Exhibit 10.42
O MNIBUS A SSUMPTION AND A MENDMENT A GREEMENT
This O MNIBUS A SSUMPTION AND A MENDMENT A GREEMENT (this “Agreement” ) is
entered into as of May 30, 2007 among C ITRIX S YSTEMS ,
I NC ., a Delaware corporation, as Lessee (the
“Lessee” ), C ITRIX C APITAL C ORP ., a
Nevada corporation, as Guarantor (the “Original
Guarantor” ), P ENINSULA I NVESTMENT C ORP ., a
Delaware corporation (the “New Guarantor” ),
SELCO S ERVICE
C ORPORATION , an Ohio corporation, as Lessor (the
“Lessor” ), K EY B
ANK N ATIONAL A SSOCIATION (as successor to Key Corporate Capital Inc.) and
A LLIED I RISH B ANKS P .
L . C
., as Lenders (the
“Lenders” ), and K EY B
ANK N ATIONAL A SSOCIATION , a national banking association (as successor
to Key Corporate Capital Inc.), as administrative agent for the
Participants (the “Administrative Agent” ) and
as collateral agent (the “Collateral Agent”
).
W I T N E S S E T H :
W HEREAS ,
the parties hereto (other than the New Guarantor) are party to that
certain Participation Agreement dated as of April 23, 2002 (as
heretofore amended, the “Participation
Agreement” ); capitalized terms not otherwise defined
herein shall have the meanings assigned thereto in the
Participation Agreement;
W HEREAS ,
the Original Guarantor wishes to assign all of its rights and
obligations as Guarantor under the Guaranty dated as of
April 23, 2002 (the “Original Guaranty” )
and the other Operative Documents to the New Guarantor, the New
Guarantor wishes to assume all of the obligations of the Original
Guarantor thereunder and the Original Guarantor and the New
Guarantor wish to obtain the consent of the Lenders, the Lessor,
the Collateral Agent and the Administrative Agent to such
assignment and assumption;
W HEREAS ,
pursuant to New Guarantor’s assumption of the Original
Guarantor’s obligations under the Original Guaranty, Original
Guarantor has agreed to sell, and New Guarantor has agreed to buy,
all assets held by KeyBank National Association pursuant to that
certain Deposit Account Control Agreement dated April 23, 2002
from Original Guarantor to KeyBank National Association (the
“ Depositary ”), effective as of the date
hereof, and pursuant to the purchase and sale of such collateral,
Original Guarantor and New Guarantor have directed the Depositary
to transfer all such collateral from the Original Guarantor’s
existing deposit account with Depositary to a new deposit account
to be held by Depositary in the name of the New Guarantor, and the
Original Guarantor and the New Guarantor wish to obtain the consent
of the Lenders, the Lessor, the Collateral Agent and the
Administrative Agent to such transfer; and
W HEREAS , in
connection with such assignment and assumption and transfer, the
New Guarantor will execute and deliver the following documents,
each dated as of the date hereof and in substantially the forms
entered into by the Original Guarantor and otherwise in form and
substance satisfactory to the Administrative Agent (collectively,
the “Assumption Documents” ): (i) a
Guaranty Agreement, (ii) a Pledge Agreement, (iii) a
Control Agreement, and (iv) a custody and investment
management agreement with KeyBank National Association.
N OW ,
T HEREFORE , in consideration of the mutual agreements
contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
Section 1. Assignment and
Assumption; Consent.
(a) The Original Guarantor hereby
assigns and transfers to the New Guarantor all of the Original
Guarantor’s right, title, interest and obligations in, to and
under the Original Guaranty and the other Operative
Documents.
(b) The New Guarantor hereby
irrevocably, absolutely, unconditionally and expressly assumes, in
accordance with the terms and conditions of the Guaranty (in the
form attached hereto as Exhibit A), the due and punctual payment,
performance and observance of each agreement and condition
contained in the Operative Documents to be paid, performed or
observed by the “Guarantor”, known or unknown, whether
arising prior to the date hereof or hereafter, and agrees to be
bound by all of the provisions of the Operative Documents with the
same effect as if the New Guarantor were the named party therein.
Except as expressly stated herein, the Original Guarantor shall not
be released from any obligations under the Operative Documents
arising prior to the Effective Date.
(c) Subject to the terms and
conditions of this Agreement, the Lenders, the Lessor, the
Administrative Agent and the Collateral Agent (i) consent and
agree to the foregoing assignment and assumption and the
substitution of the New Guarantor under the Operative Documents and
that from and after the Effective Date, all references in the
Operative Documents to the Original Guarantor shall be deemed to be
references to the New Guarantor; (ii) consent and agree to the
Depositary’s transfer of the collateral from the Original
Guarantor’s Deposit Account to a Deposit Account held by
Depositary in the name of the New Guarantor; (iii) agree that,
following the Effective Date, the Original Guarantor may be
dissolved (and waive any potential Event of Default under
Section 16.1(g) of the Lease that may result from such
dissolution of the Original Guarantor); and (iv) agree that,
following the Effective Date, the Pledge Agreement and the Control
Agreement executed and delivered by the Original Guarantor shall be
terminated.
Section 2.
Amendments . From and
after the Effective Date, Appendix A to the Participation Agreement
is hereby amended as follows:
(a) The definitions of “
Administrative Agent ”, “ Collateral
Agent ” and “ Guarantor ” are amended
in their entirety to provide as follows:
“ Administrative Agent
” means KeyBank National Association, a national banking
association (as successor to Key Corporate Capital Inc., a Michigan
corporation).
“ Collateral Agent
” means KeyBank National Association, a national banking
association (as successor to Key Corporate Capital Inc., a Michigan
corporation).
“ Guarantor ”
means Peninsula Investment Corp., a Delaware corporation, as
assignee of and successor to Citrix Capital Corp., a Nevada
corporation.
“ Original Guarantor
” means Citrix Capital Corp., a Nevada
corporation.
(b) New definitions of “
Control Agreement ”, “ Guaranty ”
and “ Pledge Agreement ” added to Appendix A in
correct alphabetical order as follows:
“ Control Agreement
” means the Deposit Account Control Agreement dated
May 30, 2007 from the Original Guarantor and the Guarantor to
KeyBank National Association, as depositary.
“ Guaranty ”
means the Guaranty, dated as of May&nb
