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Exhibit 10.26
EXECUTION COPY
This instrument prepared by, recording requested by, and when recorded return
to:
MAYER, BROWN & PLATT
1675 Broadway
New York, New York 10019
Attention: Michael Sloyer, Esq.
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AMENDED AND RESTATED ASSIGNMENT OF LEASE AND RENT
dated as of February 9, 1999
from
SUMITOMO BANK LEASING AND FINANCE, INC.,
as ASSIGNOR
to
THE SUMITOMO BANK, LIMITED, LOS ANGELES BRANCH,
as Agent,
as ASSIGNEE
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AMENDED AND RESTATED ASSIGNMENT OF LEASE AND RENT
THIS AMENDED AND RESTATED ASSIGNMENT OF LEASE AND RENT, dated as of
February 9, 1999 (this "Assignment"), made by SUMITOMO BANK LEASING AND FINANCE,
INC., a Delaware corporation (the "Lessor"), to THE SUMITOMO BANK, LIMITED, LOS
ANGELES BRANCH, 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 by Master Amendment No. 1 dated as of March 3, 1997, and 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
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Assignment of Lease and Rent
rules of interpretation set forth in such Appendix A shall apply to this
Assignment.
2. Assignment. To secure its obligations under the Loan Agreement, the
Notes and the other Operative Documents, 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
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Assignment of Lease and Rent
default, (v) subject to the terms of the Operative Documents (and
subject to the consent of Required Participants), the 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
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Assignment of Lease and Rent
make claim for, receive, collect and receipt for all 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 attempted subordination, amendment, modification, extension or
termination without compliance with such Section 14.5 shall be
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Assignment of Lease and Rent
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 made in accordance with the
notice provisions of the Participation Agreement.
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Assignment of Lease and Rent
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 /s/ WILLIAM M. GINN
---------------------------------
Name: William M. Ginn
Title: President
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ALL-PURPOSE ACKNOWLEDGEMENT
State of New York )
)
County of Queens )
On February 8, 1999 before me, Jeannette Carmona ,
----------------------- ------------------------------------------
Date Name, Title of Officer, e.g., "Jane Doe,
Notary Public
personally appeared William M. Ginn ,
------------------------------------------------------------
[X] 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.
/s/ JEANNETTE CARMONA
-----------------------------------
Signature of Notary
CAPACITY CLAIMED BY SIGNER: SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
[ ] INDIVIDUAL(S) ______________________________
______________________________
[X] CORPORATE OFFICER(S) ______________________________
President
------------------------------
TITLE
------------------------------
TITLE
[ ] PARTNER(S)
[ ] ATTORNEY-IN-FACT
[ ] TRUSTEE(S)
[ ] SUBSCRIBING WITNESS
[ ] GUARDIAN/CONSERVATOR
[ ] OTHER _______________________
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-----------------------------
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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_____________________________
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 February __, 1999, pursuant to proper authority
duly granted.
SYMANTEC CORPORATION
By /s/ DEREK WITTE
-------------------------------
Name: Derek Witte
Title: VP WW OPS
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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 February ___, 1999 (the
"Assignment"), made by SUMITOMO BANK LEASING AND FINANCE, INC., (the "Lessor"),
in favor of THE SUMITOMO BANK, LIMITED, LOS ANGELES BRANCH, 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]
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ALL-PURPOSE ACKNOWLEDGEMENT
State of California )
)
County of Santa Clara )
On February 8, 1999 before me, Vibeke Cariato,
Date Name, Title of Officer, e.g., "Jane Doe,
Notary Public
personally appeared Derek Witte,
[X] 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.
/s/ VIBEKE CARIATO
-----------------------------------
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 _______________________
17
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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_____________________________
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 February 8, 1999, pursuant to proper authority
duly granted.
SYMANTEC CORPORATION
By /s/ DEREK WITTE
----------------------------------
Name: Derek Witte
Title: VP WW OPS