginning of
such period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority of the directors of the
Parent then in office. As used herein, "beneficial ownership" shall have the
meaning provided in Rule 13(d)-3 of the Securities and Exchange Commission under
the Securities Act of 1934.
"Change of Law" shall have the meaning given to that term in Subsection
2.12(b).
"Closing Date" shall mean September 6, 2000.
"Code" shall mean the Internal Revenue Code of 1986 together with rules
and regulations promulgated thereunder, as amended from time to time, or any
successor statute thereto.
"Commitment" shall mean, as to any Lender, the obligation of such Lender
to make the portion of the Loans to the Borrower in an aggregate principal
Dollar amount at any time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule 1 or, if such amount is increased or
reduced from time to time in accordance with the provisions of this Agreement,
such Dollar amount as may be set forth for such Lender in the Register.
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"Commitment Fees" shall have the meaning given to that term in
Subsection 2.6(b).
"Consolidated Subsidiary" shall mean, as to any Person, any Subsidiary
of such Person which under the rules of GAAP consistently applied should have
its financial results consolidated with those of such Person for purposes of
financial accounting statements.
"Contributed Companies" shall mean NSMG, Seagate Software Limited, a
corporation formed under the laws of the United Kingdom, Seagate Software GmbH,
a corporation formed under the laws of Germany, Seagate Software International
Holdings Ltd., a limited liability company organized under the laws of the
Cayman Islands and Seagate Software Storage Management Group, Inc., a Delaware
corporation.
"Controlled Group" shall mean all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with any Credit Party, are treated as a single
employer under Section 414 of the Code.
"Credit Documents" shall mean and include this Agreement, the Notes and
the Administrative Agent's Fee Letter; all other documents, instruments and
agreements delivered to Administrative Agent or any Lender pursuant to Section
3.1; and all other documents, instruments and agreements pursuant to the terms
of this Agreement required to be delivered by Borrower or any of its
Subsidiaries to Administrative Agent or any Lender in connection with this
Agreement on or after the date of this Agreement.
"Credit Event" shall mean the making of any Loan (other than the making
of a Base Rate Loan solely to repay an existing Loan); the conversion of any
Portion into a LIBOR Portion; or the selection of a new Interest Period for any
LIBOR Loan or LIBOR Portion.
"Credit Parties" shall mean the Borrower and each Guarantor.
"Default" shall mean an Event of Default or any event, act or condition
which, with the lapse of time or the giving of notice, or both, would constitute
an Event of Default.
"Defaulting Lender" shall mean a Lender which has failed to fund its
portion of any Borrowing which it is required to fund under this Agreement.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America and, in relation to any payment under this Agreement, same day
or immediately available funds.
"Domestic Lending Office" shall mean, with respect to any Lender, (a)
initially, its office designated as such in Schedule I (or, in the case of any
Lender which becomes a Lender by an assignment pursuant to Subsection 8.5(c),
its office designated as such in the applicable Assignment Agreement) and (b)
subsequently, such other office or offices as such Lender may designate to
Administrative Agent as the office at which such Lender's Base Rate Loans and
Base Rate Portions will thereafter be maintained and for the account of which
all payments of principal of, and interest on, such Lender's Base Rate Loans and
Base Rate Portions will thereafter be made.
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"Domestic Subsidiary" shall mean, with respect to any Person, any
Subsidiary of such Person which is incorporated or organized under the laws of
any State of the United States or the District of Columbia.
"EBITDA" shall mean, for any period, with respect to the Credit Parties
and their Consolidated Subsidiaries on a consolidated basis, without
duplication, the sum of (a) Net Income for such period plus (b) an amount which,
in the determination of Net Income for such period has been deducted for (i)
Interest Expense for such period, (ii) total Federal, state, foreign or other
income taxes for such period, as determined in accordance with GAAP, (iii) all
depreciation and amortization for such period, as determined in accordance with
GAAP, and (iv) during any period within four years of the closing of any
Permitted Acquisition or the Reorganization, all non-cash restructuring charges
for such period taken in connection with such Permitted Acquisition or the
Reorganization (excluding any non-cash charges that require an accrual or
reserve for cash charges for any future period) minus (c) an amount equal to any
software development expenses occurring during such period which have been
classified as a capital expenditure.
"Effective Date" means September 27, 2001.
"Eligible Assignee" shall mean (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Administrative Agent and,
unless an Event of Default has occurred and is continuing at the time any
assignment is effected, the Borrower, such approval not to be unreasonably
withheld or delayed and such approval to be deemed given if no objection is
received by the assigning Lender and the Administrative Agent from the Borrower
within two Business Days after notice of such proposed assignment has been
provided by the assigning Lender to the Borrower; provided, however, that
neither the Borrower nor an Affiliate of the Borrower shall qualify as an
Eligible Assignee.
"Employee Benefit Plan" shall mean a Plan or any "plan" as defined in
Section 4975(e)(1) of the Code and as interpreted by the Internal Revenue
Service and the Department of Labor in rules, regulations, releases or bulletins
in effect from time to time.
"Environmental Claims" shall mean any investigation, notice, violation,
demand, allegation, action, suit, injunction, judgment, order, consent decree,
penalty, fine, lien, proceeding, or claim (whether administrative, judicial, or
private in nature) arising (a) pursuant to, or in connection with, an actual or
alleged violation of, any Environmental Law, (b) in connection with any
Hazardous Substance, (c) from any abatement, removal, remedial, corrective, or
other response action in connection with a Hazardous Substance, Environmental
Law, or other order of a Tribunal or (d) from any actual or alleged damage,
injury, threat, or harm to health, safety, natural resources, or the
environment.
"Environmental Laws" shall mean any current or future legal requirement
of any Governmental Authority pertaining to (a) the protection of health,
safety, and the indoor or outdoor environment, (b) the conservation, management,
or use of natural resources and wildlife, (c) the protection or use of surface
water and groundwater or (d) the management, manufacture, possession, presence,
use, generation, transportation, treatment, storage, disposal, release,
threatened release, abatement, removal, remediation or handling of, or exposure
to, any
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hazardous or toxic substance or material or (e) pollution (including any release
to land surface water and groundwater) and includes, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 USC
9601 et seq., Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42
USC 6901 et seq., Federal Water Pollution Control Act, as amended by the Clean
Water Act of 1977, 33 USC 1251 et seq., Clean Air Act of 1966, as amended, 42
USC 7401 et seq., Toxic Substances Control Act of 1976, 15 USC 2601 et seq.,
Hazardous Materials Transportation Act, 49 USC App. 1801 et seq., Occupational
Safety and Health Act of 1970, as amended, 29 USC 651 et seq., Oil Pollution Act
of 1990, 33 USC 2701 et seq., Emergency Planning and Community Right-to-Know Act
of 1986, 42 USC 11001 et seq., National Environmental Policy Act of 1969, 42 USC
4321 et seq., Safe Drinking Water Act of 1974, as amended, 42 USC 300(f) et
seq., any analogous implementing or successor law, and any amendment, rule,
regulation, order, or directive issued thereunder.
"Environmental Violation" shall mean any activity, occurrence or
condition that violates or threatens (if the threat requires remediation under
any Environmental Law and is not remediated during any grace period allowed
under such Environmental Law) to violate or results in or threatens (if the
threat requires remediation under any Environmental Law and is not remediated
during any grace period allowed under such Environmental Law) to result in
noncompliance with any Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" shall mean an entity, whether or not incorporated,
which is under common control with any Credit Party or any of its Consolidated
Subsidiaries within the meaning of Section 4001(a)(14) of ERISA, or is a member
of a group which includes any Credit Party or any of its Consolidated
Subsidiaries and which is treated as a single employer under Sections 414(b),
(c), (m), or (o) of the Code.
"Eurocurrency Reserve Requirement" shall mean for any day as applied to
a LIBOR Loan or a LIBOR Portion, the aggregate (without duplication) of the
maximum rates (expressed as a decimal) of reserve requirements in effect on such
day (including without limitation basic, supplemental, marginal and emergency
reserves under any regulations of the Board or other Governmental Authority
having jurisdiction with respect thereto) dealing with reserve requirements
prescribed on eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D) maintained by a member bank of the Federal Reserve
System.
"Euro-Dollar Lending Office" shall mean, with respect to any Lender, (a)
initially, its office designated as such in Schedule I (or, in the case of any
Lender which becomes a Lender by an assignment pursuant to Subsection 8.5(c),
its office designated as such in the applicable Assignment Agreement) and (b)
subsequently, such other office or offices as such Lender may designate to
Administrative Agent as the office at which such Lender's LIBOR Loans and
8
LIBOR Portions will thereafter be maintained and for the account of which all
payments of principal of, and interest on, such Lender's LIBOR Loans and LIBOR
Portions will thereafter be made.
"Event of Default" shall have the meaning given to that term in Section
6.1.
"Facility" shall mean the credit facility provided to Borrower pursuant
to Section 2.1.
"Federal Funds Rate" shall mean, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members or the Federal
Reserve System arranged by Federal funds brokers, as published for the
immediately preceding day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three (3) Federal funds brokers of recognized standing selected by
it.
"Funded Indebtedness" shall mean, with respect to the Borrower and its
Consolidated Subsidiaries determined in accordance with GAAP on a consolidated
basis, without duplication, (a) all obligations for borrowed money of the
Borrower or any of its Consolidated Subsidiaries, (b) all obligations of the
Borrower or any of its Consolidated Subsidiaries evidenced by bonds, debentures,
notes or similar instruments, or upon which interest payments are customarily
made, (c) all purchase money Indebtedness of the Borrower or any of its
Consolidated Subsidiaries, including without limitation the principal portion of
all obligations under Capitalized Leases, (d) the maximum amount of all standby
letters of credit issued or bankers' acceptance facilities created for the
account of the Borrower or any of its Consolidated Subsidiaries and, without
duplication, all drafts drawn thereunder (to the extent unreimbursed), (e) the
principal balance outstanding under any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product to
which the Borrower or any of its Consolidated Subsidiaries is a party, where
such transaction is considered borrowed money indebtedness for tax purposes but
is classified as an operating lease in accordance with GAAP, (f) all
Indebtedness of another Person of the type referred to in clauses (a) - (e)
above secured by (or for which the holder of such indebtedness has an existing
right, contingent or otherwise, to be secured by) any lien on, or payable out of
the proceeds of production from, property owned or acquired by the Borrower or
any of its Consolidated Subsidiaries, whether or not the obligations secured
thereby have been assumed, (g) all Guaranty Obligations of the Borrower or any
of its Consolidated Subsidiaries with respect to Indebtedness of the type
referred to in clauses (a) - (e) above of another Person and (h) Indebtedness of
the type referred to in clauses (a) - (e) above of any partnership or
incorporated joint venture in which the Borrower or any of its Consolidated
Subsidiaries is legally obligated or has a reasonable expectation of being
liable with respect thereto.
"GAAP" shall mean generally accepted accounting principles set forth in
the opinions and pronouncements of the accounting principles board of the
American Institute of Certified Public Accountants, and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant
9
segment of the accounting profession, that are applicable to the circumstances
as of the date of determination.
"Governmental Action" shall mean all permits, authorizations,
registrations, consents, approvals, waivers, exceptions, variances, orders,
judgments, written interpretations, decrees, licenses, exemptions, publications,
filings, notices to and declarations of or with, or required by, any
Governmental Authority, or required by any Legal Requirement, and shall include,
without limitation, all environmental and operating permits and licenses that
are required for the full use, occupancy, zoning and operating of the Property
or any portion thereof.
"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof or any other entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government including, without limitation, the Federal Deposit Insurance
Corporation, the Board, the Comptroller of the Currency, any central bank or any
comparable authority.
"Governmental Rule" shall mean any law, rule, regulation, ordinance,
order, code interpretation, judgment, decree, directive, guidelines, policy or
similar form of decision of any Governmental Authority which is made publicly
available.
"Granting Lender" shall have the meaning given to that term in
Subsection 8.5(d).
"Guarantors" shall mean the various parties to this Agreement from time
to time, as guarantors of the Borrower with respect to the Credit Documents.
"Guaranty Obligations" shall mean, with respect to any Person, without
duplication, any obligations (other than endorsements in the ordinary course of
business of negotiable instruments for deposit or collection) guaranteeing any
Indebtedness of any other Person in any manner, whether direct or indirect, and
including without limitation any obligation, whether or not contingent, (a) to
purchase any such Indebtedness or other obligation or any property constituting
security therefor, (b) to advance or provide funds or other support for the
payment or purchase of such Indebtedness or obligation or to maintain working
capital, solvency or other balance sheet condition of such other Person
(including, without limitation, maintenance agreements, comfort letters, take or
pay arrangements, put agreements or similar agreements or arrangements) for the
benefit of the holder of Indebtedness of such other Person, (c) to lease or
purchase property, securities or services primarily for the purpose of assuring
the owner of such Indebtedness or (d) to otherwise assure or hold harmless the
owner of such Indebtedness or obligation against loss in respect thereof. The
amount of any Guaranty Obligation hereunder shall (subject to any limitations
set forth therein) be deemed to be an amount equal to the outstanding principal
amount (or maximum principal amount, if larger) of the Indebtedness in respect
of which such Guaranty Obligation is made.
"Hazardous Materials" shall mean any substance, material or waste
defined in or as regulated under any Environmental Law.
"Hazardous Substance" shall mean any of the following: (a) any petroleum
or petroleum product, explosives, radioactive materials, asbestos, formaldehyde,
polychlorinated biphenyls,
10
lead and radon gas; (b) any substance, material, product, derivative, compound
or mixture, mineral, chemical, waste, gas, medical waste, or pollutant, in each
case whether naturally occurring, man-made or the by-product of any process,
that is toxic, harmful or hazardous to the environment or human health or safety
as determined in accordance with any Environmental Law; or (c) any substance,
material, product, derivative, compound or mixture, mineral, chemical, waste,
gas, medical waste or pollutant that would support the assertion of any claim
under any Environmental Law, whether or not defined as hazardous as such under
any Environmental Law.
"Indebtedness" of a Person shall mean, without duplication, such
Person's:
(a) obligations for borrowed money;
(b) obligations representing the deferred purchase price of
property (whether real, personal, tangible, intangible or mixed) or
services (other than accounts payable arising in the ordinary course of
such Person's business payable on terms customary in the trade);
(c) obligations, whether or not assumed, secured by liens or
payable out of the proceeds or production from property now or hereafter
owned or acquired by such Person;
(d) obligations which are evidenced by notes, acceptances or
other instruments;
(e) Capitalized Lease obligations;
(f) net liabilities under interest rate swap, exchange or cap
agreements;
(g) contingent obligations;
(h) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, or upon which interest
payments are customarily made;
(i) all Guaranty Obligations of such Person with respect to
Indebtedness of another Person (obligations of a Person under an
Operating Lease shall not be considered Indebtedness);
(j) the maximum amount of all standby letters of credit issued
or bankers' acceptances facilities created for account of such Person
and, without duplication, all drafts drawn thereunder (to the extent
unreimbursed);
(k) all preferred Capital Stock issued by such Person and which
by the terms thereof could be (at the request of the holders thereof or
otherwise) subject to mandatory sinking fund payments, redemption or
other acceleration; and
11
(l) the principal portion of all obligations of such Person
under any synthetic, tax retention operating lease, off-balance sheet
loan or similar off-balance sheet financing product of such Person where
such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease in accordance with
GAAP.
"Interest Expenses" shall mean for any period, with respect to the
Credit Parties and their Consolidated Subsidiaries, on a consolidated basis, all
interest expense, including the interest component under Capitalized Leases, as
determined in accordance with GAAP.
"Interest Period" shall mean, with respect to any LIBOR Loan or LIBOR
Portion, the time period selected by Borrower pursuant to Subsection 2.2(a),
Subsection 2.2(b) or Subsection 2.3(c) which commences on the first day of such
Loan or Portion or the effective date of any conversion and ends on the last day
of such time period, and thereafter, each subsequent time period selected by
Borrower pursuant to Subsection 2.3(b) which commences on the last day of the
immediately preceding time period and ends on the last day of that time period.
"Investment" means (a) the acquisition (whether for cash, property,
services, assumption of Indebtedness, securities or otherwise) of assets,
Capital Stock, bonds, notes, debentures, partnership, joint ventures or other
ownership interests or other securities of any Person or (b) any deposit with,
or advance, loan or other extension of credit to, any Person (other than
deposits made in connection with the purchase of equipment or other assets in
the ordinary course of business) or (c) any other capital contribution to or
investment in any Person, including, without limitation, any Guaranty
Obligations (including any support for a letter of credit issued on behalf of
such Person) incurred for the benefit of such Person.
"Investment Company Act" shall mean the Investment Company Act of 1940,
as amended, together with the rules and regulations promulgated thereunder.
"Joinder Agreement" shall mean a joinder agreement, in the form of
Exhibit A executed from time to time between a Material Domestic Subsidiary of
any Credit Party and the Administrative Agent.
"Law" shall mean any statute, law, ordinance, regulation, rule,
directive, order, writ, injunction or decree of any Tribunal.
"Lease" shall mean the Master Lease Agreement, dated on or about the
Closing Date, between First Security Bank, National Association, not
individually but solely as the Owner Trustee under VS Trust 2000-2, as lessor,
and the Borrower, as lessee, as the same may be amended, restated, modified or
otherwise supplemented from time to time.
"Legal Requirements" shall mean all foreign, federal, state, county,
municipal and other governmental statutes, laws, rules, orders, regulations,
ordinances, judgments, decrees and injunctions affecting the Borrower or any of
its Subsidiaries, the Administrative Agent or any Lender and any that may relate
to environmental requirements (including without limitation all Environmental
Laws), and all permits, certificates of occupancy, licenses, authorizations and
regulations relating thereto.
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"Lenders" shall have the meaning given to that term in clause (2) of the
introductory paragraph hereof.
"Leverage Ratio" shall mean, as of the end of each fiscal quarter of the
Borrower, 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.
"LIBOR Loan" shall mean, at any time, a Revolving Loan, the rate of
interest applicable to which is based upon the LIBOR Rate..
"LIBOR Portion" shall mean, at any time, a Portion of the Term Loan, the
rate of interest applicable to which is based upon the LIBOR Rate.
"LIBOR Rate" shall mean, with respect to any Interest Period for the
LIBOR Loans in any Revolving Loan Borrowing consisting of LIBOR Loans or any
LIBOR Portion of the Term Loan Borrowing, a rate per annum equal to the quotient
(rounded upward if necessary to the nearest 1/100 of one percent) of:
(a) As elected by Borrower, either:
(i) The arithmetic mean (rounded upward if necessary to
the nearest 1/16 of one percent) of the rates per annum
appearing on Telerate Page 3750 (or any successor publication)
on the second Business Day prior to the first day of such
Interest Period at or about 11:00 A.M. (London time) (for
delivery on the first day of such Interest Period) for a term
comparable to such Interest Period (the "Telerate Page Rate");
or
(ii) The arithmetic mean (rounded upward if necessary to
the nearest 1/16 of one percent) of the rates per annum at which
Dollar deposits are offered to each of the Reference Banks in
the London interbank market on the second Business Day prior to
the first day of such Interest Period at or about 11:00 A.M.
(London time) (for delivery on the first day of such Interest
Period) in an amount substantially equal to such Reference
Bank's LIBOR Loan or LIBOR Portion in such Borrowing and for a
term comparable to such Interest Period (the "Reference Bank
Rate");
divided by
(b) One minus the Eurocurrency Reserve Requirement for such
Loans or Portion in effect from time to time.
If, for any reason, any Reference Banks do not provide Administrative Agent with
rates pursuant to clause (a)(ii) after Borrower elects the Reference Bank Rate
to determine the LIBOR Rate for any Interest Period, Administrative Agent shall
calculate the Reference Bank Rate for such Interest Period based upon the rate
or rates provided by the other Reference Banks or Reference Bank; provided,
however, that, if no Reference Bank provides Administrative Agent with such a
13
rate, Administrative Agent shall determine the LIBOR Rate for such Interest
Period based upon the Telerate Page Rate. If, for any reason, the Telerate Page
Rate is not available after Borrower elects the Telerate Page Rate to determine
the LIBOR Rate for any Interest Period, Administrative Agent shall determine the
LIBOR Rate for such Interest Period based upon the Reference Bank Rate. The
LIBOR Rate shall be adjusted automatically as to all LIBOR Loans and LIBOR
Portions then outstanding as of the effective date of any change in the
Eurocurrency Reserve Requirement.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind, including, without
limitation, any agreement to give any of the foregoing, any conditional sale or
other title retention agreement, and any lease in the nature thereof.
"Loan" shall mean a Revolving Loan or Term Loan.
"Loan Account" shall have the meaning given to that term in Subsection
2.9(a).
"Majority Lenders" shall mean at any time, Lenders whose Proportionate
Shares then exceed fifty percent (50%), except at any time any Lender is a
Defaulting Lender. (For the purposes of determining "Majority Lenders" at any
time any Lender is a Defaulting Lender, the "Proportionate Shares" of
non-defaulting Lenders shall be determined excluding from the Total Commitment
and the aggregate principal amount of all Term Loans, the aggregate amounts of
the Defaulting Lenders' Commitments and Term Loans; and "Majority Lenders" shall
mean non-defaulting Lenders whose Proportionate Shares as so determined then
exceed fifty percent (50%).)
"Margin Stock" shall have the meaning given to that term in Regulation U
issued by the Board.
"Material Adverse Effect" shall mean any event, circumstance,
occurrence, fact, condition or change materially adversely affecting (a) the
ability of the Credit Parties to pay or perform the Obligations in accordance
with terms of this Agreement and the other Credit Documents, (b) the business,
assets, properties, financial condition, operations, prospects or rights or
interests of the Credit Parties, on a consolidated basis, which individually or
in the aggregate has caused directly or indirectly Net Income for any fiscal
quarter (plus, within four years of the closing of the Reorganization, to the
extent deducted in the determination of Net Income for such fiscal quarter (x)
non-cash charges taken in such fiscal quarter in connection with the
Reorganization and (y) the write-down of goodwill taken in such fiscal quarter
in connection with the Reorganization) to be less than zero, (c) the validity or
enforceability of any Credit Documents or the rights and remedies of the
Administrative Agent or the Lenders or (d) the validity, priority or
enforceability of any Lien on the assets or any portion thereof of any Credit
Party created by any of the Credit Documents.
"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 assets (as determined
in accordance with GAAP) at any time of all Domestic Subsidiaries of the
14
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.
"Maturity" shall mean, with respect to any Loan, interest, fee or other
amount payable by Borrower under this Agreement or the other Credit Documents,
the date such Loan, interest, fee or other amount becomes due, whether upon the
stated maturity or due date, upon acceleration or otherwise.
"Maturity Date" shall mean (a) with respect to the Revolving Loans, the
Revolving Loan Maturity Date and (b) with respect to the Term Loans, the Term
Loan Maturity Date.
"Merger Sub" shall mean the newly formed, Wholly Owned Subsidiary of the
Parent formed in connection with the Reorganization.
"Milpitas Lease Financing" shall mean the transactions contemplated by
the Milpitas Participation Agreement and the other Operative Agreements, as such
term is defined in the Milpitas Participation Agreement.
"Milpitas Participation Agreement" shall mean that certain Participation
Agreement dated as of July 28, 2000, among the Borrower, the Guarantors, First
Security Bank, N.A., as Owner Trustee under VS Trust 2000-2, 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 VS Trust 2000-2, the
Documentation Agent, the Syndication Agent and ABN AMRO, as Agent.
