EXHIBIT 10.03
EXECUTION VERSION
VERITAS CONSENT AND SIXTH AMENDMENT TO
PARTICIPATION AGREEMENT
This CONSENT AND SIXTH AMENDMENT TO PARTICIPATION AGREEMENT (this
"Agreement") dated as of June 6, 2003, is by and among VERITAS SOFTWARE GLOBAL
CORPORATION, a Delaware corporation, as lessee and construction agent (the
"Lessee" or the "Construction Agent"), the various parties to the Participation
Agreement, as guarantors (the "Guarantors"), XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION (formerly known as First Security Bank, National
Association), a national banking association, not individually, but solely as
the Owner Trustee under the VS Trust 2000-2 (the "Owner Trustee" or the
"Lessor"), the various banks and other lending institutions which are parties to
the Operative Documents from time to time as holders of certificates issued with
respect to the VS Trust 2000-2 and lenders (individually, a "Holder" or a
"Lender" and collectively "Holders" or "Lenders") and ABN AMRO BANK N.V., as
Agent for the Lenders and the Holders (the "Agent") as of the date hereof
signatory hereto. Capitalized terms used herein and not otherwise defined shall
have the meaning assigned such term in Appendix A to the Participation Agreement
(as defined below).
RECITALS:
A. The Lessee, the Guarantors, the Lessor, the Lenders, the
Holders, the Documentation Agent, the Syndication Agent and the Agent are
parties to that certain Participation Agreement (the "Participation Agreement")
dated as of July 28, 2000 as previously amended and as further amended,
restated, supplemented, or otherwise modified from time to time;
B. On April 10, 2003, the Majority Secured Parties consented to
the redemption by the Credit Parties of the 5.25% Convertible Subordinated Notes
due 2004;
C. The Credit Parties have requested that the Financing Parties
(i) consent to the prepayment or redemption of certain outstanding Indebtedness
of the Credit Parties, and (ii) amend Section 8.3B(h)(i); and
D. The Financing Parties have agreed to the requested consent and
amendment on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto agree as follows:
1. Consent. Notwithstanding Section 8.3B(h) of the Participation
Agreement, the Financing Parties hereby consent to the prepayment or redemption
by the Credit Parties of up to $465 million principal amount of 1.856%
Convertible Subordinated Notes due 2006 to occur on or before September 29,
2003. This is a one-time consent and shall not be construed to be (i) a waiver
as to future compliance with the Operative Agreements, (ii) a waiver of any
Default or Event of Default that may exist or (iii) a waiver of any other rights
or remedies the Lenders or Holders may have under the Operative Agreements or
under applicable law .
2. Amendments to the Participation Agreement.
(a) Section 6.2. A new Section 6.2(x) is hereby added to
the Participation Agreement to read as follows:
(x) The Credit Parties do not intend to
treat the Loans and/or Holder Advances and related
transactions as being a "reportable transaction" (within the
meaning of Treasury Regulation Section 1.6011-4). In the event
any Credit Party determines to take any action inconsistent
with such intention, it will promptly notify the Agent
thereof. If a Credit Party so notifies the Agent, the Credit
Parties acknowledge that one or more of the Financing Parties
may treat its Loans and/or Holder Advances as part of a
transaction that is subject to Treasury Regulation Section
301.6112-1, and such Financing Party or Financing Parties, as
applicable, will maintain the lists and other records required
by such Treasury Regulation. Promptly after a Credit Party has
notified the Agent of any intention by such Credit Party to
treat the Loans and/or Holder Advances and related
transactions as being a "reportable transaction" (within the
meaning of Treasury Regulation Section 1.6011-4), the Credit
Parties shall deliver to the Agent a duly completed copy of
IRS Form 8886 or any successor form.
(b) Section 8.3A(h)(i). Section 8.3A(h)(i) is hereby
amended to read as follows:
(h) Financial Covenants.
(i) Leverage Ratio. The Leverage Ratio,
as of the last day of each fiscal quarter of the Lessee, shall
be less than or equal to:
(A) From and including
December 31, 2001 to and including March 31, 2003,
2.50 to 1.0;
(B) From and including April
1, 2003 to and including June 30, 2003, 3.00 to 1.0;
(C) From and including July 1,
2003 to and including September 30, 2003, 2.25 to
1.0; and
(D) From October 1, 2003 and
thereafter, 2.0 to 1.0.
(c) Section 12.13. The following paragraph is hereby
added to the end of Section 12.13 to read as follows:
2
Notwithstanding anything herein to the contrary,
"information" shall not include, and the Agent and each
Financing Party may disclose without limitation of any kind,
any information with respect to the "tax treatment" and "tax
structure" (in each case, within the meaning of Treasury
Regulation Section 1.6011-4) of the transactions contemplated
hereby and all materials of any kind (including opinions or
other tax analyses) that are provided to the Agent or such
Financing Party relating to such tax treatment and tax
structure; provided that with respect to any document or
similar item that in either case contains information
concerning the tax treatment or tax structure of the
transaction as well as other information, this sentence shall
only apply to such portions of the document or similar item
that relate to the tax treatment or tax structure of the
Loans, Holder Advances and transactions contemplated hereby.
