EXHIBIT 10.53
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT ("Termination Agreement") is made and
entered into as of March 13, 2003, by and among SMBC LEASING AND FINANCE, INC.,
a Delaware corporation, formerly known as Sumitomo Bank Leasing and Finance,
Inc. ("Lessor"), the various financial institutions identified herein (the
"Lenders"), THE BANK OF NOVA SCOTIA (the "Documentation Agent"), SUMITOMO MITSUI
BANKING CORPORATION, a Japanese banking corporation, formerly known as The
Sumitomo Bank, Limited ("Agent"), SYMANTEC CORPORATION, a Delaware corporation
("Lessee"), and DELRINA CORPORATION, a Delaware corporation ("Delrina").
A. Lessor, the Lenders, the Documentation Agent and Agent have
entered into that certain Amended and Restated Participation Agreement, dated as
of February 9, 1999 (the "Participation Agreement"), and Lessor and Lessee have
entered into that certain Amended and Restated Master Lease and Deed of Trust,
dated as of February 9, 1999 (as amended, supplemented and restated, the "Master
Lease") (the obligations of Lessee thereunder, collectively, the "Facility").
Pursuant to Article XV of the Master Lease, Lessee has elected to purchase the
Leased Assets as defined in the Master Lease for the Lease Balance (the
"Purchase Option Price"). Set forth in Section 1 below is the calculation of the
Purchase Option Price to be paid by Lessee to Lessor, calculated as of March 13,
2003 (the "Purchase Date"), in order to satisfy all outstanding obligations of
the Lessee under the Facility and purchase the Leased Assets (including the
Projects as defined below). Capitalized terms used yet not defined herein have
the meanings ascribed to them in Appendix A to the Participation Agreement.
B. The parties have previously entered into various agreements in
connection with certain real property located in Santa Xxxxx County, California
(the "Projects").
C. The parties desire to terminate the lease arrangement, and
convey the Leased Assets to Lessee, subject to the terms and conditions set
forth in this Termination Agreement.
NOW, THEREFORE, in consideration of the covenants set forth herein,
Lessor, the Lenders, the Documentation Agent, Agent, Lessee and Delrina hereby
agree as follows:
1. Payment. The following is the amount required to be paid by
Lessee to the Agent, calculated as of the Purchase Date, in order to purchase
the Leased Assets for the Lease Balance and discharge all outstanding
obligations of Lessee under the Facility:
Lease Balance (per Project): $ 32,068,791.68 $ 46,948,773.58
Rent through Purchase Date (per Project): $ 81,596.37 $ 127,359.67
Total Purchase Option Price through Purchase Date $ 32,150,388.05 $ 47,076,133.25
(per Project):
TOTAL AGGREGATE PURCHASE OPTION PRICE
THROUGH PURCHASE DATE $ 79,226,521.30
In addition to the payment described in Paragraph 1 above, the sum an additional
amount required to be paid by Lessee for costs, fees and expenses incurred in
connection herewith (including breakfunding fees), all as more particularly set
forth on the settlement statement prepared for the escrow set up for the
transactions contemplated by this Termination Agreement ("Escrow"), by First
American Title Insurance Company.
The total Purchase Option Price for the Leased Assets as well as the costs, fees
and expenses shown above 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-16334-SF
Office No. F011-10
Escrow Officer: Xxxxxxxxxxx Xxxx
Please call (000) 000-0000 to provide the Fed wire confirmation number
2. Termination of Agreements. Effective as of close of Escrow,
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 4 below:
(a) The Participation Agreement;
(b) The Master Lease;
(c) Amended and Restated Loan Agreement, dated as of
February 9, 1999, among Lessor, Lenders, Document Agent and Agent;
(d) Amended and Restated Assignment of Lease and Rent,
dated as of February 8, 1999 between Lessor and Agent and any
amendments or supplements thereto;
(e) Amended and Restated Pledge Agreement, dated as of
February 9, 1999, by Lessee and Delrina in favor of Agent, and
Donaldsen, Lufkin & Jenrett Securities Corporation, as collateral
agent;
(f) Amended and Restated Guaranty, dated as of February
9, 1999, by Lessee in favor of Lenders and Agent; and
(g) Construction Agency Agreement, dated as of February
9, 1999, between Lessor and Lessee.
