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EXHIBIT 10.02
SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
September 23, 1999, effective for all purposes as of July 20, 1999, is entered
into by and between SYMANTEC CORPORATION (the "Borrower") and BANK OF AMERICA,
N.A., formerly known as Bank of America National Trust and Savings Association
(the "Bank").
RECITALS
A. The Borrower and the Bank are parties to a Second Amended and
Restated Credit Agreement dated as of March 28, 1996, as amended by a First
Amendment to Credit Agreement dated as of October 17, 1996, a Second Amendment
to Credit Agreement dated as of March 3, 1997, a Third Amendment to Credit
Agreement dated as of March 29, 1998, a Fourth Amendment to Credit Agreement
dated as of May 28, 1998, and a Fifth Amendment to Credit Agreement dated as of
January 26, 1999, effective as of January 1, 1999 (as so amended, the "Credit
Agreement") pursuant to which the Bank has extended certain credit facilities to
the Borrower and certain of its Subsidiaries or Affiliates, on and subject to
the terms and conditions set forth therein.
B. The Borrower has requested that the Bank agree to certain amendments
of the Credit Agreement.
C. The Bank is willing to amend the Credit Agreement, subject to the
terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. Amendments to Credit Agreement.
(a) Section 1.01 of the Credit Agreement shall be amended at the
defined term "Optional Currency" by amending and restating such defined term in
its entirety to read as follows:
"Optional Currency" means Australian Dollars, Canadian
Dollars, Deutsche Marks, euro (the single currency of
participating member states of the European Union), French
Francs, Japanese Yen, Pounds Sterling, Swiss Francs, and any
other lawful currency which is freely transferable and
convertible into Dollars selected by the Borrower and agreed to
by the Bank. The Bank may, from time to time, in its sole
discretion, advise the Borrower that a currency is no longer an
Optional Currency, including by reason of the introduction of the
euro.
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(b) Article 7 of the Credit Agreement shall be amended by
inserting the following new Section 7.16 immediately following Section 7.15:
7.16 Year 2000. The Borrower has (a) initiated a review
and assessment of all areas within its and each of its
Subsidiaries' business and operations (including those affected
by customers and vendors) that could be adversely affected by the
"Year 2000 Problem" (that is, the risk that computer applications
and devices containing imbedded computer chips used by the
Borrower or any of its Subsidiaries (or their respective
customers and vendors) may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior
to and any date after December 31, 1999), (b) developed a plan
and timeline for addressing the Year 2000 Problem on a timely
basis, and (c) to date, implemented that plan in accordance with
that timetable. Based on the foregoing, the Borrower believes
that all computer applications and devices containing imbedded
computer chips (including those of its and its Subsidiaries'
customers and vendors) that are material to its or any of its
Subsidiaries' business and operations are reasonably expected on
a timely basis to be able to perform properly date-sensitive
functions for all dates before and after January 1, 2000, except
to the extent that a failure to do so could not reasonably be
expected to have a material adverse effect on the Borrower's
consolidated financial condition or results of operations or its
ability to perform its obligations hereunder or under any
instrument or agreement required hereunder.
(c) Section 8.04 of the Credit Agreement shall be amended in its
entirety to read as follows:
8.04 Tangible Net Worth. Maintain as of the last day of
any fiscal quarter (on a consolidated basis) Tangible Net Worth
during the period beginning on April 3, 1999, in an amount equal
to at least 85 percent of Tangible Net Worth as of April 2, 1999,
plus (a) 75 percent of net income after income taxes (without
subtracting losses) earned in each quarterly accounting period
commencing after April 2, 1999, plus (b) 100 percent of Equity
Proceeds, less (c) the lesser of (i) the amount of goodwill
directly related to the acquisition by the Borrower of Unified
Research Laboratories, Inc., and (ii) $50,000,000.
3. Representations and Warranties. The Borrower hereby represents and
warrants to the Bank as follows:
(a) No event which is or, with the lapse of time or notice or
both would be, an Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by the Borrower of
this Amendment have been duly authorized by all necessary corporate and other
action and do not and will not require any registration with, consent or
approval of, notice to or action by, any Person (including any governmental
authority) in order to be effective and enforceable. The Credit Agreement as
amended by this Amendment constitutes the legal, valid and binding obligations
of the Borrower, enforceable against it in accordance with its respective terms,
without defense,
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counterclaim or offset.
(c) All representations and warranties of the Borrower contained
in the Credit Agreement are true and correct.
(d) The Borrower is entering into this Amendment on the basis of
its own investigation and for its own reasons, without reliance upon the Bank or
any other Person.
4. Reservation of Rights. The Borrower acknowledges and agrees that the
execution and delivery by the Bank of this Amendment shall not be deemed to
create a course of dealing or otherwise obligate the Bank to forbear or execute
similar amendments under the same or similar circumstances in the future.
5. Guarantor Acknowledgement and Consent. The Borrower, in its capacity
as a guarantor under any guaranty given to the Bank or an affiliate thereof
guaranteeing the obligations of any Borrowing Entities, acknowledges and
consents to the execution, delivery and performance hereof by the parties hereto
and reaffirms and agrees that any such guaranty is in full force and effect,
without defense, offset or counterclaim.
6. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full force and effect
and all references therein and in the other Loan Documents to such Credit
Agreement shall henceforth refer to the Credit Agreement as amended by this
Amendment. This Amendment shall be deemed incorporated into, and a part of, the
Credit Agreement.
(b) This Amendment shall be binding upon and inure to the benefit
of the parties hereto and thereto and their respective successors and assigns.
No third party beneficiaries are intended in connection with this Amendment.
(c) This Amendment shall be governed by and construed in
accordance with the law of the State of California.
(d) This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document (and any other document required
herein) may be delivered by any party thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be followed
promptly by mailing of a hard copy original, and that receipt by the Bank of a
facsimile transmitted document purportedly bearing the signature of the Borrower
shall bind the Borrower with the same force and effect as the delivery of a hard
copy original. Any failure by the Bank to receive the hard copy executed
original of such document shall not diminish the binding effect of receipt of
the facsimile transmitted executed original of such document which hard copy
page was not received by the Bank.
(e) This Amendment, together with the Credit Agreement, contains
the entire and
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exclusive agreement of the parties hereto with reference to the matters
discussed herein and therein. This Amendment supersedes all prior drafts and
communications with respect thereto. This Amendment may not be amended except in
a writing signed by each of the parties.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Credit Agreement, respectively.
(g) The Borrower covenants to pay to or reimburse the Bank, upon
demand, for all costs and expenses (including allocated costs of in-house
counsel) incurred in connection with the development, preparation, negotiation,
execution and delivery of this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment as of the date first above written.
SYMANTEC CORPORATION
By: /S/ Xxxxxxx Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: CFO & VP, Finance
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BANK OF AMERICA, N.A., FORMERLY KNOWN AS
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By: /S/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Managing Director
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