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EXHIBIT 10.17
EXECUTION COPY
This instrument prepared by,
recording requested by,
and when recorded return to:
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
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ASSIGNMENT OF LEASE AND RENT
dated as of October 18, 1996
from
SUMITOMO BANK LEASING AND FINANCE, INC.,
as ASSIGNOR
to
THE SUMITOMO BANK, LIMITED, SAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
as Agent,
as ASSIGNEE
================================================================================
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ASSIGNMENT OF LEASE AND RENT
THIS ASSIGNMENT OF LEASE AND RENT, dated as of October 18, 1996 (this
"Assignment"), made by SUMITOMO BANK LEASING AND FINANCE, INC., a Delaware
corporation (the "Lessor"), to THE SUMITOMO BANK, LIMITED, SAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
as agent (the "Agent") for the Lenders under the Loan Agreement referred to
below (together with their respective successors and assigns, the "Lenders"),
W I T N E S S E T H:
WHEREAS, pursuant to the Loan Agreement dated as of the date hereof (as
amended, restated, supplemented or otherwise modified from time to time, the
"Loan Agreement"), among the Lessor, the Lenders and the Agent, the Lenders have
severally agreed to make Loans to the Lessor in an aggregate amount not to
exceed the aggregate Commitments of the Lenders, as set forth on Schedule I to
the Participation Agreement (as defined in Appendix A to the Loan Agreement),
upon the terms and subject to the conditions set forth in the Loan Agreement and
the Participation Agreement, to be evidenced by the notes (such notes, as the
same may hereafter be amended, modified, renewed, extended or otherwise changed
from time to time, together with any note or notes or other obligations executed
and delivered in renewal, extension or replacement thereof or in substitution or
exchange therefor, are hereinafter collectively referred to as the "Notes")
issued by the Lessor under the Loan Agreement;
WHEREAS, it is a condition, among others, to the obligation of the
Lenders to make their respective Loans to the Lessor under the Loan Agreement
that the Lessor shall have executed and delivered, and the Lessee shall have
consented to, this Assignment to the Agent for the benefit of the Lenders; and
WHEREAS, in order further to secure payment of all the amounts owing to
the Lenders under the Loan Agreement, the Notes and the other Operative
Documents, the Lessor has agreed to enter into, execute, and deliver this
Assignment;
NOW, THEREFORE, in consideration of the foregoing, the parties hereto
agree as follows:
1. Defined Terms. Capitalized terms used but not otherwise
defined in this Assignment shall have the respective meanings specified in
Appendix A to the Loan Agreement; and the rules of interpretation set forth in
such Appendix A shall apply to this Assignment.
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2. Assignment. To secure its obligations under the Loan Agreement, the
Lessor hereby assigns, transfers, sets over and conveys to the Agent for the
ratable benefit of the Lenders, all the following described property relating to
or arising in connection with the Properties (including, without limitation,
each Property described in a Supplement to this Assignment, as delivered from
time to time in the form attached hereto as Exhibit A), whether now owned or
held or hereafter acquired:
(a) Except as hereinafter provided, all of the estate, right,
title, interest, benefits, powers and privileges of the Lessor, as
lessor, under the Master Lease (including all Lease Supplements)
(hereinafter referred to collectively as the "Assigned Leases")
including (i) the immediate and continuing right, on a non-exclusive
basis, to make claim for, receive, collect and receipt for all rents,
income, revenues, issues, profits, insurance proceeds, condemnation
awards, sales proceeds and other sums payable to or receivable by the
Lessor under the Assigned Leases, or pursuant to any provisions
thereof, whether as rent or as the purchase price or termination
payment for any interest in any Property or otherwise (including,
without limitation, the Loan Balance, the Purchase Option Price and any
sales proceeds payable to the Lessor pursuant to the Assigned Leases)
(collectively, the "Lease Rents"), including all cash, securities or
letters of credit delivered or deposited pursuant thereto to secure
performance by the Lessee of its obligations thereunder, (ii) the right
and power (which right and power are coupled with an interest) upon the
purchase by the Lessee of the interest of the Lessor in any Property in
accordance with any Assigned Lease to execute and deliver as
irrevocable agent and attorney-in-fact of the Lessor an appropriate
instrument necessary to convey the interest of the Lessor therein, or
to pay over or assign to the Lessee those sums to which it is entitled
if the Lessee becomes obligated to purchase the interest of the Lessor
in any Property and to perform all other necessary or appropriate acts
as said agent and attorney-in-fact with respect to any such purchase
and conveyance, (iii) the right, on a non-exclusive basis, to perform
all other necessary or appropriate acts as said agent and
attorney-in-fact with respect to any purchase or conveyance referred to
in clause (ii) above, (iv) the right (subject to the consent of
Required Participants), on a non-exclusive basis, to declare the Master
Lease or any Lease Supplement to be in default, (v) subject to the
terms of the Operative Documents (and subject to the consent of
Required Participants), the
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Assignment of Lease and Rent
right to exercise remedies under or with respect to the Assigned
Leases, (vi) the right (subject to the consent of Required Lenders) to
make all waivers and agreements on behalf of the Lessor under the
Assigned Leases provided for or permitted under the Assigned Leases;
provided, however, that none of the foregoing will be made or given
with respect to Article VII, IX, X, XIII, XIV, XVIII, XX or XXI of the
Master Lease without the written consent of the Required Participants,
(vii) the right to give all notices, consents, releases and other
instruments provided under the Assigned Leases; provided, however, that
none of the foregoing will be made or given with respect to Article
VII, IX, X, XIII, XIV, XVIII, XX or XXI of the Master Lease without the
written consent of the Required Participants, (viii) the right (subject
to the consent of Required Participants), on a non-exclusive basis, to
give all notices of default and to take all action upon the happening
of a Default or an Event of Default under any Assigned Lease, including
the commencement, conduct and consummation of proceedings as shall be
permitted under any provision of any Assigned Lease, or by law or in
equity, (ix) the right, on a non-exclusive basis, to receive all
notices sent to the Lessor under any Assigned Lease, (x) the Lessor's
interest under any Assigned Lease in the Lessee's tangible and
intangible property used or arising in connection with any Property,
including, but not limited to, permits, licenses, contract rights and
prepaid expenses, and (xi) the right (subject to the consent of
Required Participants), on a non-exclusive basis, to do any and all
other things whatsoever which the Lessor is or any lessor is, or may be
entitled to do under any Assigned Lease. The Lessor hereby agrees that
any action taken by the Lenders (or their designee) pursuant to this
Assignment shall be exclusive, and no party relying on such action of
the Lenders (or such designee) pursuant hereto shall be required to
obtain the concurrence or consent of the Lessor to such action or to a
request for such action.
(b) All of the estate, right, title, interest, benefits,
powers and privileges of the Lessor, to and under all agreements or
contracts for the sale or other disposition of all or any part of any
Property, now or hereafter entered into by the Lessor (collectively,
the "Contracts"), together with all estate, right, title, interest,
benefits, powers and privileges of the Lessor under the Contracts
including, without limitation, the immediate and continuing right, on a
non-exclusive basis, to make claim for, receive, collect and receipt
for all
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Assignment of Lease and Rent
charges, fees, income, issues, profits, receipts, rents, revenues or
royalties payable under any of the Contracts (collectively, the
"Contract Rents" and, together with the Lease Rents, the "Rents") and
all right, title and interest of the Lessor thereunder, including all
cash, securities or letters of credit deposited thereunder to secure
performance by the obligors of their obligations thereunder.
(c) On a non-exclusive basis, all of the right, title and
interest of the Lessor in and to all claims and rights to the payment
of money at any time arising in connection with any repudiation,
rejection or breach of any Assigned Lease by the Lessee or a trustee or
receiver of the Lessee under any insolvency statute, law or regulation,
including, without limitation, all rights to recover damages arising
out of such breach or rejection, all rights to charges payable by the
Lessee or such trustee or receiver in respect of any Property or any
portions thereof following rejection, repudiation or disaffirmance of
the Lease or following the entry of an order for relief under any
insolvency statute, law or regulation in respect of the Lessee and all
rentals and other charges outstanding under the Lease as of the date of
entry of such order for relief.
Notwithstanding the foregoing provisions of this Section 2, the
assignment contained herein shall in no event include any amounts received by
Agent or Lessor or otherwise paid or payable to Lessor with respect to Yield,
Lessor Amount, indemnity payments to or for the benefit of the Lessor, insurance
proceeds under policies maintained by the Lessor and fees or Transaction
Expenses paid or payable to or for the benefit of the Lessor.
3. Receipt of Rents. The Lenders hereby acknowledge and agree that the
Agent will hold the Rents for the benefit of each of the Lenders and the Lessor,
and the Agent will distribute the Rents to the Lenders and the Lessor in
accordance with Article VII of the Participation Agreement.
