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EXHIBIT 10.22
CT 804852 SMC/I
Recording Requested By
CHICAGO TITLE COMPANY,
and When Recorded Return to:
XXXXX & XXX XXXXX, PLLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxx, Esq.
APN #000-00-000
MEMORANDUM OF LEASE AGREEMENT
AND
LEASE SUPPLEMENT NO. 2
AND
DEED OF TRUST
dated as of April 23, 1999
among
VERITAS SOFTWARE CORPORATION
as the Lessee,
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually but solely as Owner Trustee under the
VS Trust 1999-1,
as the Lessor,
and
CHICAGO TITLE COMPANY,
as Trustee
Location of Premises:
County of Santa Xxxxx
State of California
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THIS MEMORANDUM OF LEASE AGREEMENT AND LEASE SUPPLEMENT NO. 2 AND DEED OF
TRUST ("Memorandum"), dated as of April 23, 1999, is by and among FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, not
individually, but solely as the Owner Trustee under the VS Trust 1999-1, with
an office at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000 (hereinafter
referred to as "Lessor"), VERITAS SOFTWARE CORPORATION, a Delaware corporation,
doing business in California as Veritas Storage Management Corp., with an
office at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 (hereinafter
referred to as "Lessee") and CHICAGO TITLE COMPANY, with an office at 000 Xxxx
Xxxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000 (hereinafter referred to as
"Trustee").
WITNESSETH:
That for value received, Lessor and Lessee do hereby covenant, promise and
agree as follows:
1. CERTAIN DEFINITIONS AND REFERENCE TERMS. To the extent any
capitalized term is not defined herein, such term shall have the meaning set
forth in Appendix A to that certain Participation Agreement dated as of April
23, 1999 by and among the Grantor, Veritas Software Corporation, a Delaware
corporation, the various parties thereto from time to time, as the Guarantors,
the various banks and other lending institutions which are parties thereto from
time to time, as Holders and Lenders, and NationsBank, N.A., as Agent for the
Lenders and the Holders.
2. DEMISED PREMISES AND DATE OF LEASE. Lessor has leased to Lessee,
and Lessee has leased from Lessor, for the Term (as hereinafter defined),
certain real property and other property located in Santa Xxxxx County,
California which is described in the attached Schedule 1 (the "Property"),
pursuant to the terms of a Master Lease Agreement between Lessor and Lessee
dated as of April 23, 1999 (as such may be amended, modified, extended,
supplemented, restated and/or replaced from time to time, "Lease") and a Lease
Supplement No. 2 between Lessor and Lessee dated as of April 23, 1999 (the
"Lease Supplement").
3. TERM, RENEWAL, EXTENSION AND PURCHASE OPTION. The term of the Lease
for the Property ("Term") commenced as of April 23, 1999 and shall end as of
April 23, 2004, unless the Term is extended or earlier terminated in accordance
with the provisions of the Lease. The Lease contains provisions for renewal and
extension. The tenant has a purchase option under the Lease.
4. TAX PAYER NUMBERS.
Lessor's tax payer number: 00-0000000.
Lessee's tax payer number: 00-0000000.
5. DEED OF TRUST; POWER OF SALE. (a) It is the intent of the parties
that: (i) the Lease constitutes an operating lease from Lessor to the Lessee
for purposes of the Lessee's financial
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reporting, (ii) the Lease and other transactions contemplated hereby preserve
ownership of the Properties in the Lessee for federal and state income tax and
bankruptcy purposes, (ii) the Lease grants to Lessor a Lien on the Property
covered thereby, and (iv) the obligations of the Lessee to pay Basic Rent and
any part of the Termination Value shall be treated as payments of interest and
principal, respectively, for federal and state income tax and bankruptcy
purposes. Lessor shall be deemed to have a valid ad binding security interest
in and Lien on the Property, free and clear of all Liens other than Permitted
Liens, as security for the obligations of the Lessee under the Operative
Agreements (it being understood and agreed that the Lessee does hereby xxxxx x
Xxxx, and convey, transfer, assign, mortgage and warrant to Lessor and its
successors, transferees and assigns, the Property and any proceeds or products
thereof, to have and hold the same as collateral security for the payment and
performance of the obligations of the Lessee under the Operative Agreements)
each of the parties hereto agrees that it will not, nor will it permit any
Affiliate to at any time, take any action or fail to take any action with
respect to the preparation or filing or any income tax return, including an
amended income tax return, to the extent that such action or such failure to
take action would be inconsistent with the intention of the parties expressed
in this Section 5.