"Minnesota Lease Financing" shall mean the transactions contemplated by
the Minnesota Participation Agreement and the other Operative Agreements, as
such term is defined in the Minnesota Participation Agreement.
"Minnesota Participation Agreement" shall mean that certain
Participation Agreement dated as of March 9, 2000 (as amended, restated,
supplemented or otherwise modified from time to time) 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.
"Mountain View Lease Financing" shall mean the transactions contemplated
by the Mountain View Participation Agreement and the other Operative Agreements,
as such term is defined in the Mountain View Participation Agreement.
"Mountain View Participation Agreement" shall mean that certain
Participation Agreement dated as of April 23, 1999 (as amended, restated,
supplemented or otherwise modified from time to time) among VSC, the various
parties thereto from time to time, as
15
guarantors, First Security Bank, National Association, as Owner Trustee under
the VS Trust 1999-1, 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 1999-1, and Bank of America, N.A., as agent.
"Multiemployer Plan" shall mean a Plan covered by Title IV of ERISA
which is a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of
ERISA.
"Multiple Employer Plan" shall mean a Plan covered by Title IV of ERISA,
other than a Multiemployer Plan, which any Credit Party or any of its
Subsidiaries or any ERISA Affiliate and at least one employer other than a
Credit Party or any of its Subsidiaries or any ERISA Affiliate are contributing
sponsors.
"Net Income" shall mean for any period, the net income after taxes for
such period of the Credit Parties and their Consolidated Subsidiaries on a
consolidated basis, as determined in accordance with GAAP.
"Note" shall mean a Revolving Loan Note or a Term Loan Note.
"Notice of Borrowing" shall mean a Notice of Revolving Loan Borrowing or
the Notice of Term Loan Borrowing.
"Notice of Interest Period Selection" shall have the meaning given to
that term in Subsection 2.3(b).
"Notice of Revolving Loan Borrowing" shall have the meaning given to
that term in Subsection 2.2(a).
"Notice of Term Loan Borrowing" shall have the meaning given to that
term in Subsection 2.2(b).
"Notice of Term Loan Conversion" shall have the meaning given to that
term in Subsection 2.3(c).
"NSMG" shall mean Seagate Software Network & Storage Management Group,
Inc., a Delaware corporation.
"NSMG Business" shall mean the business of the network software
management group of SSI as set forth in the Reorganization Agreement.
"Obligations" shall mean and include, with respect to Borrower, all
loans, advances, debts, liabilities, and obligations, howsoever arising, owed by
Borrower to Administrative Agent or any Lender of every kind and description
(whether or not evidenced by any note or instrument and whether or not for the
payment of money), direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising pursuant to the terms of this Agreement
or any of the other Credit Documents, including without limitation all interest,
fees, charges, expenses,
16
attorneys' fees and accountants' fees chargeable to Borrower or payable by
Borrower hereunder or thereunder.
"Officer's Certificate" with respect to any person shall mean a
certificate executed on behalf of such person by a Responsible Officer who has
made or caused to be made such examination or investigation as is necessary to
enable such Responsible Officer to express an informed opinion with respect to
the subject matter of such Officer's Certificate.
"Operating Lease" shall mean, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the lessee at
any time) of any property (whether real, personal or mixed) which is not a
Capitalized Lease other than any such lease in which that Person is the lessor.
"Parent" shall mean VERITAS Operating Corporation (formerly known as
VERITAS Software Corporation), a Delaware corporation.
"Participant" shall have the meaning given to that term in Subsection
8.5(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereto.
"Pension Plan" shall mean a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to title IV of ERISA (other than a
Multiemployer Plan), and to which any Credit Party or any ERISA Affiliate may
have any liability, including without limitation any liability by reason of
having been a substantial employer within the meaning of section 4063 of ERISA
at any time during the preceding five (5) years, or by reason of being deemed to
be a contributing sponsor under section 4069 of ERISA.
"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 Borrower shall deliver to the
Administrative Agent 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 Borrower's most recently completed fiscal year, the Credit Parties would
have been in compliance with all the financial covenants set forth in Section
5.1, (b) the acquisition is consummated pursuant to a negotiated acquisition
agreement and involves the purchase of a business similar to the business of the
Credit Parties as of the Closing Date, (c) after giving effect to the
acquisition, the representations and warranties set forth in Section 4.1 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 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
Parent 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,
17
obligations, securities or other property received by the Parent 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 5.2(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 Parent
and its Consolidated Subsidiaries; (vi) Permitted Acquisitions; (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 (10.0%) of Tangible Net Worth as of the last day
of the immediately preceding fiscal quarter; and (viii) such other Investments
as are reasonably acceptable to the Administrative Agent.
"Permitted Liens" shall mean:
(a) the respective rights and interests of the parties to the
Credit Documents as provided in the Credit Documents;
(b) the rights and interests of the parties to the Mountain View
Lease Financing, as provided in the "Operative Agreements" set forth in
the Mountain View Participation Agreement, provided that any such Lien
attaches only to the property financed or leased and such Lien attaches
concurrently or within ninety (90) days after the acquisition thereof;
(c) the rights and interests of the parties to the Minnesota
Lease Financing, as provided in the "Operative Agreements" set forth in
the Minnesota Participation Agreement, provided that any such Lien
attaches only to the property financed or leased and such Lien attaches
concurrently or within ninety (90) days after the acquisition thereof;
(d) the rights and interests of the parties to the Milpitas
Lease Financing, as provided in the "Operative Agreements" set forth in
the Milpitas Participation Agreement, provided that such Lien attaches
only to the property financed or leased and any such Lien attaches
concurrently or within ninety (90) days after the acquisition thereof;
(e) the rights of any sublessee or assignee under a sublease or
an assignment expressly permitted by the terms of the Lease for no
longer than the duration of the Lease;
(f) Liens for Taxes that either are not yet due or are being
contested in accordance with the provisions of Section 5.1(e) and as
permitted under the Mountain View Lease Financing, the Minnesota Lease
Financing and the Milpitas Lease Financing;
(g) Liens arising by operation of law, materialmen's,
mechanics', workmen's, repairmen's, employees', carriers',
warehousemen's and other like Liens arising in the ordinary course of
business for amounts that either are not more than thirty (30) days past
due or are being diligently contested in good faith by appropriate
proceedings, so long as such proceedings satisfy the conditions for the
continuation of proceedings to contest
18
Taxes set forth in Section 5.1(e) and as permitted under the Mountain
View Lease Financing, the Minnesota Lease Financing and the Milpitas
Lease Financing;
(h) Liens of any of the types referred to in clause (g) above
that have been bonded for not less than the full amount in dispute (or
as to which other security arrangements satisfactory to the
Administrative Agent have been made), which bonding (or arrangements)
shall comply with applicable Legal Requirements, and shall have
effectively stayed any execution or enforcement of such Liens;
(i) Liens arising out of judgments or awards with respect to
which appeals or other proceedings for review are being prosecuted in
good faith and for the payment of which adequate reserves have been
provided as required by GAAP or other appropriate provisions have been
made, so long as such proceedings have the effect of staying the
execution of such judgments or awards and satisfy the conditions for the
continuation of proceedings to contest Taxes set forth in Section 5.1(e)
and as permitted under the Milpitas Lease Financing, the Mountain View
Lease Financing and the Minnesota Lease Financing;
(j) Liens in favor of municipalities to the extent permitted
under the Milpitas Lease Financing, the Mountain View Lease Financing or
the Minnesota Lease Financing;
(k) Liens permitted by the terms of the Milpitas Lease
Financing, the Mountain View Lease Financing and the Minnesota Lease
Financing, in each case as in effect on the Closing Date without giving
effect to any subsequent amendments or modifications thereto;
(l) additional Liens provided that the Indebtedness secured
thereby is permitted under Section 5.2(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 (10.0%) of Tangible
Net Worth as of the last day of the immediately preceding fiscal
quarter; and
(m) Such other additional matters as may be approved in writing
by the Administrative Agent.
"Person" shall mean any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization, governmental authority or any other entity.
"Plan" shall mean any employee benefit plan (as defined in Section 3(3)
of ERISA) which is covered by ERISA and with respect to which the Borrower or
any of its Consolidated Subsidiaries or any ERISA Affiliate is (or, if such plan
were terminated at such time, would under Section 4069 of ERISA be deemed to be)
an "employer" within the meaning of Section 3(5) of ERISA.
"Portion" shall mean a portion of the principal amount of the Term Loan
Borrowing or a Term Loan. The Term Loan Borrowing shall consist of one or more
Portions, and each Term
19
Loan comprising the Term Loan Borrowing shall consist of the same number of
Portions, with each such Term Loan Portion corresponding pro rata to a Term Loan
Borrowing Portion. Any reference to a Portion of the Term Loan Borrowing shall
include the corresponding Portion of each Term Loan comprising the Term Loan
Borrowing.
"Prime Rate" shall mean the rate which the Administrative Agent
announces from time to time as its prime lending rate as in effect from time to
time. The Prime Rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to any customer. Any Lender may make
commercial loans or other loans at rates of interest at, above or below the
Prime Rate. The Prime Rate shall change automatically and without notice from
time to time as and when the prime lending rate of the Administrative Agent
changes.
"Pro Forma Compliance Certificate" shall mean a certificate of the chief
financial officer of the Borrower delivered to the Administrative Agent in
connection with any Permitted Acquisition and containing reasonably detailed
calculations, upon giving effect to the applicable transaction on a pro forma
basis, of the financial covenants set forth in Section 5.1.
"Proportionate Share" shall mean:
(a) With respect to any Lender at any time prior to the
termination of the Commitments, the ratio (expressed as a percentage
rounded to the eighth digit to the right of the decimal point) of (i)
such Lender's Commitment at such time to (ii) the Total Commitment at
such time; and
(b) With respect to any Lender at any time after the termination
of the Commitments, the ratio (expressed as a percentage rounded to the
eighth digit to the right of the decimal point) of (i) the aggregate
principal amount of such Lender's Loans outstanding at such time to (ii)
the sum of the aggregate principal amount of all Loans outstanding at
such time.
"Quick Ratio" shall mean, with respect to the Credit Parties and their
Consolidated Subsidiaries on a consolidated basis as of the last day of any
fiscal quarter, the ratio of (a) the sum of (i) cash and Cash Equivalents on
such date plus (ii) the net book value of all accounts receivable on such date
to (b) the sum of (i) current liabilities on such date, as determined in
accordance with GAAP plus (ii) Operating Lease commitments on such date, as
determined in accordance with GAAP plus (iii) the principal balance outstanding
of the Indebtedness permitted under Section 5.2(a)(iv) on such date.
"Real Properties" shall mean the real properties that the Borrower or
any Consolidated Subsidiary may own or lease (as lessee or sublessee) from third
parties from time to time.
"Reference Bank Rate" shall have the meaning given to that term in
clause (a)(ii) of the definition of "LIBOR Rate" in Section 1.1.
"Reference Banks" shall mean ABN AMRO Bank, Fleet Boston and Credit
Lyonnais.
"Register" shall have the meaning given to that term in Subsection
8.5(d).
20
"Regulation D" shall mean Regulation D of the Board, as the same may be
modified and supplemented and in effect from time to time.
"Release" shall mean any release, pumping, pouring, emptying, injecting,
escaping, leaching, dumping, seepage, spill, leak, flow, discharge, disposal or
emission of a Hazardous Substance.
"Reorganization" shall mean that certain plan of reorganization
described in Section 1 of the Reorganization Agreement whereby (i) the Borrower
became a Wholly Owned Subsidiary of the Parent and each share of Capital Stock
of the Borrower was converted into one share of Capital Stock of the Parent and
(ii) each of the Contributed Companies became a Wholly-Owned Subsidiary of the
Parent.
"Reorganization Agreement" shall mean that certain Agreement and Plan of
Reorganization dated as of October 5, 1998 by and among VSC, the Parent, Seagate
Technology, Inc., SSI and Seagate Software Network & Storage Management Group,
Inc.
"Replacement Lender" shall have the meaning given to that term in
Section 2.15.
"Reportable Event" shall have the meaning specified in ERISA.
"Required Lenders" shall mean, at any time, Lenders whose Proportionate
Shares then equal or exceed sixty-six and two-thirds percent (66 2/3%), except
at any time any Lender is a Defaulting Lender. (For the purposes of determining
"Required Lenders" at any time any Lender is a Defaulting Lender, the
"Proportionate Shares" of non-defaulting Lenders shall be determined excluding
from the Total Commitment and the aggregate principal amount of all Term Loans
the aggregate amounts of the Defaulting Lenders' Commitments and Term Loans).
"Responsible Officer" shall mean the Chairman or Vice Chairman of the
Board of Directors, the Chairman or Vice Chairman of the Executive Committee of
the Board of Directors, the President, any Senior Vice President or Executive
Vice President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer, or any Assistant Treasurer.
"Restricted Payment" means (i) any dividend or other payment or
distribution, direct or indirect, on account of any shares of any class of
Capital Stock of the Borrower or any of its Consolidated Subsidiaries, now or
hereafter outstanding (including without limitation any payment in connection
with any dissolution, merger, consolidation or disposition involving the
Borrower or any of its Consolidated Subsidiaries), or to the holders, in their
capacity as such, of any shares of any class of Capital Stock of the Borrower or
any of its Consolidated Subsidiaries, now or hereafter outstanding, (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of Capital
Stock of the Borrower or any of its Consolidated Subsidiaries, now or hereafter
outstanding and (iii) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class
of Capital Stock of the Borrower or any of its Consolidated Subsidiaries, now or
hereafter outstanding.
"Revolving Loan" shall have the meaning given to that term in Subsection
2.1(a).
21
"Revolving Loan Borrowing" shall mean a borrowing by Borrower consisting
of the Revolving Loans made by each of the Lenders on the same date and of the
same Type pursuant to a single Notice of Revolving Loan Borrowing.
"Revolving Loan Maturity Date" shall mean, subject to the terms of
Subsection 2.1(a)(ii), the date 364 days after September 6, 2001.
"Revolving Loan Note" shall have the meaning given to that term in
Subsection 2.9(b).
"SSI" shall mean Seagate Software, Inc., a Delaware corporation.
"Subordinated Debt" shall mean (a) the $100,000,000 5 1/4% Convertible
Subordinated Notes due November 1, 2004 issued by the Borrower pursuant to that
certain Indenture dated on or about October 1, 1997 between the Borrower and
State Street Bank and Trust Company of California, N.A., as trustee, and (b) the
$456,000,000 1.856% Convertible Subordinated Notes due August 13, 2006 issued by
VERITAS Software Corporation and VERITAS Operating Corporation pursuant to that
certain Indenture dated on or about August 13, 1999 between VERITAS Software
Corporation, VERITAS Operating Corporation and State Street Bank and Trust
Company of California, N.A., as trustee.
"Subsidiary" shall mean, as to any Person, any corporation of which at
least a majority of the outstanding stock having by the terms thereof ordinary
voting power to elect a majority of the board of directors of such corporation
(irrespective of whether or not at the time stock of any other class or classes
of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person, or by one (1)
or more Subsidiaries, or by such Person and one (1) or more Subsidiaries.
"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 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.
"Taxes" shall have the meaning given to that term in Subsection 2.13(a).
"Telerate Page Rate" shall have the meaning given to that term in clause
(a)(i) of the definition of "LIBOR Rate" in Section 1.1.
"Term Loan" shall have the meaning given to that term in Subsection
2.1(b).
"Term Loan Borrowing" shall mean the borrowing by Borrower consisting of
the Term Loans made by each of the Lenders on the Revolving Loan Maturity Date
pursuant to the Notice of Term Loan Borrowing.
"Term Loan Maturity Date" shall mean the date one year after the
Revolving Loan Maturity Date.
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"Term Loan Note" shall have the meaning given to that term in Subsection
2.9(c).
"Termination Event" shall mean (a) with respect to any Pension Plan, the
occurrence of a Reportable Event or an event described in Section 4062(e) of
ERISA, (b) the withdrawal of any Credit Party or any ERISA Affiliate from a
Multiple Employer Plan during a plan year in which it was a substantial employer
(as such term is defined in Section 4001(a)(2) of ERISA), or the termination of
a Multiple Employer Plan, (c) the distribution of a notice of intent to
terminate a Plan or Multiemployer Plan pursuant to Section 4041(a)(2) or 4041A
of ERISA, (d) the institution of proceedings to terminate a Plan or
Multiemployer Plan by the PBGC under Section 4042 of ERISA, (e) any other event
or condition which might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan or
Multiemployer Plan, or (f) the complete or partial withdrawal of any Credit
Party or any ERISA Affiliate from a Multiemployer Plan.
"Total Commitment" shall mean, at any time, the sum at such time of the
Lenders' Commitments.
"Tribunal" shall mean any state, commonwealth, federal, foreign,
territorial, or other court or government body, subdivision, agency, department,
commission, board, bureau or instrumentality of a governmental body.
"Type" shall mean, as to any Loan, Borrowing or Portion at any time, the
classification of such Loan, Borrowing or Portion by the type of interest rate
it then bears, whether an interest rate based upon the Base Rate or the LIBOR
Rate.
"Unfunded Liability" shall mean, with respect to any Plan, at any time,
the amount (if any) by which (a) the present value of all benefits under such
Plan exceeds (b) the fair market value of all Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plan, but only to the extent that such excess represents a potential liability
of the Company or any member of the Controlled Group to the PBGC or such Plan
under Title IV of ERISA.
"United States Bankruptcy Code" shall mean Title 11 of the United States
Code.
"Unused" shall mean, with respect to the Commitment at any time, the
remainder of (i) the Total Commitment at such time minus (ii) the aggregate
principal amount of all Revolving Loans outstanding at such time.
"VSC" shall mean VERITAS Software Corporation (formerly known as VERITAS
Holding Corporation and including for all purposes VERITAS Surviving
Corporation), a Delaware corporation, and its successors and permitted assigns.
"Wholly Owned Subsidiary" of any Person shall mean any Subsidiary 100%
of whose voting stock or other equity interests is at the time owned by such
Person directly or indirectly through other Wholly Owned Subsidiaries.
23
SECTION 1.2 GAAP. Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered to
the Lenders hereunder shall be prepared, in accordance with GAAP applied on a
consistent basis. All calculations made for the purposes of determining
compliance with this Agreement and the other Credit Documents shall (except as
otherwise expressly provided herein or therein) be made by application of GAAP
applied on a basis consistent with the most recent annual or quarterly financial
statements delivered pursuant to Section 5.1(a) (or, prior to the delivery of
the first such financial statements, consistent with the financial statements as
at March 31, 2000); provided, however, if (a) the Credit Parties shall
reasonably object to determining such compliance on such basis at the time of
delivery of such financial statements due to any change in GAAP or the rules
promulgated with respect thereto or (b) the Administrative Agent or the Majority
Lenders shall so object in writing within 60 days after delivery of such
financial statements, then such calculations shall be made on a basis consistent
with the most recent financial statements delivered by the Credit Parties to the
Lenders as to which no such objection shall have been made.
Notwithstanding the above, the parties hereto acknowledge and agree
that, for purposes of all calculations made under the financial covenants set
forth in Section 5.1(o) so long as the Borrower shall have provided the
Administrative Agent with a Pro Forma Compliance Certificate with respect to any
Permitted Acquisition, income statement items (whether positive or negative)
attributable to the property acquired in such Permitted Acquisition and any
Indebtedness incurred by the applicable Credit Parties in order to consummate
such Permitted Acquisition shall be included to the extent relating to any
period applicable in such calculations occurring after the date of such
Permitted Acquisition (and, notwithstanding the foregoing, during the first four
fiscal quarters following the date of such Permitted Acquisition, such Permitted
Acquisition and any Indebtedness incurred by the applicable Credit Parties in
order to consummate such Permitted Acquisition (A) shall be deemed to have
occurred on the first day of the four fiscal quarter period immediately
preceding the date of such Permitted Acquisition and (B) if such Indebtedness
has a floating or formula rate, then the implied rate of interest for such
Indebtedness for the applicable period shall be determined by utilizing the rate
which is or would be in effect with respect to such Indebtedness as at the
relevant date of determination.
SECTION 1.3 TIME. All references in this Agreement and each of the other
Credit Documents to a time of day shall mean San Francisco, California time,
unless otherwise indicated.
SECTION 1.4 CONSTRUCTION. Each of the parties to the Credit Documents
and their counsel have reviewed and revised, or requested revisions to, the
Credit Documents, and the usual rule of construction that any ambiguities are to
be resolved against the drafting party shall be inapplicable in the construction
and interpretation of the Credit Documents and any amendments or exhibits
thereto.
SECTION 1.5 ENTIRE AGREEMENT. This Agreement and each of the other
Credit Documents, taken together, constitute and contain the entire agreement of
Borrower, Lenders and Administrative Agent and supersede any and all prior
agreements, negotiations, correspondence, understandings and communications
among the parties, whether written or oral,
24
respecting the subject matter hereof (including any commitment letters in
respect of the credit facilities provided herein between Borrower and ABN AMRO
but excluding the Administrative Agent's Fee Letter).
SECTION 1.6 CALCULATION OF INTEREST AND FEES. All calculations of
interest and fees under this Agreement and the other Credit Documents for any
period (a) shall include the first day of such period and exclude the last day
of such period and (b) shall be calculated on the basis of a year of 360 days
for actual days elapsed, except that during any period any Loan or Portion bears
interest based upon the Prime Rate, such interest shall be calculated on the
basis of a year of 365 or 366 days, as appropriate, for actual days elapsed.
SECTION 1.7 RULES OF USAGE. The following rules of usage shall apply to
this Agreement and the other Credit Documents (and each appendix, schedule,
exhibit and annex to the foregoing) unless otherwise required by the context or
unless otherwise defined therein:
(a) Except as otherwise expressly provided, any definitions set
forth herein or in any other document shall be equally applicable to the
singular and plural forms of the terms defined.
(b) Except as otherwise expressly provided, references in any
document to articles, sections, paragraphs, clauses, annexes, appendices,
schedules or exhibits are references to articles, sections, paragraphs, clauses,
annexes, appendices, schedules or exhibits in or to such document.
(c) The headings, subheadings and table of contents used in any
document are solely for convenience of reference and shall not constitute a part
of any such document nor shall they affect the meaning, construction or effect
of any provision thereof.
(d) References to any Person shall include such Person, its
successors, permitted assigns and permitted transferees.
(e) Except as otherwise expressly provided, references to any
law includes any amendment or modification to such law and any rules or
regulations issued thereunder or any law enacted in substitution or replacement
therefor.
(f) When used in any document, words such as "hereunder",
"hereto", "hereof" and "herein" and other words of like import shall, unless the
context clearly indicates to the contrary, refer to the whole of the applicable
document and not to any particular article, section, subsection, paragraph or
clause thereof.
(g) References to "including" means including without limiting
the generality of any description preceding such term and for purposes hereof
the rule of ejusdem generis shall not be applicable to limit a general
statement, followed by or referable to an enumeration of specific matters, to
matters similar to those specifically mentioned.
(h) References herein to "attorney's fees", "legal fees", "costs
of counsel" or other such references shall be deemed to include the allocated
cost of in-house counsel.
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(i) References in this Agreement or any other Credit Document to
any document, instrument or agreement (i) shall include all exhibits, schedules
and other attachments thereto, (ii) shall include all documents, instruments or
agreements issued or executed in replacement thereof if such replacement is
permitted hereby, and (iii) shall mean such document, instrument or agreement,
or replacement or predecessor thereto, as amended, modified and supplemented
from time to time and in effect at any given time if such amendment,
modification or supplement is permitted hereby.