4. Irrevocability; Supplemental Instruments. The Lessor agrees that
this Assignment and the designation and direction to the Lessee set forth in
Sections 2 and 3 of this Assignment are irrevocable and that it will not take
any action as lessor under the Leases or otherwise which is inconsistent with
this Assignment and that any action, assignment, designation or direction
inconsistent herewith shall be void. The Lessor will from time to time execute
and deliver all instruments of further assurance and do such further acts as may
be necessary or proper to carry out more effectively the purpose of this
Assignment.
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Assignment of Lease and Rent
5. Validity. The Lessor represents and warrants (on a continuing basis)
and covenants to the Lenders that (a) the Lessor has not assigned or executed
any assignment of, and will not assign or execute any assignment of, the
Lessor's interest in any of the Assigned Leases, in any Contract, in any Rents
or in any other subject matter of this Assignment to anyone other than the
Lenders and any assignment, designation or direction by the Lessor inconsistent
herewith shall be void, and (b) the Lessor has not done any act or executed any
document that impairs the rights of the Lenders to the Leases or the Rents under
this Assignment.
6. The Lessor Remains Liable. While the assignment made hereby is
present, direct and continuing, it has been made for the purpose of providing
the Lenders with security for the performance of the Lessor's obligations under
the Loan Agreement and the Notes and the execution and delivery hereof shall not
impair or diminish in any way the obligations of the Lessor under the Assigned
Leases, or impose any of such obligations on the Lenders. This Assignment shall
not operate to cause the Lenders (or their designee) to be regarded as a
mortgagee in possession. Neither the Lenders nor their designee shall be
responsible or liable for performing any of the obligations of the Lessor under
any of the Assigned Leases or any Contract, for any waste by the Lessee or
others, for any dangerous or defective conditions of any Property, for
negligence in the management, upkeep, repair or control of any Property or any
other act or omission by any other Person. Nothing contained herein shall
operate or be construed to (a) obligate the Lenders (or their designee) to
assume the obligations of the Lessor under any of the Assigned Leases or any
Contract, to perform any of the terms and conditions contained in any of the
Assigned Leases or any Contract or otherwise to impose any obligation upon the
Lenders with respect to any of the Assigned Leases or any Contract or (b) place
upon the Lenders (or their designee) any responsibility for the operation,
control, care, management or repair of any Property or any part thereof. Subject
at all times to the terms and conditions of this Assignment, the Lessor will at
all times promptly and faithfully perform in all respects, or cause to be
performed in all respects, all of its covenants, conditions and agreements
contained in the Assigned Leases or any Contract now or hereafter existing on
the part of the Lessor to be kept and performed.
7. Amendments; Lessee's Consent. The Lessor will not enter into any
agreement subordinating, amending, extending or terminating any of the Assigned
Leases except as provided in Section 14.5 of the Participation Agreement, and
any such
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Assignment of Lease and Rent
attempted subordination, amendment, modification, extension or termination
without compliance with such Section 14.5 shall be void. If any of the Assigned
Leases or any Contract shall be amended, it shall continue to be subject to the
provisions hereof without the necessity of any further act by any of the parties
hereto. The Lessor and the Lenders hereby consent to the provisions of Lessee's
Consent attached to this Assignment and agree to be bound thereby.
8. Termination of this Assignment. This Assignment shall continue in
full force and effect until all obligations, liabilities and indebtedness of any
kind now or hereafter due to the Lenders from the Lessor or the Lessee under or
with respect to the Loan Agreement or any of the other Operative Documents, or
which are otherwise secured hereby, whether now existing or hereafter arising or
incurred, have been fully paid, performed and satisfied, at which time this
Assignment will terminate.
9. Ongoing Right to Collect Rents; Receivers. If notwithstanding the
terms of this Assignment, a petition or order for sequestration of rents, or the
appointment of a receiver or some similar judicial action or order is deemed
required under applicable state law to allow the Lenders to continue to collect
the moneys described in paragraphs 2(a), (b) and (c) of this Assignment, then it
is agreed by the Lessor that any proof of claim or similar document filed by the
Lenders in connection with the breach or rejection of any Lease by the lessee
thereunder or the trustee of any lessee under any federal or state insolvency
statute shall for the purpose of perfecting the Lenders' rights conferred in
said paragraphs be deemed to constitute action required under such state law.
Upon the occurrence and during the continuance of a Loan Agreement Event of
Default (not existing solely by virtue of a Lease Event of Default), the Lessor
hereby consents to the appointment of a receiver for any or all of the
Properties as a matter of right and without any requirement for notice to the
Lessor and without regard to the solvency of the Lessor or to the collateral
that may be available for the satisfaction of the Notes and all other
obligations under the Loan Agreement and the other Operative Documents.
10. Amendment. This Assignment may not be amended or otherwise modified
except by a writing signed by the Lessor, the Agent and, if required by Section
14.5 of the Participation Agreement, the Lessee, in accordance with the terms of
the Participation Agreement.
11. Notices. All notices, demands, requests, consents, approvals and
other instruments under this Assignment shall be
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Assignment of Lease and Rent
made in accordance with the notice provisions of the Participation Agreement.
12. Successors and Assigns. All covenants, agreements, representations
and warranties in this Assignment by the Lessor and the Lenders shall bind, and
shall inure to the benefit of and be enforceable by, their respective successors
and assigns, whether or not so expressed.
13. Severability. If any provision or provisions, or if any portion of
any provision or provisions, in this Assignment is found by a court of law of
competent jurisdiction to be in violation of any local, state or Federal
ordinance, statute, law, administrative or judicial decision, or public policy,
and if such court should declare such portion, provision or provisions to be
illegal, invalid, unlawful, void or unenforceable as written, then it is the
intent of the parties hereto that such portion, provision or provisions shall be
given force to the fullest possible extent that they are legal, valid and
enforceable, that the remainder of this Assignment shall be construed as if such
illegal, invalid, unlawful, void or unenforceable portion, provision or
provisions were not contained therein, and that the rights, obligations and
interests of the Lessor, the Lenders and the Lessee under the remainder of this
Assignment shall continue in full force and effect.
14. Governing Law. THIS ASSIGNMENT AND THE RIGHTS AND OBLIGATIONS OF
THE LESSOR UNDER THIS ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
15. Counterparts. This Assignment may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
16. Conflicts. In the event of any conflicts between the terms and
provisions hereof and the terms and provisions of the other Operative Documents,
the terms and provisions of the other Operative Documents shall be controlling.
17. Non-Disturbance. So long as no Lease Event of Default has occurred
and is continuing, the Lenders will take no action to disturb the Lessee's
rights to quiet enjoyment of each Property as set forth in Section 4.1 of the
Master Lease.
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Assignment of Lease and Rent
IN WITNESS WHEREOF, the Lessor has caused this Assignment to be duly
executed as of the day and year first above written.
SUMITOMO BANK LEASING AND FINANCE,
INC., as Lessor
By_______________________________
Name:
Title:
-▇-
▇▇
▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ of ___________________ )
)
County of __________________ )
On _______________________ before me, _______________________________________,
Date Name, Title of Officer, e.g., "▇▇▇▇ ▇▇▇,
Notary Public
personally appeared _________________________________________________________,
[ ] 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 of Notary
CAPACITY CLAIMED BY SIGNER: SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
[ ] INDIVIDUAL(S) ______________________________
______________________________
[ ] CORPORATE OFFICER(S) ______________________________
------------------------------
TITLE
------------------------------
TITLE
[ ] PARTNER(S)
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] SUBSCRIBING WITNESS
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER _______________________
______________________________
______________________________
--------------------------------------------------------------------------------
ATTENTION NOTARY: ALTHOUGH THE INFORMATION REQUESTED BELOW IS OPTIONAL, IT COULD
PREVENT FRAUDULENT ATTACHMENT OF THIS CERTIFICATE TO UNAUTHORIZED DOCUMENT.
THIS CERTIFICATE Title or Type of Document_____________________________
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MUST BE ATTACHED Number of Pages _____ Date of Document________________
TO THE DOCUMENT Signer(s) Other Than Named Above _____________________
DESCRIBED AT RIGHT:
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Consent of Lessee to Assignment of Lease and Rent
CONSENT AND ACKNOWLEDGMENT BY SYMANTEC CORPORATION
The undersigned hereby acknowledges receipt of a counterpart original
of, and consents to, the foregoing Assignment of Lease and Rent.
The foregoing is furnished for good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged by the undersigned, and
the undersigned understands and intends that the Lenders will rely on the
foregoing and that the undersigned will be legally bound by the foregoing. This
Consent and Acknowledgment shall inure to the benefit of the Lenders and their
respective successors and assigns.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Consent and Acknowledgment as of October __, 1996, pursuant to proper authority
duly granted.
SYMANTEC CORPORATION
By_____________________________________
Name:
Title:
13
EXHIBIT A
TO ASSIGNMENT OF LEASE AND RENT
SUPPLEMENT NO. __ TO
ASSIGNMENT OF LEASE AND RENT
THIS SUPPLEMENT NO. __ (this "Supplement"), dated as of ____________,
to the ASSIGNMENT OF LEASE AND RENT, dated as of October ___, 1996 (the
"Assignment"), made by SUMITOMO BANK LEASING AND FINANCE, INC., (the "Lessor"),
in favor of THE SUMITOMO BANK, LIMITED, SAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as Agent (in such
capacity, the "Agent") for the Lenders. Capitalized terms used herein but not
otherwise defined have the meanings specified in the Assignment.
