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EXHIBIT 10.96
FIRST AMENDMENT
TO
ANNEX A TO PARTICIPATION AGREEMENT
THIS FIRST AMENDMENT TO ANNEX A TO PARTICIPATION AGREEMENT, dated as of
June 6, 2001 (this "AMENDMENT"), is entered into by and among SYMANTEC
CORPORATION (the "LESSEE") and THE BANK OF NOVA SCOTIA, FUJI BANK, LIMITED,
KEYBANK NATIONAL ASSOCIATION, AIB INTERNATIONAL FINANCE, XXXXX FARGO BANK and
BNP PARIBAS (collectively, the "LENDERS").
RECITALS
A. The Lessee, the Lenders, the Construction Agent, the Symantec 2001
Trust, the trustee of the Trust, the Holders and the Bank of Nova Scotia (in its
capacity as the Agent on behalf and for the benefit of the Lenders and the
Holders) are parties to that certain Participation Agreement, dated as of March
30, 2001 (as the same may be amended, restated or otherwise modified, the
"PARTICIPATION AGREEMENT").
B. In connection with the Lessee's acquisition of the Newport News
Property, the Lessee and the Lenders desire to make certain amendments to Annex
A to the Participation Agreement, Rules of Usage and Definitions ("ANNEX A"),
but only in the manner and to the extent set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound, the parties hereto agree
as follows:
SECTION 1. DEFINITIONS. Capitalized terms used herein without definition shall
have the meanings given to such terms in Annex A, as amended by this Amendment.
SECTION 2. AMENDMENTS. Annex A is hereby amended as follows:
2.1 The definition of "CLOSING DATE" is hereby deleted in its entirety
and replaced with the following definition:
"CLOSING DATE" shall mean April 6, 2001.
2.2 The definition of "COLLATERAL ASSIGNMENT OF OPTION" is hereby
deleted in its entirety and replaced with the following definition:
"COLLATERAL ASSIGNMENT OF OPTION" shall mean, individually and
collectively, the collateral assignments of options relating to
the Springfield Property, the Newport News Property and any other
Permitted Parcel, if and as applicable, each dated as of the
applicable Property Closing Date.
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2.3 The definition of "COMMITMENT TERMINATION DATE" is hereby deleted in
its entirety and replaced with the following definition:
"COMMITMENT TERMINATION DATE" shall mean October 4, 2002.
2.4 The definition of "ENVIRONMENTAL AUDIT" is hereby deleted in its
entirety and replaced with the following definition:
"ENVIRONMENTAL AUDIT" shall mean (a) with respect to the
Springfield Property, the Phase I Environmental Site Assessment,
dated February 6, 2001, and any additional environmental studies
or audits prepared by the Environmental Engineer relating to such
Property, (b) with respect to the Newport News Property, the
Phase I Environmental Site Assessment and Limited Phase II
Environmental Services for the Proposed Symantec Office Building,
dated April 9, 2001, and any additional environmental studies or
audits prepared by the Environmental Engineer relating to such
Property and (c) with respect to any other Property or
Properties, the "Phase I" environmental site assessment report or
reports relating to such Property or Properties, and any
additional environmental studies or audits prepared by the
Environmental Engineer relating to such Property or Properties.
2.5 The definition of "ENVIRONMENTAL ENGINEER" is hereby deleted in its
entirety and replaced with the following definition:
"ENVIRONMENTAL ENGINEER" shall mean (a) with respect to the
Springfield Property, Kleinfelder, Inc. (b) with respect to the
Newport News Property, Professional Service Industries, Inc. and
(c) with respect to any other Property or Properties, any other
environmental engineer approved by Agent in its sole and absolute
discretion.
2.6 A new definition of "INDEMNITY AGREEMENTS" is hereby added as
follows:
"INDEMNITY AGREEMENTS" shall mean (a) that certain Indemnity
Bond, dated as of June 6, 2001, executed by the Trust in favor of
the Title Company utilized in connection with the acquisition of
the Newport News Property and (b) that certain Indemnity
Agreement, dated as of June 6, 2001, executed by the Lessee in
favor of the Trust.
