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EXHIBIT 10.99
LEASE SUPPLEMENT NO. 2
(NEWPORT NEWS PROPERTY)
THIS LEASE SUPPLEMENT NO. 2 (this "LEASE SUPPLEMENT") dated as of June 6, 2001,
between THE SYMANTEC 2001 TRUST, a Delaware statutory business trust, as lessor
(the "GRANTOR"), and SYMANTEC CORPORATION, a Delaware corporation, as lessee
(the "GRANTEE").
WHEREAS, the Grantor is the owner or will be the owner of the Property described
on SCHEDULE 1 (the "LEASED PROPERTY") and wishes to lease the same to the
Grantee pursuant to the Master Lease dated as of March 30, 2001, by and between
the Grantor and the Grantee (the "LEASE");
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS; RULES OF USAGE. For purposes of this Lease Supplement,
capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to them in Annex A to the Participation Agreement dated as of
March 30, 2001, by and among the Grantee, the Construction Agent, the Grantor,
the trustee of the Trust, the Holders, the Lenders, Fuji Bank, Limited, as
documentation agent, KeyBank National Association, as syndication agent, and the
Agent.
SECTION 2. THE PROPERTIES. Attached as SCHEDULE 1 is a legal description of the
Leased Property. Effective upon the execution and delivery of this Lease
Supplement by the Grantor and the Grantee, the Leased Property shall be subject
to the terms and provisions of the Lease. Without further action, any and all
additional Property or Equipment funded under the Operative Agreements and any
and all Improvements made to the Leased Property shall be deemed to be titled to
the Grantor and subject to the terms and conditions of the Lease and this Lease
Supplement.
This Lease Supplement shall constitute a mortgage, deed of trust, security
agreement and financing statement under the laws of the state in which the
Leased Property is situated. The maturity date of the obligations secured hereby
shall be October 4, 2007 unless otherwise extended by the parties.
For purposes of provisions of the Lease and this Lease Supplement related to the
creation and enforcement of the Lease and this Lease Supplement as a security
agreement and a fixture filing, Grantee is the debtor and Grantor is the secured
party. The mailing addresses of the debtor (Grantee herein) and of the secured
party (Grantor herein) from which information concerning security interests
hereunder may be obtained are set forth on the signature pages hereto. A carbon,
photographic or other reproduction of the Lease and this Lease Supplement or of
any financing statement related to the Lease and this Lease Supplement shall be
sufficient as a financing statement for any of the purposes referenced herein.
SECTION 3. ALLOCATIONS. The Maximum Residual Percentage for the Leased Property
is eighty-five and twenty-nine hundredths percent (85.29%).
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SECTION 4. USE OF PROPERTY. At all times during the Term with respect to the
Leased Property, the Grantee will comply with all obligations under and (to the
extent no Event of Default exists and provided that such exercise will not
impair the value of the Leased Property) shall be permitted to exercise all
rights and remedies under, all operation and easement agreements and related or
similar agreements applicable to the Leased Property.
SECTION 5. RATIFICATION; INCORPORATION BY REFERENCE. Except as specifically
modified hereby, the terms and provisions of the Lease and the other Operative
Agreements are hereby ratified and confirmed and remain in full force and
effect. The Lease is hereby incorporated herein by reference as though restated
herein in its entirety.
SECTION 6. ORIGINAL LEASE SUPPLEMENT. The single executed original of this Lease
Supplement marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART" on the
signature page thereof and containing the receipt of the Agent therefor on or
following the signature page thereof shall be the original executed counterpart
of this Lease Supplement (the "ORIGINAL EXECUTED COUNTERPART"). To the extent
that this Lease Supplement constitutes chattel paper, as such term is defined in
the Uniform Commercial Code as in effect in any applicable jurisdiction, no
security interest in this Lease Supplement may be created through the transfer
or possession of any counterpart other than the Original Executed Counterpart.
SECTION 7. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL BE GOVERNED BY AND
CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO RULES RELATING TO CONFLICTS OF LAW (OTHER THAN
GENERAL OBLIGATIONS LAW SECTION 5-1401), EXCEPT TO THE EXTENT THE LAW OF THE
COMMONWEALTH OF VIRGINIA IS REQUIRED TO APPLY (INCLUDING MATTERS RELATING TO THE
CREATION, PERFECTION AND ENFORCEMENT OF LIENS AND SECURITY INTERESTS AND TO THE
EXERCISE OF REMEDIES), IN WHICH EVENT THIS LEASE SUPPLEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF VIRGINIA.
SECTION 8. GRANT OF MORTGAGE LIEN AND SECURITY INTEREST; ASSIGNMENT OF RENTS. To
secure to the Grantor the payment of all amounts owed to Grantor by Grantee
under the Lease and the other Operative Agreements, and without limiting any
other remedies set forth in the Lease, Grantee and Grantor agree as follows:
(a) In the event that a court of competent jurisdiction rules that
the Lease constitutes a mortgage, deed of trust or other secured financing as is
the intent of the parties, then Grantor and Grantee agree that Grantee has
caused Grantor to hold title to the Leased Property and Grantee does hereby
mortgage, grant, bargain, sell, convey, assign, transfer and set over to the
Grantor, WITH POWER OF SALE, to the extent permitted by applicable law: (i) all
of the Grantee's right, title and interest in the Leased Property, if any; (ii)
all rights and benefits of whatever nature derived or to be derived by the
Grantee under or by virtue of the Lease; and (iii) all of the Grantee's right,
title and interest in and to all proceeds of the conversion, whether voluntary
or involuntary, of any of the above-described property into cash or other liquid
claims, including all awards, payments or proceeds, including interest thereon,
and the right to receive the same, which may be made as a result of casualty,
any exercise of the right of eminent domain
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or deed in lieu thereof, the alteration of the grade of any street and any
injury to or decrease in the value thereof, the foregoing being referred to
hereinafter as the "SECURITY PROPERTY."