The parties hereto agree as follows:
1. The Property. In accordance with the Assignment, the
Lessor has executed this Supplement to subject the Master Lease,
as supplemented by the Lease Supplement attached as Schedule 1
hereto, to the Assignment. The description of the Property is
attached hereto as Schedule 2.
2. Integrated Assignment. Following the execution and
delivery of this Supplement, this Supplement, and all supplements
previously delivered under the Assignment, shall constitute a
part of the Assignment.
3. Confirmation. Except as expressly supplemented hereby,
the provisions of the Assignment are and shall remain in full
force and effect. Further, the Lessor hereby reaffirms its
obligations under the Assignment.
IN WITNESS WHEREOF, the Lessor has caused this Supplement to be duly
executed as of the day and year first above written.
SUMITOMO BANK LEASING AND FINANCE,
INC., as Lessor
By_______________________________
Name:
Title:
14
Schedule 1
[Lease Supplement]
15
Schedule 2
[Description of Property]
16
ALL-PURPOSE ACKNOWLEDGEMENT
State of ___________________ )
)
County of __________________ )
On _______________________ before me, _______________________________________,
Date Name, Title of Officer, e.g., "▇▇▇▇ ▇▇▇,
Notary Public
personally appeared _________________________________________________________,
[ ] 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 of Notary
CAPACITY CLAIMED BY SIGNER: SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
[ ] INDIVIDUAL(S) ______________________________
______________________________
[ ] CORPORATE OFFICER(S) ______________________________
------------------------------
TITLE
------------------------------
TITLE
[ ] PARTNER(S)
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] SUBSCRIBING WITNESS
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER _______________________
______________________________
______________________________
--------------------------------------------------------------------------------
ATTENTION NOTARY: ALTHOUGH THE INFORMATION REQUESTED BELOW IS OPTIONAL, IT COULD
PREVENT FRAUDULENT ATTACHMENT OF THIS CERTIFICATE TO UNAUTHORIZED DOCUMENT.
THIS CERTIFICATE Title or Type of Document_____________________________
17
MUST BE ATTACHED Number of Pages _____ Date of Document________________
TO THE DOCUMENT Signer(s) Other Than Named Above _____________________
DESCRIBED AT RIGHT:
18
Consent of Lessee to Supplement to Assignment of Lease and Rent
CONSENT AND ACKNOWLEDGMENT BY SYMANTEC CORPORATION
The undersigned hereby acknowledges receipt of a counterpart original
of, and consents to, the foregoing Supplement No. __ to the Assignment of Lease
and Rent.
The foregoing is furnished for good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged by the undersigned, and
the undersigned understands and intends that the Agent and the Lenders will rely
on the foregoing and that the undersigned will be legally bound by the
foregoing. This Consent and Acknowledgment shall inure to the benefit of the
Agent, the Lenders and their respective successors and assigns.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Consent and Acknowledgment as of October ___, 1996, pursuant to proper authority
duly granted.
SYMANTEC CORPORATION
By______________________________________
Name:
Title:
19
EXECUTION COPY
SUPPLEMENT NO. 1 TO
ASSIGNMENT OF LEASE AND RENT
THIS SUPPLEMENT NO. 1 (this "Supplement"), dated as of October 18, to the
ASSIGNMENT OF LEASE AND RENT, dated as of October 18, 1996 (the "Assignment"),
made by SUMITOMO BANK LEASING AND FINANCE, INC., (the "Lessor"), in favor of THE
SUMITOMO BANK, LIMITED, SAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as Agent (in such capacity, the
"Agent") for the Lenders. Capitalized terms used herein but not otherwise
defined have the meanings specified in the Assignment.
The parties hereto agree as follows:
1. The Property. In accordance with the Assignment, the Lessor has
executed this Supplement to subject the Master Lease, as supplemented by the
Lease Supplement attached as Schedule 1 hereto, to the Assignment. The
description of the Property is attached hereto as Schedule 2.
2. Integrated Assignment. Following the execution and delivery of
this Supplement, this Supplement, and all supplements previously delivered
under the Assignment, shall constitute a part of the Assignment.
3. Confirmation. Except as expressly supplemented hereby, the
provisions of the Assignment are and shall remain in full force and effect.
Further, the Lessor hereby reaffirms its obligations under the Assignment.
IN WITNESS WHEREOF, the Lessor has caused this Supplement to be duly
executed as of the day and year first above written.
SUMITOMO BANK LEASING AND FINANCE, INC.,
as Lessor
By_______________________________
Name:
Title:
20
Schedule 1
[Lease Supplement]
21
Schedule 2
[Description of Property]
22
Consent of Lessee to Supplement to Assignment of Lease and Rent
CONSENT AND ACKNOWLEDGMENT BY SYMANTEC CORPORATION
The undersigned hereby acknowledges receipt of a counterpart original of,
and consents to, the foregoing Supplement No. 1 to the Assignment of Lease and
Rent.
The foregoing is furnished for good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged by the undersigned, and the
undersigned understands and intends that the Agent and the Lenders will rely on
the foregoing and that the undersigned will be legally bound by the foregoing.
This Consent and Acknowledgment shall inure to the benefit of the Agent, the
Lenders and their respective successors and assigns.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Consent and Acknowledgment as of October ___, 1996, pursuant to proper authority
duly granted.
SYMANTEC CORPORATION
By_______________________________
Name:
Title:
23
EXECUTION COPY
This instrument prepared by,
recording requested by,
and when recorded return to:
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
SUPPLEMENT NO. 3 TO
ASSIGNMENT OF LEASE AND RENT
dated as of _______________ ___, 1997
made by
SUMITOMO BANK LEASING AND FINANCE, INC.,
as the Lessor,
in favor of
SUMITOMO BANK, LIMITED, SAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
as the Agent
Location of Premises:
County of Santa ▇▇▇▇▇
State of California
This Supplement is a supplement to
that certain Assignment (as hereinafter defined),
recorded on October 21, 1996, in the Official Records
of Santa ▇▇▇▇▇ County, California (the "Official Records"),
as Instrument No. 13489803, as supplemented by
that certain Supplement No. 1 to Assignment of Lease and Rent,
recorded on October 21, 1996, in the Official Records
as Instrument No. 13489804, and
that certain Supplement No. 2 to Assignment of Lease and Rent,
recorded on October 23, 1996, in the Official Records, as
Instrument No. 13492445
24
SUPPLEMENT NO. 3 TO
ASSIGNMENT OF LEASE AND RENT
THIS SUPPLEMENT NO. 3 (this "Supplement"), dated as of _______________
___, 1997, to the ASSIGNMENT OF LEASE AND RENT, dated as of October 18, 1996
(the "Assignment"), made by SUMITOMO BANK LEASING AND FINANCE, INC., (the
"Lessor"), in favor of THE SUMITOMO BANK, LIMITED, SAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as
Agent (in such capacity, the "Agent") for the Lenders. Capitalized terms used
herein but not otherwise defined have the meanings specified in the Assignment.
The parties hereto agree as follows:
1. The Property. In accordance with the Assignment, the Lessor has
executed this Supplement to subject the Master Lease, as supplemented by the
Lease Supplement attached as Schedule 1 hereto, to the Assignment. The
description of the Property is attached hereto as Schedule 2.
2. Integrated Assignment. Following the execution and delivery of
this Supplement, this Supplement, and all supplements previously delivered
under the Assignment, shall constitute a part of the Assignment.
3. Confirmation. Except as expressly supplemented hereby, the
provisions of the Assignment are and shall remain in full force and effect.
Further, the Lessor hereby reaffirms its obligations under the Assignment.
IN WITNESS WHEREOF, the Lessor has caused this Supplement to be duly
executed as of the day and year first above written.
SUMITOMO BANK LEASING AND FINANCE, INC.,
as Lessor
By__________________________________________
Name:
Title:
▇▇
▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ of ___________________ )
)
County of __________________ )
On _______________________ before me, _______________________________________,
Date Name, Title of Officer, e.g., "▇▇▇▇ ▇▇▇,
Notary Public"
personally appeared _________________________________________________________,
[ ] 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 of Notary
CAPACITY CLAIMED BY SIGNER: SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
[ ] INDIVIDUAL(S)
------------------------------
------------------------------
------------------------------
[ ] CORPORATE OFFICER(S)
----------------------------
TITLE
----------------------------
TITLE
[ ] PARTNER(S)
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] SUBSCRIBING WITNESS
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER
----------------------
----------------------------
----------------------------
ATTENTION NOTARY: ALTHOUGH THE INFORMATION REQUESTED BELOW IS OPTIONAL, IT
COULD PREVENT FRAUDULENT ATTACHMENT OF THIS CERTIFICATE TO UNAUTHORIZED
DOCUMENT.