(b) Specifically, without limiting the generality of Section 5(a), the
parties hereto intend and agree that in the event of any insolvency or
receivership proceeds or a petition under the United States bankruptcy laws or
any other applicable insolvency laws or statute of the United States of America
or any state or commonwealth thereof affecting Lessee or Lessor or any
collection actions, the transactions evidenced by the Lease and the Operative
Agreements shall be regarded as loans made by the Lenders and the Holders to
the Lessee.
(c) Specifically, without limiting the generality of Section 5(b), the
Lessor and the Lessee intend and agree that with respect to the nature of the
transactions evidenced by the Lease in the context of the exercise of remedies
under the Operative Agreements, including, without limitation, in the case of
any insolvency or receivership proceedings or a petition under the United
States bankruptcy laws or any other applicable insolvency laws or statute of
the United States of America or any state or commonwealth thereof affecting the
Lessee and the Lessor, or any enforcement or collection actions, the
transactions evidenced by the Lease are loans made by the Lenders and the
Holders as unrelated third party lenders to the Lessee secured by the Property
(it being understood that the Lessee hereby mortgages, grants, bargains, sells,
releases, confirms, conveys, assigns, transfers and sets over to the Lessor,
and grants a security interest in, the Property (consisting of a leasehold deed
of trust with respect to all right, title and interest of the Lessee in and to
the Land and a fee deed of trust with respect to all right, title and interest
of Lessee in and to the fee title to, and reversionary interest in, the
Property) and a leasehold deed of trust on the Lessee's leasehold estate under
the Lease, all to secure such loans, effective on the date hereof, to have and
to hold such interests in the Property unto the Lessor and its successors and
assigns, forever, provided always that these presents are upon the express
condition that, if all amounts due under the Lease and the other Operative
Agreements shall have been paid and satisfied in full, then this instrument and
the estate hereby granted shall cease and become void.
As additional security for the Rent, the Termination Value and all other
sums owed to the Lessor by the Lessee under the Lease, the Lessee does hereby
grant, bargain, sell, transfer and
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convey unto the Trustee, its successors in trust and assigns, IN TRUST, WITH
POWER OF SALE, all of the Lessee's right, title and interest in and to the
Property, together with all of the right, power and authority of the Lessee to
alter, modify or change the terms, conditions and provisions of the Lease and
any other lease pertaining to the Property, to consent to any request made by a
tenant or landlord pursuant thereto, or to surrender, cancel or terminate the
same or to accept any surrender, cancellation or termination of the same,
together with all of the options, rights, powers and privileges of the Lessee
under any lease pertaining to the Property, whether heretofore or hereafter
existing, including, without limitation, the rights and options to purchase the
Property contained in Articles XIX and XX of the Lease, and all present and
future right, title and interest of the Lessee in and to (i) all refunds, tax
abatement agreements, rebates, reserves, deferred payments, deposits, cost;
savings, awards and payments of any kind due from or payable by (a) any
Governmental Authority, or (b) any insurance or utility company, in each case
under clause (a) or (b) above in respect of the Property, and (ii) all refunds,
rebates and payments of any kind due from or payable by any Governmental
Authority for any taxes, assessments or governmental or quasi-governmental
charges or levies imposed upon the Lessee in respect of the Property, and all
plans and specifications, designs, drawings and other information, materials and
matters heretofore or hereafter prepared relating to the Property or any
construction on the Property, all proceeds (including claims and demands
therefor) of the conversion, voluntary or involuntary, of any of the foregoing
into cash or liquidated claims, including without limitation the proceeds of
insurance and condemnation awards in respect of the Property or any portion
thereof, all additional estates, rights and interests hereafter acquired by the
Lessee in the Property, or any portion thereof, together with all proceeds of
the conversion, whether voluntary or involuntary, of any of the Property into
cash or other liquid claims, including without limitation, all awards, payments
or proceeds, including interest thereon, and the right to receive the same,
which may be made as a result of any casualty, any exercise of the right of
eminent domain or deed in lieu thereof, any injury to the Property and any
defect in title in the Property or other matter insured under any policy of
title insurance, together with attorney's fees, costs and disbursements incurred
by the Lessor in connection with the collection of such awards, payments and
proceeds, and the Lessee further grants to the Lessor, pursuant to the
California Uniform Commercial Code (the "UCC"), a security interest in all
present and future right, title and interest of the Lessee in and to any portion
of the foregoing property for which a security interest may be created under the
UCC.
