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Exhibit 10.41
SECOND AMENDMENT, ASSIGNMENT AND ASSUMPTION AND RESTATEMENT OF
CERTAIN OPERATIVE AGREEMENTS
AND OTHER AGREEMENTS
Dated as of July 28, 2000
among
VERITAS OPERATING CORPORATION,
as the Assignor and Guarantor
VERITAS SOFTWARE GLOBAL CORPORATION,
as the Lessee, the Construction Agent and the Assignee
THE VARIOUS PARTIES TO THE PARTICIPATION AGREEMENT AND OTHER
OPERATIVE AGREEMENTS FROM TIME TO TIME,
as additional Guarantors,
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, except as expressly stated in the Operative Agreements,
but solely as the Owner Trustee under the VS Trust 1999-1,
THE VARIOUS BANKS AND OTHER LENDING INSTITUTIONS
WHICH ARE PARTIES TO THE PARTICIPATION AGREEMENT AND OTHER
OPERATIVE AGREEMENTS FROM TIME TO TIME,
as the Holders,
THE VARIOUS BANKS AND OTHER LENDING INSTITUTIONS
WHICH ARE PARTIES TO THE PARTICIPATION AGREEMENT
AND OTHER OPERATIVE AGREEMENTS FROM TIME TO TIME,
as the Lenders,
and
BANK OF AMERICA, N.A.,
as successor to NATIONSBANK, N.A.,
as the Agent for the Secured Parties
BANK OF AMERICA, N.A. and KEY BANK,
as Agents,
and
THE BANK OF NOVA SCOTIA, COMERICA BANK - CALIFORNIA,
UNION BANK OF CALIFORNIA, N.A., and WELLS FARGO BANK, NATIONAL
ASSOCIATION,
as Co-Agents.
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SECOND AMENDMENT, ASSIGNMENT AND ASSUMPTION AND RESTATEMENT OF
CERTAIN OPERATIVE AGREEMENTS AND OTHER AGREEMENTS
This SECOND AMENDMENT AND RESTATEMENT OF CERTAIN OPERATIVE AGREEMENTS
AND OTHER AGREEMENTS (this "Amendment") dated as of July 28, 2000, is by and
among VERITAS OPERATING CORPORATION (formerly known as Veritas Software
Corporation), a Delaware corporation (the "Assignor"); VERITAS SOFTWARE GLOBAL
CORPORATION (formerly known as Seagate Software Network & Storage Management
Group, Inc.), a Delaware corporation (the "Assignee"); the various other Credit
Parties listed on the signature pages hereto, as guarantors (subject to the
definition of Guarantors in Appendix A to the Participation Agreement referenced
below, individually a "Guarantor" and collectively, the "Guarantors"); FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, not
individually but solely as the Owner Trustee under the VS Trust 1999-1 (the
"Owner Trustee" or the "Lessor"); the various banks and other lending
institutions listed on the signature pages hereto (subject to the definition of
Lenders in Appendix A to the Participation Agreement referenced below,
individually, a "Lender" and collectively, the "Lenders"); BANK OF AMERICA,
N.A., a national banking association, which is the successor to NationsBank,
N.A., as the agent for the Lenders and respecting the Security Documents, as the
agent for the Lenders and the Holders, to the extent of their interests (in such
capacity, the "Agent"); and the various banks and other lending institutions
listed on the signature pages hereto as holders of certificates issued with
respect to the VS Trust 1999-1 (subject to the definition of Holders in Appendix
A to the Participation Agreement referenced below, individually, a "Holder" and
collectively, the "Holders"). Capitalized terms used in this Amendment but not
otherwise defined herein shall have the meanings set forth in Appendix A to the
Participation Agreement (hereinafter defined).