THIS CERTIFICATE Title or Type of Document_____________________________
26
MUST BE Number of Pages _____ Date of Document________________
ATTACHED Signer(s) Other Than Named Above _____________________
TO THE DOCUMENT
DESCRIBED AT RIGHT:
27
Consent of Lessee to Supplement to Assignment of Lease and Rent
CONSENT AND ACKNOWLEDGMENT BY SYMANTEC CORPORATION
The undersigned hereby acknowledges receipt of a counterpart original of,
and consents to, the foregoing Supplement No. 3 to the Assignment of Lease and
Rent.
The foregoing is furnished for good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged by the undersigned, and the
undersigned understands and intends that the Agent and the Lenders will rely on
the foregoing and that the undersigned will be legally bound by the foregoing.
This Consent and Acknowledgment shall inure to the benefit of the Agent, the
Lenders and their respective successors and assigns.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Consent and Acknowledgment as of _______________ ___, 1997, pursuant to proper
authority duly granted.
SYMANTEC CORPORATION
By__________________________________________
Name:
Title:
▇▇
▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ of ___________________ )
)
County of __________________ )
On _______________________ before me, _______________________________________,
Date Name, Title of Officer, e.g., "▇▇▇▇ ▇▇▇,
Notary Public"
personally appeared _________________________________________________________,
[ ] 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 of Notary
CAPACITY CLAIMED BY SIGNER: SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
[ ] INDIVIDUAL(S)
---------------------------------
---------------------------------
---------------------------------
[ ] CORPORATE OFFICER(S)
------------------------------
TITLE
------------------------------
TITLE
[ ] PARTNER(S)
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] SUBSCRIBING WITNESS
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER
----------------------
------------------------------
------------------------------
ATTENTION NOTARY: ALTHOUGH THE INFORMATION REQUESTED BELOW IS OPTIONAL, IT
COULD PREVENT FRAUDULENT ATTACHMENT OF THIS CERTIFICATE TO UNAUTHORIZED
DOCUMENT.
THIS CERTIFICATE Title or Type of Document_____________________________
29
MUST BE Number of Pages _____ Date of Document________________
ATTACHED Signer(s) Other Than Named Above _____________________
TO THE DOCUMENT
DESCRIBED AT RIGHT:
30
Schedule 1
[Copy of Lease Supplement No. 3]
31
Schedule 2
Real Property in the City of Cupertino, County of Santa ▇▇▇▇▇, State of
California, described as follows:
PARCEL ONE:
Lot 5, as shown on that certain Map entitled Tract No. 7953 Cupertino City
Center Phase III, which Map was filed for record in the office of the Recorder
of the County of Santa ▇▇▇▇▇, State of California on February 27, 1987, in Book
571 of Maps, pages 36 and 37.
PARCEL TWO:
Easements as described in the Section entitled "Easements and Rights Reserved
for Owners" of the Article entitled "Easements and Rights of Entry" of the
Declaration of Covenants, Conditions, and Restrictions and Grant of Easement for
Cupertino City Center recorded October 9, 1985, in Book J482, page 1907, as
amended by that certain First Amendment to Declaration of Covenants, Conditions,
and Restrictions and Grant of Easements recorded September 2, 1987, in Book
K281, page 2071, each in the Official Records of Santa ▇▇▇▇▇ County, California.
PARCEL THREE:
Easements for parking, landscaping, support, settlement and encroachment as
granted to Cupertino City Center Buildings, a California Limited Partnership, in
the Grant of Easement (Cupertino City Center 5) recorded _______________ ___,
1997 under Series No. ______________.
32
[EXECUTION COPY]
This instrument prepared by,
recording requested by,
and when recorded return to:
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
================================================================================
MASTER AMENDMENT NO. 1
dated as of March 3, 1997
among
SYMANTEC CORPORATION,
as Lessee, Pledgor, Guarantor and Construction Agent,
SUMITOMO BANK LEASING AND FINANCE, INC.,
as Lessor,
THE SUMITOMO BANK, LIMITED, SAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
and the other
VARIOUS FINANCIAL INSTITUTIONS
IDENTIFIED HEREIN,
as Lenders,
and
THE SUMITOMO BANK, LIMITED, SAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
as Agent.
-----------------------
Lease Financing of Three Properties
Located in Cupertino, California
and Construction of Certain Improvements
for Symantec Corporation
================================================================================
This Master Amendment No. 1 is an amendment to, among other things,
that certain Assignment of Lease and Rent
recorded on October 21, 1996 in the Official Records
of Santa ▇▇▇▇▇ County, California (the "Official Records")
as Instrument No. 13489803, as supplemented by
that certain Supplement No. 1 to Assignment of Lease and Rent,
with respect to the land described on Annex 1 hereto,
recorded on October 21, 1996, in the Official Records,
as Instrument No. 13489804,
that certain Supplement No. 2 to Assignment of Lease and Rent,
with respect to the land described on Annex 2 hereto,
recorded on October 23, 1996, in the Official Records,
as Instrument No. 13492445,
and that certain Supplement No. 3 to Assignment of Lease and Rent,
with respect to the land described on Annex 3 hereto,
recorded on February 5, 1997, in the Official Records,
as Instrument No. 13602290.
33
MASTER AMENDMENT NO. 1
THIS MASTER AGREEMENT NO. 1 (this "Amendment"), dated as of March 3, 1997,
to (a) that certain Participation Agreement dated as of October 18, 1996 (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the "Participation Agreement") by and among SYMANTEC CORPORATION, a
Delaware corporation, as the Lessee, Pledgor and Guarantor; SUMITOMO BANK
LEASING AND FINANCE, INC., a Delaware corporation, as Lessor; THE SUMITOMO BANK,
LIMITED, SAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, a Japanese banking organization acting through
its San ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and the other Lenders; and THE SUMITOMO BANK, LIMITED,
SAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as Agent; (b) that certain Master Lease and Deed of Trust
dated as of October 18, 1996 (as amended, supplemented, amended and restated or
otherwise modified from time to time, the "Master Lease"), between the Lessee
and the Lessor; (c) that certain Loan Agreement dated as of October 18, 1996 (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the "Loan Agreement"), among the Lessor, the Lenders and the Agent; and
(d) that certain Assignment of Lease and Rent dated as of October 18, 1996 and
recorded on October 21, 1996 in the Official Records of Santa ▇▇▇▇▇ County,
California (the "Official Records"), as Instrument No. 13489803 (as supplemented
by Supplement No. 1 to Assignment of Lease and Rent dated as of October 18, 1996
and recorded on October 21, 1996 in the Official Records as Instrument No.
13489804, Supplement No. 2 to Assignment of Lease and Rent dated as of October
22, 1996 and recorded on October 23, 1996 in the Official Records as Instrument
No. 13492445, and Supplement No. 3 to Assignment of Lease and Rent dated as of
February 5, 1997 and recorded on February 5, 1997 in the Official Records as
Instrument No. 13602290, and as amended, supplemented, amended and restated or
otherwise modified from time to time, the "Assignment of Lease and Rent"), made
by Sumitomo Bank Leasing and Finance, Inc., to The Sumitomo Bank, Limited, San
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as Agent.
W I T N E S S E T H:
WHEREAS, the Lessee, the Lessor, the Lenders and the Agent have
heretofore entered into the Participation Agreement;
WHEREAS, the Lessee and the Lessor have heretofore entered into the Master
Lease and certain Lease Supplements;
WHEREAS, the Lenders and the Lessor wish to finance the construction of
certain Improvements located on the Land subject to Lease Supplement No. 3;
34
WHEREAS, the Lessee, as Construction Agent, will construct the
Improvements on the Land subject to Lease Supplement No. 3 and such
Improvements, as constructed, will be the property of the Lessor;
WHEREAS, the Lessor desires to lease to the Lessee, and the Lessee desires
to lease from the Lessor, such Improvements;
WHEREAS, the Improvements on the Land subject to Lease Supplement No. 3
will be made subject to the Master Lease pursuant to a Lease Supplement to be
dated as of the date hereof, and will become part of the Property subject to the
terms of the Master Lease;
WHEREAS, the Lessee, the Lessor, the Lenders and the Agent now desire to
amend (a) the Participation Agreement (including Schedule I thereto), (b)
Appendix A to the Participation Agreement, (c) the Master Lease, (d) each Lease
Supplement, (e) the Loan Agreement and (f) the Assignment of Lease and Rent, as
hereinafter provided;
NOW, THEREFORE, in consideration of the mutual agreements contained in
this Amendment and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Unless the context shall otherwise require, capitalized terms used and not
defined herein (including the recitals hereto) shall have the meanings assigned
thereto in Appendix A to the Participation Agreement (as amended hereby,
"Appendix A") for all purposes hereof; and the rules of interpretation set forth
in Appendix A shall apply to this Amendment.