To have and to hold the same whether now owned or held or hereafter
acquired unto the Trustee, its successors-in-trust forever, IN TRUST, WITH POWER
OF SALE, to secure to the Lessor the payment of the Rent, the Termination Value
and all other sums owing to the Lessor under the Lease and the performance and
observance of the terms, covenants, warranties, conditions, agreements and
obligations under the Lease. If the Lessee shall pay all sums due under the
Lease when due according to the terms thereof and shall otherwise fully and
properly perform and comply with all of the obligations, agreements, terms and
conditions of the Lease, then this conveyance shall become null and void.
In the event of the occurrence of a Lease Event of Default, then the Lessor
shall have all rights and remedies set forth in the Lease including, without
limitation the right to foreclosure its interest (or cause such interest to be
foreclosed) in any or all of the Property in accordance with
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applicable law. The Trustee and the Lessor and each of them are authorized prior
or subsequent to the institution of any foreclosure proceedings to enter upon
the Property or any part thereof and to take possession of the Property and
exercise without interference from the Lessee, any and all rights which the
Lessee has with respect to the management, possession, operation, protection or
preservation of the Property; provided, however, that Lessee shall be entitled,
up to 30 days after the termination of the Lessee's occupancy of the Property to
enter the Property during normal business hours for the purpose of removing its
personal property and trade fixtures therefrom at its expense, provided that
such personal property and trade fixtures are not Improvements and Lessee
repairs any damage to the Improvements caused by such removal.
It is acknowledged that A POWER OF SALE HAS BEEN GRANTED IN THIS
INSTRUMENT; A POWER OF SALE MAY ALLOW THE LESSOR TO TAKE THE PROPERTY AND SELL
THEM WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY THE LESSEE
UNDER THIS INSTRUMENT.
The proceeds of any sale held by Trustee or Lessor or any receiver or
public officer in foreclosure of the liens and security interests evidenced
hereby shall be applied first to all costs and expenses of the sale, including
but not limited to, reasonable Trustee's fees and then as provided in Section
22.2 of the Lease.
If the Lessor so elects, the Trustee may sell any personal property
covered by this instrument at one or more separate sales in any manner permitted
by the UCC. One or more exercises of the powers herein granted shall not
extinguish nor exhaust such powers until the entire Property is sold or until
the entire amounts evidenced and/or secured by the Lease and the Operative
Agreements is paid in full.
(d) Specifically, but without limiting the generality of Section 5(b), the
Lessor and the Lessee further intend and agree that, with respect to that
portion of the Property constituting personal property, for the purpose of
securing the Lessee's obligations for the repayment, of the above-described
obligations to the Lessor, (i) the Lease shall also be deemed to be a security
agreement and financing statement within the meaning of Article 9 of the UCC;
(ii) the conveyance provided for hereby shall be deemed to be a grant by the
Lessee to the Lessor of a lien and security interest in all of the Lessee's
present and future right, title and interest in and to such portion of the
Property, including but not limited to the Lessee's leasehold estate therein and
all proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, investments, securities or other property, whether in the form of cash,
investments, securities or other property to secure such obligations, effective
on the date hereof, to have and to hold such interests in the Property unto the
Lessor and its successors and assigns, forever, provided always that these
presents are upon the express condition that, if all amounts due under the
Lease shall have been paid and satisfied in full, then this instrument and the
estate hereby granted shall cease and become void; (iii) the possession by the
Lessor of notes and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to Section 9-305 of the UCC; and (iv) notifications to Persons holding such
property, and acknowledgments, receipts or confirmations from financial
intermediaries, bankers or agents (as
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applicable) of the Lessee shall be deemed to have been given for the purpose of
perfecting such security interest under applicable law. The Lessor and the
Lessee shall, to the extent consistent with this Memorandum, take such actions
and execute, deliver, file and record such other documents, financing
statements, mortgages and deeds of trust as may be necessary to ensure that, if
the Lease were deemed create a security interest in the Property in accordance
with this Section, such security interest would be deemed to be a perfected
security interest with priority over all Liens other than Permitted Liens,
under applicable law and will be maintained as such throughout the Term.
6. EFFECT OF MEMORANDUM. The purpose of this instrument is to give
notice of the Lease and the Lease Supplement and their respective terms,
covenants and conditions to the same extent as if the Lease and the Lease
Supplement were fully set forth herein. This Memorandum shall not modify in any
manner the terms, conditions or intent of the Lease or the Lease Supplement and
the parties agree that this Memorandum is not intended nor shall it be used to
interpret the Lease or the Lease Supplement or determine the intent of the
parties under the Lease or the Lease Supplement.