W I T N E S S E T H
WHEREAS, the parties to this Amendment are parties to that certain
Participation Agreement dated as of April 23, 1999 (the "Participation
Agreement"), certain of the parties to this Amendment are parties to that
certain First Amendment and Restatement of Certain Operative Agreements and
other Agreements dated as of March 3, 2000 (the "First Amendment") and certain
of the parties to this Amendment are parties to the other Operative Agreements
relating to a $139.4 million tax retention operating lease facility (the
"Facility") that has been established in favor of the Lessee;
WHEREAS, VERITAS Software Corporation, a Delaware corporation ("VSC")
and the Assignor have entered into that certain Capital Contribution Agreement
dated as of June 28, 2000 (the "VSC Capital Contribution Agreement") whereby VSC
contributed certain of its assets to Assignor, and Assignor and the Assignee
have entered into that certain Capital Contribution Agreement dated as of June
30, 2000 (the "VOC Capital Contribution Agreement") whereby the Lessee
contributed certain of its assets to Assignee including, but not limited to,
Assignor's interest in the Facility;
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WHEREBY, Assignor desires to assign and Assignee desires to assume, all
of Assignor's right, title and interest in and all of the Assignor's obligations
under and with respect to the Facility, each Property and the Operative
Agreements;
WHEREAS, the Credit Parties have requested that the Financing Parties
consent to the execution, delivery and performance of the VSC Capital
Contribution Agreement, the VOC Capital Contribution Agreement and the
Assignment;
WHEREAS, the Assignee has requested modifications of certain covenants
and other provisions under the Participation Agreement and the other Operative
Agreements;
WHEREAS, the Financing Parties have agreed to the requested consents
and modifications on the terms and conditions set forth herein;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
A. ASSIGNMENT AND ASSUMPTION
1. ASSIGNMENT AND ASSUMPTION. Assignor hereby agrees that, effective as
of the date of this Agreement, it shall grant, sell, convey, assign, transfer
and deliver unto Assignee, and Assignee hereby agrees to accept and assume, all
of Assignor's right, title and interest in and to the Facility, each Property
and the Operative Agreement (the "Assignment"). Assignor hereby assigns, and
Assignee hereby assumes and agrees to satisfy and perform when due those
liabilities and obligations arising from the Facility and the Operative
Agreements.
2. ASSIGNOR TO REMAIN LIABLE. Notwithstanding the foregoing, Assignor
expressly acknowledges and agrees that it shall remain liable under the Facility
and the Operative Agreements as a Guarantor, as if so named therein, and agrees
to observe and perform all of the conditions and obligations of a Guarantor in
the Operative Agreements which each Guarantor is bound to observe and perform.
3. OTHER AGREEMENTS. From time to time after the date hereof, Assignor
and Assignee will execute and deliver, or cause its affiliates to execute and
deliver, to one another and to each of the Financing Parties such instruments of
sale, transfer, conveyance, assignment and delivery, and such consents,
assurances, powers of attorney and other instruments as may be reasonably
requested in furtherance of the Assignment and in order to satisfy Assignor's
obligations as a Guarantor under the Operative Agreements.
B. PARTICIPATION AGREEMENT
1. Appendix A to the Participation Agreement is hereby amended to add
the following defined terms:
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"Milpitas Lease Financing" shall mean the transactions contemplated by
that certain Participation Agreement dated as of July 28, 2000 (as from time to
time amended, restated, supplemented or otherwise modified) among Assignee, the
various parties thereto from time to time as guarantors, First Security Bank,
National Association, as Owner Trustee under the 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 the VS Trust
2000-2, and ABN AMRO Bank N.V., as agent (the "Milpitas Participation
Agreement"); and the other "Operative Agreements" as such term is defined in the
Milpitas Participation Agreement.
"Revolving Credit Agreement" shall mean that certain Credit Agreement
dated as of July 28, 2000 (as from time to time amended, restated, supplemented
or otherwise modified) among Veritas Software Global Corporation, as borrower,
the various parties thereto from time to time as guarantors, each of the
financial institutions from time to time party thereto, as lenders, and ABN AMRO
Bank N.V., as administrative agent for the lenders, together with each of the
"Credit Documents" as therein defined, in each case as in effect from time to
time.
"Subordinated Debt" shall mean unsecured subordinated Indebtedness of
the Lessee in an aggregate principal amount not exceeding $550,000,000 which (i)
is specifically subordinated in right of payment to the prior payment of the
Loans, Holder Advances and other amounts payable by the Lessee to any Person
under any of the Operative Agreements, (ii) does not require any payment of
principal so long as the Loans, Holder Advances and other amounts payable by the
Lessee to any Person under any of the Operative Agreements remain outstanding,
(iii) does not require the Lessee to make any payments of interest other than
payments of interest in kind and (iv) contains other terms (including without
limitation subordination terms) satisfactory in form and substance to the Agent.
2. Schedule 8.3B(a)(ii) to that Participation Agreement is hereby
deleted and replaced with the schedule attached hereto as EXHIBIT A.
3. Section 8.3B(a) of the Participation Agreement is hereby amended to
read as follows:
(a) INDEBTEDNESS.