(j) References in this Agreement or any other Credit Document to
any Governmental Rule (i) shall include any successor Governmental Rule, (ii)
shall include all rules and regulations promulgated under such Governmental Rule
(or any successor Governmental Rule), and (iii) shall mean such Governmental
Rule (or successor Governmental Rule) and such rules and regulations, as
amended, modified, codified or reenacted from time to time and in effect at any
given time.
SECTION 1.8 AMENDMENT AND RESTATEMENT. This Agreement amends, restates
and replaces the Original Credit Agreement, provided, however, that this
Agreement is not a novation or discharge of the obligations of Borrower or any
Guarantor under the Original Credit Agreement, all of which obligations are in
all respects continuing and outstanding. The parties hereto agree that, from and
after the date of this Agreement, each reference to the "Credit Agreement" in
the Credit Documents shall be deemed without further amendment to be a reference
to such agreement as amended and restated by this Agreement.
SECTION II
CREDIT FACILITIES
SECTION 2.1 FACILITY.
(a) Revolving Loans.
(i) Availability. Subject to the terms and conditions of
this Agreement, each Lender severally agrees to advance to
Borrower from time to time during the period beginning on the
Effective Date and ending on the Revolving Loan Maturity Date
such revolving loans as Borrower may request (individually, a
"Revolving Loan"); provided, however, that:
(A) The aggregate principal amount of all
Revolving Loans made by each Lender at any time
outstanding shall not exceed such Lender's Commitment at
such time; and
(B) The aggregate principal amount of all
Revolving Loans made by all Lenders at any time
outstanding shall not exceed the Total Commitment at
such time.
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All Revolving Loans shall be made on a pro rata basis by Lenders
in accordance with their respective Proportionate Shares, with
each Revolving Loan Borrowing to be comprised of a Revolving
Loan by each Lender equal to such Lender's Proportionate Share
of such Borrowing. Except as otherwise provided herein, Borrower
may borrow, repay (without premium or penalty) and reborrow
Revolving Loans until the Revolving Loan Maturity Date.
(ii) Renewal Term. The Borrower may give the
Administrative Agent written notice (a "Renewal Request") on or
before June 5, 2002 requesting that the Lenders renew their
Commitments for an additional 364-day period (the "Renewal
Term") commencing upon the first day after the Revolving Loan
Maturity Date in effect as of the Effective Date. Upon receipt
of the Renewal Request, the Administrative Agent shall promptly
deliver a copy thereof to each Lender. On or before June 20,
2002 (the "Renewal Reply Date"), each Lender shall notify the
Administrative Agent in writing whether it elects, in its sole
and absolute discretion, to renew its Commitment for such future
Renewal Term. If any Lender fails to make such an election
(which failure shall be deemed to have occurred upon failure of
such Lender to give such notice by the Renewal Reply Date), or
if any Lender notifies the Administrative Agent that it does not
elect to so renew and extend its Commitment, the Commitments,
subject to Subsection 2.1(b), shall terminate on the Revolving
Loan Maturity Date in effect as of the Effective Date. Within
fifteen (15) days after the Renewal Reply Date, the
Administrative Agent will notify the Borrower in writing if the
Lenders elect to accept the Renewal Request. Notwithstanding
anything contained in this Agreement to the contrary, there
shall only be one Renewal Term.
(iii) Repayment. Unless Borrower converts all Revolving
Loans outstanding on the Revolving Loan Maturity Date into term
loans pursuant to Subsection 2.1(b), Borrower shall repay the
outstanding principal amount of all Revolving Loans on such
date.
(b) Term Loans.
(i) Availability. Subject to the terms and conditions of
this Agreement, each Lender severally agrees, if so requested by
Borrower, to advance to Borrower on the Revolving Loan Maturity
Date a term loan under (individually, a "Term Loan") by
converting all Revolving Loans made by such Lender and
outstanding on such date into a term loan; provided, however,
that:
(A) The aggregate principal amount of the Term
Loan made by each Lender shall not exceed such Lender's
Commitment on the Revolving Loan Maturity Date; and
(B) The aggregate principal amount of all Term
Loans made by all Lenders shall not exceed the Total
Commitment on the Revolving Loan Maturity Date.
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The Term Loans shall be made on a pro rata basis by Lenders in
accordance with their respective Proportionate Shares, with the
Term Loan Borrowing to be comprised of a Term Loan by each
Lender equal to such Lender's Proportionate Share of such
Borrowing. Borrower may not reborrow the principal amount of a
Term Loan after any prepayment or repayment thereof.
(ii) Repayment. To the extent not fully repaid by
prepayment prior thereto, Borrower shall repay the principal
amount of the Term Loans in full in a single installment payable
on the Term Loan Maturity Date.
SECTION 2.2 NOTICE OF BORROWING.
(a) Notice of Revolving Loan Borrowing. Borrower shall request
each Revolving Loan Borrowing by delivering to Administrative Agent an
irrevocable written notice in the form of Exhibit B, appropriately completed (a
"Notice of Revolving Loan Borrowing"), which specifies, among other things:
(i) The date of the requested Revolving Loan Borrowing,
which shall be a Business Day;
(ii) The principal amount of the requested Revolving
Loan Borrowing, which shall be in the amount of (A) $1,000,000
or an integral multiple of $100,000 in excess thereof in the
case of a Borrowing consisting of Base Rate Loans; or (B)
$1,000,000 or an integral multiple of $500,000 in excess thereof
in the case of a Borrowing consisting of LIBOR Loans;
(iii) Whether the requested Revolving Loan Borrowing is
to consist of Base Rate Loans or LIBOR Loans;
(iv) If the requested Revolving Loan Borrowing is to
consist of LIBOR Loans, the initial Interest Period selected by
Borrower for such LIBOR Loans in accordance with Subsection
2.3(b); and
(v) If the requested Revolving Loan Borrowing is to
consist of LIBOR Loans, whether the initial LIBOR Rate is to be
based upon the Telerate Page Rate or the Reference Bank Rate;
provided, however, that all Revolving Loan Borrowings made during the period
commencing on the date of this Agreement and ending three (3) Business Days
thereafter shall consist solely of Base Rate Loans. Borrower shall give each
Notice of Revolving Loan Borrowing to Administrative Agent at least three (3)
Business Days before the date of the requested Revolving Loan Borrowing in the
case of a Revolving Loan Borrowing consisting of LIBOR Loans and at least one
(1) Business Day before the date of the requested Revolving Loan Borrowing in
the case of a Revolving Loan Borrowing consisting of Base Rate Loans. Each
Notice of Revolving Loan Borrowing shall be delivered by first-class mail or
facsimile to Administrative Agent at the office or facsimile number and during
the hours specified in Section 8.1; provided, however, that (A) Borrower shall
promptly deliver to Administrative Agent the original of any Notice of
28
Revolving Loan Borrowing initially delivered by facsimile and (B) in the case of
any outstanding Revolving Loan Borrowing which is being rolled over in the same
principal amount, Borrower may deliver such Notice of Revolving Loan Borrowing
electronically, with a digital signature, to the email address of Administrative
Agent. Administrative Agent shall promptly notify each Lender of the contents of
each Notice of Revolving Loan Borrowing.
(b) Notice of Term Loan Borrowing. Borrower shall request the
Term Loan Borrowing by delivering to Administrative Agent an irrevocable written
notice in the form of Exhibit C, appropriately completed (the "Notice of Term
Loan Borrowing"), which specifies, among other things:
(i) The principal amount of the Term Loan Borrowing;
(ii) (A) The principal portion of the Term Loan
Borrowing which is to be a Base Rate Portion and (B) the
principal portion(s) of the Term Loan Borrowing which is (are)
to be a LIBOR Portion(s);
(iii) If any portion of the Term Loan Borrowing is
initially to be a LIBOR Portion, the initial Interest Period
selected by Borrower for each such LIBOR Portion in accordance
with Subsection 2.3(b); and
(iv) If any portion of the Term Loan Borrowing is
initially to be a LIBOR Portion, whether the initial LIBOR Rate
for such Portion is to be based upon the Telerate Page Rate or
the Reference Bank Rate.
Borrower shall give the Notice of Term Loan Borrowing to Administrative
Agent at least five (5) Business Days before the Revolving Loan Maturity
Date. The Notice of Term Loan Borrowing shall be delivered by
first-class mail or facsimile to Administrative Agent at the office or
facsimile number and during the hours specified in Section 8.1;
provided, however, that Borrower shall promptly deliver to
Administrative Agent the original of the Notice of Term Loan Borrowing
if initially delivered by facsimile. Administrative Agent shall promptly
notify each Lender of the contents of the Notice of Term Loan Borrowing.
SECTION 2.3 INTEREST.
(a) Interest Rates. Borrower shall pay interest on the unpaid
principal amount of each Loan from the date of such Loan until the Maturity
thereof, at one of the following rates per annum:
(i) During such periods as any Revolving Loan is a Base
Rate Loan or any Portion of a Term Loan is a Base Rate Portion,
at a rate per annum on such Loan or Portion equal to the Base
Rate plus the Applicable Percentage therefor, such rate to
change from time to time as the Applicable Percentage or Base
Rate shall change; and
29
(ii) During such periods as any Revolving Loan is a
LIBOR Loan or any Portion of a Term Loan is a LIBOR Portion, at
a rate per annum on such Loan or Portion equal at all times
during each Interest Period for such Loan or Portion to the
LIBOR Rate for such Interest Period plus the Applicable
Percentage therefor, such rate to change from time to time
during such Interest Period as the Applicable Percentage shall
change.
All Revolving Loans in each Revolving Loan Borrowing shall, at any given time
prior to Maturity, bear interest at one, and only one, of the above rates. The
number of Revolving Loan Borrowings consisting of LIBOR Loans shall not exceed
five (5) at any time. Each Base Rate Portion of the Term Loan Borrowing shall be
in a minimum amount of $1,000,000 or an integral multiple of $100,000 in excess
thereof and each LIBOR Portion of the Term Loan Borrowing shall be in a minimum
amount of $1,000,000 or an integral multiple of $500,000 in excess thereof. The
number of LIBOR Portions of the Term Loan Borrowing shall not exceed five (5) at
any time.
(b) LIBOR Loan and LIBOR Portion Interest Periods.
(i) The initial and each subsequent Interest Period
selected by Borrower for a Revolving Loan Borrowing consisting
of LIBOR Loans or a LIBOR Portion of the Term Loan Borrowing
shall be one (1), two (2), three (3), six (6), nine (9) or
twelve (12) months; provided, however, that (A) any Interest
Period that would otherwise end on a day which is not a Business
Day shall be extended to the next succeeding Business Day unless
such next Business Day falls in another calendar month, in which
case such Interest Period shall end on the immediately preceding
Business Day; (B) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day
of a calendar month; and (C) no Interest Period shall end after
the applicable Maturity Date.
(ii) Borrower shall notify Administrative Agent by an
irrevocable written notice in the form of Exhibit D,
appropriately completed (a "Notice of Interest Period
Selection"), at least three (3) Business Days prior to the last
day of each Interest Period for a Revolving Loan Borrowing
consisting of LIBOR Loans or a LIBOR Portion of the Term Loan
Borrowing of the Interest Period selected by Borrower for the
next succeeding Interest Period for such LIBOR Loans or LIBOR
Portion and whether the LIBOR Rate for such Interest Period is
to be based upon the Telerate Page Rate or the Reference Bank
Rate. Each Notice of Interest Period Selection shall be given by
first-class mail or facsimile to the office or the facsimile
number and during the hours specified in Section 8.1; provided,
however, that (A) Borrower shall promptly deliver to
Administrative Agent the original of any Notice of Interest
Period Selection initially delivered by facsimile and (B) in the
case of any Notice of Interest Period Selection for any
outstanding Revolving Loan Borrowing consisting of LIBOR Loans
or any outstanding LIBOR Portion of the Term Loan Borrowing
which is
30
being rolled over in the same principal amount, Borrower may
deliver such Notice of Interest Period Selection electronically,
with a digital signature, to the email address of Administrative
Agent. If Borrower fails to notify Administrative Agent of the
next Interest Period for a Revolving Loan Borrowing consisting
of LIBOR Loans or a LIBOR Portion of the Term Loan Borrowing in
accordance with this Subsection 2.3(b), such LIBOR Loans or
LIBOR Portion shall automatically continue as LIBOR Loans or a
LIBOR Portion of the Term Loan Borrowing, as the case may be,
having an Interest Period of one (1) month on the last day of
the current Interest Period therefor. If Borrower fails to
notify Administrative Agent whether the LIBOR Rate for any
Interest Period is to be based upon the Telerate Page Rate or
the Reference Bank Rate, the LIBOR Rate for such Interest Period
shall automatically be based upon the Telerate Page Rate.
(c) Conversion of Term Loan Portions. Borrower may convert any
Portion of the Term Loan Borrowing from one Type of Portion into another Type;
provided, however, that Borrower shall be liable for any breakage costs arising
from any conversion of a LIBOR Portion into a Base Rate Portion prior to the
last day of an Interest Period for such LIBOR Portion. Borrower shall request
such a conversion by an irrevocable written notice to Administrative Agent in
the form of Exhibit E, appropriately completed (a "Notice of Term Loan
Conversion"), which specifies, among other things:
(i) The Portion of the Term Loan Borrowing which is to
be converted;
(ii) The amount and Type of each Portion of the Term
Loan Borrowing into which it is to be converted;
(iii) If any Portion of the Term Loan Borrowing is to be
converted into a LIBOR Portion, the initial Interest Period
selected by Borrower for such Portion in accordance with
Subsection 2.3(b);
(iv) If any Portion of the Term Loan Borrowing is to be
converted into a LIBOR Portion, whether the initial LIBOR Rate
for such Portion is to be based upon the Telerate Page Rate or
the Reference Bank Rate (provided that Borrower's failure to so
specify shall be deemed Borrower's selection of Telerate Page
Rate); and
(v) The date of the requested conversion, which shall be
a Business Day.
Borrower shall give each Notice of Term Loan Conversion to Administrative Agent
at least three (3) Business Days before the date of the requested conversion.
Each Notice of Term Loan Conversion shall be delivered by first-class mail or
facsimile to Administrative Agent at the office or to the facsimile number and
during the hours specified in Section 8.1; provided, however, that (A) Borrower
shall promptly deliver to Administrative Agent the original of any Notice of
Term Loan Conversion initially delivered by facsimile and (B) in the case of any
Notice of Term Loan Conversion for any outstanding Portion of the Term Loan
Borrowing
31
which is being rolled over into another Type of Portion in the same principal
amount, Borrower may deliver such Notice of Term Loan Conversion electronically,
with a digital signature, to the email address of Administrative Agent.
Administrative Agent shall promptly notify each Lender of the contents of each
Notice of Term Loan Conversion.
(d) Scheduled Interest Payments. Borrower shall pay accrued
interest on the unpaid principal amount of each Loan in arrears (i) in the case
of a Base Rate Loan or Base Rate Portion, on the first day in each January,
April, July and October (commencing October 1, 2001), (ii) in the case of a
LIBOR Loan or LIBOR Portion, on the last day of each Interest Period therefor
(and, if any such Interest Period is longer than three (3) months, every three
(3) months); and (iii) in the case of all Loans, upon prepayment (to the extent
thereof) and at Maturity.
SECTION 2.4 PURPOSE. Borrower shall use the proceeds of the Revolving
Loans for Borrower's working capital and other general corporate purposes
(including, without limitation, Permitted Acquisitions and to repurchase shares
of its common stock permitted hereby). Borrower shall use the proceeds of the
Term Loans solely to repay the Revolving Loans on the Revolving Loan Maturity
Date.
SECTION 2.5 COMMITMENT REDUCTIONS, ETC.
(a) Reduction or Termination of Commitments. Borrower may, upon
five (5) Business Days written notice to Administrative Agent, permanently
reduce the Total Commitment by the amount of Five Million Dollars ($5,000,000)
or an integral multiple thereof or terminate the Total Commitment in its
entirety; provided, however, that:
(i) Borrower may not reduce the Total Commitment prior
to the Revolving Loan Maturity Date, if, after giving effect to
such reduction, the aggregate principal amount of all Revolving
Loans then outstanding would exceed the Total Commitment; and
(ii) Borrower may not terminate the Total Commitment
prior to the Revolving Loan Maturity Date, if, after giving
effect to such termination, any Revolving Loan would then remain
outstanding.
Unless sooner terminated pursuant to this Agreement, the Commitments shall
terminate on the Revolving Loan Maturity Date.
(b) Effect of Commitment Reductions. From the effective date of
any reduction of the Total Commitment, the Commitment Fees payable pursuant to
Subsection 2.6(b) shall be computed on the basis of the Total Commitment as so
reduced. Once reduced or cancelled, the Total Commitment may not be increased or
reinstated without the prior written consent of all applicable Lenders. Any
reduction of the Total Commitment pursuant to Subsection 2.5(a) shall be applied
ratably to reduce each Lender's Commitment in accordance with clause (ii) of
Subsection 2.11(a).
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SECTION 2.6 FEES.
(a) Administrative Agent's Fee. Borrower shall pay to
Administrative Agent, for its own account, agent's fees and other compensation
in the amounts and at the times set forth in the Administrative Agent's Fee
Letter.
(b) Commitment Fees. Borrower shall pay to Administrative Agent
for the ratable benefit of the Lenders as provided in clause (vi) of Subsection
2.11(a), commitment fees (the "Commitment Fees") equal to the Applicable
Percentage of the daily average Unused amount of the Total Commitment for the
period beginning on the date of this Agreement and ending on the Revolving Loan
Maturity Date.
Borrower shall pay the Commitment Fees in arrears on the first day in each
January, April, July and October (commencing October 1, 2001) and on the
Revolving Loan Maturity Date (or if the Total Commitment is cancelled on a date
prior to the Revolving Loan Maturity on such prior date).
SECTION 2.7 PREPAYMENTS.
(a) Terms of all Prepayments. Upon the prepayment of any Loan
(whether such prepayment is an optional prepayment under Subsection 2.7(b), a
mandatory prepayment required by Subsection 2.7(c) or a mandatory prepayment
required by any other provision of this Agreement or the other Credit Documents,
including a prepayment upon acceleration), Borrower shall pay to the Lender that
made such Loan (i) all accrued interest to the date of such prepayment on the
amount prepaid and (ii) if such prepayment is the prepayment of a LIBOR Loan or
of a LIBOR Portion on a day other than the last day of an Interest Period for
such LIBOR Loan or such LIBOR Portion, all amounts payable to such Lender
pursuant to Section 2.14.
(b) Optional Prepayments. At its option, Borrower may, upon one
(1) Business Day notice to Administrative Agent in the case of Base Rate Loans
or Base Rate Portions or three (3) Business Days notice to Administrative Agent
in the case of LIBOR Loans or LIBOR Portions, prepay the Loans in any Borrowing
in part, in an aggregate principal amount of $2,500,000 or more, or in whole.
(c) Mandatory Prepayments. If, at any time, the aggregate
principal amount of all Revolving Loans then outstanding exceeds the Total
Commitment at such time, Borrower shall immediately prepay Revolving Loans in an
aggregate principal amount equal to such excess.
(d) Application of Term Loan Prepayments. All Term Loan
prepayments shall, to the extent possible, be first applied to prepay Base Rate
Portions and then if any funds remain, to prepay LIBOR Portions.
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SECTION 2.8 OTHER PAYMENT TERMS.
(a) Place and Manner. Borrower shall make all payments due to
each Lender or Administrative Agent hereunder by payments to Administrative
Agent at Administrative Agent's office located at the address specified in
Section 8.1, with each payment due to a Lender to be for the account of such
Lender and such Lender's Applicable Lending Office. Borrower shall make all
payments hereunder (including prepayments) without set-off or counter-claim in
lawful money of the United States and in same day or immediately available funds
not later than 10:00 a.m. (San Francisco, California time) on the date due.
Administrative Agent shall promptly disburse to each Lender each payment
received by Administrative Agent for the account of such Lender.
(b) Date. Whenever any payment due hereunder shall fall due on a
day other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall be included in the computation of
interest or fees, as the case may be.
(c) Late Payments. If any amount required to be paid by Borrower
under this Agreement or the other Credit Documents (including principal or
interest payable on any Loan, any fee or other amount) remains unpaid after such
amount is due, Borrower shall pay interest on the aggregate, outstanding balance
of such amount from the date due until such amount is paid in full at a per
annum rate equal to the Base Rate plus two percent (2.00%) per annum, such rate
to change from time to time as the Base Rate shall change.
(d) Application of Payments. All payments hereunder shall be
applied first to unpaid fees, costs and expenses then due and payable under this
Agreement or the other Credit Documents, second to accrued interest then due and
payable under this Agreement or the other Credit Documents and finally to reduce
the principal amount of outstanding Loans.
(e) Failure to Pay Administrative Agent. Unless Administrative
Agent shall have received notice from Borrower at least one (1) Business Day
prior to the date on which any payment is due to Lenders hereunder that Borrower
will not make such payment in full, Administrative Agent shall be entitled to
assume that Borrower has made or will make such payment in full to
Administrative Agent on such date and Administrative Agent may, in reliance upon
such assumption, cause to be paid to Lenders on such due date an amount equal to
the amount then due such Lenders. If and to the extent Borrower shall not have
so made such payment in full to Administrative Agent, each such Lender shall
repay to Administrative Agent forthwith on demand such portion of the amount
distributed to such Lender as was not received from Borrower together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays the amount required to be returned to
Administrative Agent, at a per annum rate equal to (i) the Federal Funds Rate
for the first three (3) days and (ii) the rate applicable to Base Rate Loans
thereafter. A certificate of Administrative Agent submitted to any Lender with
respect to any amount owing by such Lender under this Subsection 2.8(e) shall
constitute prima facie evidence of such amount.
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SECTION 2.9 LOAN ACCOUNTS; NOTES.
(a) Loan Accounts. The obligation of Borrower to repay the Loans
made to it by each Lender and to pay interest thereon at the rates provided
herein shall be evidenced by an account or accounts maintained by such Lender on
its books (individually, a "Loan Account"), except that any Lender may request
that its Loans be evidenced by a note or notes pursuant to Subsection 2.9(b) and
Subsection 2.9(c). Each Lender shall record in its Loan Accounts (i) the date
and amount of each Loan made by such Lender, (ii) the interest rates applicable
to each such Loan and each Portion thereof and the effective dates of all
changes thereto, (iii) the Interest Period for each LIBOR Loan and LIBOR
Portion, (iv) the date and amount of each principal and interest payment on each
Loan and Portion and (v) such other information as such Lender may determine is
necessary for the computation of principal and interest payable to it by
Borrower hereunder; provided, however, that any failure by a Lender to make, or
any error by any Lender in making, any such notation shall not affect Borrower's
Obligations. The Loan Accounts shall constitute prima facie evidence of the
matters noted therein.
