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EXHIBIT 10.22
EXHIBIT A
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CONSTRUCTION AGENCY AGREEMENT
dated as of March 3, 1997
between
SUMITOMO BANK LEASING AND FINANCE, INC.,
as Lessor
and
SYMANTEC CORPORATION,
as Construction Agent.
--------------------------
Lease Financing of Three Properties
Located in Cupertino, California
and Construction of Certain Improvements
for Symantec Corporation
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CONSTRUCTION AGENCY AGREEMENT
THIS CONSTRUCTION AGENCY AGREEMENT, dated as of March 3, 1997 (this
"Agreement"), between SUMITOMO BANK LEASING AND FINANCE, INC., a Delaware
corporation, as Lessor (the "Lessor"), and SYMANTEC CORPORATION, a Delaware
corporation, as Construction Agent (in its capacity as Construction Agent, the
"Construction Agent").
W I T N E S S E T H:
WHEREAS, the Lessor and the Construction Agent are parties to that certain
Master Lease and Deed of Trust dated as of October 18, 1996 (as amended by
Master Amendment No. 1 (as defined below) and as amended, supplemented or
otherwise modified from time to time, the "Master Lease"), pursuant to which the
Lessee has agreed to lease from Lessor, and the Lessor has agreed to lease to
Lessee, Lessor's interest in certain Properties; and
WHEREAS, pursuant to Master Amendment No. 1 dated as of the date hereof
(the "Master Amendment"), the Lessor, Symantec Corporation (in its capacity as
Lessee, Pledgor, Guarantor and Construction Agent), the Lenders and the Agent
have agreed to amend certain provisions of the Operative Documents for the
purpose of providing financing for the construction of certain Improvements (the
"Subject Improvements") located on the Land subject to Lease Supplement No. 3
(which Land is described on Schedule 1 attached hereto);
WHEREAS, subject to the terms and conditions hereof, (i) the Lessor
desires to appoint the Construction Agent as its sole and exclusive agent for
the construction of the Subject Improvements in accordance with the Plans and
Specifications described on Schedule 2 attached hereto (the "Plans and
Specifications") and pursuant to the Master Lease and this Agreement, and (ii)
the Construction Agent desires, for the benefit of the Lessor, to cause the
Subject Improvements to be constructed in accordance with the Plans and
Specifications and pursuant to the Master Lease and this Agreement, in each case
in accordance with the terms set forth herein and in the Master Lease;
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
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ARTICLE I
DEFINITIONS; INTERPRETATION
I.1. Definitions; Interpretation. Unless the context shall otherwise
require, capitalized terms used and not defined in this Agreement (including the
recitals hereto) shall have the meanings assigned thereto in Appendix A to the
Participation Agreement (as amended by Master Amendment No. 1 and as amended,
supplemented, amended and restated or otherwise modified from time to time,
"Appendix A") for all purposes hereof; and the rules of interpretation set forth
in Appendix A shall apply to this Agreement.
ARTICLE II
APPOINTMENT OF CONSTRUCTION AGENT
II.1. Appointment. Pursuant to and subject to the terms and conditions set
forth herein and in the Lease and the other Operative Documents, the Lessor
hereby irrevocably designates and appoints the Construction Agent as its
exclusive agent for the construction of the Subject Improvements in accordance
with the Plans and Specifications, and the Construction Agent hereby
unconditionally accepts the designation and appointment as Construction Agent.
II.2. Term. This Agreement shall commence on the date hereof and
shall terminate upon the first to occur of:
(a) payment by the Lessee of the Lease Balance and termination
of the Lease in accordance with the terms and conditions of the Lease;
(b) termination of this Agreement pursuant to Article V hereof;
and
(c) the completion of the Construction, including completion of
punch list items referred to in Section 2.5(e) and the full performance of
all other obligations of the Construction Agent hereunder.
II.3. Construction Documents.
