EXECUTION COPY
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GUARANTY
dated as of October 18, 1996
made by
SYMANTEC CORPORATION
in favor of
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders
and
THE SUMITOMO BANK, LIMITED, SAN XXXXXXXXX XXXXXX
as Agent for the Lenders.
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GUARANTY
THIS GUARANTY (this "GUARANTY") dated as of October 18, 1996 is made by
SYMANTEC CORPORATION, a Delaware corporation (the "GUARANTOR"), in favor of the
various financial institutions as are or may from time to time become Lenders
under the Loan Agreement (together with their respective successors and assigns,
the "LENDERS") and THE SUMITOMO BANK, LIMITED, SAN XXXXXXXXX XXXXXX as agent (in
such capacity, the "AGENT") for the Lenders (the Lenders, the Agent and their
respective successors and assigns, collectively, the "LENDER PARTIES").
W I T N E S S E T H:
WHEREAS, pursuant to a Loan Agreement, dated as of the date hereof
(together with all amendments and other modifications, if any, from time to time
thereafter made thereto, the "LOAN AGREEMENT"), among Sumitomo Bank Leasing and
Finance, Inc., (the "LESSOR") the Lenders and the Agent, the Lenders have
agreed, subject to the terms and conditions thereof, to extend Loans to the
Lessor;
WHEREAS, as a condition to the occurrence of the Documentation Date under
the Participation Agreement dated as of the date hereof (together with all
amendments and other modifications, if any, from time to time thereafter made
thereto, the "PARTICIPATION AGREEMENT"), among the Guarantor, the Lessor, the
Lenders and the Agent, the Guarantor is required to execute and deliver this
Guaranty in favor of the Lenders;
WHEREAS, the Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
WHEREAS, it is in the best interests of the Guarantor to execute this
Guaranty inasmuch as the Guarantor will derive substantial benefits from the
transactions contemplated by the Loan Agreement;
NOW, THEREFORE, for good and valuable consideration the receipt of which is
hereby acknowledged, and in order to induce the Lenders to enter into the Loan
Agreement, the Guarantor agrees, for the benefit of Xxxxxxx, as follows:
ARTICLE I
DEFINITIONS
SECTION I.1. DEFINITIONS. Capitalized terms used but not otherwise
defined in this Guaranty have the respective meanings specified in APPENDIX A
hereto; and the rules of interpretation set forth in APPENDIX A hereto shall
apply to this Guaranty.
ARTICLE II
GUARANTY PROVISIONS
SECTION II.1. GUARANTY OF LESSOR OBLIGATIONS. The Guarantor acknowledges
that it is in Guarantor's best interests to execute this Guaranty as Guarantor
will derive substantial direct and indirect benefits from the loans provided by
the Lenders to the Lessor. Guarantor absolutely, irrevocably and unconditionally
guarantees and promises to pay to Agent, or order, on demand in lawful money of
the United States of America, any obligations of the Lessor to make payments
under the Loan Agreement as a result of a Lease Event of Default ("LESSOR
OBLIGATIONS").
SECTION II.2. INDEPENDENT OBLIGATIONS. Guarantor's obligations hereunder
are independent of the obligations of Xxxxxx, any other guarantor or any other
person, and Agent may enforce any of its rights hereunder independently of any
other right or remedy that Agent may at any time hold with respect to the Lessor
Obligations or any security or other guaranty therefor. This Guaranty is a
guaranty of payment when due and
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not of collection. Without limiting the generality of the foregoing, Agent may
bring a separate action against Guarantor without first proceeding against
Lessor, any other guarantor, any other person or any security held by Agent,
and regardless of whether Lessor, any other guarantor or any other person is
joined in any such action. Guarantor's liability hereunder shall at all times
remain effective with respect to the full amount of the Lessor Obligations,
notwithstanding any limitations on the liability of Lessor to Agent contained in
the Loan Agreement or elsewhere. Agent's rights hereunder shall not be
exhausted by any action taken by Agent until all Lessor Obligations have been
fully paid and performed. The liability of Guarantor hereunder shall be
reinstated and revived, and the rights of Agent shall continue, with respect to
any amount at any time paid on account of the Lessor Obligations which shall
thereafter be required to be restored or returned by Agent upon the bankruptcy,
insolvency or reorganization of Lessor, any other guarantor or any other person,
or otherwise, all as though such amount had not been paid.