(b) Revolving Loan Notes. If any Lender so requests, such
Lender's Revolving Loans shall be evidenced by promissory notes in the form of
Exhibit F (individually, a "Revolving Loan Note") which notes shall be (i)
payable to the order of such Lender, (ii) in the amount of such Lender's
Commitment, (iii) dated the Effective Date and (iv) otherwise appropriately
completed. Borrower authorizes each Lender to record on the schedule annexed to
such Lender's applicable Revolving Loan Note the date and amount of each
applicable Revolving Loan made by such Lender and of each payment or prepayment
of principal thereon made by Borrower, and agrees that all such notations shall
constitute prima facie evidence of the matters noted; provided, however, that
any failure by a Lender to make, or any error by any Lender in making, any such
notation shall not affect Borrower's Obligations. Borrower further authorizes
each Lender to attach to and make a part of such Lender's Revolving Loan Notes
continuations of the schedule attached thereto as necessary.
(c) Term Loan Notes. If any Lender so requests, such Lender's
Term Loan shall be evidenced by a promissory note in the form of Exhibit G
(individually, a "Term Loan Note") which note shall be (i) payable to the order
of such Lender, (ii) in the amount of such Lender's Term Loan, (iii) dated the
Revolving Loan Maturity Date and (iv) otherwise appropriately completed.
SECTION 2.10 LOAN FUNDING.
(a) Lender Funding and Disbursement to Borrower. Each Lender
shall, before 10:00 a.m. (San Francisco, California time) on the date of each
Borrowing, make available to Administrative Agent at Administrative Agent's
office specified in Section 8.1, in same day or immediately available funds,
such Lender's applicable Proportionate Share of such Borrowing. After
Administrative Agent's receipt of such funds and upon satisfaction of the
applicable conditions set forth in Section III, Administrative Agent shall
promptly disburse such funds to Borrower in same day or immediately available
funds. Administrative Agent shall disburse the proceeds of each Revolving Loan
Borrowing by disbursement to the account or accounts specified in the applicable
Notice of Borrowing. The proceeds of the Term Loan
35
Borrowing shall be applied to repay the Revolving Loans and shall be disbursed
directly to Lenders.
(b) Lender Failure to Fund. Unless Administrative Agent shall
have received notice from a Lender prior to the date of any Borrowing that such
Lender will not make available to Administrative Agent such Lender's applicable
Proportionate Share of such Borrowing, Administrative Agent shall be entitled to
assume that such Lender has made or will make such portion available to
Administrative Agent on the date of such Borrowing in accordance with Subsection
2.10(a), and Administrative Agent may on such date, in reliance upon such
assumption, disburse or otherwise credit to Borrower a corresponding amount. If
any Lender does not make the amount of its applicable Proportionate Share of any
Borrowing available to Administrative Agent on or prior to the date of such
Borrowing, such Lender shall pay to Administrative Agent, on demand, interest
which shall accrue on such amount from the date of such Borrowing until such
amount is paid to Administrative Agent at rates equal to (i) the daily Federal
Funds Rate during the period from the date of such Borrowing through the third
Business Day thereafter and (ii) the rate applicable to Base Rate Loans
thereafter. A certificate of Administrative Agent submitted to any Lender with
respect to any amount owing by such Lender under this Subsection 2.10(b) shall
constitute prima facie evidence of such amount. If the amount of any Lender's
applicable Proportionate Share of any Borrowing is not paid to Administrative
Agent by such Lender within three (3) Business Days after the date of such
Borrowing, Borrower shall repay such amount to Administrative Agent, on demand,
together with interest thereon, for each day from the date such amount was
disbursed to Borrower until the date such amount is repaid to Administrative
Agent, at the interest rate applicable at the time to the Loans comprising such
Borrowing.
(c) Lenders' Obligations Several. The failure of any Lender to
make the Loan to be made by it as part of any Borrowing shall not relieve any
other Lender of its obligation hereunder to make its Loan as part of such
Borrowing, but no Lender shall be obligated in any way to make any Loan which
another Lender has failed or refused to make or otherwise be in any way
responsible for the failure or refusal of any other Lender to make any Loan
required to be made by such other Lender on the date of any Borrowing.
SECTION 2.11 PRO RATA TREATMENT.
(a) Borrowings, Commitment Reductions, Etc. Except as otherwise
provided herein:
(i) Each Borrowing under the Facility and reduction of
the Total Commitment shall be made or shared among Lenders pro
rata according to their respective Proportionate Shares;
(ii) Each payment of principal on Loans in any Borrowing
shall be shared among Lenders which made or funded the Loans in
such Borrowing pro rata according to the respective unpaid
principal amounts of such Loans then owed to such Lenders;
36
(iii) Each payment of interest on Loans in any Borrowing
shall be shared among Lenders which made or funded the Loans in
such Borrowing pro rata according to (A) the respective unpaid
principal amounts of such Loans so made or funded by such
Lenders and (B) the dates on which such Lenders so made or
funded such Loans;
(iv) Each payment of Commitment Fees shall be shared
among Lenders (except for Defaulting Lenders) pro rata according
to (A) their respective Proportionate Shares, (B) in the case of
each Lender which becomes a Lender hereunder after the date
hereof, the date upon which such Lender so became a Lender, and
(C) in the case of Commitment Fees payable in respect of the
calendar quarter ending September 30, 2001, the date upon which
such Lender so became, or resumed being, a Lender;
(v) Each payment of interest (other than interest on
Loans) shall be shared among Lenders and Administrative Agent
owed the amount upon which such interest accrues pro rata
according to (A) the respective amounts so owed such Lenders and
Administrative Agent and (B) the dates on which such amounts
became owing to such Lenders and Administrative Agent; and
(vi) All other payments under this Agreement and the
other Credit Documents shall be for the benefit of the Person or
Persons specified.
(b) Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
setoff, or otherwise) on account of Loans owed to it in excess of its ratable
share of payments on account of such Loans obtained by all Lenders entitled to
such payments, such Lender shall forthwith purchase from the other Lenders such
participations in the Loans as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase shall be rescinded and each other Lender
shall repay to the purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such other Lender's ratable share
(according to the proportion of (i) the amount of such other Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. Borrower agrees that any Lender so purchasing
a participation from another Lender pursuant to this Subsection 2.11(b) may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of setoff) with respect to such participation as fully as
if such Lender were the direct creditor of Borrower in the amount of such
participation.
SECTION 2.12 CHANGE OF CIRCUMSTANCES.
(a) Inability to Determine Rates. If, on or before the first day
of any Interest Period for any LIBOR Loan or LIBOR Portion, (i) any Lender shall
advise Administrative Agent that the LIBOR Rate for such Interest Period cannot
be adequately and reasonably determined due to the unavailability of funds in or
other circumstances affecting the London interbank market or (ii) Majority
Lenders shall advise Administrative Agent that the rate of interest for
37
such Loan or Portion, as the case may be, does not adequately and fairly reflect
the cost to such Lenders of making or maintaining such LIBOR Loan or LIBOR
Portion, Administrative Agent shall immediately give notice of such condition to
Borrower and the other Lenders. After the giving of any such notice and until
Administrative Agent shall otherwise notify Borrower that the circumstances
giving rise to such condition no longer exist, Borrower's right to request the
making of, conversion to or a new Interest Period for LIBOR Loans or LIBOR
Portions shall be suspended. Any LIBOR Loans or LIBOR Portions outstanding at
the commencement of any such suspension shall be converted at the end of the
then current Interest Period for such LIBOR Loans or LIBOR Portions into Base
Rate Loans or Base Rate Portions, as the case may be, unless such suspension has
then ended.
(b) Illegality. If, after the date of this Agreement, the
adoption of any Governmental Rule, any change in any Governmental Rule or the
application or requirements thereof (whether such change occurs in accordance
with the terms of such Governmental Rule as enacted, as a result of amendment or
otherwise), any change in the interpretation or administration of any
Governmental Rule by any Governmental Authority, or compliance by any Lender
with any request or directive (whether or not having the force of law) of any
Governmental Authority (a "Change of Law") shall make it unlawful or impossible
for any Lender to make or maintain any LIBOR Loan or LIBOR Portion, such Lender
shall immediately notify Administrative Agent and Borrower of such Change of
Law. Upon receipt of such notice, (i) Borrower's right to request the making of,
conversion to or a new Interest Period for LIBOR Loans or LIBOR Portions shall
be terminated, and Borrower shall, at the request of such Lender, (A) repay any
outstanding LIBOR Loans or convert any outstanding LIBOR Portions into Base Rate
Loans at the end of the current Interest Period for such LIBOR Loans or LIBOR
Portions or (B) immediately repay or convert any such LIBOR Loans or LIBOR
Portions if such Lender shall notify Borrower that such Lender may not lawfully
continue to fund and maintain such LIBOR Loans or LIBOR Portions. Any conversion
or prepayment of LIBOR Loans or LIBOR Portions made pursuant to the preceding
sentence prior to the last day of an Interest Period for such LIBOR Loans or
LIBOR Portions shall be deemed a prepayment thereof for purposes of Section
2.14. After any Lender notifies Administrative Agent and Borrower of such a
Change of Law and until such Lender notifies Administrative Agent and Borrower
that it is no longer unlawful or impossible for such Lender to make or maintain
a LIBOR Loan or LIBOR Portion, all Revolving Loans and all Portions of the Term
Loan of such Lender shall be Base Rate Loans and Base Rate Portions,
respectively.
(c) Increased Costs. If, after the date of this Agreement, any
Change of Law:
(i) Shall subject any Lender to any tax, duty or other
charge with respect to any LIBOR Loan or LIBOR Portion, or shall
change the basis of taxation of payments by Borrower to any
Lender on such a LIBOR Loan or LIBOR Portion or in respect to
such a LIBOR Loan or LIBOR Portion under this Agreement (except
for changes in the rate of taxation on the overall net income of
any Lender imposed by its jurisdiction of incorporation or the
jurisdiction in which its principal executive office is
located); or
38
(ii) Shall impose, modify or hold applicable any reserve
(excluding any Eurocurrency Reserve Requirement or other reserve
to the extent included in the calculation of the LIBOR Rate for
any Loans or Portions), special deposit or similar requirement
against assets held by, deposits or other liabilities in or for
the account of, advances or loans by, or any other acquisition
of funds by any Lender for any LIBOR Loan or LIBOR Portion; or
(iii) Shall impose on any Lender any other condition
related to any LIBOR Loan or LIBOR Portion or such Lender's
Commitments;
And the effect of any of the foregoing is to increase the cost to such Lender of
making, renewing, or maintaining any such LIBOR Loan or LIBOR Portion or its
Commitments or to reduce any amount receivable by such Lender hereunder; then
Borrower shall from time to time, within five (5) Business Days after demand by
such Lender, pay to such Lender additional amounts sufficient to reimburse such
Lender for such increased costs or to compensate such Lender for such reduced
amounts; provided, however, that Borrower shall have no obligation to make any
payment to any demanding party under this Subsection 2.12(c) on account of any
such increased costs or reduced amounts unless Borrower receives notice of such
increased costs or reduced amounts from the demanding party within six (6)
months after they are incurred or realized. A certificate setting forth in
reasonable detail the amount of such increased costs or reduced amounts,
submitted by such Lender to Borrower shall constitute prima facie evidence of
such costs or amounts. The obligations of Borrower under this Subsection 2.12(c)
shall survive the payment and performance of the Obligations and the termination
of this Agreement.
(d) Capital Requirements. If, after the date of this Agreement,
any Lender determines that (i) any Change of Law affects the amount of capital
required or expected to be maintained by such Lender or any Person controlling
such Lender (a "Capital Adequacy Requirement") and (ii) the amount of capital
maintained by such Lender or such Person which is attributable to or based upon
the Loans, the Commitments or this Agreement must be increased as a result of
such Capital Adequacy Requirement (taking into account such Lender's or such
Person's policies with respect to capital adequacy), Borrower shall pay to such
Lender or such Person, within five (5) Business Days after demand of such
Lender, such amounts as such Lender or such Person shall determine are necessary
to compensate such Lender or such Person for the increased costs to such Lender
or such Person of such increased capital; provided, however, that Borrower shall
have no obligation to make any payment to any demanding party under this
Subsection 2.12(d) on account of any such increased costs unless Borrower
receives notice of such increased costs from the demanding party within six (6)
months after they are incurred or realized. A certificate setting forth in
reasonable detail the amount of such increased costs, submitted by any Lender to
Borrower shall constitute prima facie evidence of such costs. The obligations of
Borrower under this Subsection 2.12(d) shall survive the payment and performance
of the Obligations and the termination of this Agreement.
(e) Mitigation. Any Lender which becomes aware of (i) any Change
of Law which will make it unlawful or impossible for such Lender to make or
maintain any LIBOR Loan or LIBOR Portion or (ii) any Change of Law or other
event or condition which will obligate Borrower to pay any amount pursuant to
Subsection 2.12(c) or Subsection 2.12(d) shall
39
notify Borrower and Administrative Agent thereof as promptly as practical. If
any Lender has given notice of any such Change of Law or other event or
condition and thereafter becomes aware that such Change of Law or other event or
condition has ceased to exist, such Lender shall notify Borrower and
Administrative Agent thereof as promptly as practical. Each Lender affected by
any Change of Law which makes it unlawful or impossible for such Lender to make
or maintain any LIBOR Loan or LIBOR Portion or to which Borrower is obligated to
pay any amount pursuant to Subsection 2.12(c) or Subsection 2.12(d) shall use
reasonable commercial efforts (including changing the jurisdiction of its
Applicable Lending Office) to avoid the effect of such Change of Law or to avoid
or materially reduce any amounts which Borrower is obligated to pay pursuant to
Subsection 2.12(c) or Subsection 2.12(d) if, in the reasonable opinion of such
Lender, such efforts would not be disadvantageous to such Lender or contrary to
such Lender's normal and commercially reasonable banking practices.
SECTION 2.13 TAXES ON PAYMENTS.
(a) Payments Free of Taxes. All payments made by Borrower under
this Agreement and the other Credit Documents shall be made free and clear of,
and without deduction or withholding for or on account of, any present or future
income, stamp, documentary or other taxes, any duties, or any other levies,
imposts, charges, fees, assessments, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority (except net income taxes and franchise taxes in lieu of net income
taxes imposed on Administrative Agent or any Lender by its jurisdiction of
incorporation or the jurisdiction in which its Applicable Lending Office is
located) (all such non-excluded taxes, duties, levies, imposts, charges, fees,
assessments, deductions and withholdings being hereinafter called "Taxes"). If
any Taxes are required to be withheld from any amounts payable to Administrative
Agent or any Lender hereunder or under the other Credit Documents, the amounts
so payable to Administrative Agent or such Lender shall be increased to the
extent necessary to yield to Administrative Agent or such Lender (after payment
of all Taxes) interest or any such other amounts payable hereunder at the rates
or in the amounts specified in this Agreement and the other Credit Documents.
Whenever any Taxes are payable by Borrower, as promptly as possible thereafter,
Borrower shall send to Administrative Agent for its own account or for the
account of such Lender, as the case may be, a certified copy of an original
official receipt received by Borrower showing payment thereof. If Borrower fails
to pay any Taxes when due to the appropriate taxing authority or fails to remit
to Administrative Agent the required receipts or other required documentary
evidence, Borrower shall indemnify Administrative Agent and Lenders for any
taxes, interest or penalties that may become payable by Administrative Agent or
any Lender as a result of any such failure. The obligations of Borrower under
this Subsection 2.13(a) shall survive the payment and performance of the
Obligations and the termination of this Agreement.
(b) Withholding Exemption Certificates. On or prior to the date
of the initial Borrowing or, if such date does not occur within thirty (30) days
after the date of this Agreement, by the end of such 30-day period, each Lender
which is not organized under the laws of the United States of America or a state
thereof shall deliver to Borrower and Administrative Agent two duly completed
copies of United States Internal Revenue Service Form W-8BEN or W-8ECI (or
successor applicable form), as the case may be, certifying in each case that
such
40
Lender is entitled to receive payments under this Agreement without deduction or
withholding or with reduced deduction or withholding of any United States
federal income taxes. Each such Lender further agrees (i) promptly to notify
Borrower and Administrative Agent of any change of circumstances (including any
change in any treaty, law or regulation) which would prevent such Lender from
receiving payments hereunder without any deduction or withholding or with
reduced deduction or withholding of such taxes as indicated on the most recent
such certificate or other form previously delivered by such Lender and (ii) if
such Lender has not so notified Borrower and Administrative Agent of any change
of circumstances which would prevent such Lender from receiving payments
hereunder without any deduction or withholding or with reduced deduction or
withholding of taxes as indicated on the most recent such certificate or other
form previously delivered by such Lender, then on or before the date that any
certificate or other form delivered by such Lender under this Subsection 2.13(b)
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent such certificate or form previously delivered by such
Lender, to deliver to Borrower and Administrative Agent a new certificate or
form, certifying that such Lender is entitled to receive payments under this
Agreement without deduction or withholding or with reduced deduction or
withholding of such taxes. If any Lender fails to provide to Borrower or
Administrative Agent pursuant to this Subsection 2.13(b) (or, in the case of an
Assignee Lender, Subsection 8.5(c)) any certificates or other evidence required
by such provision to establish that such Lender is, at the time it becomes a
Lender hereunder, entitled to receive payments under this Agreement without
deduction or withholding or with reduced deduction or withholding of any United
States federal income taxes, such Lender shall not be entitled to any
indemnification under Subsection 2.13(a) for any Taxes imposed on such Lender
primarily as a result of such failure.
(c) Mitigation. If Administrative Agent or any Lender claims any
additional amounts to be payable to it pursuant to this Section 2.13, such
Person shall use reasonable commercial efforts to file any certificate or
document requested in writing by Borrower (including copies of Internal Revenue
Service Form W-8BEN or W-8ECI (or successor forms) reflecting a reduced rate of
withholding or to change the jurisdiction of its Applicable Lending Office if
the making of such a filing or such change in the jurisdiction of its Applicable
Lending Office would avoid the need for or materially reduce the amount of any
such additional amounts which may thereafter accrue and if, in the reasonable
opinion of such Person, in the case of a change in the jurisdiction of its
Applicable Lending Office, such change would not be disadvantageous to such
Person or contrary to such Person's normal and commercially reasonable banking
practices.
(d) Tax Returns. Nothing contained in this Section 2.13 shall
require Administrative Agent or any Lender to make available any of its tax
returns (or any other information relating to its taxes which it deems to be
confidential).
SECTION 2.14 FUNDING LOSS INDEMNIFICATION. If Borrower shall (a) repay,
prepay or convert any LIBOR Loan or LIBOR Portion on any day other than the last
day of an Interest Period therefor (whether a scheduled payment, an optional
prepayment or conversion, a mandatory prepayment or conversion, a payment upon
acceleration or otherwise), (b) fail to borrow any LIBOR Loan or LIBOR Portion
for which a Notice of Borrowing has been delivered to Administrative Agent
(whether as a result of the failure to satisfy any applicable conditions or
41
otherwise) or (c) fail to convert any Portion of the Term Loan Borrowing into a
LIBOR Portion in accordance with a Notice of Term Loan Conversion delivered to
Administrative Agent (whether as a result of the failure to satisfy any
applicable conditions or otherwise), Borrower shall, within five (5) Business
Days after demand by any Lender, reimburse such Lender for and hold such Lender
harmless from all costs and losses incurred by such Lender as a result of such
repayment, prepayment, conversion or failure; provided, however, that Borrower
shall have no obligation to make any payment to any demanding party under this
Section 2.14 on account of any such costs or losses unless Borrower receives
notice of such costs or losses from the demanding party within six (6) months
after they are incurred or realized. Borrower understands that such costs and
losses may include, without limitation, losses incurred by a Lender as a result
of funding and other contracts entered into by such Lender to fund a LIBOR Loan
or LIBOR Portion. Each Lender demanding payment under this Section 2.14 shall
deliver to Borrower, with a copy to Administrative Agent, a certificate setting
forth the amount of costs and losses incurred by such Lender and for which
demand is made, which certificate shall set forth in reasonable detail the
calculation of the amount demanded. Such a certificate so delivered to Borrower
shall constitute prima facie evidence of such costs and losses. The obligations
of Borrower under this Section 2.14 shall survive the payment and performance of
the Obligations and the termination of this Agreement.
SECTION 2.15 REPLACEMENT OF LENDERS. If any Lender shall (a) become a
Defaulting Lender more than one (1) time in a period of twelve (12) consecutive
months, (b) continue as a Defaulting Lender for more than five (5) Business Days
at any time, (c) suspend its obligation to make or maintain LIBOR Loans or LIBOR
Portions pursuant to Subsection 2.12(b) for a reason which is not applicable to
any other Lender or (d) demand any payment under Subsection 2.12(c), 2.12(d) or
2.13(a) for a reason which is not applicable to any other Lender, then
Administrative Agent may, with the written consent of Borrower, or shall, upon
the written request of Borrower, replace such Lender (the "Affected Lender"), or
cause such affected Lender to be replaced with another lender (the "Replacement
Lender") satisfying the requirements of an Assignee Lender, by having the
affected Lender sell and assign all of its rights and obligations under this
Agreement and the other Credit Documents to the replacement Lender pursuant to
Subsection 8.5(c); provided, however, that if Borrower seeks to exercise such
right, it must do so within sixty (60) days after it first knows or should have
known of the occurrence of the event or events giving rise to such right, and
neither Administrative Agent nor any Lender shall have any obligation to
identify or locate a Replacement Lender for Borrower. Upon receipt by any
Affected Lender of a written notice from Administrative Agent stating that
Administrative Agent is exercising the replacement right set forth in this
Section 2.15, such Affected Lender shall sell and assign all of its rights and
obligations under this Agreement and the other Credit Documents to the
Replacement Lender pursuant to an Assignment Agreement and Subsection 8.5(c) for
a purchase price equal to the sum of the principal amount of the affected
Lender's Loans so sold and assigned, all accrued and unpaid interest thereon and
its ratable share of all fees to which it is entitled.
42
SECTION III
CONDITIONS PRECEDENT
SECTION 3.1 INITIAL CONDITIONS PRECEDENT. The effectiveness of the
amendment and restatement contemplated hereby and the obligations of Lenders to
make the Loans comprising the initial Borrowing hereunder are subject to receipt
by Administrative Agent (with sufficient copies for Administrative Agent and
each Lender), on or prior to the Effective Date, of each item listed in Schedule
3.1 and the other conditions set forth on Schedule 3.1 have been satisfied, each
in form and substance satisfactory to Administrative Agent and each Lender.
SECTION 3.2 CONDITIONS PRECEDENT TO TERM LOAN BORROWING. The obligations
of Lenders to make the Term Loans comprising the Term Loan Borrowing also are
subject to receipt by Administrative Agent, on or prior to the Revolving Loan
Maturity Date, of a Term Loan Note for each Lender so requesting such a note,
duly executed by Borrower.
SECTION 3.3 CONDITIONS PRECEDENT TO EACH CREDIT EVENT.
(a) The occurrence of each Credit Event (including the initial
Borrowing and the Term Loan Borrowing) is subject to the further condition that
Borrower shall have delivered to Administrative Agent the Notice of Borrowing,
Notice of Term Loan Conversion or Notice of Interest Period Selection, as the
case may be, for such Credit Event in accordance with this Agreement.
(b) On the date each Borrowing is to occur and after giving
effect to such Borrowing, the following shall be true and correct:
(i) The representations and warranties of each Credit
Party set forth in Section 4.1 and in the other Credit Documents
are true and correct in all material respects as if made on such
date (except for representations and warranties expressly made
as of a specified date, which shall be true as of such date);
and
(ii) No Default has occurred and is continuing or will
result from such Borrowing.