(a) Subject to Section 3.1, the Construction Agent shall enter into the
Prime Construction Contract and such other agreements with architects and
contractors as the Construction Agent deems necessary or desirable for the
completion of the Construction pursuant hereto (collectively, the "Construction
Documents"); provided, however, that the Prime Construction
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Contract shall include a retainage provision in an amount equal to at least ten
percent (10%) of the construction costs payable pursuant thereto (or, after
payment to the Prime Contractor of more than fifty percent (50%) of the
construction costs payable to the Prime Contractor thereunder (assuming for
purposes hereof that no retainage had been withheld), an amount equal to at
least five percent (5%) of the construction costs payable pursuant thereto);
provided, further, that no such delegation shall limit or reduce in any way the
Construction Agent's duties and obligations under this Agreement; provided,
further, that contemporaneously with the execution and delivery of this
Agreement, the Construction Agent will execute and deliver to the Lessor the
Construction Documents Assignment in the form of Annex I attached hereto,
pursuant to which the Construction Agent assigns to the Lessor, among other
things, all of the construction Agent's rights under and interest in such
Construction Documents.
II.4. Scope of Authority. (a) Subject to the terms, conditions,
restrictions and limitations set forth in the Operative Documents, the Lessor
hereby expressly authorizes the Construction Agent, or any agent or contractor
of the Construction Agent, and the Construction Agent unconditionally agrees,
for the benefit of the Lessor, to take all action necessary or desirable for the
performance and satisfaction of all of the Construction Agent's obligations
hereunder, including, without limitation:
(i) performing all design and supervisory functions and all
engineering work related to the Construction;
(ii) negotiating and entering into all contracts or arrangements to
procure the equipment necessary to construct the Subject Improvements on
such terms and conditions as are customary and reasonable in light of
local standards and practices;
(iii) obtaining all necessary Material permits, licenses, consents,
approvals and other authorizations, including those required under
Applicable Law (including Environmental Laws), from all Governmental
Authorities in connection with the Construction and granting on behalf of
the Lessor such easements as are necessary or appropriate to effect the
Construction or that otherwise would not have an adverse effect on the
value of the Subject Improvements or the Land on which the Subject
Improvements are located;
(iv) maintaining all books and records with respect to the
Construction; and
(v) performing any other acts necessary in connection
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with the construction and development of the Subject Improvements in
accordance with the Plans and Specifications.
(b) Subject to the terms hereof, the Construction Agent may execute any of
its duties under this Agreement by or through agents, contractors, employees or
attorneys-in-fact.
(c) Subject to the terms and conditions of this Agreement and the other
Operative Documents, the Construction Agent shall have sole management and
control over the construction means, methods, sequences and procedures with
respect to the Construction.
(d) Neither the Construction Agent nor any of its Affiliates or agents
shall enter into any contract which would, directly or indirectly, impose any
material liability or obligation on the Lessor for which the Lessor is not
indemnified by the Construction Agent or the Lessee under this Agreement or any
of the other Operative Documents.
II.5. Covenants of the Construction Agent. The Construction Agent
hereby covenants and agrees that it will:
(a) promptly commence the Construction following the Improvements
Closing Date and prosecute the Construction diligently and without
interruption (subject only to delays caused by Force Majeure Events) in
accordance in all Material respects with the Plans and Specifications, all
Requirements of Law and all Insurance Requirements;
(b) notify the Lessor in writing as soon as practical after the
occurrence of each Force Majeure Event;
(c) take all reasonable and practical steps to minimize the
disruption of the construction process arising from Force Majeure
Events;
(d) cause the Substantial Completion of the Construction to occur on
or prior to the Outside Completion Date, and cause all Liens (including,
without limitation, Liens or claims for materials supplied or labor or
services performed in connection with the construction of the Subject
Improvements), other than Permitted Liens, to be discharged; and
(e) following the Substantial Completion of the Construction, cause
all outstanding punch list items with respect to the Construction to be
promptly and expeditiously completed following Substantial Completion.
