EXHIBIT 10.07
VERITAS PARTICIPATION AGREEMENT
SECOND AMENDMENT
This SECOND AMENDMENT (this "Agreement") dated as of November 7, 2001,
is by and among VERITAS SOFTWARE GLOBAL CORPORATION, a Delaware corporation, as
lessee (the "Lessee", or the "Construction Agent"), the various parties thereto
from time to time, as guarantors (the "Guarantors"), ▇▇▇▇▇ 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", the "Borrower"
or the "Lessor"), the various banks and other lending institutions which are
parties thereto 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 (the "Agent")
for the Lenders and the Holders 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 and
the Agent are parties to that certain 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 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 Participation Agreement is hereby amended as follows:
(a)Sections 8.3A(h)(i) and 8.3A(h)(i)(ii) of the Participation
Agreement are hereby amended by deleting the same in their entirety and
replacing them with the following:
(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 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 8.3A(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.
(b) The definition of "Applicable Percentage" set forth in
Appendix A to the Participation Agreement is hereby amended by deleting
the same in its entirety and replacing it with the following:
"Applicable Percentage" shall mean for Eurodollar Loans,
Eurodollar Holder Advances 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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Applicable
Ratio of Funded Applicable Percentage for
Indebtedness Percentage for Eurodollar Holder Applicable Percentage
Pricing Level To EBITDA Eurodollar Loans Advances for Commitment Fee
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I Funded Indebtedness/ 1.000% 2.000% 0.200%
EBITDA .75 but 1.50 but 2.0 but 2.25
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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 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);
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(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.
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.
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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/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
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Title: Treasurer
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VERITAS SOFTWARE CORPORATION, as a
Guarantor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
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Title: Treasurer
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VERITAS OPERATING CORPORATION, as a
Guarantor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
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Title: Treasurer
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VERITAS SOFTWARE TECHNOLOGY CORPORATION,
as a Guarantor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
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Title: Treasurer
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VERITAS SOFTWARE TECHNOLOGY HOLDING
CORPORATION, as a Guarantor
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
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Title: Treasurer
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ABN AMRO BANK N.V., as Administrative Agent
and as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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CREDIT SUISSE FIRST BOSTON, as a Lender and
as Documentation Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇
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Title: Director
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By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
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Title: Associate
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CREDIT LYONNAIS LOS ANGELES BRANCH, as a
Lender and as Syndication Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Senior Vice President and
Manager
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THE FUJI BANK, LTD., as a Lender
By:
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Name:
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Title:
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AIB INTERNATIONAL FINANCE, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
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Title: Director
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DEUTSCHE BANK AG NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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Title: Vice President
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By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
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SUMITOMO MITSUI BANKING CORPORATION f/k/a
the Sumitomo Bank, Limited, as a Lender
By:
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Name:
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Title:
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COMERICA BANK -- CALIFORNIA, as a Lender
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
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Title: Assistant Vice President
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FLEET NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice President
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▇▇▇▇▇ FARGO BANK N.A., as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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FBTC LEASING CORP., as a Lender
By:
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Name:
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Title:
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KEYBANK NATIONAL ASSOCIATION, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Vice President
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BNP PARIBAS, as a Lender
By:
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Name:
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Title:
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By:
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Name:
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Title:
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THE INDUSTRIAL BANK OF JAPAN, LIMITED,
as a Lender
By:
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Name:
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Title:
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▇▇▇▇▇ 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:
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Name:
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Title:
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ABN AMRO LEASING, INC., as a Holder
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
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CREDIT SUISSE LEASING 92A, L.P., as a Holder
By: /s/ DAY
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Name: DAY
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Title: Director
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By: /s/ ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇
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Title: Director
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CREDIT LYONNAIS LEASING CORPORATION,
as a Holder
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
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Name: ▇.▇. ▇▇▇▇▇▇▇▇
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Title: President
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FBTC LEASING CORP., as a Holder
By:
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Name:
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Title:
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