SECTION II.3. AUTHORITY TO MODIFY LESSOR OBLIGATIONS. Guarantor
authorizes Agent, at any time and from time to time without notice and without
affecting the liability of Guarantor hereunder, to:
(a) alter the terms of all or any part of the Lessor Obligations and
any security and guaranties therefor including without limitation
modification of times for payment and rates of interest;
(b) accept new or additional instruments, documents, agreements,
security or guaranties in connection with all or any part of the Lessor
Obligations;
(c) accept partial payments on the Lessor Obligations;
(d) waive, release, reconvey, terminate, abandon, subordinate,
exchange, substitute, transfer, compound,
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compromise, liquidate and enforce all or any part of the Lessor Obligations
and any security or guaranties therefor, and apply any such security and
direct the order or manner of sale thereof (and bid and purchase at any
such sale), as Agent in its discretion may determine;
(e) release Lessor, Guarantor or any other person from any personal
liability with respect to all or any part of the Lessor Obligations; and
(f) assign this Guaranty in whole or in part to any person.
SECTION II.4. CONTINUING GUARANTY; CONFIRMATION OF NO REVOCATION. This
Guaranty is not revocable prior to October 18, 2003 and is not revocable
thereafter without 30 days' prior written notice to Agent. Termination of this
Guaranty for any reason shall not affect any obligations of Guarantor hereunder
which have accrued as of the date of termination, and such accrued obligations
shall survive this Guaranty's termination. At Agent's written request from time
to time, Xxxxxxxxx agrees to confirm in writing within 10 days of receiving such
request that no revocation of this Guaranty has occurred.
SECTION II.5. WAIVERS. In addition to any other waivers provided in this
Guaranty, Guarantor hereby waives each of the following, to the fullest extent
allowed by law:
(a) all statutes of limitations as a defense to any action brought by
Agent against Guarantor;
(b) any defense based upon:
(i) the unenforceability or invalidity of all or any part of the
Loan Agreement or the Lessor Obligations, or any security or other
guaranty for the Lessor Obligations or the lack of perfection or
failure of priority of any security for the Lessor Obligations; or
(ii) any act or omission of Lessor or any other
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person that directly or indirectly results in the discharge or release
of Lessor or any other person or any of the Lessor Obligations or any
security therefor; or
(iii) any disability or any other defense of Lessor or any other
person with respect to the Lessor Obligations, whether consensual or
arising by operation of law or any bankruptcy, insolvency or debtor-
relief proceeding, or from any other cause;
(c) any right (whether now or hereafter existing) to require Agent,
as a condition to the enforcement of this Guaranty, to:
(i) accelerate the Lessor Obligations; or
(ii) give notice to Guarantor of the terms, time and place of any
public or private sale of any security for the Lessor Obligations; or
(iii) proceed against Lessor, Guarantor or any other person, or
proceed against or exhaust any security for the Lessor Obligations;
(d) all rights of subrogation and reimbursement, all rights to
enforce any remedy that Agent now or hereafter has against Lessor or any
other person, and any benefit of, and right to participate in, any security
now or hereafter held by Lessor with respect to the Lessor Obligations;
(e) presentment, demand, protest and notice of any kind, including
without limitation notices of default and notice of acceptance of this
Guaranty;
(f) all suretyship defenses and rights of every nature otherwise
available under California law and the laws of any other jurisdiction,
including without limitation all defenses arising under Sections 2787
through 2855, inclusive, and Sections 2899 and 3433 of the California Civil
Code and any successor provisions of those
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Sections; and
(g) all other rights and defenses the assertion or exercise of which
would in any way diminish the liability of Guarantor hereunder.