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ARTICLE III
THE SUBJECT IMPROVEMENTS
III.1. Construction of the Subject Improvements. The Construction Agent
shall (a) cause the Subject Improvements to be constructed in accordance with
the Plans and Specifications (as such Plans and Specifications may be modified
from time to time in accordance with Section 3.3) and (b) cause the Subject
Improvements to be constructed, equipped, maintained and used in compliance in
all Material respects with all Requirements of Law and Insurance Requirements,
and otherwise in compliance with the requirements of this Agreement, the Lease
and the other Operative Documents.
III.2. Estimated Improvement Costs. The Construction Agent hereby
certifies that the aggregate amount which the Construction Agent in good faith
expects to be expended in order to achieve Substantial Completion of the Subject
Improvements, including all costs of Construction and all Transaction Expenses
related thereto, does not exceed the Construction Commitment Amount.
III.3. Amendments and Modifications to Plans and Specifications and
Construction Documents. The Construction Agent may, subject to the conditions,
restrictions and limitations set forth herein and in the other Operative
Documents, at any time during the term hereof revise, amend or modify the Plans
and Specifications and/or the Construction Documents without the consent of the
Lessor; provided, however, that: (a) the Lessor's prior written consent will be
required (except to the extent that such revision, amendment or modification
constitutes a Required Modification) if (i) such revision, amendment or
modification would result in the Substantial Completion of the Construction
occurring after the Outside Completion Date, or (ii) the aggregate effect of
such revision, amendment or modification, when taken together with any previous
or contemporaneous revisions, amendments or modifications to the Plans and
Specifications and Construction Documents, would be to reduce the Fair Market
Sales Value of the Subject Improvements upon completion of the Construction, or
(iii) such revision, amendment or modification would materially change the
nature of the contemplated Subject Improvements or the utility of such Subject
Improvements for the purposes contemplated by the parties hereto as of the date
hereof; (b) the Construction Agent shall not terminate any Construction Document
or modify any provision of any Construction Document relating to requiring
retainage without the prior written consent of the Lessor; and (c) the
Construction Agent shall regularly furnish copies of all such revisions,
amendments and modifications to the Lessor.
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ARTICLE IV
PAYMENT OF FUNDS
IV.1. Funding of Property Improvements Costs. (a) In connection with and
during the course of the construction of the Subject Improvements, the
Construction Agent may request that the Lessor advance funds for the payment of
Property Improvements Costs, and the Lessor will comply with such request to the
extent provided for under, and subject to the conditions, restrictions and
limitations contained in, the Lease. The Construction Agent and the Lessor
acknowledge and agree that the Lessee's right to request funds and the Lessor's
obligation to advance funds for the payment of Property Improvements Costs is
subject in all respects to the terms and conditions of the Lease and each of the
other Operative Documents.
(b) The proceeds of any funds made available to the Lessor to pay Property
Improvements Costs shall be made available to the Construction Agent or its
designee(s) in accordance with the Funding Request relating thereto and the
terms of the Lease. The Construction Agent will use such proceeds only to pay
the Property Improvements Costs set forth in the Funding Request relating to
such funds.
(c) If, for any reason, the Construction Agent shall at any time incur
costs to complete the Construction that shall be in excess of the amounts then
payable under this Article IV, then all such excess costs shall be borne by the
Construction Agent from its own funds.
(d) The Construction Agent shall at all times cause to be and remain
vested in the Lessor's control any and all construction materials and equipment
not yet incorporated into the Properties for which funds shall have been
requested pursuant to this Article IV, and cause such title to be and remain
free of all Liens other than Permitted Liens.