TO HAVE AND TO HOLD the Security Property, subject however to
Permitted Exceptions, unto the Grantor, its successors and assigns IN TRUST,
forever, for the uses and purposes herein expressed, but not otherwise.
(b) Subject to the terms and conditions of the Lease as supplemented
by this Lease Supplement (including the Grantee's rights hereunder and
thereunder so long as no Event of Default has occurred and is continuing), the
Grantee hereby grants to the Grantor a security interest in that portion of the
Security Property (the "UCC PROPERTY") subject to the Uniform Commercial Code of
the State in which the Security Property is located (the "UCC"). The Lease, as
supplemented by this Lease Supplement, shall also be deemed to be a security
agreement and shall support any financing statement showing the Grantor's
interest as a secured party with respect to any portion of the UCC Property
described in such financing statement. The Grantee agrees, at its sole cost and
expense, to execute, deliver and file from time to time such further instruments
as may be requested by the Grantor to confirm and perfect the lien of the
security interest in the collateral described in this Lease Supplement.
(c) The Grantee hereby irrevocably assigns, conveys, transfers and
sets over unto the Grantor (subject, however, to the Lease and the rights of the
Grantee thereunder and hereunder) all and every part of the rents, issues and
profits (collectively, the "PROFITS") that may from time to time become due and
payable on account of any and all subleases or other occupancy agreements now
existing, or that may hereafter come into existence with respect to the Leased
Property or any part thereof, including any guaranties of such subleases or
other occupancy agreements (collectively, the "SUBLEASES"). Upon request of the
Grantor, the Grantee shall execute and cause to be recorded, at its expense,
supplemental or additional assignments of any Subleases of the Leased Property.
Upon the occurrence and during the continuance of an Event of Default and
subject to the provisions of subsection 5(d), the Grantor is hereby fully
authorized and empowered in its discretion (in addition to all other powers and
rights herein granted), and subject to the Lease and the rights of the Grantee
thereunder and hereunder, to apply for and collect and receive all such Profits
and enforce such guaranty or guaranties, and all money so received under and by
virtue of this assignment shall be held and applied as further security for the
payment of the loan(s) secured hereby.
(d) Notwithstanding that this Lease Supplement is an absolute
assignment of the Profits and the Subleases and not merely the collateral
assignment of, or the grant of a lien or security interest in the Profits and
the Subleases, Grantor grants to Grantee a revocable license to collect and
receive the Profits and to retain, use and enjoy such Profits. Such license
shall be automatically revoked upon the occurrence and during the continuance of
any Event of Default.
SECTION 9. COUNTERPART EXECUTION. This Lease Supplement may be executed in any
number of counterparts and by each of the parties hereto in separate
counterparts, all such counterparts together constituting but one (1) and the
same instrument. For purposes of the provisions of this Lease Supplement
concerning this Lease Supplement constituting a security agreement and fixture
filing, the addresses of the debtor (Grantee herein) and the secured party
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(Grantor herein), from whom information may be obtained about this Lease
Supplement, are as set forth on the signature pages hereto.
SECTION 10. VIRGINIA PROVISION. For purposes of Section 55-2, Code of Virginia
(1950), as amended, the Lease as supplemented by this Lease Supplement shall be
deemed a deed of lease. For purposes of Section 55-218.1, Code of Virginia
(1950), as amended, Grantor's resident agent is Xxxx X. Xxxxx, whose address is
Xxxxxx Godward LLP, Xxx Xxxxxxx Xxxxxx, Xxxxxx Xxxx Xxxxxx, Xxxxxx, Xxxxxxxx
00000-0000.
[THE SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Lease Supplement
to be duly executed by an officer thereunto duly authorized as of the date and
year first above written.
GRANTOR:
THE SYMANTEC 2001 TRUST, a Delaware
business trust
By: Wilmington Trust FSB, a federal
savings bank, not in its individual capacity
but solely as trustee
By:_________________________________________
Name:_______________________________________
Title:______________________________________
GRANTOR'S ADDRESS:
c/o Wilmington Trust FSB
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx 000 X
Xxx Xxxxx, XX 00000
Attention: Corporate Trust Administration
GRANTEE:
SYMANTEC CORPORATION, a Delaware
corporation
By:_________________________________________
Name:_______________________________________
Title:______________________________________
GRANTEE'S ADDRESS:
00000 Xxxxxxx Xxxxx Xxxx.
Xxxxxxxxx, XX 00000
Attention: Treasury
Attention: General Counsel
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SCHEDULE 1
TO LEASE SUPPLEMENT NO. 2
(Legal Description of the Newport News Property)
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