No Credit Party will, nor will it permit any of its
Consolidated Subsidiaries to, contract, create, incur, assume or permit
to exist any Indebtedness, except:
(i) Indebtedness arising under this Participation Agreement
and the other Operative Agreements;
(ii) Indebtedness of a Credit Party and its Consolidated
Subsidiaries set forth in Schedule 8.3B(a)(ii) (and renewals,
refinancings and extensions thereof on terms and conditions no less
favorable to such Person than such existing Indebtedness);
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(iii) purchase money Indebtedness (including obligations in
respect of Capital Leases) hereafter incurred by a Credit Party or any
of its Consolidated Subsidiaries to finance the purchase of fixed
assets provided that (i) the total of all such Indebtedness for all
such Persons taken together (including any such Indebtedness referred
to in subsection (ii) above) shall not exceed (A) during fiscal year
1999 and 2000, an aggregate principal amount of $25,000,000 at any one
time outstanding and (B) at any time subsequent to fiscal year 2000,
$40,000,000 at any one time outstanding; (ii) such Indebtedness when
incurred shall not exceed the purchase price of the asset(s) financed;
and (iii) no such Indebtedness shall be refinanced for a principal
amount in excess of the principal balance outstanding thereon at the
time of such refinancing;
(iv) other unsecured Indebtedness (exclusive of Indebtedness
permitted under subsection (v) and subsection (vi) of this Section
8.3B(a)) of the Credit Parties and their Consolidated Subsidiaries in
an aggregate amount not to exceed $600,000,000 on terms and conditions
satisfactory in form and substance to the Majority Secured Parties;
provided, however, the amount of Indebtedness permitted under this
subsection (iv) shall be reduced by an amount equal to the sum of (a)
the aggregate outstanding Loans, plus (b) the aggregate outstanding
Holder Advances, plus (c) accrued and unpaid Interest or Holder Yield
due and owing on such Loans or Holder Advances, plus (d) any other
amounts due and owing by the Lessee or the Construction Agent to any
Person under any Operative Agreement, plus (e) the aggregate
outstanding Loans (as such term is defined in Appendix A to the
Roseville Participation Agreement) under the Roseville Lease Financing,
plus (f) the aggregate outstanding Holder Advances (as such term is
defined in Appendix A to the Roseville Participation Agreement) under
the Roseville Lease Financing, plus (g) accrued and unpaid Interest or
Holder Yield (in each case, as defined in Appendix A to the Roseville
Participation Agreement) due and owing on such Loans or Holder
Advances, plus (h) any other amounts due and owing by the Lessee or the
Construction Agent to any Person under the Roseville Lease Financing,
plus (i) any Indebtedness outstanding and all other amounts due and
owing by any Credit Party under the Milpitas Lease Financing, plus (j)
any Indebtedness outstanding and all other amounts due and owing by any
Credit Party under the Revolving Credit Agreement;
(v) the Subordinated Debt;
(vi) Indebtedness of a Credit Party consisting of unsecured
convertible subordinated debentures on terms and conditions (including,
without limitation, the subordination terms) reasonably acceptable to
the Agent, and any renewal, refinancings or extensions thereof on terms
and conditions (including, without limitation, the subordinations
terms) reasonably acceptable to the Agent;
(vii) Indebtedness arising under the Roseville Lease Financing
and under the Milpitas Lease Financing; and
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(viii) Indebtedness arising under the Revolving Credit
Agreement;
4. Section 8.3B(b) of the Participation Agreement is hereby amended to
read as follows:
(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 (i)
Permitted Liens, (ii) Liens in favor of the Agent to secure
the obligations of the Credit Parties under the Operative
Agreements, (iii) Liens existing as of the Initial Closing
Date in connection with Indebtedness set forth on Schedule
8.3B(a)(ii); provided, no such Lien shall at any time be
extended to or cover any Property other than the Property
subject thereto on the Initial Closing Date, (iv) Liens on
Property of any Person securing purchase money Indebtedness
(including, obligations in respect of Capital Leases) to the
extent permitted under Section 8.3B(a)(iii) and (v) Liens
securing obligations of the Credit Parties under the Roseville
Lease Financing and the Milpitas Lease Financing; provided,
that (in the case of Liens under subsections (iv) and (v)) 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.
5. Section 8.3B(h) of the Participation Agreement is hereby amended to
read as follows:
(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
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 security with the trustee with respect
thereof 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.
6. Section 8.3B(k) of the Participation Agreement is hereby
amended to read as follows:
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(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 (a) 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, (b) pay any
Indebtedness or other obligation owed to a Credit Party or any
of its Consolidated Subsidiaries, (c) make loans or advances
to a Credit Party or any of its Consolidated Subsidiaries, (d)
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
(a)-(d) above) for such encumbrances or restrictions existing
under or by reason of (i) this Participation Agreement and the
other Operative Agreements, (ii) the Roseville Participation
Agreement, (iii) the Milpitas Participation Agreement, so long
as such encumbrances or restrictions are not more restrictive
than those set forth in this Agreement, (iv) the Revolving
Credit Agreement, so long as such encumbrances or restrictions
are not more restrictive than those set forth in this
Agreement, or (v) applicable law.