7. PURCHASE OPTION IN FAVOR OF LESSEE. Lessee has a Purchase Option
(as such term is defined in Section 20.1 of the Lease) respecting the Property
pursuant to and in accordance with the terms and provisions of the Lease, which
provides, inter alia, that upon payment by Lessee of the Termination Value and
related amounts set forth therein, Lessor shall convey the Property to Lessee
in accordance with the procedure set forth therein.
8. RATIFICATION. The terms and provisions of the Lease are hereby
ratified and confirmed and remain in full force and effect. In the event of any
conflict between the terms of the Lease and the terms of this Memorandum, the
terms of the Lease shall control.
9. GOVERNING LAW. THE LEASE AND THIS MEMORANDUM SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF EXCEPT TO THE
EXTENT THE LAWS OF CALIFORNIA ARE REQUIRED TO APPLY WITH RESPECT TO THE
RECORDING AND ENFORCEMENT OF THIS MEMORANDUM.
10. COUNTERPART EXECUTION. This Memorandum 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 and the same
instrument.
11. FUTURE ADVANCES; REVOLVING CREDIT. In the event a court of competent
jurisdiction rules that this instrument constitutes a mortgage, deed of trust
or other secured financing as is the intent of the parties pursuant to Section
5 hereof, then this instrument will be deemed given to secure not only existing
financing, but also future advances made pursuant to or as provided in the
Lease, whether such advances are obligatory or to be made at the option of the
Lessor, or otherwise, to the same extent as if such future advances were made
on the date of execution of this instrument, although there may be no advance
made at the time of execution
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hereof, and although there may be no financing outstanding at the time any
advance is made. To the fullest extent permitted by law, the lien of this
instrument shall be valid as to all such amounts, including all future advances,
from the time this instrument is recorded.
[The remainder of this page has been intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have duly executed this instrument
as of the day and year first written.
LESSOR:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but solely as the
Owner Trustee under the VS Trust 1999-1
By: /s/ XXX X. XXXXX
-------------------------
Name: Xxx X. Xxxxx
-----------------------
Title: Vice President
----------------------
First Security Bank, National Association
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxx X. Xxxxx
Vice President
LESSEE:
VERITAS SOFTWARE CORPORATION
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Veritas Software Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxx Xxxxx, Esq.
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IN WITNESS WHEREOF, the parties hereto have duly executed this instrument
as of the day and year first written.
LESSOR:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but solely as the
Owner Trustee under the VS Trust 1999-1
By:
-------------------------
Name:
-----------------------
Title:
----------------------
First Security Bank, National Association
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxx X. Xxxxx
Vice President
LESSEE:
VERITAS SOFTWARE CORPORATION*
By: /s/ XXX XXXXXXX
-------------------------
Name: Xxx Xxxxxxx
-----------------------
Title: Sr. VP & CFO
----------------------
Veritas Software Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxx Xxxxx, Esq.
* doing business in California as Veritas Storage Management Corp.
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XXXXX XX XXXX
XXXXXX XX XXXX XXXX
Xx April 21, 1999 before me, Xxxx Xxxxxx, Notary Public in and for said
County and State, personally appeared Xxx X. Xxxxx as Vice President of First
Security Bank, National Association, not individually but solely as Owner
Trustee under the VS Trust 1999-1 personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted executed the instrument.
WITNESS my hand and official seal.
Signature /s/ Xxxx Xxxxxx
------------------------
[SEAL]
00
Xxxxx xx Xxxxxxxxxx
Xxxxxx xx Xxxxx Xxxxx
Xx April 20, 1999 before me, Xxxx Xxxxxxxxx Xxxxxxxxx
-------------- ----------------------------------------------
Date Name and Title of Officer
(e.g., "Xxxx Xxx, Notary Public")
personally appeared Xxx Xxxxxxx
-------------------------------------------------------
Name(s) of Signer(s)
[X] personally known to me - OR - [ ] proved to me on the basis of satisfactory
evidence to be the person whose name is
subscribed to the within instrument and
acknowledged to me that he executed the
[SEAL] same in his authorized capacity, and that
by his signature on the instrument the
person, or the entity upon behalf of which
the person acted, executed the instrument.
WITNESS my hand and official seal
/s/ XXXX XXXXXXXXX XXXXXXXXX
---------------------------------------
Signature of Notary Public
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Schedule 1
All that certain Real Property in the City of Mountain View, County of Santa
Xxxxx, State of California, described as follows:
All of Lot 23, as shown upon that certain Map entitled, "Tract No. 2724 Xxxxx-
Middlefield Industrial Park", which Map was filed for Record in the Office of
the Recorder of the County of Santa Xxxxx, State of California, on June 16,
1960 in Book 121 of Maps, at Pages 40, 41, 42, 43 and 44.