(iii) The submission by Borrower to Administrative Agent
of each Notice of Borrowing (other than a Notice of Borrowing
for a Revolving Loan Borrowing consisting of Base Rate Loans to
be used solely to repay an existing Borrowing) shall be deemed
to be a representation and warranty by Borrower that each of the
statements set forth above in this Subsection 3.3(b) is true and
correct as of the date of such notice.
SECTION 3.4 COVENANT TO DELIVER. Borrower agrees (not as a condition but
as a covenant) to deliver to Administrative Agent each item required to be
delivered to Administrative Agent as a condition to the occurrence of any Credit
Event if such Credit Event occurs. Each Credit Party expressly agrees that the
occurrence of any such Credit Event prior to
43
the receipt by Administrative Agent of any such item shall not constitute a
waiver by Administrative Agent or any Lender of Borrower's obligation to deliver
such item.
SECTION IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES. In
order to induce Administrative Agent and Lenders to enter into this Agreement,
each Credit Party represents and warrants to Administrative Agent and Lenders
that:
(a) The Borrower has delivered to the Administrative Agent the
financial statements and other reports referred to in Subsections 5.1(a)(i) and
5.1(a)(ii);
(b) Each of Credit Parties and its Subsidiaries (i) is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization; (ii) has all requisite power and authority to own,
lease and operate its properties, to carry on its business as now conducted and
as proposed to be conducted, to enter into the Credit Documents to which it is a
party, and to carry out the transactions contemplated hereby and thereby; and
(iii) is qualified to do business and is in good standing in every jurisdiction
where its assets are located and wherever necessary to carry out its business
and operations, except in jurisdictions where the failure to be so qualified or
in good standing has not had, and could not be reasonably expected to have, a
Material Adverse Effect;
(c) The execution and delivery by each Credit Party of this
Agreement and the other applicable Credit Documents as of such date and the
performance by each Credit Party of its respective obligations under this
Agreement and the other applicable Credit Documents are within the corporate,
partnership or limited liability company (as the case may be) powers of each
Credit Party, have been duly authorized by all necessary corporate action on the
part of each Credit Party (including without limitation any necessary
shareholder action), have been duly executed and delivered, have received all
necessary governmental approval, and do not and will not (i) violate any Legal
Requirement which is binding on any Credit Party or any of its Subsidiaries,
(ii) contravene or conflict with, or result in a breach of, any provision of the
Articles of Incorporation, By-Laws or other organizational documents of any
Credit Party or any of its Subsidiaries or of any agreement, indenture,
instrument or other document which is binding on any Credit Party or any of its
Subsidiaries or (iii) result in, or require, the creation or imposition of any
Lien on any asset of any Credit Party or any of its Subsidiaries;
(d) This Agreement and the other applicable Credit Documents
executed prior to and as of such date by any Credit Party, constitute the legal,
valid and binding obligation of such Credit Party, as applicable, enforceable
against such Credit Party, as applicable, in accordance with their terms. Each
Credit Party has executed the various Credit Documents required to be executed
by such Credit Party as of such date;
(e) There are no material actions, suits or proceedings pending
or, to the knowledge of any Credit Party, threatened against any Credit Party in
any court or before any
44
Governmental Authority (nor shall any order, judgment or decree have been issued
or proposed to be issued by any Governmental Authority to set aside, restrain,
enjoin or prevent the full performance of any Credit Document or any transaction
contemplated thereby) that (i) question the validity or enforceability of any
Credit Document or any transaction described in the Credit Documents or (ii)
shall have or could reasonably be expected to have a Material Adverse Effect;
provided, for purposes of disclosure, the Credit Parties have described the
litigation set forth on Schedule 4.1(e);
(f) No Governmental Action by any Governmental Authority or
other authorization, registration, consent, approval, waiver, notice or other
action by, to or of any other Person pursuant to any Legal Requirement,
contract, indenture, instrument or agreement or for any other reason is required
to authorize or is required in connection with (i) the execution, delivery or
performance of any Credit Document, (ii) the legality, validity, binding effect
or enforceability of any Credit Document, or (iii) any Borrowing, in each case,
except those which have been obtained and are in full force and effect;
(g) All information (including without limitation the financial
statements and other reports delivered to the Administrative Agent pursuant to
Section 5.1(a)(i) and 5.1(a)(ii)) heretofore or contemporaneously herewith
furnished by each Credit Party or its Subsidiaries to the Administrative Agent,
or any Lender for purposes of or in connection with this Agreement and the
transactions contemplated hereby is, and all information hereafter furnished by
or on behalf of each Credit Party or its Subsidiaries to the Administrative
Agent or any Lender pursuant hereto or in connection herewith will be, true and
accurate in every material respect on the date as of which such information is
dated or certified, and such information, taken as a whole, does not and will
not omit to state any material fact necessary to make such information, taken as
a whole, not misleading;
(h) The principal place of business and chief executive office
of the Borrower where the documents, accounts and records relating to the
transactions contemplated by this Agreement and each other Credit Document are
kept are located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such
other principal location which Borrower may hereafter specify in writing upon
thirty (30) days prior written notice to the Administrative Agent.
(i) The representations and warranties of each Credit Party set
forth in any of the Credit Documents are true and correct in all material
respects on and as of each such date as if made on and as of such date. Each
Credit Party is in all material respects in compliance with its respective
obligations under the Credit Documents and there exists no Default under any of
the Credit Documents which is continuing and which has not been cured within any
cure period expressly granted under the terms of the applicable Credit Document
or otherwise waived in accordance with the applicable Credit Document. No
Default will occur under any of the Credit Documents as a result of, or after
giving effect to, the Borrowing requested by the Notice of Borrowing on the date
of each Borrowing;
(j) As of September 30, 1999, all of the following had occurred
(in the order designated below):
45
(i) the merger of Merger Sub with and into the Borrower
occurred (making the Borrower a wholly-owned Subsidiary of the
Parent) in accordance with the terms of the Reorganization
Agreement and applicable law;
(ii) each share of Capital Stock of the Borrower was
converted into one share of Capital Stock of the Parent in
accordance with the terms of the Reorganization Agreement and
applicable law;
(iii) the Parent acquired all of the Capital Stock of
NSMG and the NSMG Business in accordance with the terms of the
Reorganization Agreement and applicable law; and
(k) as of June 30, 2000, all of the following had occurred (in
the order designated below):
(i) VERITAS Software Corporation contributed all of the
Capital Stock of VERITAS Software Global Corporation (formerly
NSMG) to VERITAS Operating Corporation (making Borrower a
wholly-owned Subsidiary of VERITAS Operating Corporation) in
accordance with the terms of the Capital Contribution Agreement
dated June 28, 2000 and applicable law.
(ii) VERITAS Software Corporation contributed assets to
VERITAS Operating Corporation in accordance with the terms of
the Capital Contribution Agreement dated June 28, 2000 and
applicable law.
(iii) VERITAS Operating Corporation contributed assets
to VERITAS Software Global Corporation in accordance with the
terms of the Contribution Agreement dated June 30, 2000 and
applicable law.
(l) Title; Possession Under Leases. The Credit Parties and their
Subsidiaries own and have good and marketable title, or a valid leasehold
interest in, or licenses with respect to, all their respective properties and
assets as reflected in the most recent financial statements delivered to
Administrative Agent (except those assets and properties disposed of in the
ordinary course of business or otherwise in compliance with this Agreement since
the date of such financial statements) and all respective assets and properties
acquired by the Credit Parties and their Subsidiaries since such date (except
those disposed of in the ordinary course of business or otherwise in compliance
with this Agreement). Such assets and properties are subject to no Lien, except
for Permitted Liens. Each Credit Party and its Subsidiaries have complied with
all material obligations under all material leases to which it is a party and
enjoys peaceful and undisturbed possession under such leases subject only to
rights of sublessees of Credit Party or its Subsidiaries;
(m) Financial Statements. The financial statements of Credit
Parties and their Subsidiaries which have been delivered to Administrative
Agent, (i) are in accordance with the books and records of Credit Parties and
their Subsidiaries, which have been maintained in accordance with good business
practice; (ii) have been prepared in conformity with GAAP; and (iii) fairly
present in all material respects the financial conditions and results of
operations of
46
Credit Parties and their Subsidiaries as of the date thereof and for the period
covered thereby. Neither any Credit Party nor any of its Subsidiaries has any
Guaranty Obligations, liability for taxes or other outstanding obligations which
are material in the aggregate, except as disclosed in the financial statements
delivered to Administrative Agent pursuant to Section 5.1(a)(i) or 5.1(a)(ii);
(n) Subsidiaries. Schedule 4.1(n) (as supplemented by Borrower
from time to time in a written notice to Administrative Agent pursuant to
Section 5.1(a)(iii)) sets forth each Credit Party's Subsidiaries, its
jurisdiction of organization, the classes of its equity securities and the
percentages of shares of each such class owned directly or indirectly by such
Credit Party;
(o) No Material Adverse Effect. No event has occurred and no
condition exists which would have a Material Adverse Effect; and
(p) Accuracy of Information Furnished. The Credit Documents and
the other certificates and written statements and information (excluding
projections and analyst reports) prepared by and furnished by each Credit Party
and its Subsidiaries to Administrative Agent and the Lenders in connection with
the Credit Documents and the transactions contemplated thereby, taken as a
whole, do not contain any untrue statement of a material fact and do not omit to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. All projections
furnished by each Credit Party and its Subsidiaries to Administrative Agent and
the Lenders in connection with the Credit Documents and the transactions
contemplated thereby have been based upon reasonable assumptions and represent,
as of their respective dates of presentations, each Credit Party's and its
Subsidiaries' reasonable estimates of the future performance of such Credit
Party and its Subsidiaries.
SECTION 4.2 REAFFIRMATION. The Credit Parties shall be deemed to have
reaffirmed, for the benefit of Lenders and Administrative Agent, each
representation and warranty contained in Section 4.1 on and as of the date of
each Borrowing (except for representations and warranties expressly made as of a
specified date, which shall be true as of such date).
SECTION V
COVENANTS
SECTION 5.1 AFFIRMATIVE COVENANTS. Until the termination of this
Agreement and the satisfaction in full by the Credit Parties of all Obligations,
the Credit Parties will comply, and will cause compliance, with the following
affirmative covenants, unless the Required Lenders shall otherwise consent in
writing:
(a) Information Covenants. The Credit Parties will furnish, or
cause to be furnished, to the Administrative Agent on behalf of the Lenders:
(i) Annual Financial Statements. As soon as available,
and in any event within ninety (90) days after the close of each
fiscal year of the Borrower, a consolidated balance sheet and
income statement of the Credit Parties
47
and their Consolidated Subsidiaries as of the end of such fiscal
year, together with related consolidated statements of
operations and retained earnings and of cash flows for such
fiscal year, in each case setting forth in comparative form
consolidated figures for the preceding fiscal year, all such
financial information described above to be in reasonable form
and detail and audited by independent certified public
accountants of recognized national standing reasonably
acceptable to the Administrative Agent and whose opinion shall
be to the effect that such financial statements have been
prepared in accordance with GAAP (except for changes with which
such accountants concur) and shall not be limited as to the
scope of the audit or qualified as to the status of the Credit
Parties and their Consolidated Subsidiaries as a going concern
or any other material qualifications or exceptions.
(ii) Quarterly Financial Statements. As soon as
available, and in any event within forty-five (45) days after
the close of each fiscal quarter of the Credit Party (other than
the fourth fiscal quarter, in which case ninety (90) days after
the end thereof) a consolidated balance sheet and income
statement of the Credit Parties and their Consolidated
Subsidiaries as of the end of such fiscal quarter, together with
related consolidated statements of operations and retained
earnings and of cash flows for such fiscal quarter, in each case
setting forth in comparative form consolidated figures for the
corresponding period of the preceding fiscal year, all such
financial information described above to be in reasonable form
and detail and reasonably acceptable to the Administrative
Agent, and accompanied by a certificate of the chief financial
officer of the Borrower to the effect that such quarterly
financial statements fairly present in all material respects the
financial condition of the Credit Parties and their Consolidated
Subsidiaries and have been prepared in accordance with GAAP,
subject to changes resulting from audit and normal year-end
audit adjustments.
(iii) Officer's Certificate. At the time of delivery of
the financial statements provided for in Sections 5.1(a)(i) and
5.1(a)(ii) above, a certificate of the chief financial officer
of the Borrower substantially in the form of Schedule
5.1(a)(iii) (i) demonstrating compliance with the financial
covenants contained in Section 5.1(o) by Borrower's calculation,
in reasonable detail, of the Leverage Ratio and Quick Ratio, in
each case, as of the end of each such fiscal period and the
level of EBITDA for such fiscal quarter of the Borrower, (ii)
stating that no Default exists, or if any Default does exist,
specifying the nature and extent thereof and what action the
Credit Parties propose to take with respect thereto and (iii)
with respect to all quarterly certificates, listing all
Permitted Liens, if any, approved in writing by the
Administrative Agent during such fiscal quarter pursuant to
clause (l) of the definition of "Permitted Liens" herein.
(iv) Intentionally Omitted.
(v) Accountant's Certificate. Within one hundred twenty
(120) days after the close of each fiscal year of the Borrower,
a certificate of the
48
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 (and if the
accountants are not aware of any Default or Event of Default, no
such certificate is required).
(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.
(vii) Reports. Promptly upon transmission or receipt
thereof, (i) copies of any filings and registrations with, and
reports to or from, the Securities and Exchange Commission, or
any successor agency, and copies of all financial statements,
proxy statements, notices and reports as the Borrower or any
Consolidated Subsidiary shall send to its shareholders or to a
holder of any Indebtedness owed by the Borrower or any
Consolidated Subsidiary in its capacity as such a holder and
(ii) upon the request of the Administrative Agent, all reports
and written information to and from the United States
Environmental Protection Agency, or any state or local agency
responsible for environmental matters, the United States
Occupational Health and Safety Administration, or any state or
local agency responsible for health and safety matters, or any
successor agencies or authorities concerning environmental,
health or safety matters.
(viii) ERISA. Upon the Borrower, any of its Consolidated
Subsidiaries or any ERISA Affiliate obtaining knowledge thereof,
the Borrower will give written notice to the Administrative
Agent promptly (and in any event within five Business Days) of:
(i) any event or condition, including, but not limited to, any
Reportable Event, that constitutes, or might reasonably lead to,
an ERISA Event; (ii) with respect to any Multiemployer Plan, the
receipt of notice as prescribed in ERISA or otherwise of any
withdrawal liability assessed against a Credit Party or any of
its Consolidated Subsidiaries or any ERISA Affiliates, or of a
determination that any Multiemployer Plan is in reorganization
or insolvent (both within the meaning of Title IV of ERISA);
(iii) the failure to make full payment on or before the due date
(including extensions) thereof of all amounts which a Credit
Party or any of its Consolidated Subsidiaries or any ERISA
Affiliate is required to contribute to each Plan pursuant to its
terms and as required to meet the minimum funding standard set
forth in ERISA and the Code with respect thereto; or (iv) any
change in the funding status of any Plan that could have a
Material Adverse Effect, together with a description of any such
event or condition or a copy of any such notice and a statement
by the chief financial officer of the Borrower briefly setting
forth the details regarding such event, condition, or notice,
and the action, if any, which has been or is being taken or is
proposed to be taken by a Credit Party or any of its
Consolidated Subsidiaries with respect thereto. Promptly upon
request, the Borrower shall furnish the Administrative Agent and
the Lenders with such additional information concerning any Plan
as may be reasonably requested, including, but
49
not limited to, copies of each annual report/return (Form 5500
series), as well as all schedules and attachments thereto
required to be filed with the Department of Labor and/or the
Internal Revenue Service pursuant to ERISA and the Code,
respectively, for each "plan year" (within the meaning of
Section 3(39) of ERISA).
(ix) Environmental. The Borrower and its Consolidated
Subsidiaries will conduct and complete all investigations,
studies, sampling, and testing and all remedial, removal, and
other actions necessary to address all Hazardous Materials on,
from or affecting any of the Real Properties to the extent
necessary to be in compliance with all Environmental Laws and
with the validly issued orders and directives of all
Governmental Authorities with jurisdiction over such Real
Properties to the extent any failure could have a Material
Adverse Effect.
(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 Administrative Agent or
Majority Lenders may from time to time reasonably request.
(xi) Reports and financial statements required to be
delivered pursuant to subsections (a)(i), (a)(ii) and
(a)(vii)(i) of this Section 5.1 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 ▇▇▇.▇▇▇.▇▇▇ or the Free ▇▇▇▇▇ website on the
internet at the website ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇; provided that
Borrower shall deliver paper copies of such reports and
financial statements to the Administrative Agent and any Lender
that requests Borrower to deliver such paper copies until
written notice to cease delivering paper copies is given by the
Administrative Agent or such Lender, provided further that,
notwithstanding the foregoing, Borrower shall be required to
deliver paper copies to each of the Administrative Agent and any
Lender of any other documentation required pursuant to this
Section 5.1(a). The Administrative 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 5.1(a) or to monitor compliance by
Borrower with any such request for delivery and each Lender
shall be solely responsible for requesting delivery to it or
maintaining copies of such reports and financial statements.
(b) Preservation of Existence and Franchises. Each of the Credit
Parties will, and will cause each of its Consolidated Subsidiaries to, do all
things necessary to preserve and keep in full force and effect its existence,
rights, franchises and authority, except in connection with any Permitted
Acquisition.
50
(c) Books and Records. Each of the Credit Parties will, and will
cause each of its Consolidated Subsidiaries to (a) keep complete and accurate
books and records of its transactions in accordance with good accounting
practices on the basis of GAAP (including the establishment and maintenance of
appropriate reserves) and (b) permit the Administrative Agent, by its
representatives and agents, from time to time hereafter, to call at such Credit
Party's place or places of business during normal business hours upon reasonable
prior written or telephonic notice by the Administrative Agent; provided that no
prior notice shall be required upon the occurrence and during the continuance of
a Default, and (i) to inspect, audit and make copies of and extracts from such
Credit Party's corporate books, financial records and other data relating to
such Credit Party's business and (ii) to discuss the affairs, finances and
business of such Credit Party with any of its officers, employees or directors;
provided that so long as no Default shall have occurred and be continuing, the
Administrative Agent shall not make such inspection more than one (1) time in
any fiscal quarter of such Credit Party.
(d) Compliance with Law. Each of the Credit Parties will, and
will cause each of its Consolidated Subsidiaries to, comply with all laws,
rules, regulations and orders, and all applicable restrictions imposed by all
Governmental Authorities, applicable to it and its property if noncompliance
with any such law, rule, regulation, order or restriction could have a Material
Adverse Effect.
(e) Payment of Taxes and Other Indebtedness. Each of the Credit
Parties will, and will cause each of its Consolidated Subsidiaries to, pay and
discharge (a) all taxes, assessments and governmental charges or levies imposed
upon it, or upon its income or profits, or upon any of its properties, before
they shall become delinquent, (b) all lawful claims (including claims for labor,
materials and supplies) which, if unpaid, might give rise to a Lien upon any of
its properties, and (c) except as prohibited hereunder, all of its other
Indebtedness as it shall become due; provided, however, that a Credit Party and
any of its Consolidated Subsidiaries shall not be required to pay any such tax,
assessment, charge, levy, claim or Indebtedness which is being contested in good
faith by appropriate proceedings and as to which adequate reserves therefor have
been established in accordance with GAAP, unless the failure to make any such
payment (i) could give rise to an immediate right to foreclose on a Lien
securing such amounts or (ii) could have a Material Adverse Effect.
(f) Maintenance of Property. Each of the Credit Parties will,
and will cause each of its Consolidated Subsidiaries to, maintain and preserve
its properties and equipment material to the conduct of its business in good
repair, working order and condition, normal wear and tear and casualty and
condemnation excepted, and will make, or cause to be made, in such properties
and equipment from time to time all repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto as may be needed or proper, to
the extent and in the manner customary for companies in similar businesses.
(g) Performance of Obligations. Each of the Credit Parties will,
and will cause each of its Consolidated Subsidiaries to, perform in all material
respects all of its obligations under the terms of all material agreements,
indentures, mortgages, security agreements or other debt instruments to which it
is a party or by which it is bound.
51
(h) Places of Business. The Borrower will give prompt notice to
the Administrative Agent if the Borrower's principal place of business or chief
executive office, or the office where the records concerning accounts or
contract rights are kept, shall cease to be located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other location which Borrower may
hereafter specify in writing upon thirty (30) days prior written notice to the
Administrative Agent or if it shall change its name.
(i) Notice of Default. Each Credit Party shall promptly notify
the Administrative Agent, or cause the Administrative Agent to be promptly
notified, upon such Credit Party gaining knowledge of the occurrence of any
Default which is continuing at such time. In any event, such notice shall be
provided to the Administrative Agent within ten (10) days of when such Credit
Party gains such knowledge.
(j) Corporate Obligations. Until all of the Obligations under
the Credit Documents have been finally and indefeasibly paid and satisfied in
full and the Commitments terminated, each Credit Party, unless consent has been
obtained from the Required Lenders, will:
(i) except as permitted by Sections 5.1 and 5.2,
preserve and maintain its separate legal existence and all
rights, franchises, licenses and privileges necessary to the
conduct of its business, and qualify and remain qualified as a
foreign corporation (or partnership, limited liability company
or other such similar entity, as the case may be) and authorized
to do business in each jurisdiction in which the failure to do
so qualify would have a Material Adverse Effect;
(ii) pay and perform all obligations of the Credit
Parties under the Credit Documents and pay and perform (A) all
taxes, assessments and other governmental charges that may be
levied or assessed upon it or any of its property, and (B) all
other indebtedness, obligations and liabilities in accordance
with customary trade practices, which if not paid would have a
Material Adverse Effect; provided that any Credit Party may
contest any item described in this Section 5.1(k)(ii) in good
faith so long as adequate reserves are maintained with respect
thereto in accordance with GAAP;
(iii) to the extent failure to do so would have a
Material Adverse Effect, observe and remain in compliance with
all applicable Laws and maintain in full force and effect all
Governmental Actions, in each case applicable to the conduct of
its business; keep in full force and effect all licenses,
certifications or accreditations necessary for any facility of
such Credit Party to carry on its business; and not permit the
termination of any insurance reimbursement program available to
any facility of such Credit Party; and
(iv) provided that the Administrative Agent and the
Lenders use reasonable efforts to minimize disruption to the
business of the Credit Parties, permit representatives of the
Administrative Agent or any Lender, from time to time, to visit
and inspect its properties; inspect, audit and make extracts
from its books, records and files, including without limitation
management letters
52
prepared by independent accountants; and discuss with its
principal officers, and its independent accountants, its
business, assets, liabilities, financial condition, results of
operations and business prospects.
(k) Joinder Agreements. Each Credit Party hereby covenants and
agrees (i) to cause each Material Domestic Subsidiary of each Credit Party
formed or acquired after the Closing Date to execute a Joinder Agreement and to
observe the terms of Sections 9.9(a)-(d), all within thirty (30) days of the
formation or acquisition of such Material Domestic Subsidiary (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), and (ii)
to cause such additional Domestic Subsidiaries of any Credit Party to execute a
Joinder Agreement and observe the terms of Section 9.9(a)-(d) as required in
accordance with Section 9.9.