ARTICLE V
CONSTRUCTION AGENCY EVENTS OF DEFAULT
V.1. Construction Agency Events of Default. If any one or more of the
following events (each a "Construction Agency Event of Default") shall occur:
(a) the Construction Agent fails to apply any funds paid by the
Lessor to the Construction Agent or its designee(s) to the payment of the
appropriate Property
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Improvements Costs; or
(b) the Construction Agent shall fail to observe or perform any
term, covenant or condition of this Agreement (except those specified in
clause (a) above), and such failure shall remain uncured for a period of
thirty (30) days; provided, however, that no Construction Agency Event of
Default shall be deemed to occur if such failure or breach cannot
reasonably be cured within such period, so long as the Construction Agent
shall have promptly commenced the cure thereof and continues to act with
diligence to cure such failure or breach and in fact cures such failure or
breach within one hundred eighty (180) days,
then, in any such event, the Lessor may, in addition to the other rights and
remedies provided for in this Article V and under the Lease, immediately
terminate this Agreement by giving the Construction Agent written notice of such
termination, and upon the giving of such notice, all rights of the Construction
Agent and all obligations of the Lessor under this Agreement shall cease. Upon
any such termination, the Construction Agent shall immediately pay to the
Lessor, as and for liquidated damages, an amount equal to the Lease Balance as
of the date of such payment (whereupon the Lessor shall convey title to the
Properties to the Lessee or its designee in accordance with Article XXII of the
Lease). Alternatively, the Lessor, with or without terminating this Agreement
and without waiving or releasing the Construction Agent from any obligation or
Construction Agency Event of Default, may (but shall be under no obligation to)
remedy any Construction Agency Event of Default for the account of and at the
sole cost and expense of the Construction Agent. The Construction Agent shall
pay upon demand all costs, expenses, losses, expenditures and damages
(including, without limitation, attorneys' fees) incurred by or on behalf of
Lessor in connection with any Construction Agency Event of Default, together
with interest thereon at the Overdue Rate from the date on which such amounts
are paid by the Lessor.
V.2. Survival. The termination of this Agreement pursuant to Section 5.1
shall in no event relieve the Construction Agent of its liability and
obligations hereunder which accrued prior to such termination, all of which
shall survive any such termination.
V.3. Remedies Cumulative; Waivers. (a) If a Construction Agency Event of
Default shall have occurred and be continuing, the Lessor shall have, in
addition to the rights and remedies provided for in Section 5.1, all rights and
remedies available under the Operative Documents or available at law, equity or
otherwise.
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(b) No failure to exercise and no delay in exercising, on the part of the
Lessor, any right, remedy, power or privilege under this Agreement or under the
other Operative Documents shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges provided in this Agreement, including with particularity Section 5.1,
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
ARTICLE VI
NO CONSTRUCTION AGENCY FEE
VI.1. Lease as Fulfillment of Lessor's Obligations. All obligations,
duties and requirements imposed upon or allocated to the Construction Agent
shall be performed by the Construction Agent at the Construction's Agent's sole
cost and expense, and the Construction Agent will not be entitled to, and the
Lessor shall have no obligation to pay, any agency fee or other fee or
compensation, and the Construction Agent shall not be entitled to, and the
Lessor shall have no obligation to make or pay, any reimbursement therefor, it
being understood that this Agreement is being entered into as consideration for
and as an inducement to the Lessor and the Construction Agent entering into the
Lease and the other Operative Documents.
ARTICLE VII
MISCELLANEOUS
VII.1. Notices. All notices, consents, directions, approvals,
instructions, requests, demands and other communications required or permitted
by the terms hereof to be given to any Person shall be given in writing in the
manner provided in, shall be sent to the respective addresses set forth in, and
the effectiveness thereof shall be governed by the provisions of, Section 14.3
of the Participation Agreement.
VII.2. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Lessor, the Construction Agent and their
respective successors and assigns.
VII.3. GOVERNING LAW. THIS AGREEMENT 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
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ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
VII.4. Amendments, etc. The Lessor and the Construction Agent may from
time to time, enter into written amendments, supplements or modifications
hereto.
VII.5. Counterparts. This Agreement may be executed in any number of
separate counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
VII.6. Severability. Any provision of this Agreement 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.