ARTICLE II
CERTAIN AMENDMENTS
SECTION II.1. Amendments to the Participation Agreement. Solely with
respect to the Subject Property and not with respect to Property No. 1 and
the Improvements constructed thereon, the Master Lease is hereby amended as
follows:
(a) Amendment to Article II. Article II of the Participation
Agreement is hereby amended as follows:
-2-
35
(i) the caption is amended by adding a semicolon at the end
thereof and inserting the following immediately after such semicolon:
"CONDITIONS PRECEDENT TO EACH CONSTRUCTION ADVANCE; CONDITIONS TO
SUBSTANTIAL COMPLETION".
(ii) the following provisions shall be inserted at the end of
such Article:
SECTION 2.3. Conditions Precedent to each Construction
Advance. The obligations of the Lessor to make a Construction
Advance on a Construction Payment Date is subject to satisfaction or
waiver of the following conditions precedent:
(a) Funding Request. Each of the Lenders, the Lessor and
the Agent shall have received a fully executed counterpart of
the applicable Funding Request in accordance with Section 3.4
(except that the Funding Request shall be substantially in the
form of Exhibit E to Master Amendment No. 1) executed by the
Lessee, as Construction Agent. Each of the delivery of a
Funding Request and the acceptance of the proceeds of the
applicable Construction Advance shall constitute a
representation and warranty by the Lessee that on such
Construction Payment Date (both immediately before and after
giving effect to the making of such Construction Advance and
the application of the proceeds thereof), the statements made
in Section 8.1 are true and correct.
(b) Fees. The Agent and the Lessor shall have
received all fees then due and payable pursuant to Section
4.3.
(c) Accuracy of Representations and Warranties. On the
applicable Construction Payment Date the representations and
warranties of the Lessee contained herein and in each of the
other Operative Documents shall be true and correct in all
Material respects as though made on and as of such date,
except to the extent such representations or warranties relate
solely to an earlier date, in which case such representations
and warranties shall have been true and correct in all
Material respects on and as of such earlier date.
-3-
36
(d) Litigation. On the applicable Construction Payment
Date there shall not be any actions, suits or proceedings
pending or, to the knowledge of the Lessee, threatened by or
against the Lessee (i) that are reasonably likely to have a
Material adverse effect on City Center V or (ii) that question
the validity of the Operative Documents or the rights or
remedies of the Lessor with respect to the Lessee or City
Center V under the Operative Documents.
(e) No Default. There shall not have occurred and be
continuing any Default or Event of Default under the Master
Lease, and no Default or Event of Default under the Master
Lease will have occurred after giving effect to the making of
the Construction Advance requested by such Funding Request.
(f) Commitment Amount. After giving effect to the
applicable Construction Advance, (x) the condition set forth
in Section 3.1(c) shall not be violated and (y) the Property
Improvement Costs for City Center V shall not exceed the
Construction Commitment.
(g) Cost of Completion. After giving effect to the
applicable Construction Advance, the estimated as yet unpaid
cost to the Construction Agent of completing the Construction
pursuant to the Construction Documents shall not exceed the
Available Construction Commitment.
(h) Building Permits. All building permits required by
any Governmental Authority in connection with the Construction
for which the applicable Construction Advance is being made
shall have been obtained.
(i) Prime Construction Contract. With respect to
all Construction Advances, the Prime Construction Contract
shall have been duly executed and delivered by the parties
thereto and shall be in form and substance satisfactory to
the Lessor.
(j) Title Policy Endorsement. The Lessor shall have
received on the date of such Construction Advance an
endorsement to the title policy delivered pursuant to the
Lease (i) indicating that since the date of the preceding
Construction Advance there has been no change in the state of
title, and (ii) updating the title policy to the date of such
Construction Advance.
-4-
37
SECTION 2.4. Conditions to Substantial Completion of the
Property. Substantial Completion shall be deemed to have occurred
for purposes of the Operative Documents at such time as the
Construction shall have been substantially completed in accordance
with the Plans and Specifications and all Applicable Law, as
evidenced by certificates of the Architect, the Prime Contractor and
the Construction Agent, all in form and substance reasonably
satisfactory to the Lessor.
(b) Amendment to Section 3.1. Section 3.1 of the Participation
Agreement is hereby amended and restated to read in its entirety as
follows:
SECTION 3.1. Advances.
(a) Subject to the conditions and terms hereof, the Lessor and
the Agent shall take the following actions at the written request of
the Lessee on the Acquisition Date for each Property:
(i) the Lessor and the Agent shall make an Advance (out
of the funds provided by the Lessor and the Lenders) to the
Lessee, for the purpose of financing the acquisition of Land
and Improvements existing thereon, if any, and the Fees and
the Transaction Expenses incurred in connection therewith, and
the proceeds of such Advances shall be made directly to the
Lessee or to such payees designated in writing by the Lessee;
(ii) the Lessor shall acquire the Land and
Improvements, if any (using the funds provided by the
Lessor and the Lenders); and
(iii) the Lessor shall lease the Land and Improvements
to the Lessee under the Master Lease and the respective Lease
Supplements.
(b) Subject to the conditions and terms hereof, (including,
without limitation, receipt of a Funding Request in accordance with
Section 3.4), the Lessor and the Agent shall make a Construction
Advance on a Construction Payment Date (out of funds provided by the
Lessor and the Lenders) to the Lessee, for the purpose of financing
the Construction of Improvements for City Center V, and the proceeds
of such Construction Advances shall be paid directly to the
Construction Agent or its designee(s) for the purpose of paying or
reimbursing itself for Property Improvement Costs, and
-5-
38
paying Capitalized Interest, the Arrangement Fee, the Commitment
Fees, Transaction Expenses paid or payable by the Lessee in
connection therewith, and all fees paid or payable by the Lessee to
the Lessor in connection with the Operative Documents.
(c) Notwithstanding any other provision hereof, the
Participants shall not be obligated to make any Advance if, after
giving effect thereto, the aggregate outstanding amounts of each of
the Loans and the Lessor Amounts would exceed the Maximum Commitment
Amount.
(c) Amendment to Section 3.2. Section 3.2 of the Participation
Agreement is hereby amended as follows: (x) by deleting the words "the
Acquisition Date for each Property" appearing in the third line thereof
and replacing them with the words "each Funding Date", and (y) by deleting
the word "Acquisition" appearing in the sixth line thereof and replacing
it with the word "Funding".
(d) Amendment to Section 3.3. Section 3.3 of the Participation
Agreement is hereby amended as follows: (x) by deleting the words "the
Acquisition Date for each Property" appearing in the third and fourth
lines thereof and replacing them with the words "each Funding Date" and
(y) by deleting the word "Acquisition" appearing in the seventh line
thereof and replacing it with the word "Funding".
(e) Amendments to Section 3.4.
(i) Clause (a) of Section 3.4 of the Participation Agreement is
hereby amended as follows: (x) by deleting the word "Acquisition"
appearing in the sixth line thereof immediately after the words "prior to
the proposed" and replacing it with the word "Funding", (y) by deleting
the word "Acquisition" appearing in subclause (i) of such clause (a) and
replacing it with the word "Funding" and (z) by deleting the word "and"
appearing between subclauses (ii) and (iii) of such clause (a), and
inserting the words "and (iv) in the case of a Construction Advance,
requesting that the proceeds of such Construction Advance be wire
transferred to the accounts and Persons specified therein" immediately
before the period at the end of such sentence.
(ii) Clause (b) of Section 3.4 of the Participation Agreement is
hereby amended by inserting the words "and Property Improvement Costs"
immediately before the period at the end of such sentence.
(f) Amendment to Section 4.3. Section 4.3 of the Participation
Agreement is hereby amended and restated in
-6-
39
its entirety to read as follows:
SECTION 4.3. Fees. The Lessee hereby agrees to pay the
fees set forth in this Section 4.3. All such fees shall be
non-refundable.
(a) Fee Letter. The Lessee shall pay the Fees to the
Lessor and the Agent.
(b) Commitment Fee. The Lessee shall pay to the Lessor,
for the period (including any portion thereof when the
Lessor's obligations pursuant to Section 3.2 are suspended by
reason of the Lessee's inability to satisfy any condition of
Article II) commencing on (and including) the Improvements
Closing Date for City Center V and continuing through (but
excluding) the last day of the Construction Commitment Period,
a Commitment Fee (the "Commitment Fee") at a rate of 0.275%
per annum on the average daily unused portion of the
Construction Commitment Amount. The Commitment Fee shall be
payable by the Lessee in arrears on each Construction Payment
Date and on the last day of the Construction Commitment
Period.
(b) Arrangement Fee. The Lessee shall pay to the Lessor
an Arrangement Fee (the "Arrangement Fee") in the amount of
$85,500.00, which amount shall be payable on the Improvements
Closing Date for City Center V and will be capitalized and
included in the Property Improvement Costs of City Center V.
(g) Amendment to Section 8.2. Section 8.2 of the Participation
Agreement is hereby amended by deleting the word "Acquisition" appearing
in the fifth line thereof and replacing it with the words "Funding".