SECTION II.6. DEED OF TRUST ON REAL PROPERTY; ADDITIONAL WAIVERS.
(a) Guarantor authorizes Agent, at its sole option, without notice or
demand and without affecting the liability of Guarantor hereunder, to
release and reconvey (with or without the receipt of any consideration) any
lien against any or all real or personal property security for the Loan
Agreement, to foreclose any or all deeds of trust, mortgages, security
agreements or other instruments or agreements by judicial or nonjudicial
sale, and to exercise any other remedy against Lessor, any security or any
other guarantor, all without affecting the liability of Guarantor
hereunder.
(b) Guarantor waives any defenses or benefits that may be derived
from California Code of Civil Procedure Sections 580a, 580b, 580d or 726,
or comparable provisions of the laws of the State of California or any
other jurisdiction, and all other suretyship defenses it would otherwise
have under California law or the laws of any other jurisdiction. Guarantor
waives any right to receive notice of any judicial or nonjudicial sale or
foreclosure of any real property, and the failure of Guarantor to receive
such notice shall not impair or affect Guarantor's liability hereunder.
(c) Guarantor waives all rights and defenses arising out of an
election of remedies by Agent, even though that election of remedies, such
as nonjudicial foreclosure with respect to security for a guaranteed
obligation, has destroyed Guarantor's rights of subrogation and
reimbursement against Lessor or any other principal by operation of Section
580d of the Code of Civil Procedure or otherwise.
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(d) Guarantor acknowledges that it has, in this Guaranty, waived any
and all rights of subrogation and reimbursement and any other rights and
defenses available to Guarantor by reason of Sections 2787 to 2855,
inclusive, of the California Civil Code, including, without limitation:
(i) any defenses Guarantor may have to its guaranty obligations
by reason of an election of remedies by Agent; and
(ii) any rights or defenses Guarantor may have by reason of
protection afforded to Lessor or any other principal with respect to
the obligation so guaranteed pursuant to the antideficiency or other
laws of the State of California limiting or discharging Lessor's
indebtedness, including, without limitation, Section 580a, 580b, 580d,
or 726 of the California Code of Civil Procedure.
SECTION II.7. REASONABLENESS AND EFFECT OF WAIVERS. Guarantor warrants
and agrees that each of the waivers set forth in this Guaranty is made with full
knowledge of its significance and consequences and that, under the
circumstances, the waivers are reasonable and not contrary to public policy or
law. If any of such waivers are determined to be contrary to any applicable law
or public policy, such waivers shall be effective only to the maximum extent
permitted by law.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION III.1. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby
represents and warrants unto each Lender as set forth in Section 8.2 of the
Participation Agreement, which representations and warranties are hereby
incorporated by reference.
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ARTICLE IV
COVENANTS
SECTION IV.1. COVENANTS. The Guarantor covenants and agrees that, so long
as any portion of the Lessor Obligations shall remain unpaid under the Loan
Agreement or the other Operative Documents, the Guarantor will perform the
covenants set forth in Section 10.1 of the Participation Agreement, which
covenants are hereby incorporated by reference.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION V.1. OPERATIVE DOCUMENT. This Guaranty is an Operative Document
executed pursuant to the Participation Agreement and shall (unless expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions of the Participation Agreement, including, without
limitation, Article XIV thereof.
SECTION V.2. BINDING ON SUCCESSORS, TRANSFEREES AND ASSIGNS; ASSIGNMENT OF
GUARANTY. This Guaranty shall be binding upon the Guarantor and its successors,
transferees and assigns and shall inure to the benefit of and be enforceable by
each Lender and each holder of a Note and their respective successors and
assigns; PROVIDED, HOWEVER, that the Guarantor may not assign any of its
obligations hereunder without the prior written consent of the Required Lenders.