VII.7. Headings and Table of Contents. The headings and table of contents
contained in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
SYMANTEC CORPORATION
as Construction Agent
By:_______________________________
Name:
Title:
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SUMITOMO BANK LEASING AND
FINANCE, INC.,
as Lessor
By:
--------------------------------
Name:
Title:
CONSTRUCTION AGENCY AGREEMENT
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Schedule 1
Description of Land
Real Property in the City of Cupertino, County of Santa Xxxxx, 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 Xxxxx, 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 Xxxxx 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.
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Schedule 2
Plans and Specifications
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ANNEX I
TO CONSTRUCTION AGENCY AGREEMENT
CONSTRUCTION DOCUMENTS ASSIGNMENT
FOR VALUE RECEIVED, and to secure the performance by SYMANTEC CORPORATION,
a Delaware corporation (hereinafter referred to as either the "Lessee" or
"Assignor"), of all of its obligations under that certain Construction Agency
Agreement dated as of March 3, 1997 (as the same may be amended, modified or
restated from time to time, and together with all supplements thereto, the
"Construction Agency Agreement"), between the Lessee and Sumitomo Bank Leasing
and Finance, Inc. (the "Lessor" or "Secured Party"), the Lessee does hereby
quitclaim, sell, assign, transfer and set over unto the Secured Party and its
successors and assigns, all of the Lessee's right, title and interest in and to
the following (referred to collectively herein as the "Collateral"):
I all construction contracts relating to the Construction of the
Subject Improvements (including, without limitation, the Prime
Construction Contract), as each such agreement may hereafter be
supplemented, modified or amended from time to time (collectively, the
"Construction Contracts");
(ii) all architectural services agreements pertaining to the
Construction, as each such agreement may hereafter be supplemented,
modified or amended from time to time (collectively, the "Architect's
Agreements");
(iii) all plans, specifications and drawings of any and every kind
heretofore or hereafter prepared for use in connection with the
Construction of the Properties (including, without limitation, the Plans
and Specifications), and any supplements, amendments or modifications
thereto (collectively, the "Plans"); and
(iv) all building and other permits, licenses and governmental
approvals which are necessary or useful to the commencement and completion
of the Construction, or otherwise relate to the Construction, heretofore
or hereafter obtained or applied for by or on behalf of the Assignor or
any architects, engineers or contractors working on any aspect of the
Construction, and any deposits made in connection therewith (collectively,
the "Permits");
provided, however, that the Secured Party shall have no obligation or liability
of any kind under or with respect to the Construction Contracts, the Architect's
Agreements, the Permits
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or the Plans, either before or after the Secured Party's
exercise of any rights hereby granted to it, and the Assignor agrees to save and
hold the Secured Party harmless of and from, and to indemnify the Secured Party
against, any and all such obligations and liabilities, contingent or otherwise,
including without limitation attorneys' fees and expenses incurred in connection
therewith.
This Construction Documents Assignment shall inure to the benefit of the
Secured Party and its successors and assigns, and shall be binding upon the
Assignor and its successors and assigns, and shall continue in full force and
effect until all obligations, liabilities and indebtedness of any kind now or
hereafter due the Secured Party from the Assignor under or with respect to the
Lease or any of the other Operative Documents, or which are otherwise secured
hereby, whether now existing or hereafter arising or incurred (collectively, the
"Liabilities"), have been fully paid, performed and satisfied, and all
Commitments have terminated, at which time this Construction Documents
Assignment will terminate. The Secured Party will not exercise any of its rights
hereunder until there shall have occurred and be continuing a Lease Event of
Default.
For purposes of completing the Construction after any Lease Event of
Default shall have occurred and be continuing, the Secured Party may, at its
option, further assign its right, title and interest in the Collateral without
the consent of the Assignor, or any contractor or architect.