(h) Amendment to Section 9.1. Clause (a) of Section 9.1 of the
Participation Agreement is hereby amended by deleting the word
"Acquisition" appearing in the fourth line of such clause and replacing it
with the word "Funding".
(i) Amendment to Section 13.2. Clause (a) of Section 13.2 of the
Participation Agreement is hereby amended by inserting the following words
immediately prior to the period at the end of such clause: "(or, in the
case of the Improvements constructed on City Center V pursuant to the
Construction Agency Agreement, the Appraisal delivered on the Improvements
Closing Date)".
-7-
40
(j) Amendment to Schedule I. Schedule I to the Participation
Agreement is hereby amended and restated in its entirety to read as set
forth in Schedule I attached hereto.
SECTION II.2. Amendments to Appendix A. Appendix A to the Participation
Agreement is hereby amended as follows:
(a) The following definitions shall be added to Appendix A in their
appropriate alphabetical order:
"Architect" means Hellmuth, Obata + Kassabaum, or such other
Person who shall, with the prior consent of the Lessor, have been
designated by the Construction Agent to act as the architect for
purposes of the Construction.
"Available Construction Commitment" means at any time, an
amount equal to the excess, if any, of (a) the amount of the
Construction Commitment Amount over (b) the aggregate original
principal amount of all Construction Advances (including all
Construction Advances made for the purpose of financing Capitalized
Interest, Commitment Fees and the Arrangement Fee).
"Capitalized Interest" means, for each Construction Payment
Date during the Construction Commitment Period, an amount equal to
(a) the aggregate outstanding Property Improvement Costs on such
date multiplied by (b) the LIBO Rate (Reserve Adjusted) plus a
margin of 0.275% multiplied by (c) the number of days elapsed since
the immediately preceding Construction Payment Date (or, in the case
of the first Construction Payment Date, the number of days elapsed
since the first Construction Advance), divided by (d) 360.
"City Center V" means the Property consisting of (a) the Land
and Improvements covered by Lease Supplement No. 3 dated as of
February 5, 1997, together with (b) all Improvements thereon
constructed pursuant to the Construction Agency Agreement.
"Construction" means the construction and installation of
all Improvements contemplated by the Plans and Specifications.
"Construction Advance" means each Advance made by the Lessor
and the Agent to the Construction Agent for the purpose of paying
Property Improvement Costs with respect to City Center V.
-8-
41
"Construction Agency Agreement" means the Construction Agency
Agreement dated as of March 3, 1997 between the Lessor and the
Construction Agent, with respect to City Center V.
"Construction Agency Agreement Event of Default" means a
"Construction Agency Agreement Event of Default" as defined in
Section 5.1 of the Construction Agency Agreement.
"Construction Agent" means Symantec Corporation, as
construction agent under the Construction Agency Agreement.
"Construction Commitment Amount" means $28,500,000.
"Construction Commitment Period" means the period commencing
on (and including) the Improvements Closing Date for City Center V
and ending on (but excluding) the date occurring on the earliest of
(x) the first Business Day of the second full month following
Substantial Completion, (y) the first Business Day following the
calendar month in which the Construction Commitment Amount has been
fully funded and (z) the first Business Day of the twenty-fifth
(25th) month following the Improvements Closing Date.
"Construction Documents" is defined in Section 2.4 of the
Construction Agency Agreement.
"Construction Payment Date" means (a) the last Business Day of
each calendar month, commencing with the last Business Day of March,
1997, and (b) the last day of the Interim Lease Term (provided, that
if such day is not a Business Day, such Construction Payment Date
shall be extended to the next succeeding Business Day).
"Force Majeure Event" means any event (the existence of which
was not known and could not have been discovered through the
exercise of due diligence by the Lessee or the Construction Agent
prior to the Improvements Closing Date) beyond the control of the
Lessee and the Construction Agent, including, but not limited to,
strikes, lockouts, adverse soil conditions, acts of God, adverse
weather conditions, inability to obtain labor or materials,
government activities, civil commotion and enemy action; but
excluding any event, cause or condition that results from the
Construction Agent's financial condition or failure to pay or any
-9-
42
event, cause or condition which could have been avoided or which
could be remedied through the exercise of commercially reasonable
efforts or the commercially reasonable expenditure of funds.
"Funding Date" means (a) each Acquisition Date and (b) each
date on which a Construction Advance is made.
"Improvements Closing Date" is defined in Section 3.1 of
Master Amendment No. 1.
"Interim Lease Term" is defined in Section 2.3 of the
Master Lease.
"Master Amendment No. 1" means the Master Amendment No. 1
dated as of March 3, 1997, among the Lessee, the Lessor, the
Lenders and the Agent, amending the Participation Agreement,
Appendix A to the Participation Agreement, the Master Lease, the
Loan Agreement and the Assignment of Lease and Rent.
"Outside Completion Date" means the date occurring twenty-four
(24) months after the Improvements Closing Date.
"Plans and Specifications" means the plans and specifications
for the construction and installation of Improvements for City
Center V, as more particularly described in Schedule 2 to the
Construction Agency Agreement.
"Prime Construction Contract" means the contract between the
Construction Agent and the Prime Contractor, as amended from time to
time in accordance with the Construction Agency Agreement.
"Prime Contractor" means the contractor designated as such in
the Prime Construction Contract or such other Person who shall, with
the prior consent of the Lessor, have been designated by the
Construction Agent to act as the general contractor for purposes of
the Construction.
"Property Improvement Costs" means out-of-pocket costs of the
Construction Agent incurred and properly payable under the
Construction Documents in accordance with the Operative Documents.
"Substantial Completion" means such time as the conditions set
forth in Section 2.4 of the Participation Agreement shall have been
satisfied with
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respect to City Center V.
(b) The definition of "Appraisal" is hereby amended by inserting the
words "(or, in the case of the Appraisal delivered with respect to the
Improvements on City Center V, as of the Improvements Closing Date)"
immediately after the words "Fair Market Sales Value of such Property as
of the Acquisition Date" appearing therein.
(c) The definition of "Lease Supplement" is hereby amended by
inserting the words "or Improvements Closing Date, as applicable,"
immediately after the words "dated as of the Acquisition Date" appearing
therein.
(d) The definition of "Maximum Commitment Amount" in Appendix A is
hereby amended by deleting the amount "$53,000,000.00" and replacing it
with the amount "$81,500,000.00".
(e) the definition of "Operative Documents" in Appendix A is hereby
amended by deleting the word "and" at the end of clause (k) thereof, by
deleting the period at the end of clause (l) thereof and replacing it with
a semicolon, and by inserting the following immediately after such
semicolon:
(m) the Construction Agency Agreement; and
(n) Master Amendment No. 1.
SECTION II.3. Amendments to Master Lease. The Master Lease is hereby
amended as follows:
(a) Amendment to Section 2.3. Section 2.3 of the Master Lease is
hereby amended by inserting the words "(other than the Improvements
comprising part of City Center V)" immediately after the words "with
respect to any Property", and inserting the following at the end of such
Section: "The Lease Term of this Master Lease with respect to the
Improvements comprising part of City Center V and constructed pursuant to
the Construction Agency Agreement shall consist of an Interim Lease Term
(the "Interim Lease Term") and a Base Lease Term. The Interim Lease Term
for such Improvements shall begin on (and include) the Improvements
Closing Date and end on (but exclude) the first day of the Base Lease Term
for such Improvements. The Base Lease Term for the Improvements comprising
part of City Center V and constructed pursuant to the Construction Agency
Agreement shall (i) begin on (and include) the earliest of (x) the first
Business Day of the second full month following Substantial Completion,
(y) the first Business Day following the calendar month in which the
Construction
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44
Commitment Amount has been fully funded and (z) the first Business Day of
the twenty-fifth (25th) month following the Improvements Closing Date
(provided, that no Construction Agency Agreement Event of Default shall
have occurred and be continuing on such date) and (ii) end on (but
exclude) the seventh (7th) anniversary of the Documentation Date, unless
earlier terminated in accordance with the provisions of this Master Lease
and the other Operative Documents.
(b) Amendment to Section 3.1. Clause (a) of Section 3.1 of the
Master Lease is hereby amended by deleting the phrase "During the Lease
Term" at the beginning of such clause and replacing it with the phrase
"During the Base Lease Term for each Property".
SECTION II.4. Amendments to Loan Agreement. The Master Lease is
hereby amended as follows:
(a) Amendment to Second Recital. The Second Recital of the Loan
Agreement is hereby amended by deleting the amount "$45,800,000.00"
appearing therein and replacing it with the amount "$70,450,000.00".
(b) Amendment to Section 2.1. Section 2.1 of the Loan Agreement is
hereby amended by inserting the words "and Property Improvement Costs"
immediately after the words "and to pay Property Acquisition Costs"
appearing in the fifth line thereof.
