EXHIBIT 10.52
TERMINATION AND RELEASE AGREEMENT
THIS TERMINATION AND RELEASE AGREEMENT ("Termination Agreement") is
made and entered into as of the 6th day of March, 2003, by and among THE
SYMANTEC 2001 TRUST, as Lessor ("Lessor"), the holders of Certificates
("Holders"), the lenders ("Lenders") and THE BANK OF NOVA SCOTIA, as a Lender
and as administrative agent for the benefit and on behalf of all other Lenders
and Holders ("BNS", and sometimes also referred to herein as "Agent") in favor
of SYMANTEC CORPORATION, a Delaware corporation ("Symantec" and "Lessee").
RECITALS OF FACT
BNS, in its role as Administrative Agent for the various
Lenders and Holders, Lessor, Lenders, Holders and Symantec have entered into
that certain Participation Agreement dated as of March 30, 2001 (the
"Participation Agreement"), and Lessor and Symantec have entered into that
certain Master Lease dated as of March 30, 2001, as amended, pursuant to which
the Lenders have provided certain financing to Symantec (collectively, the
"Facility"). Set forth in Section 1 below is the amount required to be paid by
Symantec to Lessor (for distribution among the Agent, Holders and Lenders in
accordance with the provisions of the Participation Agreement), calculated as of
March 6, 2003 (the "Payoff Calculation Date"), in order to pay off all
outstanding obligations of the Lessee under the Facility and purchase the
Projects (defined below). Capitalized terms not otherwise defined herein have
the meaning given them in the Participation Agreement.
The parties have previously entered into various agreements more
particularly described herein, in connection with certain real property located
in Springfield, Lane County, Oregon, and in Newport News, Virginia (together,
the "Projects"), and certain obligations of the Lessee under such agreements are
secured by the Pledged Collateral held by the Lenders.
The parties desire to terminate and release those agreements, and
convey the Projects to Symantec upon the satisfaction of the conditions set
forth below.
NOW, THEREFORE, for good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
AGREEMENTS
1. PURCHASE CALCULATION AND PAYMENT. The following is the amount
required to be paid by Symantec to the Agent (for distribution among the Agent,
Holders and Lenders in accordance with the provisions of the Participation
Agreement), calculated as of the Payoff Calculation Date, in order to pay off
all outstanding obligations of Lessee under the Facility:
Principal Balance: $ 47,157,685.14
Interest through Payoff Calculation Date: $ 206,079.09
Break Funding $ 0
Total Through Payoff Calculation Date: $ 47,363,764.23
1.
Any payment received by the Agent other than on a business day of the
Agent (or after 2:00 pm Eastern time on any business day) shall be deemed not to
have been received until the following business day.
If payment will not be received by the Payoff Calculation Date, a new
calculation of the payoff sum should be requested from the Agent.
Lessee hereby agrees, in accordance with Section 6.3 of the Pledge
Agreement, that any and all amounts of Pledged Collateral that are held by
Collateral Agent, Depositary Bank or any Deposit Taker as of the date hereof,
shall be applied in satisfaction of Lessee's obligation to pay the Purchase
Option Price, on March 6, 2003.
2. FEES AND COSTS. In addition to the payment described in
Paragraph 1 above, an additional amount required to be paid by Symantec for
legal fees of counsel to the Agent, fees and expenses of the Trust Company,
recording fees, taxes, and other costs and expenses incurred in connection
herewith, all as more particularly set forth on the settlement statement
prepared for the transactions contemplated by this Agreement by First American
Title Insurance Company, shall be wired as follows:
First American Trust Company, Santa Xxx Xxxxxx
000 X. Xxxx Xxxxxx, Xxxxx Xxx, XX 00000
ABA No. 000000000
Credit: First American Title Company Trust Account
Acct No. 12110
Reference: Escrow No. NCS-14693-SF/NCS-14721-SF
Office No. F011-10
Escrow Officer: Xxxxxxxxxxx Xxxx
Please call (000) 000-0000 to provide the Fed wire confirmation number.