This Construction Documents Assignment is a present, perfected and
absolute assignment; provided, however, that the Secured Party shall not have
the right to undertake completion of the Construction or directly to enforce the
provisions of any Construction Contract or any Architect's Agreement until a
Lease Event of Default shall have occurred and be continuing. During the
continuance of any such Event of Default, the Secured Party may, without
affecting any other right or remedy available to it, exercise its rights under
this Construction Documents Assignment as provided herein in any manner
permitted by law. If any notice to the Assignor is required by law, such notice
shall be deemed commercially reasonable if given at least ten (10) days prior to
the date of intended action.
This Construction Documents Assignment may be effectively waived,
modified, amended or terminated only by a written instrument executed by the
Secured Party and the Lessee. Any waiver by the Secured Party shall be effective
only with respect to the specific instance described therein. Delay or course of
conduct shall not constitute a waiver of any right or remedy of the Secured
Party.
Unless the context shall otherwise require, capitalized
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terms used and not defined in this Construction Documents Assignment shall have
the meanings assigned thereto in Appendix A (as defined in the Construction
Agency Agreement) for all purposes hereof; and the rules of interpretation set
forth in Appendix A shall apply to this Construction Documents Assignment.
THIS CONSTRUCTION DOCUMENTS ASSIGNMENT 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.
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IN WITNESS WHEREOF, the undersigned has executed and delivered this
Construction Documents Assignment as of this third day of March, 1997 pursuant
to proper authority duly granted.
SYMANTEC CORPORATION,
as Construction Agent
By:
--------------------------------
Name:
Title:
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TABLE OF CONTENTS
SECTION Page
ARTICLE I
DEFINITIONS; INTERPRETATION
1.1. Definitions; Interpretation....................................... 2
ARTICLE II
APPOINTMENT OF CONSTRUCTION AGENT
2.1. Appointment....................................................... 2
2.2. Term.............................................................. 2
2.3. Construction Documents............................................ 2
2.4. Scope of Authority................................................ 3
2.5. Covenants of the Construction Agent............................... 4
ARTICLE III
THE SUBJECT IMPROVEMENTS
3.1. Construction of the Subject Improvements........................... 5
3.2. Estimated Improvement Costs........................................ 5
3.3. Amendments and Modifications to Plans and Specifications and
Construction Documents......................................... 5
ARTICLE IV
PAYMENT OF FUNDS
4.1. Funding of Property Improvements Costs............................ 6
ARTICLE V
CONSTRUCTION AGENCY EVENTS OF DEFAULT
5.1. Construction Agency Events of Default............................. 6
5.2. Survival.......................................................... 7
5.3. Remedies Cumulative; Waivers...................................... 7
ARTICLE VI
NO CONSTRUCTION AGENCY FEE
6.1. Lease as Fulfillment of Lessor's Obligations...................... 8
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ARTICLE VII
MISCELLANEOUS
7.1. Notices........................................................... 8
7.2. Successors and Assigns............................................ 8
7.3. GOVERNING LAW..................................................... 8
7.4. Amendments, etc................................................... 9
7.5. Counterparts...................................................... 9
7.6. Severability...................................................... 9
7.7. Headings and Table of Contents.................................... 9
Schedules and Annex
Schedule 1 Description of Land
Schedule 2 Plans and Specifications for Subject Improvements
Annex I Form of Construction Documents Assignment
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[EXECUTION COPY]
CONSTRUCTION DOCUMENTS ASSIGNMENT
FOR VALUE RECEIVED, and to secure the performance by SYMANTEC CORPORATION,
a Delaware corporation (hereinafter referred to as either the "Lessee" or
"Assignor"), of all of its obligations under that certain Construction Agency
Agreement dated as of February __, 1997 (as the same may be amended, modified or
restated from time to time, and together with all supplements thereto, the
"Construction Agency Agreement"), between the Lessee and Sumitomo Bank Leasing
and Finance, Inc. (the "Lessor" or "Secured Party"), the Lessee does hereby
quitclaim, sell, assign, transfer and set over unto the Secured Party and its
successors and assigns, all of the Lessee's right, title and interest in and to
the following (referred to collectively herein as the "Collateral"):