7. Section 8.3B(n) of the Participation Agreement is hereby amended to
read as follows:
(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
Participation Agreement and the other Operative Agreements,
(ii) the Roseville Lease Financing, (iii) the Milpitas Lease
Financing and (iv) the Revolving Credit Agreement.
C. CONSENTS AND OTHER AGREEMENTS
Each Financing Party hereby consents to the execution, delivery and
performance by each of VSC, Assignor and Assignee, respectively, of the VSC
Capital Contribution Agreement, the VOC Capital Contribution Agreement and the
assignment and assumption set forth in Section B of this Amendment.
Notwithstanding any provision to the contrary in any Operative Agreement
(including without limitation Section 8.3B(k) and Section 10.1 of the
Participation Agreement, and Section 25.1 of the Lease), the parties hereto
agree that, from and after the Effective Date, (i) Assignee shall be deemed for
all purposes to be the "Lessee" and the "Construction Agent" under the Operative
Agreements and shall perform all obligations of the "Lessee" or the
"Construction Agent" under each Operative Agreement as though Assignee had
executed such Operative Agreement in such capacity and (ii) Assignor shall be
deemed for all
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purposes to be a "Guarantor" under the Operative Agreements and shall perform
all obligations of a "Guarantor" under each Operative Agreement as though
Assignor had executed such Operative Agreement in such capacity.
D. MISCELLANEOUS
1. This Amendment shall be effective as of the date (the "Effective
Date") on which the following conditions are satisfied:
(a) execution and delivery of this Amendment by the parties
hereto and execution and delivery of such other documents, agreements
or instruments deemed necessary or advisable by the Agent; and
(b) (i) receipt by the Agent of an officer's certificate
of Assignor (in form and in substance reasonably satisfactory
to the Agent) certifying that a resolution has been adopted by
Assignor's Board of Directors approving and authorizing the
execution, delivery and performance of this Amendment,
specifying that no Default or Event of Default shall have
occurred and be continuing, specifying that the
representations and warranties of Lessee set forth in the
Participation Agreement are true and correct (except for any
such representations and warranties which relate solely to an
earlier time) and certifying as to the incumbency of the
officer of Assignor executing this Amendment,
(ii) receipt by the Agent of an officer's certificate
of Assignee (in form and in substance reasonably satisfactory
to the Agent) certifying that a resolution has been adopted by
Assignee's Board of Directors approving and authorizing the
execution, delivery and performance of this Amendment,
specifying that no Default or Event of Default shall have
occurred and be continuing, specifying that the
representations and warranties of Lessee set forth in the
Participation Agreement are true and correct with respect to
Assignee (except for any such representations and warranties
which relate solely to an earlier time) and certifying as to
the incumbency of the officer of Assignee executing this
Amendment, and
(iii) receipt by the Agent of an officer's
certificate of each Credit Party (other than Assignor and
Assignee) certifying that the execution, delivery and
performance of this Amendment has been duly approved and
authorized by such Credit Party's Board of Directors, such
officer's certificate to be in form and substance reasonably
satisfactory to the Agent and certifying as to the incumbency
of the officer of such Credit Party executing this Amendment;
and
(c) receipt by the Agent of legal opinions of counsel to the
Credit Parties relating to this Amendment in form and substance
reasonably satisfactory to the Agent.
2. Each Credit Party hereby agrees that, by its execution of this
Amendment, such Credit Party shall be deemed to have executed and shall be
deemed to be a party to each
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Operative Agreement in such capacity as is necessary or desirable to effect the
intent of the parties hereto with respect to this Amendment.
3. Notwithstanding any term or provision in any Operative Agreement to
the contrary, each reference to the "Lessee" or to the "Construction Agent" set
forth in any Operative Agreement shall be deemed as of the Effective Date to
refer to VERITAS Software Global Corporation (formerly known as Seagate Software
Network & Storage Management Group, Inc.), a Delaware corporation, and each
reference to a "Guarantor" or to the "Guarantors" set forth in any Operative
Agreement shall be deemed as of the Effective Date to include a reference to
VERITAS Operating Corporation (formerly known as Veritas Software Corporation),
a Delaware corporation.
4. Except as modified hereby and by the First Amendment, all of the
terms and provisions of the Operative Agreements (including Schedules and
Exhibits) shall remain in full force and effect.