3. TERMINATION OF AGREEMENTS. Effective as of 5:00 p.m.
California time on the date of Agent's receipt of the payment required in
Paragraph 1 above, each of the following agreements, as amended from time to
time (each an "Agreement" and collectively the "Agreements"), is hereby
terminated and the parties thereto released subject to the provisions of
Paragraph 5 below, as of the date hereof:
(a) The Participation Agreement;
(b) Master Lease dated as of March 30, 2001, between
Lessor and Lessee, as assigned to Agent;
(c) Lease Supplement (Springfield Property) Lease
Supplement No. 1 dated as of April 6, 2001, between Lessor and Lessee;
(d) Collateral Assignment of Option dated as of April 6,
2001, by and between Lessee and Lessor;
2.
(e) Lease Supplement No. 2 dated as of June 6, 2001,
between Lessor and Lessee;
(f) Collateral Assignment of Option dated as of June 6,
2001, by and between Lessee and Lessor;
(g) Construction Agency Agreement dated as of March 30,
2001, between Lessor and Lessee;
(h) Pledge and Security Agreement, dated as of March 30,
2001, between BNS, as Collateral Agent, and Symantec; and
(i) Trust Agreement, dated as of March 30, 2001, among
Wilmington Trust FSB, as successor trustee to Wilmington Trust Company, pursuant
to the Resignation of Trustee, Appointment of Successor Trustee and Appointment
of Co-Trustee, dated as of April 3, 2001 (the "Resignation and Appointment"),
Xxxxxxxx Xxxxxxx, as co-trustee appointed pursuant to the Resignation and
Appointment, and the various banks, financial institutions and other lending
institutions, or their investment affiliates, which are parties thereto from
time to time as holders of Certificates.
4. RE-ASSIGNMENT OF INTANGIBLE ASSETS. Effective as of 5:00 p.m.
California time on the date of Agent's receipt of the payment required in
Paragraph 1 above, the intangible assets assigned to Lessor pursuant to each of
the following agreements are hereby re-assigned to Symantec and the assignments
evidenced thereby are hereby terminated:
(a) Assignment of Permits dated June 6, 2001 by the
Industrial Development Authority of the City of Newport News, Virginia to
Lessor; and
(b) Assignment of Permits dated April 4, 2001 by Sony
Music Entertainment Inc. to Lessor.
5. RELEASE OF LIABILITY. Effective as of 5:00 p.m. California
time on the date the payoff sum is received, Lessor, Holders, Lenders and Agent
do each hereby release Symantec, its subsidiaries, related and affiliated
corporations from each and all of their obligations and any claims and demands
of every kind and nature, known and unknown, suspected and unsuspected,
disclosed and undisclosed, arising out of or in connection with the Agreements
after the date hereof; provided, however, that none of Lessor, Holders, Lenders
nor Agent waives or releases Symantec, its subsidiaries, related and affiliated
corporations from any obligations, claims or demands arising from
indemnifications or liabilities contained in any of the Agreements released
above, which, by their respective terms, expressly survive the termination of
the relevant Agreement.
6. EXECUTION OF ADDITIONAL DOCUMENTS. Lessor, Holders, Lenders
and Agent each agree, at Lessee's sole cost and expense, to promptly execute
such additional documents and instruments as are necessary or desirable to
evidence the releases and terminations set forth in Paragraphs 3 and 4 above or
to otherwise terminate the interests of the Lessor, Holders, Lenders and Agent
in assets associated with the Projects.
3.
7. INSTRUCTION TO EXECUTE. The Holders represent to the Owner
Trustee (as defined in the Trust Agreement) that they constitute the Required
Holders (as defined in the Trust Agreement) with the right to instruct the Owner
Trustee, pursuant to the Trust Agreement, to execute and deliver this
Termination Agreement on behalf of Lessor and, as such, hereby direct the Owner
Trustee to so execute and deliver this Termination Agreement, Termination of
Lease (Oregon), Termination of Lease (Virginia), Quitclaim Deed (Oregon),
Quitclaim Deed (Virginia), and any other documents, instruments or agreements
required hereby on behalf of Lessor as the Lessee, Holders, Agent or Lenders may
approve, such approval being evidenced by the execution thereof by the Owner
Trustee on behalf of the Lessor. It is expressly understood and agreed by the
parties to this Agreement that (a) this Agreement and each such document
executed on behalf of the Lessor by Wilmington Trust FSB is executed and
delivered by Wilmington Trust FSB, not individually or personally but solely as
trustee of the Lessor, in the exercise of the powers and authority conferred and
vested in it as trustee, (b) each of the representations, undertakings and
agreements herein made or in any such other document on the p art of the Lessor
is made and intended not as personal representations, undertakings and
agreements by Wilmington Trust FSB but are made and intended for the purpose of
binding only the Lessor, (c) nothing contained herein or therein shall be
construed as creating any liability on Wilmington Trust FSB, individually or
personally, to perform any covenant either expressed or implied contained herein
or therein, all such liability, if any, being expressly waived by the parties to
this Agreement and by any person claiming by, through or under the parties to
this Agreement and (d) under no circumstances shall Wilmington Trust FSB be
personally liable for the payment of any indebtedness or expenses of the Lessor
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Lessor under this Agreement or
any other document.