I. all construction contracts relating to the Construction of
the Subject Improvements (including, without limitation, the Prime
Construction Contract), as each such agreement may hereafter be
supplemented, modified or amended from time to time (collectively, the
"Construction Contracts");
(ii) all architectural services agreements pertaining to the
Construction, as each such agreement may hereafter be supplemented,
modified or amended from time to time (collectively, the "Architect's
Agreements");
(iii) all plans, specifications and drawings of any and every kind
heretofore or hereafter prepared for use in connection with the
Construction of the Properties (including, without limitation, the Plans
and Specifications), and any supplements, amendments or modifications
thereto (collectively, the "Plans"); and
(iv) all building and other permits, licenses and governmental
approvals which are necessary or useful to the commencement and completion
of the Construction, or otherwise relate to the Construction, heretofore
or hereafter obtained or applied for by or on behalf of the Assignor or
any architects, engineers or contractors working on any aspect of the
Construction, and any deposits made in connection therewith (collectively,
the "Permits");
provided, however, that the Secured Party shall have no obligation or liability
of any kind under or with respect to the Construction Contracts, the Architect's
Agreements, the Permits or the Plans, either before or after the Secured Party's
exercise of any rights hereby granted to it, and the Assignor agrees to
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save and hold the Secured Party harmless of and from, and to indemnify the
Secured Party against, any and all such obligations and liabilities, contingent
or otherwise, including without limitation attorneys' fees and expenses incurred
in connection therewith.
This Construction Documents Assignment shall inure to the benefit of the
Secured Party and its successors and assigns, and shall be binding upon the
Assignor and its successors and assigns, and shall continue in full force and
effect until all obligations, liabilities and indebtedness of any kind now or
hereafter due the Secured Party from the Assignor under or with respect to the
Lease or any of the other Operative Documents, or which are otherwise secured
hereby, whether now existing or hereafter arising or incurred (collectively, the
"Liabilities"), have been fully paid, performed and satisfied, and all
Commitments have terminated, at which time this Construction Documents
Assignment will terminate. The Secured Party will not exercise any of its rights
hereunder until there shall have occurred and be continuing a Lease Event of
Default.
For purposes of completing the Construction after any Lease Event of
Default shall have occurred and be continuing, the Secured Party may, at its
option, further assign its right, title and interest in the Collateral without
the consent of the Assignor, or any contractor or architect.
This Construction Documents Assignment is a present, perfected and
absolute assignment; provided, however, that the Secured Party shall not have
the right to undertake completion of the Construction or directly to enforce the
provisions of any Construction Contract or any Architect's Agreement until a
Lease Event of Default shall have occurred and be continuing. During the
continuance of any such Event of Default, the Secured Party may, without
affecting any other right or remedy available to it, exercise its rights under
this Construction Documents Assignment as provided herein in any manner
permitted by law. If any notice to the Assignor is required by law, such notice
shall be deemed commercially reasonable if given at least ten (10) days prior to
the date of intended action.
This Construction Documents Assignment may be effectively waived,
modified, amended or terminated only by a written instrument executed by the
Secured Party and the Lessee. Any waiver by the Secured Party shall be effective
only with respect to the specific instance described therein. Delay or course of
conduct shall not constitute a waiver of any right or remedy of the Secured
Party.
Unless the context shall otherwise require, capitalized terms used and not
defined in this Construction Documents Assignment shall have the meanings
assigned thereto in Appendix A
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(as defined in the Construction Agency Agreement) for all purposes hereof; and
the rules of interpretation set forth in Appendix A shall apply to this
Construction Documents Assignment.
THIS CONSTRUCTION DOCUMENTS ASSIGNMENT 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.
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IN WITNESS WHEREOF, the undersigned has executed and delivered this
Construction Documents Assignment as of this _____ day of _________________,
1997 pursuant to proper authority duly granted.
SYMANTEC CORPORATION,
as Construction Agent
By:
--------------------------------
Name:
Title:
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