3. Assignment of Intangible Assets and Personal Property.
Effective as of close of Escrow, any intangible assets or personal property
assigned or transferred to Lessor and used in conjunction with the Leased Assets
are hereby assigned, conveyed and transferred to Lessee.
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4. Release of Liability. Effective as of close of Escrow, Lessor,
the Lenders, the Documentation Agent and Agent do each hereby release Lessee and
Delrina, their 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, notwithstanding this Termination Agreement and the Memorandum of
Termination of an even date herewith, none of Lessor, the Lenders, the
Documentation Agent nor Agent waives or releases Lessee and Delrina, their
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.
5. Execution of Additional Documents. Lessor, the Lenders, the
Documentation Agent 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 2
and 3 above or to otherwise terminate the interests of the Lessor, the Lenders,
the Documentation Agent and Agent in assets associated with the Leased Assets.
6. Entire Agreement. It is understood and acknowledged that there
are no oral agreements between the parties hereto affecting this Termination
Agreement and this Termination Agreement supersedes and cancels any and all
previous negotiations, arrangements, brochures, agreements and understandings,
if any, between the parties hereto with respect to the subject matter thereof,
and none thereof shall be used to interpret or construe this Termination
Agreement. This Termination Agreement and the associated termination documents,
contain all of the terms, covenants, conditions, warranties and agreements of
the parties relating in any manner to the termination of the Transaction
Documents and shall be considered to be the only agreements between the parties
hereto and their representatives and agents. None of the terms, covenants,
conditions or provisions of this Termination Agreement can be modified, deleted
or added to except in writing signed by the parties hereto. All negotiations and
oral agreements acceptable to both parties have been merged into and are
included herein. There are no other representations or warranties between the
parties, and all reliance with respect to representations is based totally upon
the representations and agreements contained in this Termination Agreement.
7. Counterparts. This Termination Agreement may be executed in
one or more counterparts each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. Signature copies
may be detached from the counterparts and attached to a single copy of this
Termination Agreement physically to form one document. A facsimile counterpart
signature delivered to each party shall be deemed an original for the purpose of
the execution of this Termination Agreement.
8. Legal Effect. This Termination Agreement shall benefit and
bind Lessor, the Lenders, the Documentation Agent, Agent, and Lessee and their
respective successors, assigns, heirs and personal representatives. This
Termination Agreement shall be governed and construed in accordance with the
laws of the State of California.
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IN WITNESS WHEREOF, Lessor, the Lenders, the Documentation Agent, Agent
and Lessee have caused this Termination Agreement to be executed by their
respective duly authorized officers as of the day and year first written above.
LESSOR: SMBC LEASING AND FINANCE, INC.,
a Delaware corporation
By: ________________________________
Name: ___________________________
Its: ____________________________
LENDERS: THE BANK OF NOVA SCOTIA, a
____________________________
By: ________________________________
Name: ___________________________
Its: ____________________________
COOPERATIEVE CENTRALE
REAIFEISEN-BOERENLEENBANK B.A.,
"Rabobank Nederland," New York Branch, a
___________________________
By: ________________________________
Name: ___________________________
Its: ____________________________
By: ________________________________
Name: ___________________________
Its: ____________________________
DOCUMENTATION AGENT: THE BANK OF NOVA SCOTIA, a
____________________________
By: _______________________________
Name: __________________________
Its: ___________________________
AGENT: SUMITOMO MITSUI BANKING
CORPORATION, a Japanese banking
corporation
By: ________________________________
Name: ___________________________
Its: ____________________________
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LESSEE: SYMANTEC CORPORATION, a Delaware
corporation
By: ________________________________
Name: ___________________________
Its: ____________________________
DELRINA: DELRINA CORPORATION, a Delaware
corporation
By: ________________________________
Name: ___________________________
Its: ____________________________
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