FIFTH AMENDMENT TO THE SECOND AMENDED
AND RESTATED CONTINGENT
MULTICURRENCY NOTE PURCHASE COMMITMENT AGREEMENT
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THIS AMENDMENT (this "Amendment"), dated as of August 15, 2000, is made to
the Second Amended and Restated Contingent Multicurrency Note Purchase
Commitment Agreement, dated as of January 15, 1998 (as heretofore or hereafter
amended, modified or supplemented from time to time, the "Agreement"), between
STORAGE TECHNOLOGY CORPORATION ("Borrower") and BANK OF AMERICA, N.A. (formerly
Bank of America National Trust and Savings Association) ("BofA"). Capitalized
terms used but not otherwise defined herein shall have the meanings assigned to
such terms by the Agreement.
WHEREAS, Borrower and BofA desire to amend and supplement the Agreement as
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS TO AGREEMENT
Section 1.1 Amendment to Definition of "Scheduled Termination Date".
Section 1.08(a) of the Agreement is hereby amended to change the Scheduled
Termination Date set forth therein to January 15, 2002.
Section 1.2 Amendment to Section 6.01(h)(ii)(A)(II). Section
6.01(h)(ii)(A)(II) of the Agreement is hereby amended and restated to read in
its entirety as follows:
"(II) as of the last day of the immediately preceding Fiscal
Quarter, for which a Compliance Certificate has been delivered pursuant to
Section 6.01(g)(vii), the sum of the Available Cash Amount and the
Available Revolver Amount, in each case, as shown in such Compliance
Certificate, is greater than $200,000,000, or."
Section 1.3 Amendment to Section 6.01(h)(ii)(B). Section 6.01(h)(ii)(B) of
the Agreement is hereby amended and restated to read in its entirety as follows:
"(B) "Available Cash Amount" means, with respect to the last day of
any Fiscal Quarter, the U.S. Dollar equivalent (determined in
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accordance with GAAP) of all unrestricted cash and unrestricted Cash Equivalent
Investments owned by the Borrower and its Subsidiaries, all as set forth
in the Compliance Certificate as of such last day which was delivered
pursuant to Section 6.01(g)(vii). It is understood and agreed that, with
respect to this Section 6.01(h)(ii)(B), the "Available Cash Amount" shall
include, without duplication (i) any unrestricted cash which is received
by the Borrower in respect of the Purchase Price for any outstanding Note
(provided, however, that under no circumstances shall the "Available Cash
Amount" include any cash or Cash Equivalent Investments deposited into the
Cash Collateral Account), and (ii) any cash or Cash Equivalent Investments
for which the only restriction on such cash or Cash Equivalent Investments
is that they are subject to a lien of the Collateral Agent and the other
Secured Parties as proceeds of the Collateral (as used in clause (II) of
this Section 6.01(h)(ii)(B), "Collateral Agent," "Secured Parties" and
"Collateral" each have the meanings assigned to such terms in the Bank
Credit Agreement and the Bank Revolver)."
Section 1.4 Amendment to Schedule II. Schedule II to the Agreement is
hereby amended and restated in its entirety to read as set forth on Exhibit A
attached hereto.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties. Borrower hereby represents
and warrants to BofA that:
(a) Representations and Warranties. The representations and
warranties of Borrower contained in the Agreement are true and correct on
and as of the date of this Amendment as though made on and as of such
date, and
(b) No Termination Event. Both before and after giving effect to
this Amendment, no event shall exist that constitutes a Termination Event
or an Unmatured Termination Event.
ARTICLE III
MISCELLANEOUS
Section 3.1 Agreement Document Pursuant to Agreement. This Amendment is an
Agreement Document executed pursuant to the Agreement
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and shall be construed, administered and applied in accordance with all of the
terms and provisions of the Agreement.
Section 3.2 Successors, Transferees and Assigns. This Amendment shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors, transferees and assigns.
Section 3.3 Execution in Counterparts. This Amendment may be executed by
the parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall be taken together as one agreement.
Section 3.4 Governing Law. THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER,
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
Section 3.5 Reaffirmation of Agreement. As amended and supplemented by
this Amendment, the Agreement remains in full force and effect and is hereby
reaffirmed, ratified and confirmed in all respects. From and after the date
hereof, all references to the Agreement in any agreement, instrument or document
shall be references to the Agreement as amended and supplemented hereby.
Section 3.6 Headings. The various captions in this Amendment are provided
solely for convenience of reference and shall not affect the meaning or
interpretation of any provision of this Amendment.
Section 3.7 Complete Agreement. The Agreement (including this Amendment
and the Exhibits and Schedules to the Agreement and this Amendment) and the
other Agreement Documents contain the entire understanding of the parties with
respect to the transactions contemplated hereby and thereby and supersedes all
prior arrangements or understandings with respect thereto.
Section 3.8 Severability. Whenever possible, each provision of this
Amendment will be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Amendment is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Amendment, except to the extent that such
prohibition or invalidity would constitute a material change in the terms of
this Amendment taken as a whole.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
STORAGE TECHNOLOGY CORPORATION
By: _______/s/_______________________________
Name:
Title:
BANK OF AMERICA, N.A.
(formerly Bank of America National
Trust and Savings Association)
By: _______/s/_______________________________
Name:
Title:
