EXHIBIT 10.08
VERITAS AMENDED AND RESTATED CREDIT AGREEMENT
FIRST AMENDMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Agreement"), dated as of November 7, 2001, is entered into by and among VERITAS
SOFTWARE GLOBAL CORPORATION, a Delaware corporation ("Borrower"); each of the
various parties thereto from time to time as guarantors (such parties to be
referred to therein individually as a "Guarantor " and collectively as
"Guarantors"); each of the financial institutions from time to time listed in
Schedule I thereto, as amended from time to time (such financial institutions to
be referred to therein individually as a "Lender" and collectively as
"Lenders"); CREDIT SUISSE FIRST BOSTON, as documentation agent (in such
capacity, "Documentation Agent"); CREDIT LYONNAIS LOS ANGELES BRANCH, as
syndication agent (in such capacity, "Syndication Agent"); and ABN AMRO BANK
N.V., as agent for Lenders (in such capacity, "Administrative Agent").
Capitalized terms used herein and not otherwise defined shall have the meaning
assigned such term in the Credit Agreement (as defined below).
RECITALS:
A. The Borrower, the Guarantors, the Lenders, the Documentation Agent,
the Syndication Agent and the Administrative Agent are parties to that certain
Amended and Restated Credit Agreement ("Credit Agreement") dated as of September
27, 2001 as further amended, restated, supplemented, or otherwise modified from
time to time; and
B. The parties desire to amend certain provisions of the Credit
Agreement on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto agree as follows:
1. Amendments. The Credit Agreement is hereby amended as follows:
(a) The definition of "Applicable Percentage" set forth in
Section 1.1 to the Credit Agreement is hereby amended by deleting the
same in its entirety and replacing it with the following:
"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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Ratio of Funded Applicable Applicable
Indebtedness Percentage for Percentage for Base Applicable Percentage
Pricing Level To EBITDA LIBOR Loans Rate Loans for Commitment Fee
-------------------------------------------------------------------------------------------------
I Funded Indebtedness/ 1.000% 0.0% 0.200%
EBITDA .75 but 1.50 but 2.0 but 2.25
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(b) Sections 5.1(o)(i) and 5.1(o)(ii) of the Credit Agreement are
hereby amended by deleting the same in their entirety and replacing them
with the following:
(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:
(A) From and including December 31, 2001
to and including June 30, 2003, 2.50 to 1.0;
(B) From and including July 1, 2003 to
and including September 30, 2003, 2.25 to 1.0;
(C) From and including 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 each twelve month period ending
December 31, 2001, March 31, 2002, June 30, 2002 and
September 30, 2002 and (ii) $500,000,000 for the twelve
month period ending as of December 31, 2002 and for each
twelve month period ending on March 31, June 30,
September 30 and December 31 thereafter.
2. Representation and Warranties. Each Credit Party hereby represents
and warrants to the Agent, the Lessor, the Lenders and the Holders that the
following are true and correct on the date of this Agreement and that, after
giving effect to the amendments set forth in Section 1 above, the following will
be true and correct on the Effective Date (as defined below);
(a) The representations and warranties of the Credit Parties set
forth in Section 4 of the Credit Agreement 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);
(b) No Default has occurred and is continuing; and
(c) Each of the Credit Documents to which any Credit Party is a
party is in full force and effect as to such Credit Party.
3. Effective Date. The amendments effected by Section 1 above shall
become effective as of the date of this Agreement (the "Effective Date"),
subject to (a) receipt by McGuireWoods LLP ("MW"), counsel to the Agent, of a
copy of this Agreement duly executed by the Borrower, and the Required Lenders,
and (b) receipt by the Agent, on behalf of each Required Lender that executes
this Amendment and delivers an executed copy of this Amendment to MW on or prior
to the Effective Date, of a non-refundable amendment fee payable to each such
Required Lender in an amount equal to 0.05% of each such Required Lender's
respective Commitment.
4. Miscellaneous.
(a) Except as specifically waived and amended above, the Credit
Agreement and each of the Appendices, Schedules and Exhibits thereto
shall remain in full force and effect and the Credit Agreement is hereby
ratified and confirmed in all respects.
(b) Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
(c) This Agreement may be executed in any number of separate
counterparts, each of which shall collectively and separately constitute
one agreement. Delivery of an executed counterpart of a signature page
to this Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
5. GOVERNING LAW. 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 NEW YORK.
IN WITNESS WHEREOF, Borrower, Guarantors, Required 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/ XXXXX XXXXX
Name: Xxxxx Xxxxx
Title: Treasurer
GUARANTORS: VERITAS SOFTWARE CORPORATION
By: /s/ XXXXX XXXXX
Name: Xxxxx Xxxxx
Title: Treasurer
VERITAS OPERATING CORPORATION
By: /s/ XXXXX XXXXX
Name: Xxxxx Xxxxx
Title: Treasurer
VERITAS SOFTWARE TECHNOLOGY CORPORATION
By: /s/ XXXXX XXXXX
Name: Xxxxx Xxxxx
Title: Treasurer
VERITAS SOFTWARE TECHNOLOGY HOLDING
CORPORATION
By: /s/ XXXXX XXXXX
Name: Xxxxx Xxxxx
Title: Treasurer
ADMINISTRATIVE AGENT: ABN AMRO BANK N.V.
By: /s/ XXXXXXXXX X. XXXXXX
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
By: /s/ XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
Title: Vice President
DOCUMENTATION AGENT: CREDIT SUISSE FIRST BOSTON
By: /s/ XXXXXX XXXX
Name: Xxxxxx Xxxx
Title: Director
By: /s/ XXXX XXXXX
Name: Xxxx Xxxxx
Title: Associate
SYNDICATION AGENT: CREDIT LYONNAIS LOS ANGELES BRANCH
By: /s/ XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Manager
LENDERS: ABN AMRO BANK N.V.
By:
Name:
Title:
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By:
Name:
Title:
By:
Name:
Title:
CREDIT LYONNAIS LOS ANGELES BRANCH
By:
Name:
Title:
THE FUJI BANK, LIMITED
By:
Name:
Title:
AIB INTERNATIONAL FINANCE
By: /s/ XXXX XXXXX
Name: Xxxx Xxxxx
Title: Director
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By: /s/ XXXXX X. XXXXXXXXX, XX.
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President
By: /s/ XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: Vice President
SUMITOMO MITSUI BANKING CORPORATION,
FORMERLY KNOWN AS THE SUMITOMO BANK LIMITED
By:
Name:
Title:
COMERICA BANK - CALIFORNIA
By: /s/ XXX XXXXXXX
Name: Xxx Xxxxxxx
Title: Assistant Vice President
FLEET NATIONAL BANK
By: /s/ XXXXXXX X. XXXX
Name: Xxxxxxx X. Xxxx
Title: Vice President
BNP PARIBAS
By:
Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By: /s/ XXXXXX XXXXXXXX
Name: Xxxxxx Xxxxxxxx
Title: Vice President