(l) Insurance. The Credit Parties and their Consolidated
Subsidiaries shall:
(i) Carry and maintain insurance of the types and in the
amounts customarily carried from time to time during the term of
this Agreement by others engaged in substantially the same
business as such Person and operating in the same geographic
area as such Person, including, but not limited to, fire, public
liability, property damage and worker's compensation;
(ii) Carry and maintain each policy for such insurance
with (A) a company which is rated A or better by A.M. Best and
Company at the time such policy is placed and at the time of
each annual renewal thereof or (B) any other insurer which is
reasonably satisfactory to Administrative Agent; and
(iii) Deliver to Administrative Agent upon request not
more than once each year schedules setting forth all insurance
then in effect.
(m) Use of Proceeds. Borrower shall use the proceeds of the
Loans only for the respective purposes set forth in Section 2.4. Borrower shall
not use any part of the proceeds of any Loan, directly or indirectly, for the
purpose of purchasing or carrying any Margin Stock or for the purpose of
purchasing or carrying or trading in any securities under such circumstances as
to involve Borrower, any Lender or Administrative Agent in a violation of
Regulations T, U or X issued by the Board.
(n) Pari Passu Ranking. Borrower shall take, or cause to be
taken, all actions necessary to ensure that the Obligations of Borrower are and
continue to rank at least pari passu in right of payment with all other
unsecured Indebtedness of Borrower.
(o) Financial Covenants.
(i) Leverage Ratio. The Leverage Ratio, as of the last
day of each fiscal quarter of the Borrower, shall be less than
or equal to:
53
(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.
(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
5.1(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 each twelve month period ending December 31, 2001 and ▇▇▇▇▇
▇▇, ▇▇▇▇, (▇▇▇) $525,000,000 for each twelve month period ending
June 30, 2002 and September 30, 2002, and (iv) $600,000,000 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 Borrower, shall be greater than or
equal to 1.20 to 1.0.
(p) Annual Meeting. No later than ninety (90) days after the end
of each fiscal year of Borrower, Borrower will hold an annual meeting with
Administrative Agent and Lenders during which Borrower will review with
Administrative Agent and Lenders the business plans and financial projections of
the Borrower for the then-current fiscal year.
SECTION 5.2 NEGATIVE COVENANTS. Until the termination of this Agreement
and the satisfaction in full by Borrower of all Obligations, the Credit Parties
will comply and cause compliance, with the following negative covenants, unless
the Required Lenders shall otherwise consent in writing:
(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 Agreement and the
other Credit Documents;
(ii) Indebtedness of a Credit Party and its Consolidated
Subsidiaries set forth in Schedule 5.2(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,
54
however, that (i) the total of all such Indebtedness for all
such Persons taken together incurred in any fiscal year of
Borrower 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 Section 5.2(a)(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;
(iv) other unsecured Indebtedness (exclusive of
Indebtedness permitted under subsection (v) and subsection (vi)
of this Section 5.2(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 (20.0%) of 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 Required Lenders; provided, however, the amount
of Indebtedness permitted under this subsection (iv) shall be
reduced by an amount equal to the sum of (a) any Indebtedness
outstanding and all other amounts due and owing by any Credit
Party under the Milpitas Lease Financing, plus (b) any
Indebtedness outstanding and all other amounts due and owing by
any Credit Party under the Minnesota Lease Financing and the
Mountain View Lease Financing, plus (c) any Indebtedness
outstanding and all other amounts due and owing by any Credit
Party under this Agreement;
(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 Administrative Agent, and
any renewal, refinancings or extensions thereof on terms and
conditions (including, without limitation, the subordination
terms) reasonably acceptable to the Administrative Agent;
(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; and
(ix) Indebtedness arising under the Mountain View Lease
Financing, the Minnesota Lease Financing and the Milpitas Lease
Financing.
55
(b) Liens. No Credit Party will, nor will it permit any of its
Consolidated Subsidiaries to contract, create, incur, assume or permit to exist
any Lien with respect to any of its property, whether now owned or after
acquired, except for Permitted Liens.
(c) Nature of Business. No Credit Party will, nor will it permit
any of its Consolidated Subsidiaries to, substantively alter the character or
conduct of its business from that conducted as of the Closing Date or engage in
any business other than the business conducted as of the Closing Date other than
activities in the systems management software business substantially similar or
related to such businesses.
(d) Consolidation, Merger, Dissolution, etc. No Credit Party
will, nor will it permit any Consolidated Subsidiaries to, enter into any
transaction of merger or consolidation or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution); provided that, notwithstanding the
foregoing provisions of this Section 5.2(d), (a) the Borrower may merge or
consolidate with any entity provided that (i) the Borrower shall be the
continuing or surviving corporation, and (ii) after giving effect to such
transaction, no Default arises, (b) any Consolidated Subsidiary of the Borrower
may be merged or consolidated with or into any other Consolidated Subsidiary of
the Borrower provided that after giving effect to such transaction no Default
exists, and (c) any Wholly-Owned Subsidiary of the Borrower may dissolve,
liquidate or wind up its affairs at any time provided that such dissolution,
liquidation or winding up, as applicable, could not have a Material Adverse
Effect.
(e) Asset Dispositions. No Credit Party will, nor will it permit
any of its Consolidated Subsidiaries to, sell, lease, transfer or otherwise
dispose of any property (including, without limitation, pursuant to any
sale/leaseback transaction or securitization transaction) other than (i) the
sale or lease of assets in the ordinary course of business for fair
consideration, (ii) the sale or disposition of assets no longer used or useful
in the conduct of such Person's business and (iii) the sale by the Borrower for
fair consideration of those lines of business identified on Schedule 5.2(e).
(f) Investments. No Credit Party will, nor will it permit any of
its Consolidated Subsidiaries to, make Investments in or to any Person, except
for Permitted Investments.
(g) Restricted Payments. No Credit Party will, nor will it
permit any of its Consolidated Subsidiaries to, directly or indirectly, declare,
order, make or set apart any sum for or pay any Restricted Payment, except (i)
to make dividends payable solely in the same class of Capital Stock of such
Person so long as no Default exists and is continuing or would be directly or
indirectly caused as a result thereof, (ii) to make dividends or other
distributions payable to the Parent (directly or indirectly through
Subsidiaries), and (iii) the repurchase by the Parent of outstanding shares of
Capital Stock of the Parent so long as no Default exists and is continuing or
would be directly or indirectly caused as a result thereof.
(h) Subordinated Debt and Other Subordinated Indebtedness. No
Credit Party will, nor will it permit any of its Consolidated Subsidiaries to,
(i) after the issuance thereof, amend or modify (or permit the amendment or
modification of) any of the terms of the Subordinated Debt or any other
subordinated Indebtedness of a Credit Party or any of its
56
Consolidated Subsidiaries if such amendment or modification would add or change
any terms in a manner adverse to such Credit Party or any of its Consolidated
Subsidiaries, or shorten the final maturity or average life to maturity or
require any payment to be made sooner than originally scheduled or increase the
interest rate applicable thereto or change any subordination provision thereof
or (ii) make (or give any notice with respect thereto) any voluntary or optional
payment or prepayment or redemption or acquisition for value of (including
without limitation, by way of depositing money or securities with the trustee
with respect thereto before due for the purpose of paying when due), refund,
refinance or exchange of the Subordinated Debt or any other subordinated
Indebtedness of a Credit Party or any of its Consolidated Subsidiaries.'
(i) Transactions with Affiliates. No Credit Party will, nor will
it permit any of its Consolidated Subsidiaries to, enter into or permit to exist
any transaction or series of transactions with any officer, director,
shareholder, Subsidiary or Affiliate of such Person other than (a) transactions
permitted by Section 5.2(d), Section 5.2(f) or Section 5.2(g), (b) normal
compensation and reimbursement of expenses of officers and directors, (c) any
employment agreement (including customary benefits thereunder) that is entered
into in the ordinary course of business and (d) other transactions which are
entered into in the ordinary course of such Person's business on terms and
conditions substantially as favorable to such Person as would be obtainable by
it in a comparable arms-length transaction with a Person other than an officer,
director, shareholder, Subsidiary or Affiliate.
(j) Fiscal Year; Organizational Documents. No Credit Party will,
nor will it permit any of its Consolidated Subsidiaries to, (a) change its
fiscal year without having first provided 30 days prior written notice to the
Administrative Agent, or (b) amend, modify or change its articles of
incorporation (or corporate charter or other similar organizational document) or
bylaws (or other similar document) in any manner that would reasonably be likely
to adversely affect the rights of the Lenders without the prior written consent
of the Required Lenders.
(k) Limitation on Restricted Actions. No Credit Party will, nor
will it permit any of its Consolidated Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any encumbrance
or restriction on the ability of any such Person to (i) pay dividends or make
any other distributions on such Person's Capital Stock or with respect to any
other interest or participation in, or measured by, its profits, (ii) pay any
Indebtedness or other obligation owed to a Credit Party or any of its
Consolidated Subsidiaries, (iii) make loans or advances to a Credit Party or any
of its Consolidated Subsidiaries, (iv) sell, lease or transfer any of its
properties or assets to a Credit Party or any of its Consolidated Subsidiaries,
except (in respect of any of the matters referred to in clauses (i)-(iv) above)
for such encumbrances or restrictions existing under or by reason of (w) this
Agreement and the other Credit Documents, (x) the Minnesota Participation
Agreement and the Mountain View Participation Agreement, in each case so long as
such encumbrances or restrictions are no more restrictive than those set forth
in this Agreement, (y) the Milpitas Participation Agreement or (z) applicable
law.
(l) Ownership of Subsidiaries . Notwithstanding any other
provisions of this Agreement to the contrary, the Credit Parties will not, nor
will they permit any of their Consolidated Subsidiaries to, (i) permit any
Person (other than the Borrower or Parent or any
57
Wholly-Owned Subsidiary of the Borrower or Parent) to own any Capital Stock of
any Subsidiary of a Credit Party, (ii) permit any Subsidiary of a Credit Party
to issue any shares of preferred Capital Stock or (iii) permit, create, incur,
assume or suffer to exist any Lien on any Capital Stock of any Subsidiary of a
Credit Party.
(m) Sale Leasebacks. No Credit Party will, nor will it permit
any of its Consolidated Subsidiaries to, directly or indirectly, become or
remain liable as lessee or as guarantor or other surety with respect to any
lease, whether an Operating Lease or a Capitalized Lease, of any property
(whether real, personal or mixed), whether now owned or hereafter acquired, (a)
which such Credit Party or any of its Consolidated Subsidiaries has sold or
transferred or is to sell or transfer to a Person which is not a Credit Party or
any of its Consolidated Subsidiaries or (b) which a Credit Party or any of its
Consolidated Subsidiaries intends to use for substantially the same purpose as
any other Property which has been sold or is to be sold or transferred by such
Credit Party or its Consolidated Subsidiaries to another Person which is not a
Credit Party or any of its Consolidated Subsidiaries in connection with such
lease (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 (10.0%)
of Tangible Net Worth as of the last day of the fiscal quarter immediately
preceding such Sale-Leaseback Transaction.
(n) No Further Negative Pledges. No Credit Party will, nor will
it permit any of its Consolidated Subsidiaries to, enter into, assume or become
subject to any agreement prohibiting or otherwise restricting the creation or
assumption of any Lien upon its properties or assets, whether now owned or
hereafter acquired, or requiring the grant of any security for any obligation if
security is given for any other obligation, except pursuant to (i) this
Agreement and the other Credit Documents, (ii) the Minnesota Participation
Agreement, (iii) the Mountain View Participation Agreement or (iv) the Milpitas
Participation Agreement.
(o) Capital Expenditures. The Credit Parties hereby agree that
the Credit Parties and their Consolidated Subsidiaries will not make any Capital
Expenditures if any Default has occurred and is continuing or would be directly
or indirectly caused as a result thereof.
SECTION VI
DEFAULT
SECTION 6.1 EVENTS OF DEFAULT. The occurrence or existence of any one or
more of the following shall constitute an "Event of Default" hereunder:
(a) Non-Payment. Borrower shall (i) fail to pay when due any
principal of any Loan, (ii) fail to pay on the Maturity Date for any Loans any
interest, fees or other amounts payable with respect to such Loans on such
Maturity Date, (iii) fail to pay within five (5) days after the same becomes
due, any interest payable hereunder or under any of the other Credit
58
Documents fees payable pursuant to Section 2.6 required under the terms of this
Agreement or any of the other Credit Documents, or (iv) fail to pay within ten
(10) days after written notice the same is past due any other amounts required
under the terms of this agreement or any of the other Credit Documents; or
(b) Borrower shall fail to maintain insurance as required by
Section 5.1(m) or (ii) Borrower shall fail to deliver any requisite ACCORD
Evidence of Insurance or certified copy of any insurance policy required
thereunder when due under the terms hereof and such failure to deliver shall
continue unremedied for a period of ten (10) days after an officer of Borrower
becoming aware of such failure to deliver, or notice from the Administrative
Agent of such failure to deliver;
(c) Any written representation, warranty, certificate,
information or other statement (financial or otherwise) made or furnished by any
Credit Party to Administrative Agent or any Lender in or in connection with this
Agreement or any of the other Credit Documents shall be false, incorrect,
incomplete or misleading in any material respect when made, furnished or deemed
made;
(d) Any Credit Party or any Subsidiary of any Credit Party shall
default (beyond applicable periods of grace and/or notice and cure) in the
payment when due of any principal of or interest on any Indebtedness having an
outstanding principal amount of at least $10,000,000; or any other event or
condition shall occur which results in a default of any such Indebtedness or
enables the holder of any such Indebtedness or any Person acting on such
holder's behalf to accelerate the maturity thereof;
(e) The liquidation or dissolution of any Credit Party, or the
suspension of the business of any Credit Party, or the filing by any Credit
Party of a voluntary petition or an answer seeking reorganization, arrangement,
readjustment of its debts or for any other relief under the United States
Bankruptcy Code, as amended, or under any other insolvency act or law, state or
federal, now or hereafter existing, or any other action of any Credit Party
indicating its consent to, approval of or acquiescence in, any such petition or
proceeding; the application by any Credit Party for, or the appointment by
consent or acquiescence of any Credit Party of a receiver, a trustee or a
custodian of any Credit Party for all or a substantial part of its property; the
making by Borrower of any assignment for the benefit of creditors; the admission
by any Credit Party in writing of its inability to pay its debts as they mature
or is generally not paying its debts and other financial obligations as they
become due and payable; or any Credit Party taking any corporate action to
authorize any of the foregoing;
(f) The filing of an involuntary petition against any Credit
Party in bankruptcy or seeking reorganization, arrangement, readjustment of its
debts or for any other relief under the United States Bankruptcy Code, as
amended, or under any other insolvency act or law, state or federal, now or
hereafter existing; or the involuntary appointment of a receiver, a trustee or a
custodian of any Credit Party for all or a substantial part of its property; or
the issuance of a warrant of attachment, execution or similar process against
any substantial part of the property of any Credit Party, and the continuance of
any of such events for ninety (90) days undismissed or undischarged;
59
(g) The adjudication of any Credit Party as bankrupt or
insolvent;
(h) The entering of any order in any proceedings against any
Credit Party or any Subsidiary of any Credit Party decreeing the dissolution,
divestiture or split-up of any Credit Party or any Subsidiary of any Credit
Party, and such order remains in effect for more than sixty (60) days;
(i) Any report, certificate, financial statement or other
instrument delivered to the Administrative Agent or any Lender by or on behalf
of any Credit Party pursuant to the terms of this Agreement or any other Credit
Document is false or misleading in any material respect when made or delivered;
(j) The Borrower or any other Credit Party shall
(i) default in the due performance or observance of any
term, covenant or agreement contained in Sections 5.1(b), 5.1(o)
or 5.2;
(ii) default in the due performance or observance of any
term, covenant or agreement contained in Sections 5.1(a)(i),
(ii), (iii) or (iv) and such default shall continue unremedied
for a period of at least five (5) days after the earlier of an
officer of such Credit Party becoming aware of such default or
notice thereof by the Administrative Agent; or
(iii) default in the due performance or observance by it
of any term, covenant or agreement (other than those referred to
in subsections (a), (b), (c), (j)(i) or (j)(ii) of this Section
6.1) contained in this Agreement or any other Credit Document
and such default shall continue unremedied for a period of at
least thirty (30) days after the earlier of an officer of such
Credit Party becoming aware of such default or notice thereof by
the Administrative Agent; provided, however, that if such
default is of a nature that is not capable of being cured within
such thirty (30) day period, and the Borrower or any other such
Credit Party promptly commences appropriate steps to cure such
default within such thirty (30) day period and continues to
pursue such cure with diligence and good faith thereafter,
unless the Administrative Agent shall determine that such delay
could reasonably be expected to have a Material Adverse Effect,
such thirty (30) day period shall be extended for an additional
sixty (60) days;
(k) A final judgment or judgments for the payment of money shall
be rendered by a court or courts against any Credit Party or any Subsidiary of
any Credit Party or any of their assets in excess of $10,000,000 in the
aggregate, and (i) the same shall not be discharged (or provision shall not be
made for such discharge), or a stay of execution thereof shall not be procured,
within thirty (30) days from the date of entry thereof, or (ii) any Credit Party
or any such Subsidiary shall not, within said period of thirty (30) days, or
such longer period during which execution of the same shall have been stayed,
appeal therefrom and cause the execution thereof to be stayed during such
appeal, or (iii) such judgment or judgments shall not be discharged (or
provisions shall not be made for such discharge) within thirty (30) days after a
decision has been reached with respect to such appeal and the related stay has
been lifted;
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(l) Any Credit Party or any member of the Controlled Group shall
fail to pay when due an amount or amounts aggregating in excess of $5,000,000
which it shall have become liable to pay to the PBGC or to a Pension Plan under
Title IV of ERISA; or notice of intent to terminate a Pension Plan or Pension
Plans having aggregate Unfunded Liabilities in excess of $5,000,000 shall be
filed under Title IV of ERISA by any Credit Party or any member of the
Controlled Group, any plan administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of ERISA to terminate or to
cause a trustee to be appointed to administer any such Pension Plan or Pension
Plans or a proceeding shall be instituted by a fiduciary of any such Pension
Plan or Pension Plans against any Credit Party or any member of the Controlled
Group to enforce Section 515 or 4219(c)(5) of ERISA; or a condition shall exist
by reason of which the PBGC would be entitled to obtain a decree adjudicating
that any such Pension Plan or Pension Plans must be terminated;
(m) Any Change of Control shall occur;
(n) Any Credit Document shall cease to be in full force and
effect;
(o) Except as to any Credit Party which is released in
accordance with the Credit Documents, the guaranty given by any Guarantor under
this Agreement or any material provision thereof shall cease to be in full force
and effect, or any Guarantor or any Person acting by or on behalf of such
Guarantor shall deny or disaffirm such Guarantor's obligations under such
guaranty, or any Guarantor shall default in the due performance or observance of
any term, covenant or agreement on its part to be performed or observed pursuant
to any guaranty; or
(p) The occurrence and continuance of any event, condition or
other circumstance to the extent attributable to or resulting from any act or
omission of any Credit Party that has a Material Adverse Effect; or
(q) Any "Lease Event of Default" (as defined in the Lease) shall
occur and be continuing or exist.
SECTION 6.2 REMEDIES. At any time after the occurrence and during the
continuance of any Event of Default (other than an Event of Default referred to
in Subsection 6.1(e), 6.1(f) or 6.1(g)), Administrative Agent may, with the
consent of the Required Lenders, or shall, upon instructions from the Required
Lenders, by written notice to Borrower, (a) terminate the Commitments and the
obligations of Lenders to make Loans and/or (b) declare all outstanding
Obligations payable by Borrower to be immediately due and payable without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived, anything contained herein or in the Notes to the
contrary notwithstanding. Upon the occurrence or existence of any Event of
Default described in Subsection 6.1(e), 6.1(f) or 6.1(g), immediately and
without notice, (1) the Commitments and the obligations of Lenders to make Loans
shall automatically terminate and (2) all outstanding Obligations payable by
Borrower hereunder shall automatically become immediately due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived, anything contained herein or in the Notes to
the contrary notwithstanding. In addition to the foregoing remedies, upon the
occurrence or existence of any Event of Default, Administrative Agent may
exercise
61
any other right, power or remedy available to it under any of the Credit
Documents or otherwise by law, either by suit in equity or by action at law, or
both.
SECTION VII
AGENTS AND RELATIONS AMONG LENDERS
SECTION 7.1 APPOINTMENT, POWERS AND IMMUNITIES OF ADMINISTRATIVE AGENT.
Each Lender hereby appoints and authorizes Administrative Agent to act as its
agent hereunder and under the other Credit Documents with such powers as are
expressly delegated to Administrative Agent by the terms of this Agreement and
the other Credit Documents, together with such other powers as are reasonably
incidental thereto. Administrative Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement or in any
other Credit Document, be a trustee for any Lender or have any fiduciary duty to
any Lender. Notwithstanding anything to the contrary contained herein,
Administrative Agent shall not be required to take any action which is contrary
to this Agreement or any other Credit Document or any applicable Governmental
Rule. Neither Administrative Agent nor any Lender shall be responsible to any
other Lender for any recitals, statements, representations or warranties made by
any Credit Party or any of its Subsidiaries contained in this Agreement or in
any other Credit Document, for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Credit Document or
for any failure by any Credit Party or any of its Subsidiaries to perform their
respective obligations hereunder or thereunder. Administrative Agent may employ
agents and attorneys-in-fact and shall not be responsible to any Lender for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. Neither Administrative Agent nor any of its directors,
officers, employees, agents or advisors shall be responsible to any Lender for
any action taken or omitted to be taken by it or them hereunder or under any
other Credit Document or in connection herewith or therewith, except for its or
their own gross negligence or willful misconduct. Except as otherwise provided
under this Agreement, Administrative Agent shall take such action with respect
to the Credit Documents as shall be directed by the Required Lenders.
Administrative Agent shall provide each Lender with copies of such documents
received from any Credit Party pursuant to the Credit Documents as such Lender
may reasonably request.
SECTION 7.2 RELIANCE BY ADMINISTRATIVE AGENT. Administrative Agent shall
be entitled to rely upon any certificate, notice or other document (including
any cable, telegram, facsimile or telex) believed by it in good faith to be
genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by Administrative Agent with
reasonable care. As to any other matters not expressly provided for by this
Agreement, Administrative Agent shall not be required to take any action or
exercise any discretion, but shall be required to act or to refrain from acting
upon instructions of the Required Lenders and shall in all cases be fully
protected by Lenders in acting, or in refraining from acting, hereunder or under
any other Credit Document in accordance with the instructions of the Required
Lenders, and such instructions of the Required Lenders and any action taken or
failure to act pursuant thereto shall be binding on all of Lenders.
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SECTION 7.3 DEFAULTS. Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default unless Borrower has failed
to make a payment required to be made to Administrative Agent hereunder or
Administrative Agent has received a written notice from a Lender or Borrower,
referring to this Agreement and describing the provision under which such
Default occurred. If Administrative Agent receives such a notice of the
occurrence of a Default, Administrative Agent shall give prompt notice thereof
to Lenders. Administrative Agent shall take such action with respect to such
Default as shall be reasonably directed by the Required Lenders; provided,
however, that until Administrative Agent shall have received such directions,
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it shall deem
advisable in the best interest of Lenders.