3. 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 consent and amendments set forth in Section 1 and Section 2
above, respectively, 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 6 of the Participation Agreement and in the other
Operative 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 Operative Documents to which any Credit
Party is a party is in full force and effect as to such Credit Party.
4. Effective Date. The consent effected by Section 1 above and the
amendments effected by Section 2 above shall become effective as of the date of
this Agreement (the "Effective Date"), subject to receipt by McGuireWoods LLP
("MW"), counsel to the Agent, of a copy of this Agreement duly executed by the
Lessee, each Guarantor, the Majority Secured Parties, the Lessor and the Agent.
5. Miscellaneous.
(a) This Agreement shall be effective as of June 6, 2003.
(b) The Lessee agrees to pay all reasonable costs and
expenses of the Agent in connection with the preparation, execution and delivery
of this Agreement, including without limitation, the reasonable fees and
expenses of McGuireWoods LLP.
(c) Except as specifically waived and amended above, the
Participation Agreement and each of the Appendices, Schedules and Exhibits
thereto shall remain in full force and effect and the Participation Agreement is
hereby ratified and confirmed in all respects.
3
(d) 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.
(e) 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.
6. 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.
[signature pages follow]
4
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
duly executed and delivered by its proper and duly authorized officer as of the
date first written above.
VERITAS SOFTWARE GLOBAL CORPORATION, as Lessee
By: /s/ Xxxxx Xxxxx
---------------------------------------------
Name: Xxxxx Xxxxx
Title: Treasurer
VERITAS SOFTWARE CORPORATION, as a Guarantor
By: /s/ Xxxxx Xxxxx
---------------------------------------------
Name: Xxxxx Xxxxx
Title: Treasurer
VERITAS OPERATING CORPORATION, as a Guarantor
By: /s/ Xxxxx Xxxxx
---------------------------------------------
Name: Xxxxx Xxxxx
Title: Treasurer
VERITAS SOFTWARE TECHNOLOGY CORPORATION, as a
Guarantor
By: /s/ Xxxxx Xxxxx
---------------------------------------------
Name: Xxxxx Xxxxx
Title: Treasurer
VERITAS SOFTWARE TECHNOLOGY HOLDING CORPORATION,
as a Guarantor
By: /s/ Xxxxx Xxxxx
---------------------------------------------
Name: Xxxxx Xxxxx
Title: Treasurer
ABN AMRO BANK N.V., as Agent and as a Lender
By: /s/ Xxxxxxxxx X. XxXxxxxxx
---------------------------------------------
Name: Xxxxxxxxx X. XxXxxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON, as a Lender and as
Documentation Agent
By: /s/ Xxxxxx Xxxx
---------------------------------------------
Name: Xxxxxx Xxxx
Title: Director
By: /s/ Xxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxx Xxxxx
Title: Associate
CREDIT LYONNAIS NEW YORK BRANCH, as a Lender and
as Syndication Agent
By: /s/ F. Xxxxx Xxxxxxx
---------------------------------------------
Name: F. Xxxxx Xxxxxxx
Title: Vice President
MIZUHO CORPORATE BANK, LTD., (as successor to
The Fuji Bank, Limited and as successor to The
Industrial Bank of Japan, Limited), as a Lender
By: /s/ Xxxxxxx Xxxx
---------------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
AIB INTERNATIONAL FINANCE, as a Lender
By: /s/ Xxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR CAYMAN
ISLANDS BRANCH, as a Lender
By: /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
SUMITOMO MITSUI BANKING CORPORATION f/k/a the
Sumitomo Bank, Limited, as a Lender
By: _________________________________________
Name: _________________________________________
Title: _________________________________________
COMERICA BANK - CALIFORNIA, as a Lender
By: /s/ Rob Ways
---------------------------------------------
Name: Rob Ways
Title: Vice President
FLEET NATIONAL BANK, as a Lender
By: /s/ Xxxxxxx X. XxXxxxxxx
---------------------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Managing Director
XXXXX FARGO BANK N.A., as a Lender
By: /s/ Xxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
FBTC LEASING CORP., as a Lender
By: _________________________________________
Name: _________________________________________
Title: _________________________________________
KEYBANK NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BNP PARIBAS, as a Lender
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Director
By: /s/ Xxxxxx Xx
---------------------------------------------
Name: Xxxxxx Xx
Title: Director
XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION
(formerly known as First Security Bank, National
Association), not individually, bus solely as
the Owner Trustee under the VS Trust 2000-2
By: _________________________________________
Name: _________________________________________
Title: _________________________________________
ABN AMRO LEASING, INC., as a Holder
By: /s/ Xxxxxxxxx X. XxXxxxxxx
---------------------------------------------
Name: Xxxxxxxxx X. XxXxxxxxx
Title: Vice President
CREDIT SUISSE LEASING 92A, L.P., as a Holder
By: _________________________________________
Name: _________________________________________
Title: _________________________________________
By: _________________________________________
Name: _________________________________________
Title: _________________________________________
CREDIT LYONNAIS LEASING CORPORATION, as a Holder
By: /s/ Xxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
FBTC LEASING CORP., as a Holder
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
