Exhibit 10.03
EXECUTION VERSION
VERITAS FOURTH AMENDMENT TO
PARTICIPATION AGREEMENT
This FOURTH AMENDMENT TO PARTICIPATION AGREEMENT (this "Agreement") dated
as of September 24, 2002, is by and among VERITAS SOFTWARE GLOBAL CORPORATION,
a Delaware corporation, as lessee and borrower (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"), 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; and
B. The parties desire to amend certain provisions of the Participation
Agreement and 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. Amendment to Participation Agreement. Section 8.3A(h)(ii) of the
Participation Agreement is hereby amended by deleting the same in its entirety
and replacing it with the following:
(h) Financial Covenants.
(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 8.3A(a)(i), shall not be
less than (i) $400,000,000 for each of the twelve month periods
ending September 30, 2002, December 31, 2002, March 31, 2003, June
30, 2003, September 30, 2003, December 31, 2003, March 31, 2004 and
June 30, 2004 and (ii) $500,000,000 for the twelve month period
ending as of September 30,
2004 and each December 31, March 31, June 30 and September 30
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 amendment 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 6 of the Participation Agreement and in the other Operative
Documents are true and correct (except as pertains to a Default that would be
cured upon the effectiveness of this Agreement) 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 (other than a Default that would be cured upon the
effectiveness of this Agreement) 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.
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 Lessee, each Guarantor, the Majority
Secured Parties, the Lessor and the Agent, and (b) receipt by the Agent, on
behalf of each individual Lender and Holder 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 Person in an
amount equal to 0.05% of each such Person's respective Commitment or Holder
Commitment, as applicable.
4. Miscellaneous.
(a) 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.
(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.
2
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
3
ABN AMRO BANK N.V., as Agent and
as a Lender
By: /s/ XXXXX X. XXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
By: /s/ XXXXX X. XXXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
CREDIT SUISSE, FIRST BOSTON, as a
Lender and as Documentation Agent
By: /s/ XXXXXXX X'XXXX
-----------------------------
Name: Xxxxxxx X'Xxxx
Title: Director
By: /s/ XXX X. XXXXX
-----------------------------
Name: Xxx X. Xxxxx
Title: Associate
CREDIT LYONNAIS LOS ANGELES
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/ XXXXX XXXXXXXX
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Deputy General Manager
AIB INTERNATIONAL FINANCE, as a
Lender
By: /s/ XXXXXXX XXXX
-----------------------------
Name: Xxxxxxx Xxxx
Title: Director
4
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH,
as a Lender
By: /s/ XXXXXXXXXXX XXXX
---------------------------
Name: Xxxxxxxxxxx Xxxx
Title: Managing Director
By: /s/ XXXXXXX XxXXXXX
-----------------------------
Name: Xxxxxxx XxXxxxx
Title: Director
SUMITOMO MITSUI BANKING
CORPORATION f/k/a the Sumitomo
Bank, Limited, as a Lender
By: /s/ XXXX XXXXXXX
-----------------------------
Name: Xxxx Xxxxxxx
Title: Vice President and Manager
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. XXXX
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
XXXXX FARGO BANK N.A., as a Lender
By: /s/ XXXX XXXXXX
-----------------------------
Name: Xxxx Xxxxxx
Title: Vice President
5
FBTC LEASING CORP., as a Lender
By: /s/ XXXXXX XXXX
-------------------------------------
Name: Xxxxxx Xxxx
-----------------------------------
Title: Vice President
----------------------------------
KEYBANK NATIONAL ASSOCIATION, as a Lender
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-----------------------------------
Title: Senior Vice President
----------------------------------
BNP PARIBAS, as a Lender
By: /s/ XXXXXX XXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxx
-----------------------------------
Title: Vice President
----------------------------------
By: /s/ XXXX XXXXXXXX
-------------------------------------
Name: Xxxx Xxxxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
6
XXXXX FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION (formerly known as First
Security Bank, National Association),
not individually, but solely as the
Owner Trustee under the VS Trust 2000-2
By: /s/ XXX X. XXXXX
-------------------------------------
Name: Xxx X. Xxxxx
-----------------------------------
Title: Vice President
----------------------------------
ABN AMRO LEASING, INC., as a Holder
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------
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/ X. X. XXXXXXXX
-------------------------------------
Name: X. X. Xxxxxxxx
-----------------------------------
Title: President
----------------------------------
FBTC LEASING CORP., as a Holder
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
7