(c) Amendment to Section 8.11. Section 8.11 of the Loan Agreement is
hereby amended as follows: (i) by inserting a comma after the word
"Lessee" appearing in the fourth line thereof, inserting the words "Agent,
any Lender" immediately after such comma, and deleting the word "its"
appearing before the words "respective successors" and replacing it with
the word "their", (ii) by inserting the words "for any liability or
obligation hereunder or under any other Operative Document (including
without limitation, the payment of the principal of, or interest on, the
Loans) or" immediately after the words "respective successors and assigns"
appearing in the fourth and fifth lines of such Section, (iii) by deleting
the words "Master Lease" immediately following the words "in respect of
this" appearing in the fifth line of such Section and replacing them with
the words "Loan Agreement" and (iv) by inserting the words "or the
Lenders" immediately after the words "obligations of Lessor to the Lessee"
appearing in clause (ii) of such Section.
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45
SECTION II.5. Amendment to Assignment of Lease and Rent. The
Assignment of Lease and Rent is hereby amended as follows:
(a) Schedule 1 to each of (i) Supplement No. 1 to Assignment of Lease and
Rent, dated as of October 18, 1996 and recorded on October 21, 1996 in the
Official Records as Instrument No. 13489804, (ii) Supplement No. 2 to Assignment
of Lease and Rent, dated as of October 22, 1996 and recorded on October 23, 1996
in the Official Records as Instrument No. 13492445 and (iii) Supplement No. 3 to
Assignment of Lease and Rent, dated as of February 5, 1997 and recorded on
February 5, 1997 in the Official Records as Instrument No. 13602290, is hereby
amended in each case to reflect the amendment made as of the date hereof to the
Lease Supplement referred to in such Schedule;
(b) the first recital of the Assignment of Lease and Rent is hereby
amended by inserting the words "as amended by Master Amendment No. 1 dated as of
March 3, 1997, and" immediately after the open parenthesis on the second line
thereof and immediately before the words "as amended, restated, supplemented or
otherwise modified form time to time, the "Loan Agreement")"; and
(c) Section 2 of the Assignment of Lease and Rent is hereby amended by
inserting the words "the Notes and the other Operative Documents," immediately
after the words "obligations under the Loan Agreement," appearing in the first
and second line of such Section.
SECTION II.6. Effect of Amendments. Except as otherwise specifically
amended hereby, each of the Master Lease, the Participation Agreement and
Appendix A to the Participation Agreement shall remain in full force and effect
and all references therein to each such document, and all references in each of
other Operative Documents and the other documents, instruments or agreements
executed and delivered in connection herewith and therewith shall refer to the
Master Lease, the Participation Agreement and Appendix A to the Participation
Agreement as amended hereby.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.1. Improvements Closing Date. This Amendment shall be effective
on the date (the "Improvements Closing Date") on which all the following
conditions precedent thereto shall have been satisfied or waived by the
applicable parties as set forth herein:
(a) Master Amendment No. 1. This Amendment shall have
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46
been duly authorized, executed and delivered by the parties hereto.
(b) Construction Agency Agreement. A Construction Agency
Agreement in the form of Exhibit A hereto shall have been duly
authorized, executed and delivered by the Lessee and the Lessor.
(c) New Notes. The Agent shall have received, for the account of
each Lender, a note substantially in the form of Exhibit A to the Loan
Agreement (each, a "New Note"), duly executed and delivered by the Lessor,
payable to the order of such Lender and in a principal amount equal to the
initial Commitment of such Lender after giving effect to the increase in
Commitments provided by this Amendment (it being understood that each
Lender shall, promptly after receipt of its New Note, surrender its old
Note for cancellation to the Lessee).
(d) Amendments to Lease Supplements. Amendment No. 1 to Lease
Supplement ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇ to Lease Supplement No. 2, and
Amendment No. 1 to Lease Supplement No. 3, in the forms of Exhibits B,
C and D, respectively, shall have been duly authorized, executed and
delivered by the Lessee and the Lessor, and the original counterpart of
each Amendment to a Lease Supplement shall have been delivered to the
Agent and the Lenders.
(e) Lessor Financing Statements. The Lessee shall have delivered to
the Lessor all Lessor Financing Statements relating to the Improvements to
be constructed on City Center V as the Lessor or any other Participant may
reasonably request in order to protect the Lessor's interest under the
Master Lease and the Lease Supplement relating to such Property to the
extent the Master Lease and such Lease Supplement constitute security
agreements.
(f) Recordation. Each of the Participants shall have received
evidence reasonably satisfactory to it that each of (i) the amendments
described in clause (d) above, (ii) the Lessor Financing Statements
described in clause (e) above and (iii) this Amendment, has been, or are
being, recorded in a manner sufficient to properly secure each of their
interest therein.
(g) Appraisal. The Lessor and the Lenders shall have received an
Appraisal with respect to City Center V, in form and substance
satisfactory to the Agent and the Lessor, which Appraisal shall show that,
as of the Improvements Closing Date, the Fair Market Sales Value of the
Land and the Improvements to be constructed thereon in accordance
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with the Plans and Specifications shall not be less than the sum of (i)
the Property Acquisition Cost for City Center V and (ii) ninety percent
(90%) of the Construction Commitment Amount.
(h) Title Insurance. With respect to each Property, First American
Title Insurance Company shall have reissued, in favor of the Lessor, the
ALTA extended coverage owners title insurance policies previously
committed to be issued pursuant to Section 2.2(i) of the Participation
Agreement in connection with the acquisition of such Property, each dated
as of the Improvements Closing Date, with the same endorsements, and
otherwise in the same form as agreed to by First American Title Insurance
Company in connection with the acquisition of such Property, and with no
other title exceptions other than (a) current taxes (not yet delinquent)
and (b) the Master Lease, as supplemented and modified by the applicable
Lease Supplement, this Amendment and the applicable Amendment No. 1 to
Lease Supplement. Each such reissued title insurance policy shall include
a tie-in endorsement confirming the aggregate liability amount for the
title policies to be $81,500,000.
(i) Lessee's Resolutions. The Lessee shall have delivered to the
Agent, the Lessor and each Lender a certificate of its Secretary or an
Assistant Secretary attaching and certifying as to the resolutions of the
Board of Directors duly authorizing the execution, delivery and
performance by it of this Amendment, the Construction Agency Agreement and
each other Operative Document to be executed by it in connection herewith
or therewith.
(j) Legal Opinion. The Agent and the Lessor shall have received,
with a copy for each Lender, an opinion of counsel for the Lessee, dated
the Improvements Closing Date and addressed to the Agent, the Lessor and
the Lenders, in form and substance reasonably satisfactory to the Agent,
the Lessor and the Lenders.
(k) Satisfactory Legal Form. All documents executed or submitted
pursuant hereto by or on behalf of Lessee shall be satisfactory in form
and substance to Lessor and its counsel; and Lessor and its counsel shall
have received all information, approvals, opinions, documents or
instruments as Lessor or its counsel may have reasonably requested.
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ARTICLE IV
REPRESENTATIONS OF LESSEE
SECTION IV.1. Representations of Lessee. The Lessee represents and
warrants to each of the other parties as follows:
(a) Representations in Operative Documents. The representations and
warranties of the Lessee set forth in the Operative Documents (including,
without limitation, the representations and warranties set forth in
Section 8.2 of the Participation Agreement) are true and correct in all
material respects on and as of the Improvements Closing Date except to the
extent such representations or warranties relate solely to an earlier
date, in which case such representations and warranties shall have been
true and correct on and as of such earlier date. No Event of Default has
occurred and is continuing and no Default of which the Lessee has
knowledge and that has not been previously disclosed to the Agent and the
Participants has occurred and is continuing under the Master Lease, the
Construction Agency Agreement or, to the knowledge of the Lessee, any
other Operative Document. No Default or Event of Default under the Master
Lease, the Construction Agency Agreement or, to the knowledge of the
Lessee, any other Operative Document, will occur as a result of, or after
giving effect to, the transactions contemplated hereby.
(b) Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Lessee of this Amendment and each other
Operative Document executed or to be executed by it in connection with
this Amendment are within the Lessee's corporate powers, have been duly
authorized by all necessary corporate action, and do not
(i) contravene the Lessee's Organic Documents;
(ii) contravene any material contractual restriction the
contravention of which is reasonably likely to have a material
adverse effect on the financial condition of the Lessee (including
any covenant relating to the incurrence of indebtedness, which
restrictions the Lessee hereby acknowledges are material), law or
governmental regulation or court decree or order binding on or
affecting the Lessee; or
(iii) result in, or require the creation or imposition of, any
Lien on any of the Lessee's properties (including the Properties)
other than as are contemplated by the Operative Documents.
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49
(c) Governmental Approval, Regulation, etc. No authorization or
approval or other action by, and not notice to or filing with, any
governmental authority or regulatory body or other Person is required for
the due execution, delivery or performance by the Lessee of this Amendment
or any other Operative Document to be executed by it in connection with
this Amendment.
