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EXHIBIT 10.03
LIMITED WAIVER AND AMENDMENT
THIS LIMITED WAIVER AND AMENDMENT, dated as of September 30, 1999 (this
"Waiver"), is entered into by and among SYMANTEC CORPORATION, a Delaware
corporation (together with its permitted successors and assigns, the "Company"),
as Lessee, Pledgor and Guarantor (together with its permitted successors and
assigns, the "Lessee"; in its capacity as Pledgor, the "Pledgor"; and in its
capacity as Guarantor, the "Guarantor"); SUMITOMO BANK LEASING AND FINANCE,
INC., a Delaware corporation, as Lessor (together with its successors in such
capacity, the "Lessor"); the various financial institutions as are or may from
time to time become Lenders under the Loan Agreement (together with their
respective permitted successors and assigns, the "Lenders"); THE BANK OF NOVA
SCOTIA, as Documentation Agent, and THE SUMITOMO BANK, LIMITED, LOS ANGELES
BRANCH, as Agent (in such capacity, the "Agent").
WHEREAS, the Lessee has requested that the Lessor and the Lenders agree
to certain amendments of the Participation Agreement.
WHEREAS, the Lenders and Lessor are willing to amend the Participation
Agreement, subject to the terms of this Agreement.
NOW THEREFORE, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used but not otherwise defined
in this Waiver shall, unless the context otherwise requires, have the respective
meanings specified in Appendix A to the Amended and Restated Participation
Agreement dated as of February 9, 1999, among the Company, the Lessor, the
Lenders, Documentation Agent and the Agent (as amended, supplemented, amended
and restated or otherwise modified from time to time in accordance with the
provisions thereof, the "Participation Agreement"); and the rules of
interpretation set forth in such Appendix A shall apply to this Waiver.
Section 2. Waiver. Subject to compliance by the Company with the
provisions of Section 3 hereof, the Lessor and the Lenders hereby
(i) waive, during the period from the date hereof through
December 31, 1999 (the "Waiver Period"), compliance by the Company with the
provisions of Section 10.1(f)(ii) of the Participation Agreement, to the extent
that the Company would not be in compliance therewith as a result of the
Company's acquisition of Unified Research Laboratories Inc. ("UR Labs");
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provided that the waiver set forth in clause (i) above shall expire at the close
of business on December 31, 1999 and the existence of any Default or Event of
Default under the Lease shall thereafter be determined as if no such waiver had
been granted and provided further that this waiver shall be of no effect if at
any time during the Waiver Period the Company is not in compliance with Section
10.1(f)(ii) but excluding from the calculation thereof the effect of the
acquisition by the Company of UR Labs (which effect shall not adjust the
calculation by more than $45,000,000).
Section 3. Condition of Waiver. The waiver set forth in Section 2 is
conditioned upon the payment by the Lessee of a fee of $9,400.00.
Section 4. Conditions to Effectiveness. This Waiver shall become
effective, as of the date hereof, on the date on which each of the Company, and
the Required Participants shall have executed and delivered a counterpart
hereof.
Section 5. Representations and Warranties. In order to induce the
Lessor, the Lenders, the Documentation Agent and the Agent to enter into this
Waiver, the Company hereby represents and warrants unto the Lessor, the Lenders,
the Documentation Agent and the Agent as set forth in this Section 4:
(a) Validity, etc. This Waiver constitutes the legal, valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, subject, as to enforceability, to bankruptcy, insolvency,
reorganization and other similar laws affecting enforcement of creditor rights
generally (insofar as any such law relates to the bankruptcy, insolvency,
reorganization or similar event of the Company), principles of good faith and
fair dealing and, as to the availability of specific performance or other
injunctive relief, the discretionary power of a court to deny such relief.
(b) No Event of Default. No Event of Default has occurred and is
continuing.
Section 6. Operative Document; Ratification of the Operative Documents.
This Waiver shall be deemed to be an Operative Document entered into in
connection with the Participation Agreement. Except as expressly set forth
herein, the terms, provisions and conditions of the Participation Agreement and
the other Operative Documents shall remain in full force and effect and are in
all respects hereby ratified and confirmed in each and every respect.
Section 7. Headings. The various headings of this Waiver are inserted
for convenience only and shall not affect the meaning or interpretation of this
Waiver or any provisions hereof.
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Section 8. Execution in Counterparts. This Waiver 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 constitute together but one and the same
agreement.
Section 9. Governing Law; Entire Agreement. THIS WAIVER SHALL IN ALL
RESPECTS BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (EXCLUDING ANY
CONFLICT-OF-LAW OR CHOICE-OF-LAW RULES WHICH MIGHT LEAD TO THE APPLICATION OF
THE INTERNAL LAWS OF ANY OTHER JURISDICTION) AS TO ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE. This Waiver and the other Operative Documents
constitute the entire understanding among the parties hereto with respect to the
subject matter hereof and supersede any prior agreements, written or oral, with
respect thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
SYMANTEC CORPORATION, as Lessee, Pledgor and
Guarantor
By /S/ Xxxxxxx Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: CFO & VP, Finance
SUMITOMO BANK LEASING AND FINANCE, INC.,
as Lessor
By /S/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Managing Director
THE BANK OF NOVA SCOTIA, as Lender and
Documentation Agent
By /S/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Relationship Manager
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COOPERATIEVE CENTRALE XXXXX XXXXX-BOERENLEENBANK
B.A., "Rabobank Nederland," New York Branch
By /S/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Vice President
By /S/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: SVP
THE SUMITOMO BANK, LIMITED, LOS ANGELES BRANCH, as
Agent
By
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Name:
Title:
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