8. COUNTERPARTS. This Termination Agreement may be signed in two
or more counterparts. When at least one such counterpart has been signed by each
party, this Termination and Release Agreement shall be deemed to have been fully
executed, each counterpart shall be deemed to be an original, and all
counterparts shall be deemed to be one and the same agreement.
9. CANCELLATION OF LESSOR. In accordance with the termination of
the documents specified under Section 3 and the Lessor's execution and delivery
of the documents identified in Section 7, Wilmington Trust FSB shall, within a
reasonable time after the date of this Agreement, cause the Certificate of Trust
of the Lessor to be cancelled by filing with the Secretary of State of Delaware
a certificate of cancellation in accordance with the provisions of Section 3810
of the Delaware Statutory Trust Act.
10. CANCELLATION OF BENEFICIAL INTEREST CERTIFICATES. Each Holder
by execution hereof, acknowledges that its Certificate representing a beneficial
interest in the Lessor has been cancelled and that neither the Lessor, the Owner
Trustee, the Co-Trustee nor any other Holder shall have any further obligations
with respect to such Certificate or Holder. Each Holder shall surrender its
Certificate to the Owner Trustee for disposal in accordance with the customary
practices of the Owner Trustee. Notwithstanding the foregoing, the failure of
any Holder to surrender its Certificate shall not be a condition precedent or
subsequent to the effectiveness of this Agreement or the cancellation of such
Certificate or the termination of the Lessor.
4.
IN WITNESS WHEREOF, the parties have caused this Termination Agreement
to be executed by their respective duly authorized officers as of the day and
year first above written.
LESSEE: SYMANTEC CORPORATION
By: __________________________________
Name: ________________________________
Title: _______________________________
LESSOR: THE SYMANTEC 2001 TRUST
By: Wilmington Trust FSB,
not in its individual capacity but
solely as trustee
By: __________________________________
Name: ________________________________
Title: _______________________________
AGENT, AND A LENDER: THE BANK OF NOVA SCOTIA
By: __________________________________
Name: Xxxx X. Xxxxx
Title: _______________________________
5.
LENDERS: MIZUHO CORPORATE BANK, LTD.
By: __________________________________
Name: Mano Xxxxxxxxxx
Title: _______________________________
KEYBANK NATIONAL ASSOCIATION
By: __________________________________
Name: Xxxxxx Xxxxxxxx
Title: _______________________________
AIB INTERNATIONAL FINANCE
By: __________________________________
Name: Xxxxx X'Xxxxx
Title: _______________________________
XXXXX FARGO BANK
By: __________________________________
Name: Xxxxx Xxxxxx
Title: _______________________________
BNP PARIBAS
By: __________________________________
Name: Xxxxxxx Xxxx
Title: _______________________________
By: __________________________________
Name: ________________________________
Title: _______________________________
6.
HOLDERS: SCOTIABANC INC.
By: __________________________________
Name: ________________________________
Title: _______________________________
FBTC LEASING CORP.
By: __________________________________
Name: ________________________________
Title: _______________________________
KEYBANK NATIONAL ASSOCIATION
By: __________________________________
Name: Xxxxxx Xxxxxxxx
Title: _______________________________
AIB INTERNATIONAL FINANCE
By: __________________________________
Name: Xxxxx X'Xxxxx
Title: _______________________________
7.