SECTION 7.4 INDEMNIFICATION. Without limiting the Obligations of Credit
Parties hereunder, each Lender agrees to indemnify Administrative Agent (to the
extent not reimbursed by Borrower), ratably in accordance with their
Proportionate Shares, for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may at any time be imposed on, incurred by or
asserted against Administrative Agent (other than in its capacity as a Lender)
in any way relating to or arising out of this Agreement or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or the enforcement of any of the terms hereof or
thereof subject to reimbursement on a pro rata basis if any such payment is
subsequently recovered from Credit Parties; provided, however, that no Lender
shall be liable for any of the foregoing to the extent they arise from
Administrative Agent's gross negligence or willful misconduct. Administrative
Agent shall be fully justified in refusing to take or in continuing to take any
action hereunder unless it shall first be indemnified to its satisfaction by
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The obligations of each
Lender under this Section 7.4 shall survive the payment and performance of the
Obligations, the termination of this Agreement and any Lender ceasing to be a
party to this Agreement (with respect to events which occurred prior to the time
such Lender ceased to be a Lender hereunder).
SECTION 7.5 NON-RELIANCE. Each Lender represents that it has,
independently and without reliance on Administrative Agent or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of the business, prospects, management, financial condition
and affairs of Credit Parties and their Subsidiaries and its own decision to
enter into this Agreement and agrees that it will, independently and without
reliance upon Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own appraisals and decisions in taking or not taking action under this
Agreement. Neither Administrative Agent nor any of its affiliates nor any of
their respective directors, officers, employees, agents or advisors shall (a) be
required to keep any Lender informed as to the performance or observance by any
Credit Party or any of its Subsidiaries of the obligations under this Agreement
or any other document referred to or provided for herein or to make inquiry of,
or to inspect the properties or books of any Credit Party or any of its
Subsidiaries; (b) have any duty or responsibility to provide any Lender with any
credit or other information concerning any Credit Party or any of its
Subsidiaries which may come into the possession of Administrative Agent, except
for notices, reports and other
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documents and information expressly required to be furnished to Lenders by
Administrative Agent hereunder; or (c) be responsible to any Lender for (i) any
recital, statement, representation or warranty made by any Credit Party or any
officer, employee or agent of such Person in this Agreement or in any of the
other Credit Documents, (ii) the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any Credit Document, (iii)
the value or sufficiency of any collateral or the validity or perfection of any
of the liens or security interests intended to be created by the Credit
Documents, or (iv) any failure by any Credit Party to perform its obligations
under this Agreement or any other Credit Document.
SECTION 7.6 RESIGNATION OR REMOVAL OF ADMINISTRATIVE AGENT. Subject to
the appointment and acceptance of a successor Administrative Agent as provided
below, Administrative Agent may resign at any time by giving thirty (30) days
prior written notice thereof to Borrower and Lenders, and Administrative Agent
may be removed at any time with or without cause by the Required Lenders. Upon
any such resignation or removal, the Required Lenders shall have the right to
appoint a successor Administrative Agent, which Administrative Agent, if not a
Lender, shall be reasonably acceptable to Borrower; provided, however, that
Borrower shall have no right to approve a successor Administrative Agent if a
Default has occurred and is continuing. Upon the acceptance of any appointment
as Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from the duties
and obligations thereafter arising hereunder. After any retiring Administrative
Agent's resignation or removal hereunder as Administrative Agent, the provisions
of this Section VII shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Administrative
Agent.
SECTION 7.7 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of banking or other business with any Credit
Party and its Subsidiaries and affiliates as though Administrative Agent were
not Administrative Agent hereunder. With respect to Loans, if any, made by
Administrative Agent in its capacity as a Lender, Administrative Agent in its
capacity as a Lender shall have the same rights and powers under this Agreement
and the other Credit Documents as any other Lender and may exercise the same as
though it were not Administrative Agent, and the terms "Lender" or "Lenders"
shall include Administrative Agent in its capacity as a Lender.
SECTION VIII
MISCELLANEOUS
SECTION 8.1 NOTICES. All notices required or permitted to be given under
any Credit Document shall be in writing. Notices may be served by certified or
registered mail, postage paid with return receipt requested; by private courier,
prepaid; by facsimile, or other telecommunication device capable of transmitting
or creating a written record; or personally. Mailed notices shall be deemed
delivered five (5) days after mailing, properly addressed.
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Couriered notices shall be deemed delivered when delivered as addressed, or if
the addressee refuses delivery, when presented for delivery notwithstanding such
refusal. Telecommunicated notices shall be deemed delivered when receipt is
either confirmed by confirming transmission equipment or acknowledged by the
addressee or its office. Personal delivery shall be effective when accomplished.
Unless a party changes its address by giving notice to the other party as
provided herein, notices shall be delivered to the parties at the following
addresses:
If to the Borrower, or to any Guarantor, to such entity at the following
address:
VERITAS Software Global Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Administrative Agent, to it at the following address:
ABN AMRO Bank N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
ABN AMRO Bank N.V.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Lender, to it at the address set forth for such Lender in
Schedule I of the Credit Agreement.
From time to time any party may designate additional parties and/or
another address for notice purposes by notice to each of the other parties
hereto. Each notice hereunder shall be effective upon receipt or refusal
thereof.
Each Notice of Borrowing, Notice of Term Loan Conversion and Notice of
Interest Period Selection shall be given by Borrower to Administrative Agent's
office located at the address referred to above during Administrative Agent's
normal business hours; provided, however, that any such notice received by
Administrative Agent after 10:00 a.m. (San Francisco, California time) on any
Business Day shall be deemed received by Administrative Agent on the
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next Business Day. In any case where this Agreement authorizes notices,
requests, demands or other communications by Borrower to Administrative Agent or
any Lender to be made by telephone or facsimile, Administrative Agent or any
Lender may conclusively presume that anyone purporting to be a person designated
in any incumbency certificate or other similar document received by
Administrative Agent or a Lender is such a person.
SECTION 8.2 EXPENSES. Borrower shall pay on demand, whether or not any
Loan is made hereunder, (a) all reasonable out-of-pocket fees and expenses,
including reasonable attorneys' fees and expenses, incurred by Administrative
Agent in connection with the syndication of the facilities provided hereunder,
the preparation, negotiation, execution and delivery of, and the exercise of its
duties under, this Agreement and the other Credit Documents, and the
preparation, negotiation, execution and delivery of amendments and waivers
hereunder and thereunder and (b) all out-of-pocket fees and expenses, including
reasonable attorneys' fees and expenses, incurred by Administrative Agent and
Lenders in the enforcement or attempted enforcement of any of the Obligations or
in preserving any of Administrative Agent's or Lenders' rights and remedies
(including, without limitation, all such fees and expenses incurred in
connection with any "workout" or restructuring affecting the Credit Documents or
the Obligations or any bankruptcy or similar proceeding involving Borrower or
any of its Subsidiaries). The obligations of Borrower under this Section 8.2
shall survive the payment and performance of the Obligations and the termination
of this Agreement.
SECTION 8.3 INDEMNIFICATION. To the fullest extent permitted by law,
Borrower agrees to protect, indemnify, defend and hold harmless Administrative
Agent, Lenders and their Affiliates and their respective directors, officers,
employees, agents and advisors ("Indemnitees") from and against any and all
liabilities, losses, damages or expenses of any kind or nature and from any
suits, claims or demands (including in respect of or for reasonable attorney's
fees and other expenses) arising on account of or in connection with any matter
or thing or action or failure to act by Indemnitees, or any of them, arising out
of or relating to the Credit Documents or any transaction contemplated thereby,
including without limitation any use by Borrower of any proceeds of the Loans,
except to the extent such liability arises from the willful misconduct or gross
negligence of such Indemnitee. Upon receiving knowledge of any suit, claim or
demand asserted by a third party that Administrative Agent or any Lender
believes is covered by this indemnity, Administrative Agent or such Lender shall
give Borrower notice of the matter and an opportunity to defend it, at
Borrower's sole cost and expense, with legal counsel reasonably satisfactory to
Administrative Agent or such Lender, as the case may be. Administrative Agent or
such Lender may also require Borrower to defend the matter. Any failure or delay
of Administrative Agent or any Lender to notify Borrower of any such suit, claim
or demand shall not relieve Borrower of its obligations under this Section 8.3
but shall reduce such obligations to the extent of any increase in those
obligations caused solely by any such failure or delay which is unreasonable.
The obligations of Borrower under this Section 8.3 shall survive the payment and
performance of the Obligations and the termination of this Agreement.
SECTION 8.4 WAIVERS; AMENDMENTS. Any term, covenant, agreement or
condition of this Agreement or any other Credit Document may be amended or
waived, and any consent under this Agreement or any other Credit Document may be
given, if such amendment, waiver or consent is in writing and is signed by
Borrower and the Required Lenders (or Administrative
66
Agent on behalf of the Required Lenders with the written approval of the
Required Lenders); provided, however that:
(a) Any amendment, waiver or consent which would (i) increase
the Total Commitment, (ii) postpone, delay or extend the Revolving Loan Maturity
Date or the Term Loan Maturity Date, (iii) reduce the principal of or interest
on the Loans, the Commitment Fees or any other fees or amounts payable for the
account of all Lenders hereunder or postpone, delay or extend the scheduled date
for payment of any such principal, interest, fees or amounts must be in writing
and signed or approved in writing by all Lenders;
(b) Any amendment, waiver or consent which would (i) reduce any
fees or other amounts payable for the account of all Lenders hereunder or
postpone, delay or extend the scheduled date for payment of any such fees or
amounts, (ii) amend this Section 8.4, (iii) amend the definition of Required
Lenders, or (iv) amend Section 2.11, (iv) waive any Default based on Borrower's
failure to pay any sum due to all Lenders hereunder, must be in writing and
signed or approved in writing by all Lenders;
(c) Any amendment, waiver or consent which would increase or
decrease the Commitment of any Lender (except for a pro rata decrease in the
Commitments of all Lenders) must be in writing and signed by such Lender; and
(d) Any amendment, waiver or consent which affects the rights or
obligations of Administrative Agent must be in writing and signed by
Administrative Agent.
No failure or delay by Administrative Agent or any Lender in exercising any
right under this Agreement or any other Credit Document shall operate as a
waiver thereof or of any other right hereunder or thereunder nor shall any
single or partial exercise of any such right preclude any other further exercise
thereof or of any other right hereunder or thereunder. Unless otherwise
specified in such waiver or consent, a waiver or consent given hereunder shall
be effective only in the specific instance and for the specific purpose for
which given.
SECTION 8.5 SUCCESSORS AND ASSIGNS.
(a) Binding Effect. This Agreement and the other Credit
Documents shall be binding upon and inure to the benefit of Credit Parties,
Lenders, Administrative Agent, all future holders of the Notes and their
respective successors and permitted assigns, except that Borrower may not assign
or transfer any of its rights or obligations under any Credit Document without
the prior written consent of Administrative Agent and each Lender.
(b) Participations. Any Lender may at any time sell to one or
more banks or other financial institutions ("Participants") participating
interests in any Loan owing to such Lender, any Note held by such Lender, any
Commitment of such Lender or any other interest of such Lender under this
Agreement and the other Credit Documents; provided, however, that no such sale
of a participating interest shall be made without the written consent of
Borrower (so long as no Default has occurred and is continuing) and
Administrative Agent, which consents shall not be unreasonably withheld. In the
event of any such sale by a Lender of participating interests, such Lender's
obligations under this Agreement shall remain unchanged, such Lender
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shall remain solely responsible for the performance thereof, such Lender shall
remain the holder of its Notes for all purposes under this Agreement and
Borrower and Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement. Any agreement pursuant to which any such sale is effected may
require the selling Lender to obtain the consent of the Participant in order for
such Lender to agree in writing to any amendment, waiver or consent of a type
specified in Subsection 8.4(a), 8.4(b) or 8.4(c) to the extent applicable but
may not otherwise require the selling Lender to obtain the consent of such
Participant to any other amendment, waiver or consent hereunder. Borrower also
agrees that any Lender which has transferred any participating interest in its
Commitments or Loans shall, notwithstanding any such transfer, be entitled to
the full benefits accorded such Lender under Sections 2.12, 2.13 and 2.14, as if
such Lender had not made such transfer.
(c) Assignments. Any Lender may, at any time, sell and assign to
any Lender or any Eligible Assignee (individually, an "Assignee Lender") all or
a portion of its rights and obligations under this Agreement and the other
Credit Documents (such a sale and assignment to be referred to herein as an
"Assignment") pursuant to an assignment agreement substantially in the form of
Exhibit H (an "Assignment Agreement"), executed by each Assignee Lender and such
assignor Lender (an "Assignor Lender") and delivered to Administrative Agent for
its acceptance and recording in the Register; provided, however, that:
(i) Without the written consent of Administrative Agent
and, if no Default has occurred and is continuing, Borrower
(which consent of Administrative Agent and Borrower shall not be
unreasonably withheld), no Lender may make any Assignment to any
Assignee Lender which is not, immediately prior to such
Assignment, a Lender hereunder or an Affiliate thereof; or
(ii) Without the written consent of Administrative Agent
and, if no Default has occurred and is continuing, Borrower
(which consent of Administrative Agent and Borrower shall not be
unreasonably withheld), no Lender may make any Assignment of its
Commitment and Loans to any Assignee Lender if, after giving
effect to such Assignment, the Commitment (or, after the
termination of the Commitments, the Loans) of such Lender or
such Assignee Lender would be less than Five Million Dollars
($5,000,000), except that a Lender may make an Assignment which
reduces its Commitment (or, after the termination of the
Commitments, its Loans) to zero without the written consent of
Borrower and Administrative Agent; or
(iii) Without the written consent of Administrative
Agent and, if no Default has occurred and is continuing,
Borrower (which consent of Administrative Agent and Borrower
shall not be unreasonably withheld), no Lender may make any
Assignment of its Commitment and Loans which does not assign and
delegate an equal pro rata interest in such Lender's Commitment,
Loans and all other rights, duties and obligations of such
Lender under this Agreement and the other Credit Documents
relating to the Facility.
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Upon such execution, delivery, acceptance and recording of each Assignment
Agreement, from and after the Assignment Effective Date determined pursuant to
such Assignment Agreement, (A) each Assignee Lender thereunder shall be a Lender
hereunder with Commitments and Loans as set forth on Attachment 1 to such
Assignment Agreement (under the caption "Commitment or Loans After Assignment")
and shall have the rights, duties and obligations of such a Lender under this
Agreement and the other Credit Documents, and (B) the Assignor Lender thereunder
shall be a Lender with Commitment and Loans as set forth on Attachment 1 to such
Assignment Agreement (under the caption "Commitments or Loans After
Assignment"), or, if the Commitment and Loans of the Assignor Lender has been
reduced to 0% and $0, the Assignor Lender shall cease to be a Lender and to have
any obligation to make any Loan; provided, however, that any such Assignor
Lender which ceases to be a Lender shall continue to be entitled to the benefits
of any provision of this Agreement which by its terms survives the termination
of this Agreement. Each Assignment Agreement shall be deemed to amend Schedule I
to the extent, and only to the extent, necessary to reflect the addition of each
Assignee Lender, the deletion of each Assignor Lender which reduces its
Commitment and Loans to 0% and $0 and the resulting adjustment of Proportionate
Shares arising from the purchase by each Assignee Lender of all or a portion of
the rights and obligations of an Assignor Lender under this Agreement and the
other Credit Documents. On or prior to the Assignment Effective Date determined
pursuant to each Assignment Agreement, Borrower, at its own expense, shall
execute and deliver to Administrative Agent, in exchange for the surrendered
Notes, if any, of the Assignor Lender thereunder, a new Note to the order of
each Assignee Lender thereunder that requests such Note (with each new Revolving
Loan Note to be in amounts equal to the applicable Commitments assumed by such
Assignee Lender and each new Term Loan Note to be in the original principal
amount of the Term Loan then held by such Assignee Lender) and, if the Assignor
Lender is continuing as a Lender hereunder, new Revolving Loan Notes and a Term
Loan Note to the order of the Assignor Lender if so requested by such Assignor
Lender (with the new Revolving Loan Notes to be in amounts equal to the
applicable Commitments retained by it and the new Term Loan Note to be in the
original principal amount of the Term Loan retained by it). Each such new
Revolving Loan Note shall be dated the Effective Date, each such new Term Loan
Note shall be dated the Revolving Loan Maturity Date, and each such new Note
shall otherwise be in the form of the Note replaced thereby. The Notes
surrendered by the Assignor Lender shall be returned by Administrative Agent to
Borrower marked "replaced". Each Assignee Lender which was not previously a
Lender hereunder and which is not incorporated under the laws of the United
States of America or a state thereof shall, within three (3) Business Days of
becoming a Lender, deliver to Borrower and Administrative Agent two duly
completed copies of United States Internal Revenue Service Form W-8BEN or W-8EC1
(or successor applicable form), as the case may be, certifying in each case that
such Lender is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes.
(d) Register. Administrative Agent shall maintain at its address
referred to in Section 8.1 a copy of each Assignment Agreement delivered to it
and a register (the "Register") for the recordation of the names and addresses
of Lenders and the Commitments or Loans of each Lender from time to time. The
entries in the Register shall be conclusive in the absence of manifest error,
and Borrower, Administrative Agent and Lenders may treat each Person whose name
is recorded in the Register as the owner of the Loans recorded therein for all
purposes of
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this Agreement. The Register shall be available for inspection by Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Registration. Upon its receipt of an Assignment Agreement
executed by an Assignor Lender and an Assignee Lender (and, to the extent
required by Subsection 8.5(c), by Borrower and Administrative Agent) together
with payment to Administrative Agent by Assignor Lender or Assignee Lender of a
registration and processing fee of $3,000, Administrative Agent shall (i)
promptly accept such Assignment Agreement and (ii) on the Assignment Effective
Date determined pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to Lenders and
Borrower. Administrative Agent may, from time to time at its election, prepare
and deliver to Lenders and Borrower a revised Schedule I reflecting the names,
addresses and respective the Commitments or Loans of all Lenders then parties
hereto.
(f) Confidentiality. Subject to Section 8.10, Administrative
Agent and Lenders may disclose the Credit Documents and any financial or other
information relating to Credit Parties or any of their Subsidiaries to each
other or to any potential Participant or Assignee Lender.
(g) Pledges to Federal Reserve Banks. Notwithstanding any other
provision of this Agreement, any Lender may at any time assign all or a portion
of its rights under this Agreement and the other Credit Documents to a Federal
Reserve Bank. No such assignment shall relieve the assigning Lender from its
obligations under this Agreement and the other Credit Documents.
SECTION 8.6 SETOFF. In addition to any rights and remedies of Lenders
provided by law, each Lender shall have the right, with the prior consent of
Administrative Agent but without prior notice to or consent of any Credit Party,
any such notice and consent being expressly waived by each Credit Party to the
extent permitted by applicable law, upon the occurrence and during the
continuance of an Event of Default, to set-off and apply against the Obligations
any amount owing from such Lender to such Credit Party. The aforesaid right of
set-off may be exercised by such Lender against each Credit Party or against any
trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver or execution, judgment or attachment creditor of such Credit
Party or against anyone else claiming through or against such Credit Party or
such trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off may not have been exercised
by such Lender at any prior time. Each Lender agrees promptly to notify Borrower
after any such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
SECTION 8.7 NO THIRD PARTY RIGHTS. Nothing expressed in or to be implied
from this Agreement is intended to give, or shall be construed to give, any
Person, other than the parties hereto and their permitted successors and assigns
hereunder, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Agreement or under or by virtue of any provision herein.
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SECTION 8.8 PARTIAL INVALIDITY. If at any time any provision of this
Agreement is or becomes illegal, invalid or unenforceable in any respect under
the law or any jurisdiction, neither the legality, validity or enforceability of
the remaining provisions of this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
SECTION 8.9 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL; VENUE.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, INTERPRETED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA. Any legal action or
proceeding with respect to this Agreement or any other Credit Document may be
brought in the courts of the State of California in ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ for the Northern District of California, and, by execution and
delivery of this Agreement, each of the parties to this Agreement hereby
irrevocably accepts for itself and in respect of its property, generally and
unconditionally, the nonexclusive jurisdiction of such courts. Each of the
parties to this Agreement further irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
it at the address set out for notices pursuant to Section 8.1, such service to
become effective three (3) days after such mailing. Nothing herein shall affect
the right of any party to serve process in any other manner permitted by Law or
to commence legal proceedings or to otherwise proceed against any party in any
other jurisdiction.
(b) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY,
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY OTHER CREDIT DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
Each of the parties to this Agreement hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Agreement or any other Credit Document brought in the courts referred to in
subsection (a) above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum.
SECTION 8.10 CONFIDENTIALITY.
(a) Neither any Lender nor Administrative Agent shall make use
of, disseminate, or in any way disclose confidential information with respect to
any Credit Party or any of its Subsidiaries which is furnished pursuant to this
Agreement or under the other Credit Documents except as authorized by this
Agreement. As used in this Section 8.10, "confidential information" shall mean
any and all technical and non-technical information including patent, trade
secret, and proprietary information, techniques, sketches, drawings, models,
inventions, know-how, processes, apparatus, equipment, algorithms, software
programs, software source
71
documents, and formulae related to the current, future and proposed products and
services of any Credit Party and its Subsidiaries, and includes, without
limitation, their respective information concerning research, experimental work,
development, design details and specifications, engineering, financial
information, procurement requirements, purchasing, manufacturing, customer
lists, business forecasts, sales and merchandising, and marketing plans and
information. Neither any Credit Party nor any of its Subsidiaries licenses any
intellectual property to any Lender or Administrative Agent under this
Agreement.
(b) Each Lender and Administrative Agent is authorized to
disclose confidential information with respect to Credit Parties or any of their
Subsidiaries: (i) to its own directors, officers, employees, auditors, counsel
and other advisors and to its Affiliates who need to know such information; (ii)
to any other Lender or Administrative Agent; (iii) which is in the public domain
at or subsequent to the time it was received by such Lender or Administrative
Agent through no fault of such recipient, was rightfully in the possession of
such Lender or Administrative Agent free of any obligation of confidence at or
subsequent to the time it was communicated to such recipient by any Credit Party
or any of its Subsidiaries, or was developed by employees or agents of such
Lender or Administrative Agent independently of and without reference to any
information communicated to such recipient by any Credit Party or any of its
Subsidiaries; (iv) if required or appropriate in any report, statement or
testimony submitted to any Governmental Authority having or claiming to have
jurisdiction over such Lender or Administrative Agent; (v) if required in
response to any valid order by a court or Governmental Authority; (vi) as
necessary to establish the rights of any party under this Agreement or the other
Credit Documents; (vii) to comply with any Legal Requirement or Governmental
Rule applicable to such Lender or Administrative Agent; (viii) to any Assignee
Lender or Participant or any prospective Assignee Lender or Participant,
provided that such Assignee Lender or Participant or prospective Assignee Lender
or Participant agrees to be bound by this Section 8.10; or (ix) otherwise with
the prior consent of Borrower; provided, however, that (A) any Lender or
Administrative Agent served with any court order demanding the disclosure of any
such confidential information shall use reasonable efforts to notify Borrower
promptly of such court order if not prohibited by any Legal Requirement or
Governmental Rule and, if requested by Borrower and not disadvantageous to such
Lender or Administrative Agent, to cooperate with Borrower in obtaining a
protective order restricting such disclosure, and (B) any disclosure made in
violation of this Agreement shall not affect the obligations of Credit Parties
and their Subsidiaries under this Agreement and the other Credit Documents. Each
Lender and Administrative Agent (x) shall treat all confidential information
with respect to Credit Parties and their Subsidiaries which is furnished
pursuant to this Agreement or under the other Credit Documents with the same
degree of care as it accords its own confidential information and (y) represents
to Borrower that it exercises reasonable care with respect to its own
confidential information and has policies in place regarding the handling of
confidential information by its employees.