2.7 The definition of "MATURITY DATE" is hereby deleted in its entirety
and replaced with the following definition:
"MATURITY DATE" shall mean October 4, 2007.
2.8 A new clause (u) is hereby added to the definition of "OPERATIVE
AGREEMENTS" as follows:
(u) the Indemnity Agreements.
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2.9 The definition of "PROPERTY PURCHASE AGREEMENT" is hereby deleted in
its entirety and replaced with the following definition:
"PROPERTY PURCHASE AGREEMENT" shall mean (a) with respect to the
Springfield Property, the Purchase Agreement dated as of January
12, 2001 by and between Sony Music Entertainment Inc. and the
Lessee, as amended by that certain First Amendment to Purchase
Agreement dated as of Xxxxx 00, 0000, (x) with respect to the
Newport News Property, the Purchase Agreement dated as of May 10,
2001 by and between Industrial Development Authority of the City
of Newport News, Virginia and the Lessee, as amended by that
certain Agreement Regarding Post-Closing Obligations, dated as of
June 6, 2001 and (c) with respect to any other Property or
Properties, any other property purchase agreement involving any
Permitted Parcel.
2.10 The definition of "TERM" is hereby deleted in its entirety and
replaced with the following definition:
"TERM" shall mean the period commencing on the Closing Date and
ending on the Maturity Date.
2.11 The definition of "TITLE COMPANY" is hereby deleted in its entirety
and replaced with the following definition:
"TITLE COMPANY" shall mean (a) with respect to the Springfield
Property, Western Pioneer Title Company, (b) with respect to the
Newport News Property, Pioneer Title, agent for Old Republic
Title Insurance Company and (b) with respect to any other
Property or Properties, such other title insurance company
reasonably acceptable to Agent.
SECTION 3. REFERENCE TO ANNEX A IN THE PARTICIPATION AGREEMENT AND OTHER
OPERATIVE AGREEMENTS. Upon the effectiveness of this Amendment, each reference
in the Participation Agreement and the other Operative Agreements in which
"Annex A to the Participation Agreement" or "Annex A" is referenced shall mean
and be a reference to Annex A as amended by this Amendment.
SECTION 4. LIMITATION OF AMENDMENTS. Each of the amendments set forth in SECTION
2, above, shall be limited precisely as written and shall not be deemed to (i)
be an amendment to any other term or condition of Annex A or any other Operative
Agreement, (ii) prejudice any right or remedy which any party may now have or
may have in the future under or in connection with Annex A or any other
Operative Agreement, or (iii) be a consent to any future amendment.
SECTION 5. FULL FORCE AND EFFECT. It is hereby agreed that Annex A shall remain
in full force and effect as amended pursuant to the terms of this Amendment.
SECTION 6. GOVERNING LAW. THIS AMENDMENT 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).
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SECTION 7. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which when so delivered shall be deemed an original, but
all such counterparts taken together shall constitute but one and the same
instrument.
[The signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above.
LESSEE: SYMANTEC CORPORATION
By: ____________________________________________
Name: __________________________________________
Title: _________________________________________
LENDERS: THE BANK OF NOVA SCOTIA
By: ____________________________________________
Name: __________________________________________
Title: _________________________________________
FUJI BANK, LIMITED
By: ____________________________________________
Name: __________________________________________
Title: _________________________________________
KEYBANK NATIONAL ASSOCIATION
By: ____________________________________________
Name: __________________________________________
Title: _________________________________________
AIB INTERNATIONAL FINANCE
By: ____________________________________________
Name: __________________________________________
Title: _________________________________________
XXXXX FARGO BANK
By: ____________________________________________
Name: __________________________________________
Title: _________________________________________
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BNP PARIBAS
By: ____________________________________________
Name: __________________________________________
Title: _________________________________________
By: ____________________________________________
Name: __________________________________________
Title: _________________________________________
This Amendment is hereby acknowledged by:
LESSOR: THE SYMANTEC 2001 TRUST
By: Wilmington Trust FSB, not in its individual
capacity but solely as trustee
By: ____________________________________________
Name: __________________________________________
Title: _________________________________________
AGENT: THE BANK OF NOVA SCOTIA
By: ____________________________________________
Name: __________________________________________
Title: _________________________________________
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