5. Assignee, as Lessee, agrees to pay all reasonable costs and expenses
of the Agent in connection with the preparation, execution and delivery of this
Amendment, including without limitation the reasonable fees and expenses of
Moore & Van Allen, PLLC.
6. This Amendment may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original and it shall
not be necessary in making proof of this Amendment to produce or account for
more than one such counterpart.
7. This Amendment shall be deemed to be a contract made under, and for
all purposes shall be construed in accordance with the laws of the State of New
York.
[The remainder of this page has been left blank intentionally.]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date first above
written.
CREDIT PARTIES: VERITAS OPERATING CORPORATION
(formerly known as Veritas Software Corporation)
By: /s/ KEVIN OLSON
------------------------------------------
Name: Kevin Olson
------------------------------------------
Title: Treasurer
------------------------------------------
VERITAS SOFTWARE CORPORATION
(formerly known as Veritas Holding Corporation)
By: /s/ KEVIN OLSON
------------------------------------------
Name: Kevin Olson
------------------------------------------
Title: Treasurer
------------------------------------------
VERITAS SOFTWARE GLOBAL CORPORATION (formerly
known as Seagate Software Network & Storage
Management Group, Inc.)
By: /s/ KEVIN OLSON
------------------------------------------
Name: Kevin Olson
------------------------------------------
Title: Treasurer
------------------------------------------
OPENVISION INTERNATIONAL, INC.
By: /s/ KEVIN OLSON
------------------------------------------
Name: Kevin Olson
------------------------------------------
Title: Treasurer
------------------------------------------
[signature pages continue]
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OWNER TRUSTEE: FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, except as expressly stated
herein, but solely as the Owner Trustee under
the VS Trust 1999-1
By: /s/ VAL T. ORTON
------------------------------------------
Name: Val T. Orton
------------------------------------------
Title: Vice President
------------------------------------------
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THE AGENT, LENDERS
AND HOLDERS: BANK OF AMERICA, N.A. (which is the successor to
NationsBank, N.A.), as a Holder,
as a Lender and as the Agent
By: /s/ DOUGLAS T. MECKELNBURG
------------------------------------------
Name: Douglas T. Meckelnburg
------------------------------------------
Title: Vice President
------------------------------------------
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COMERICA BANK-CALIFORNIA, as a Lender and
as a Holder
By: /s/ ROBERT E. WAYS
------------------------------------------
Name: Robert E. Ways
------------------------------------------
Title: A.V.P.
------------------------------------------
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KEYBANK NATIONAL ASSOCIATION, as a Holder and
as a Lender
By: /s/ JIM PUTNAM
-------------------------------------------
Name: Jim Putnam
-------------------------------------------
Title: Vice President/Senior Portfolio Manager
-------------------------------------------
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FLEET NATIONAL BANK, as a Lender
By: /s/ WILLIAM S. ROWE
------------------------------------------
Name: William S. Rowe
------------------------------------------
Title: AVP
------------------------------------------
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THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ CHRIS OSBORN
------------------------------------------
Name: Chris Osborn
------------------------------------------
Title: Director
------------------------------------------
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THE FUJI BANK, LIMITED, as a Lender
By: /s/ MASAHITO FUKUDA
------------------------------------------
Name: Masahito Fukuda
------------------------------------------
Title: Senior Vice President
------------------------------------------
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FBTC LEASING CORP., as a Lender
By: /s/ VICTOR MORA
------------------------------------------
Name: Victor Mora
------------------------------------------
Title: Vice President
------------------------------------------
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UNION BANK OF CALIFORNIA, N.A., as a Holder
and as a Lender
By: /s/ ALLAN B. MINER
------------------------------------------
Name: Allan B. Miner
------------------------------------------
Title: Vice President
------------------------------------------
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
as a Holder and as a Lender
By: /s/ ERIC HOUSER
------------------------------------------
Name: Eric Houser
------------------------------------------
Title: VP
------------------------------------------
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THE INDUSTRIAL BANK OF JAPAN, LIMITED, as a Lender
By: /s/ KEN IWATA
------------------------------------------
Name: KEN IWATA
------------------------------------------
Title: Senior Vice President & Manager
------------------------------------------
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IBJTC LEASING CORPORATION-BSC, as a Holder
By: /s/ TOMOKO AOKI
------------------------------------------
Name: Tomoko Aoki
------------------------------------------
Title: Senior Vice President
------------------------------------------
[signature pages end]
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EXHIBIT A
Schedule 8.3B(a)(ii)
[SCHEDULE OF INDEBTEDNESS]
1. LETTER OF CREDIT FOR $231,000 IN FAVOR OF SGI