SECTION 8.11 COUNTERPARTS. This Agreement may be executed in any number
of identical counterparts, any set of which signed by all the parties hereto
shall be deemed to constitute a complete, executed original for all purposes.
72
SECTION IX
GUARANTY
SECTION 9.1 GUARANTY OF PAYMENT AND PERFORMANCE. Subject to Section 9.7,
each Guarantor hereby, jointly and severally, unconditionally guarantees to the
Administrative Agent and Lenders the prompt payment and performance of the
Obligations in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration or otherwise) or when such is otherwise to be
performed. This Section 9 is a guaranty of payment and performance and not of
collection and is a continuing guaranty and shall apply to all Obligations
whenever arising.
SECTION 9.2 OBLIGATIONS UNCONDITIONAL. Each Guarantor agrees that the
obligations of the Guarantors hereunder are absolute and unconditional,
irrespective of the value, genuineness, validity, regularity or enforceability
of any of the Credit Documents, or any other agreement or instrument referred to
therein, or any substitution, release or exchange of any other guarantee of or
security for any of the Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety,
guarantor or co-obligor, it being the intent of this Section 9.2 that the
obligations of the Guarantors hereunder shall be absolute and unconditional
under any and all circumstances. Each Guarantor agrees that this Section 9 may
be enforced by the Administrative Agent and Lenders without the necessity at any
time of resorting to or exhausting any other security or collateral and without
the necessity at any time of having recourse to the Notes or any other of the
Credit Documents or any collateral, if any, hereafter securing the Obligations
or otherwise and each Guarantor hereby waives the right to require the
Administrative Agent and Lenders to proceed against the Borrower or any other
Person (including without limitation a co-guarantor) or to require the
Administrative Agent or the Lenders to pursue any other remedy or enforce any
other right. Each Guarantor further agrees that it hereby waives any and all
right of subrogation, indemnity, reimbursement or contribution against the
Borrower or any other Guarantor of the Obligations for amounts paid under this
Section 9 until such time as the Loans, accrued but unpaid interest and all
other amounts owing under the Credit Documents have been paid in full. Without
limiting the generality of the waiver provisions of this Section 9, each
Guarantor hereby waives any rights to require the Administrative Agent and
Lenders to proceed against the Borrower or any co-guarantor. Each Guarantor
further agrees that nothing contained herein shall prevent the Administrative
Agent and Lenders from suing on any Credit Document or foreclosing any security
interest in or Lien on any collateral, if any, securing the Obligations or from
exercising any other rights available to it under any Credit Document, or any
other instrument of security, if any, and the exercise of any of the aforesaid
rights and the completion of any foreclosure proceedings shall not constitute a
discharge of any Guarantor's obligations hereunder; it being the purpose and
intent of each Guarantor that its obligations hereunder shall be absolute,
independent and unconditional under any and all circumstances; provided that any
amounts due under this Section 9 which are paid to or for the benefit of
Administrative Agent and Lenders shall reduce the Obligations by a corresponding
amount (unless required to be rescinded at a later date). Neither any
Guarantor's obligations under this Section 9 nor any remedy for the enforcement
thereof shall be impaired, modified, changed or released in any manner
whatsoever by an impairment, modification, change, release or limitation of the
liability of the Borrower or by reason of the bankruptcy or
73
insolvency of the Borrower. Each Guarantor waives any and all notice of the
creation, renewal, extension or accrual of any of the Obligations and notice of
or proof of reliance by Administrative Agent or any Lender upon this Section 9
or acceptance of this Section 9. The Obligations shall conclusively be deemed to
have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon this Section 9. All dealings between the Borrower, and
any of the Guarantors, on the one hand, and the Administrative Agent and
Lenders, on the other hand, likewise shall be conclusively presumed to have been
had or consummated in reliance upon this Section 9.
Each Guarantor hereby waives, to the fullest extent permitted by law,
all rights and benefits under section 2809 of the California Civil Code
purporting to reduce such Guarantor's obligations in proportion to the principal
obligation, all rights and benefits under section 580a of the California Code of
Civil Procedure governing determination of fair market value following the
exercise of power of sale, all rights and benefits under section 580b of the
California Code of Civil Procedure stating that no deficiency may be recovered
on a real property purchase money obligation and all rights and benefits under
section 580d of the California Code of Civil Procedure stating that no
deficiency may be recovered on a note secured by a deed of trust on real
property in case such real property is sold under the power of sale contained in
such deed of trust, and all rights and benefits under section 726 of the
California Code of Civil Procedure and any and all similar laws now in effect or
hereafter enacted in the State of California regarding the procedures to be
followed by a creditor with real property security and/or limiting the right of
such a creditor to a deficiency judgment, including, without limitation,
California law now in effect stating that the Administrative Agent must first
proceed against any real property collateral before commencing an action to
collect the Obligations, if such sections, or any of them, have any application
hereto or any application to the Guarantor. Accordingly, each Guarantor waives
all rights and defenses that the Guarantor may have because the Obligations are
secured by real property. This means, among other things: (i) the Administrative
Agent may collect from each Guarantor without first foreclosing on any real or
personal property collateral pledged by the Borrower; and (ii) if the
Administrative Agent forecloses on any real property collateral pledged by the
Borrower: (A) the amount of the debt may be reduced only by the price for which
that collateral is sold at the foreclosure sale, even if the collateral is worth
more than the sale price, and (B) the Administrative Agent may collect from each
Guarantor even if the Administrative Agent, by foreclosing on the real property
collateral, has destroyed any right a Guarantor may have to collect from the
Borrower. This is an unconditional and irrevocable waiver of any rights and
defenses the Guarantor may have because the 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. Each Guarantor expressly waives any and all benefits under the
California Civil Code Sections 2787 to 2855 inclusive.
Each Guarantor understands that the Administrative Agent's exercise of
certain rights and remedies contained in the Credit Documents may affect or
eliminate a Guarantor's rights of subrogation against the Borrower and that the
Guarantor may therefore incur partially or totally nonreimbursable liability
hereunder; nevertheless, each Guarantor hereby authorizes and empowers the
Administrative Agent, its successors, endorsees and/or assignees, to exercise in
its or their sole discretion, any rights and remedies, or any combination
thereof, which may then be
74
available, it being the purpose and intent of each Guarantor that its
obligations hereunder shall be absolute, independent and unconditional under any
and all circumstances. Accordingly, each Guarantor waives all rights and
defenses arising out of an election of remedies by the Administrative Agent,
even though the election of remedies, such as non-judicial foreclosure with
respect to security for the Obligations, has destroyed or impaired a Guarantor's
rights of subrogation and reimbursement against the principal by operation of
Section 580d of the California Code of Civil Procedure or otherwise.
SECTION 9.3 MODIFICATIONS. Each Guarantor agrees that (a) all or any
part of the security now or hereafter held for the Obligations, if any, may be
exchanged, compromised or surrendered from time to time; (b) neither the
Administrative Agent nor any Lender shall have any obligation to protect,
perfect, secure or insure any such security interests, liens or encumbrances now
or hereafter held, if any, for the Obligations or the properties subject
thereto; (c) the time or place of payment of the Obligations may be changed or
extended, in whole or in part, to a time certain or otherwise, and may be
renewed or accelerated, in whole or in part; (d) the Borrower and any other
party liable for payment under the Credit Documents may be granted indulgences
generally; (e) any of the provisions of the Notes or any of the other Credit
Documents may be modified, amended or waived; (f) any party (including any
co-guarantor) liable for the payment thereof may be granted indulgences or be
released; and (g) any deposit balance for the credit of the Borrower or any
other party liable for the payment of the Obligations or liable upon any
security therefor may be released, in whole or in part, at, before or after the
stated, extended or accelerated maturity of the Obligations, all without notice
to or further assent by such Guarantor, which shall remain bound thereon,
notwithstanding any such exchange, compromise, surrender, extension, renewal,
acceleration, modification, indulgence or release.
SECTION 9.4 WAIVER OF RIGHTS. Each Guarantor expressly waives to the
fullest extent permitted by applicable law: (a) notice of acceptance of this
Section 9 by the Administrative Agent or any Lender and of all extensions of
credit or other Borrowings to the Borrower by the Lenders pursuant to the terms
of the Credit Documents; (b) presentment and demand for payment or performance
of any of the Obligations; (c) protest and notice of dishonor or of default with
respect to the Obligations or with respect to any security therefor; (d) notice
of the Administrative Agent or any Lender obtaining, amending, substituting for,
releasing, waiving or modifying any security interest, lien or encumbrance, if
any, hereafter securing the Obligations, or the Administrative Agent's or any
Lender's subordinating, compromising, discharging or releasing such security
interests, liens or encumbrances, if any; and (e) all other notices to which
such Guarantor might otherwise be entitled. Notwithstanding anything to the
contrary herein, (i) each Guarantor's payments hereunder shall be due five (5)
Business Days after written demand by the Administrative Agent or any Lender for
such payment (unless the Obligations are automatically accelerated pursuant to
the applicable provisions of the Credit Documents in which case the Guarantors'
payments shall be automatically due) and (ii) any modification of the Credit
Documents which has the effect of increasing the Obligations shall not be
enforceable against a Guarantor unless such Guarantor executes the document
evidencing such modification or otherwise reaffirms its guaranty in writing in
connection with such modification.
75
SECTION 9.5 REINSTATEMENT. The obligations of the Guarantors under this
Section 9 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any Person in respect of the Obligations
is rescinded or must be otherwise restored by any holder of any of the
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, reasonable fees of counsel) incurred by
the Administrative Agent or any Lender in connection with such rescission or
restoration, including without limitation any such costs and expenses incurred
in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
SECTION 9.6 REMEDIES. The Guarantors agree that, as between the
Guarantors, on the one hand, and the Administrative Agent and each Lender, on
the other hand, the Obligations may be declared to be forthwith due and payable
as provided in the applicable provisions of the Credit Documents (and shall be
deemed to have become automatically due and payable in the circumstances
provided therein) notwithstanding any stay, injunction or other prohibition
preventing such declaration (or preventing such Obligations from becoming
automatically due and payable) as against any other Person and that, in the
event of such declaration (or such Obligations being deemed to have become
automatically due and payable), such Obligations (whether or not due and payable
by any other Person) shall forthwith become due and payable by the Guarantors in
accordance with the applicable provisions of the Credit Documents.
SECTION 9.7 LIMITATION ON GUARANTY. Notwithstanding any provision to the
contrary contained herein or in any of the other Credit Documents, to the extent
the obligations of any Guarantor shall be adjudicated to be invalid or
unenforceable for any reason (including without limitation because of any
applicable state or federal law relating to fraudulent conveyances or transfers)
then the obligations of such Guarantor hereunder shall be limited to the maximum
amount that is permissible under applicable law (whether federal or state and
including without limitation the United States Bankruptcy Code).
Subject to Section 9.5, upon the satisfaction of the Obligations in
full, regardless of the source of payment, the Guarantors' obligations hereunder
shall be deemed satisfied, discharged and terminated other than indemnifications
set forth herein that expressly survive.
SECTION 9.8 PAYMENT OF AMOUNTS TO THE ADMINISTRATIVE AGENT. The
Administrative Agent and each Lender hereby instructs each Guarantor, and each
Guarantor hereby acknowledges and agrees, that until such time as the Loans are
paid in full, any and all other amounts of any kind or type under any of the
Credit Documents due and owing or payable to any Person shall instead be paid
directly to the Administrative Agent.
SECTION 9.9 JOINDER AGREEMENT REQUIREMENTS. Each Material Domestic
Subsidiary of each Credit Party formed or acquired subsequent to the 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
76
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) such Material Domestic Subsidiary shall execute and deliver
to the Agent a Joinder Agreement;
(b) such Material Domestic Subsidiary shall have delivered to
the Administrative Agent (x) an Officer's Certificate of such Material Domestic
Subsidiary in the form attached hereto as Exhibit I, (y) a certificate of the
Secretary or an Assistant Secretary of such Material Domestic Subsidiary in the
form attached hereto as Exhibit J and (z) good standing certificates (or local
equivalent) from the respective states where such Material Domestic Subsidiary
is incorporated or organized and where the principal place of business of such
Material Domestic Subsidiary is located as to its good standing in each such
state;
(c) such Material Domestic Subsidiary shall have delivered to
the Administrative Agent an opinion of counsel acceptable to the Administrative
Agent; and
(d) the Administrative Agent shall have received such other
documents, certificates and information as the Administrative Agent shall have
reasonably requested.
Notwithstanding any provision of this Section 9.9 or any other Credit Document
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 9.9 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.
[The first signature page follows.]
77
IN WITNESS WHEREOF, Borrower, Guarantors, Lenders, Administrative Agent,
Documentation Agent and Syndication Agent have caused this Agreement to be
executed as of the day and year first above written.
BORROWER: VERITAS SOFTWARE GLOBAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
GUARANTORS: VERITAS SOFTWARE CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
VERITAS OPERATING CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
VERITAS SOFTWARE TECHNOLOGY CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
VERITAS SOFTWARE TECHNOLOGY HOLDING
CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
78
ADMINISTRATIVE AGENT: ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Group Vice President
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
DOCUMENTATION AGENT: CREDIT SUISSE FIRST BOSTON
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Asst. Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Asst. Vice President
SYNDICATION AGENT: CREDIT LYONNAIS LOS ANGELES BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President & Manager
79
LENDERS: ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Group Vice President
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
80
CREDIT SUISSE FIRST BOSTON
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Asst. Vice President
81
CREDIT LYONNAIS LOS ANGELES BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President & Manager
82
THE FUJI BANK, LIMITED
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President and
Group Head
83
AIB INTERNATIONAL FINANCE
By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Director
84
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
85
SUMITOMO MITSUI BANKING CORPORATION,
FORMERLY KNOWN AS THE SUMITOMO BANK
LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and Manager
86
COMERICA BANK - CALIFORNIA
By: /s/ ▇▇▇▇▇▇ ▇. WAYS
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. Ways
Title: Assistant Vice President
87
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
88
BNP PARIBAS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By: /s/ H. HIRO EBIHARA
--------------------------------------
Name: H. Hiro Ebihara
Title: Associate
89
KEYBANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
90
SCHEDULE I
LENDERS
PART A -- COMMITMENTS
NAME OF LENDERS REVOLVING CREDIT PERCENT (%)
--------------- ---------------- ------------
ABN AMRO Bank N.V. $9,688,987.93 19.37797585%
Credit Suisse First Boston $5,430,000.00 10.86000000%
Credit Lyonnais Los Angeles Branch $5,119,453.92 10.▇▇▇▇▇▇▇▇%
The Fuji Bank, Limited $2,000,000.00 4.00000000%
AIB International Finance $1,706,484.64 3.▇▇▇▇▇▇▇▇%
Deutsche Bank AG New York Branch $5,631,399.32 11.26279863%
and/or Cayman Islands Branch
Sumitomo Mitsui Banking $2,625,039.38 5.25007876%
Corporation
Comerica Bank - California $5,000,000.00 10.00000000%
Fleet National Bank $4,266,211.60 8.53242321%
BNP Paribas $4,266,211.60 8.▇▇▇▇▇▇▇▇%
KeyBank National Association $4,266,211.60 8.53242321%
TOTAL $50,000,000.00 100.00000000%
Schedule I-1
PART B - ADDRESSES, ETC.
REVOLVING CREDIT COMMITMENT
NAME AND ADDRESS OF LENDER AMOUNT / PERCENTAGE
-------------------------- -------------------
ABN AMRO BANK N.V. $9,688,987.93/ 19.37797585%
CREDIT CONTACT:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Address: ABN AMRO Bank N.V.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Schedule I-2
REVOLVING CREDIT COMMITMENT
NAME AND ADDRESS OF LENDER AMOUNT / PERCENTAGE
-------------------------- -------------------
CREDIT SUISSE FIRST BOSTON $5,430,000.00 / 10.86000000%
CREDIT CONTACT:
Name: ▇▇▇▇▇▇ ▇▇▇▇, Vice President
Address: Credit Suisse First ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇.▇▇▇
BACK-UP CREDIT CONTACT:
Name: Janko Gogija
Address: Credit Suisse First ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇.▇▇▇
OPERATIONS CONTACT:
Name: ▇▇▇ ▇▇▇▇▇
Address: Credit Suisse First Boston
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇
WIRING INSTRUCTIONS:
Name of Credit Bank: The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA Routing #: 021 000 018
Account #: ▇▇▇-▇▇▇▇-▇▇▇
Account Name: CSFB NY Loan Clearing
Reference: Veritas Corp.
Schedule I-3
REVOLVING CREDIT COMMITMENT
NAME AND ADDRESS OF LENDER AMOUNT / PERCENTAGE
-------------------------- -------------------
CREDIT LYONNAIS LOS ANGELES BRANCH $5,119,453.92 / 10.23890785%
CREDIT CONTACT:
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, Vice President
Address: Credit Lyonnais Los Angeles Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
OPERATIONS CONTACT:
Name: ▇▇▇▇▇ ▇▇▇, Operations Assistant
Address: Credit Lyonnais Los Angeles Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
WIRING INSTRUCTIONS:
Name of Credit Bank: Federal Reserve Bank of New York
Account Name: Credit Lyonnais New York
ABA: ▇▇▇▇▇▇▇▇▇
In Favor Of: Credit Lyonnais Los Angeles Branch
Attention: Loan Servicing
Reference: Veritas Software
Schedule I-4
REVOLVING CREDIT COMMITMENT
NAME AND ADDRESS OF LENDER AMOUNT / PERCENTAGE
-------------------------- -------------------
THE FUJI BANK, LIMITED $2,000,000.00 / 4.00000000%
CREDIT CONTACT:
Name: Mano ▇▇▇▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇_▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇.▇▇
OPERATIONS CONTACT:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: _____________
WIRING INSTRUCTIONS:
Name of Credit Bank: Bankers Trust Company
City, State: New York, NY
ABA #: ▇▇▇▇▇▇▇▇▇
For Further Credit to: The Fuji Bank, Limited, Los Angeles Agency
Account #: 515060
Attention: Loan Administration Department - LA
Reference: Veritas Software
Schedule I-5
REVOLVING CREDIT COMMITMENT
NAME AND ADDRESS OF LENDER AMOUNT / PERCENTAGE
-------------------------- -------------------
AIB INTERNATIONAL FINANCE $1,706,484.64 / 3.41296928%
CREDIT CONTACT:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ / ▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: Corporate Banking
AIB ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇
Phone: ▇▇▇-▇-▇▇▇▇▇▇▇
Fax: ▇▇▇-▇-▇▇▇▇▇▇▇
E-Mail: ▇▇▇▇▇▇.▇.▇▇▇▇@▇▇▇.▇▇ / ▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇.▇▇
OPERATIONS CONTACT:
Name: ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇▇
Address: Business Support
AIB ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇
Phone: ▇▇▇-▇-▇▇▇▇▇▇▇
Fax: ▇▇▇-▇-▇▇▇▇▇▇▇
E-Mail: _________________
WIRING INSTRUCTIONS:
Name of Credit Bank: Chase Manhattan Bank
City, State: New York
Method of Payment: SSWIFTCODE: ▇▇▇▇ US33
ESWIFTCODE: AIB KIE 2D
CHAPS NO.: 041833
Account #: 001-1-599-907
Attention: ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇▇
Schedule I-6
REVOLVING CREDIT COMMITMENT
NAME AND ADDRESS OF LENDER AMOUNT / PERCENTAGE
-------------------------- -------------------
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR $5,631,399.32 / 11.26279863%
CAYMAN ISLANDS BRANCH
CREDIT CONTACT:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address: Deutsche Bank AG
New York Branch
▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇
OPERATIONS CONTACT:
Name: ▇▇▇▇▇▇▇ ▇▇▇, Account Administrator
Address: Deutsche Bank AG
New York Branch
▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇/4139
E-Mail: ________________
DOCUMENTATION CONTACT:
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director In Counsel
Address: Legal Department
Deutsche Bank AG New York Branch
▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ____________
WIRING INSTRUCTIONS:
Name of Credit Bank: Deutsche Bank AG New York Branch
ABA #: ▇▇▇▇▇▇▇▇▇
Ref for principal and interest: "...principal and/or interest"
Ref for Fees: "....fees"
Schedule I-7
REVOLVING CREDIT COMMITMENT
NAME AND ADDRESS OF LENDER AMOUNT / PERCENTAGE
-------------------------- -------------------
SUMITOMO MITSUI BANKING CORPORATION $2,625,039.38 / 5.25007876%
CREDIT CONTACT:
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
BACK-UP CREDIT CONTACT:
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇_▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
OPERATIONS CONTACTS:
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ____________
WIRING INSTRUCTIONS:
Name of Credit Bank: Citibank, N.A.
City, State: New York, NY
ABA #: ▇▇▇▇▇▇▇▇▇
Account Name: The Sumitomo Bank, Limited, New York Branch
Account #: ▇▇▇▇▇▇▇▇
Attention: Loan Operations
Veritas Software
Schedule I-8
REVOLVING CREDIT COMMITMENT
NAME AND ADDRESS OF LENDER AMOUNT / PERCENTAGE
-------------------------- -------------------
COMERICA BANK -- CALIFORNIA $5,000,000.00 / 10.00000000%
CREDIT CONTACT:
Name: ▇▇▇▇▇▇ ▇. Ways
Address: ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇_▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
OPERATIONS CONTACT:
Name: ▇▇▇▇▇▇ ▇. Ways
Address: ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇_▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
WIRING INSTRUCTIONS:
Name of Credit Bank: Comerica Bank -- California
City, State: San Jose, CA
ABA #: ▇▇▇▇▇▇▇▇▇
For Further Credit To: Veritas Software Corporation
Account #: To Be Determined
Attention: Rob Ways
Schedule I-9
REVOLVING CREDIT COMMITMENT
NAME AND ADDRESS OF LENDER AMOUNT / PERCENTAGE
-------------------------- -------------------
FLEET NATIONAL BANK $4,266,211.60 / 8.53242321%
CREDIT CONTACT:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇_▇_▇▇▇▇@▇▇▇▇▇.▇▇▇
OPERATIONS CONTACT:
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ____________
WIRING INSTRUCTIONS:
Name of Credit Bank: Fleet National Bank
City, State: Boston, MA
ABA #: ▇▇▇-▇▇▇-▇▇▇
For Further Credit To: Commercial Loan in Process
Account #: ▇▇▇▇▇▇▇-03156
Reference: Veritas Software
Schedule I-10
REVOLVING CREDIT COMMITMENT
NAME AND ADDRESS OF LENDER AMOUNT / PERCENTAGE
-------------------------- -------------------
BNP PARIBAS $4,266,211.60 / 8.53242321%
CREDIT CONTACT:
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇
ADMINISTRATIVE CONTACTS:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇/ ▇▇▇▇▇▇ ▇▇▇▇
Address: Banque Nationale de Paris
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇/ (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ____________
WIRING INSTRUCTIONS:
Name of Credit Bank: Federal Reserve Bank of New York
City, State: BNP San Francisco
ABA #: 14334000176
For Further Credit To: Veritas Software
Account #:
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Schedule I-11
REVOLVING CREDIT COMMITMENT
NAME AND ADDRESS OF LENDER AMOUNT / PERCENTAGE
-------------------------- -------------------
KEYBANK NATIONAL ASSOCIATION $4,266,211.60 / 8.53242321%
CREDIT CONTACT:
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: KeyBank National Association
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇_▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Schedule I-12