SECTION V.3. AMENDMENTS, ETC. No amendment to or waiver of any provision
of this Guaranty, nor consent to any departure by the Guarantor herefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Agent, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION V.4. ADDRESSES FOR NOTICES TO THE GUARANTOR. All notices,
demands, requests, consents, approvals and other
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communications hereunder shall be in writing (including by facsimile) and
directed to the address or facsimile number described in, and deemed received in
accordance with the provisions of, Section 14.3 of the Participation Agreement.
SECTION V.5. NO WAIVER; REMEDIES. In addition to, and not in limitation
of, SECTION 2.2 and SECTION 2.4, no failure on the part of any Lender or any
holder of a Note to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
SECTION V.6. SECTION CAPTIONS. Section captions used in this Guaranty are
for convenience of reference only, and shall not affect the construction of this
Guaranty.
SECTION V.7. SETOFF. In addition to, and not in limitation of, any rights
of any Lender or any holder of a Note under applicable law, each Lender and each
such holder shall, upon the occurrence of any Event of Default, have the right
to appropriate and apply to the payment of the obligations of the Guarantor
owing to it hereunder, whether or not then due, and the Guarantor hereby grants
to each Lender and each such holder a continuing security interest in, any and
all balances, credits, deposits, accounts or moneys of the Guarantor then or
thereafter maintained with such Lender or such holder; provided, however, that
any such appropriation and application shall be subject to the provisions of
Section 8.6 of the Loan Agreement.
SECTION V.8. SEVERABILITY. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION V.9. TERMINATION OF GUARANTY. The Guarantor's
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obligations under this Guaranty shall terminate on the date upon which all
Lessor Obligations have been paid in full.
SECTION V.10. GOVERNING LAW. THIS GUARANTY SHALL BE ENFORCED AND
INTERPRETED ACCORDING TO THE LAWS OF THE STATE OF CALIFORNIA, IRRESPECTIVE OF
ITS CONFLICTS OF LAWS RULES. FOR PURPOSES OF ANY ACTION OR PROCEEDING INVOLVING
THIS GUARANTY, THE GUARANTOR HEREBY EXPRESSLY SUBMITS TO THE JURISDICTION OF ALL
FEDERAL AND STATE COURTS LOCATED IN THE STATE OF CALIFORNIA AND CONSENTS THAT IT
MAY BE SERVED WITH ANY PROCESS OR PAPER BY REGISTERED MAIL OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF CALIFORNIA.
SECTION V.11. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS GUARANTY. THE GUARANTOR ACKNOWLEDGES AND AGREES THAT IT
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS ENTERING INTO THE LOAN
AGREEMENT AND THE PARTICIPATION AGREEMENT.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
SYMANTEC CORPORATION
By
--------------------------------
Name:
Title:
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. Guaranty of Lessor Obligations. . . . . . . . . . . . . . 2
SECTION 2.2. Independent Obligations.. . . . . . . . . . . . . . . . . 2
SECTION 2.3. Authority to Modify Lessor Obligations. . . . . . . . . . 3
SECTION 2.4. Continuing Guaranty; Confirmation of No Revocation. . . . 3
SECTION 2.5. Waivers.. . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.6. Deed of Trust on Real Property; Additional Waivers. . . . 5
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. . . . . . . . . . . . . . 6
ARTICLE IV
COVENANTS
SECTION 4.1. Covenants . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Operative Document. . . . . . . . . . . . . . . . . . . . 6
SECTION 5.2. Binding on Successors, Transferees and Assigns;
Assignment of Guaranty . . . . . . . . . . . . . . . 7
SECTION 5.3. Amendments, etc.. . . . . . . . . . . . . . . . . . . . . 7
SECTION 5.4. Addresses for Notices to the Guarantor. . . . . . . . . . 7
SECTION 5.5. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . 7
SECTION 5.6. Section Captions. . . . . . . . . . . . . . . . . . . . . 7
SECTION 5.7. Setoff. . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 5.8. Severability. . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 5.9. Termination of Guaranty . . . . . . . . . . . . . . . . . 8
SECTION 5.10. Governing Law . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 5.11. Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . 8
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