(d) Validity, etc. This Amendment constitutes, and each other
Operative Document executed by the Lessee in connection with this
Amendment will, on the due execution and delivery thereof, constitute, the
legal, valid and binding obligations of the Lessee enforceable in
accordance with their respective terms, subject, in each case, as to
enforceability, to bankruptcy, insolvency, reorganization and other
similar laws affecting enforcement of creditor rights generally (insofar
as any such law relates to the bankruptcy, insolvency, reorganization or
similar event of the Lessee) and, as to the availability of specific
performance or other injunctive relief, subject to the discretionary power
of a court to deny such relief and to general equitable principles.
ARTICLE V
MISCELLANEOUS
SECTION V.1. Ratification of and References to the Operative Documents.
Upon the Improvements Closing Date, this Amendment shall be known (and may be
referred to) as Amendment No. 1, dated as of March 3, 1997, to each of the
Operative Documents amended hereby. This Amendment is an Operative Document
executed pursuant to the Participation Agreement, including for purposes of
construction as provided in Appendix A thereto. All references to the
Participation Agreement, the Master Lease, any Lease Supplement, the Loan
Agreement or the Assignment of Lease and Rent shall hereafter be deemed to refer
to such Operative Document as amended hereby.
SECTION V.2. Counterparts. This Amendment may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
SECTION V.3. Headings, etc. The Table of Contents and headings of the
various Articles and Sections of this Amendment are for convenience of reference
only and shall not modify, define, expand or limit any of the terms or
provisions hereof.
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SECTION V.4. GOVERNING LAW. THIS AMENDMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAW OF THE STATE OF CALIFORNIA (EXCLUDING ANY CONFLICT-OF-LAW OR
CHOICE-OF-LAW RULES WHICH MIGHT LEAD TO THE APPLICATION OF THE INTERNAL LAWS OF
ANY OTHER JURISDICTION) AS TO ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE.
SECTION V.5. Severability. Any provision of this Amendment that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION V.6. Liability Limited. The parties hereto agree that except as
specifically set forth herein or in any other Operative Document, Lessor shall
have no personal liability whatsoever to the Lessee or any Participant or their
respective successors and assigns for any claim based on or in respect hereof or
any of the other Operative Documents or arising in any way from the transactions
contemplated hereby or thereby and the recourse shall be solely had against the
Lessor's interest in any Property; provided, however, that Lessor shall be
liable in its individual capacity (a) for its own willful misconduct or gross
negligence (or negligence in the handling of funds), (b) breach of any of its
representations, warranties or covenants under the Operative Documents, or (c)
for any Tax based on or measured by any fees, commission or compensation
received by it for acting as the Lessor as contemplated by the Operative
Documents. It is understood and agreed that, except as provided in the preceding
sentence: (i) Lessor shall have no personal liability under any of the Operative
Documents as a result of acting pursuant to and consistent with any of the
Operative Documents; (ii) all obligations of Lessor to the Lessee are solely
nonrecourse obligations except to the extent that it has received payment from
others; and (iii) all such personal liability of Lessor is expressly waived and
released as a condition of, and as consideration for, the execution and delivery
of the Operative Documents by Lessor.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
SYMANTEC CORPORATION,
as Lessee, Pledgor, Guarantor and
Construction Agent
By____________________________________
Name:
Title:
S-1 Master Amendment No. 1
52
SUMITOMO BANK LEASING AND FINANCE,
INC., as Lessor
By____________________________________
Name:
Title:
S-2 Master Amendment No. 1
53
THE SUMITOMO BANK, LIMITED,
SAN ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as Lender
and as Agent
By____________________________________
Name:
Title:
S-3 Master Amendment No. 1
54
SCHEDULE I
AMENDED AND RESTATED SCHEDULE I
TO PARTICIPATION AGREEMENT
COMMITMENTS
PARTICIPANT COMMITMENT
Lender
------
The Sumitomo Bank, Limited, San $70,450,000.00
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Lessor
------
Sumitomo Bank Leasing and Finance, $11,050,000.00
Inc.
==============
TOTAL: $81,500,000.00
55
EXHIBIT B
[Form of Amendment No. 1 to Lease Supplement No. 1]
56
EXHIBIT C
[Form of Amendment No. 1 to Lease Supplement No. 2]
57
EXHIBIT D
[Form of Amendment No. 1 to Lease Supplement No. 3]
58
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS; INTERPRETATION
ARTICLE II
CERTAIN AMENDMENTS
SECTION 2.1. Amendments to the Participation Agreement.................. 2
(a) Amendment to Article II............................. 2
(b) Amendment to Section 3.1............................ 5
(c) Amendment to Section 3.2............................ 6
(d) Amendment to Section 3.3............................ 6
(e) Amendments to Section 3.4........................... 6
(f) Amendment to Section 4.3............................ 6
(g) Amendment to Section 8.2............................ 7
(h) Amendment to Section 9.1............................ 7
(i) Amendment to Section 13.2........................... 7
(j) Amendment to Schedule I............................. 7
SECTION 2.2. Amendments to Appendix A................................... 8
SECTION 2.3. Amendments to Master Lease................................. 11
(a) Amendment to Section 2.3............................ 11
(b) Amendment to Section 3.1............................ 12
SECTION 2.4. Amendments to Loan Agreement............................... 12
(a) Amendment to Second Recital......................... 12
(b) Amendment to Section 2.1............................ 12
(c) Amendment to Section 8.11........................... 12
SECTION 2.5. Amendment to Assignment of Lease and Rent.................. 13
SECTION 2.6. Effect of Amendments....................................... 13
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.1. Improvements Closing Date. ................................ 13
(a) Master Amendment No. 1.............................. 14
(b) Construction Agency Agreement....................... 14
(c) New Notes........................................... 14
(d) Amendments to Lease Supplements..................... 14
(e) Lessor Financing Statements......................... 14
(f) Recordation......................................... 14
(g) Appraisal........................................... 14
(h) Title Insurance..................................... 15
(i) Lessee's Resolutions................................ 15
(j) Legal Opinion....................................... 15
(k) Satisfactory Legal Form............................. 15
59
TABLE OF CONTENTS
Page
----
ARTICLE IV
REPRESENTATIONS OF LESSEE
SECTION 4.1. Representations of Lessee.................................. 16
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Ratification of and References to the Operative Documents.. 17
SECTION 5.2. Counterparts............................................... 17
SECTION 5.3. Headings, etc.............................................. 17
SECTION 5.4. GOVERNING LAW.............................................. 18
SECTION 5.5. Severability............................................... 18
SECTION 5.6. Liability Limited.......................................... 18
Schedule
--------
Schedule I Amended and Restated Schedule I to Participation Agreement
Exhibits
--------
Exhibit A Form of Construction Agency Agreement
Exhibit B Form of Amendment No. 1 to Lease Supplement No. 1
Exhibit C Form of Amendment No. 1 to Lease Supplement No. 2
Exhibit D Form of Amendment No. 1 to Lease Supplement No. 3
Exhibit E Form of Funding Request for Construction Advances
Annexes
-------
Annex 1 Legal Description of Land Covered by
Supplement No. 1 to Assignment of Lease and Rent
Annex 2 Legal Description of Land Covered by
Supplement No. 2 to Assignment of Lease and Rent
Annex 3 Legal Description of Land Covered by
Supplement No. 3 to Assignment of Lease and Rent
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60
ANNEX 1 TO MASTER AMENDMENT NO. 1
LEGAL DESCRIPTION OF LAND COVERED BY
SUPPLEMENT NO. 1 TO ASSIGNMENT OF LEASE AND RENT
61
ANNEX 2 TO MASTER AMENDMENT NO. 1
LEGAL DESCRIPTION OF LAND COVERED BY
SUPPLEMENT NO. 2 TO ASSIGNMENT OF LEASE AND RENT
62
ANNEX 3 TO MASTER AMENDMENT NO. 1
LEGAL DESCRIPTION OF LAND COVERED BY
SUPPLEMENT NO. 3 TO ASSIGNMENT OF LEASE AND RENT
Real Property in the City of Cupertino, County of Santa ▇▇▇▇▇, State of
California, described as follows:
PARCEL ONE:
Lot 5, as shown on that certain Map entitled Tract No. 7953 Cupertino City
Center Phase III, which Map was filed for record in the office of the Recorder
of the County of Santa ▇▇▇▇▇, State of California on February 27, 1987, in Book
571 of Maps, pages 36 and 37.
PARCEL TWO:
Easements as described in the Section entitled "Easements and Rights Reserved
for Owners" of the Article entitled "Easements and Rights of Entry" of the
Declaration of Covenants, Conditions, and Restrictions and Grant of Easement for
Cupertino City Center recorded October 9, 1985, in Book J482, page 1907, as
amended by that certain First Amendment to Declaration of Covenants, Conditions,
and Restrictions and Grant of Easements recorded September 2, 1987, in Book
K281, page 2071, each in the Official Records of Santa ▇▇▇▇▇ County, California.
PARCEL THREE:
Easements for parking, landscaping, support, settlement and encroachment as
granted to Cupertino City Center Buildings, a California Limited Partnership, in
the Grant of Easement (Cupertino City Center 5) recorded February 5, 1997 under
Series No. 13602286.