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EXHIBIT 10.12
PLEDGE AGREEMENT
(LAND)
AMONG
BNP LEASING CORPORATION
("BNPLC")
BNP PARIBAS, AS AGENT
("Agent")
EXTREME NETWORKS, INC.
("Extreme")
AND
PARTICIPANTS AS DESCRIBED HEREIN
June 1, 2000
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND INTERPRETATION........................................................................... -1-
Section 1.1 Capitalized Terms Used But Not Defined in This Agreement...................................... -1-
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Section 1.2 Definitions................................................................................... -1-
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Account.......................................................................................... -1-
Account Office................................................................................... -2-
Agent............................................................................................ -2-
BNPLC............................................................................................ -2-
BNPLC's Corresponding Obligations to Participants................................................ -2-
Cash Collateral.................................................................................. -2-
Certificate of Deposit........................................................................... -2-
Collateral....................................................................................... -2-
Collateral Imbalance............................................................................. -2-
Collateral Percentage............................................................................ -2-
Default.......................................................................................... -3-
Deposit Taker.................................................................................... -3-
Deposit Taker Losses............................................................................. -3-
Deposit Taker's Acknowledgment and Agreement..................................................... -3-
Disqualified Deposit Taker....................................................................... -3-
Event of Default................................................................................. -3-
Extreme.......................................................................................... -4-
Extreme's Purchase Agreement Obligations......................................................... -4-
Initially Qualified Deposit Taker................................................................ -5-
Lien............................................................................................. -5-
Material Lease Default........................................................................... -5-
Minimum Collateral Percentage.................................................................... -5-
Minimum Collateral Value......................................................................... -6-
Notice of Security Interest...................................................................... -6-
Other Liable Party............................................................................... -6-
Participants..................................................................................... -6-
Participation Agreement.......................................................................... -6-
Percentage....................................................................................... -6-
Qualified Pledge................................................................................. -6-
Secured Obligations.............................................................................. -6-
Supplement....................................................................................... -6-
Transaction Documents............................................................................ -6-
Value............................................................................................ -7-
Section 1.3 Attachments.................................................................................. -7-
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Section 1.4 Amendment of Defined Instruments............................................................. -7-
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Section 1.5 References and Titles........................................................................ -7-
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ARTICLE II SECURITY INTEREST....................................................................................... -7-
Section 2.1 Pledge and Grant of Security Interest........................................................ -7-
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Section 2.2 Return of Collateral After the Secured Obligations are Satisfied in Full..................... -8-
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ARTICLE III DETERMINATION OF THE COLLATERAL PERCENTAGE............................................................. -8-
Section 3.1 Determination of the Collateral Percentage Generally......................................... -8-
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Section 3.2 Limitations on Extreme's Right to Lower the Collateral Percentage............................ -8-
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Section 3.3 Minimum Collateral Percentages Dependent Upon the Adjusted EBITDAR Coverage Ratio............ -9-
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ARTICLE IV PROVISIONS CONCERNING DEPOSIT TAKERS.................................................................. -9-
Section 4.1 Qualification of Deposit Takers Generally.................................................... -9-
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Section 4.2 Existing Deposit Takers...................................................................... -9-
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Section 4.3 Replacement of Participants Proposed by Extreme.............................................. -10-
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Section 4.4 Mandatory Substitution for Disqualified Deposit Takers....................................... -10-
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Section 4.5 Voluntary Substitution of Deposit Takers..................................................... -10-
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Section 4.6 Delivery of Notice of Security Interest by Extreme and Agent................................. -10-
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Section 4.7 Constructive Possession of Collateral........................................................ -11-
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Section 4.8 Attempted Setoff by Deposit Takers........................................................... -11-
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Section 4.9 Deposit Taker Losses......................................................................... -11-
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Section 4.10 Losses Resulting from Failure of Deposit Taker to Comply with this Agreement................ -11-
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ARTICLE V DELIVERY AND MAINTENANCE OF CASH COLLATERAL............................................................ -12-
Section 5.1 Delivery of Funds by Extreme................................................................. -12-
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Section 5.2 Transition Account........................................................................... -12-
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Section 5.3 Allocation of Cash Collateral Among Deposit Takers........................................... -12-
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Section 5.4 Issuance and Redemption of Certificates of Deposit........................................... -13-
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Section 5.5 Status of the Accounts Under the Reserve Requirement Regulations............................. -13-
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Section 5.6 Acknowledgment by Extreme that Requirements of this Agreement are Commercially Reasonable.... -13-
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ARTICLE VI WITHDRAWAL OF CASH COLLATERAL......................................................................... -14-
Section 6.1 Withdrawal of Collateral Prior to the Designated Sale Date................................... -14-
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Section 6.2 Withdrawal and Application of Cash Collateral to Reduce or Satisfy the Secured
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Obligations to the Participants............................................................. -14-
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Section 6.3 Withdrawal and Application of Cash Collateral to Reduce or Satisfy the Secured
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Obligations to BNPLC........................................................................ -15-
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Section 6.4 Withdrawal of Cash Collateral From Accounts Maintained by Disqualified Deposit Takers........ -15-
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ARTICLE VII REPRESENTATIONS AND COVENANTS OF Extreme............................................................. -15-
Section 7.1 Representations of Extreme................................................................... -15-
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Section 7.2 Covenants of Extreme......................................................................... -16-
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ARTICLE VIII AUTHORIZED ACTION BY AGENT......................................................................... -17-
Section 8.1 Power of Attorney............................................................................ -17-
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ARTICLE IX DEFAULT AND REMEDIES................................................................................. -18-
Section 9.1 Remedies..................................................................................... -18-
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ARTICLE X OTHER RECOURSE........................................................................................ -18-
Section 10.1 Recovery Not Limited........................................................................ -18-
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ARTICLE XI PROVISIONS CONCERNING AGENT........................................................................... -19-
Section 11.1 Appointment and Authority................................................................... -19-
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Section 11.2 Exculpation, Agent's Reliance, Etc.......................................................... -19-
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Section 11.3 Participant's Credit Decisions.............................................................. -20-
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Section 11.4 Indemnity................................................................................... -20-
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Section 11.5 Agent's Rights as Participant and Deposit Taker............................................. -20-
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Section 11.6 Investments................................................................................. -20-
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Section 11.7 Benefit of Article XI....................................................................... -21-
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Section 11.8 Resignation................................................................................. -21-
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ARTICLE XII MISCELLANEOUS........................................................................................ -21-
Section 12.1 Provisions Incorporated From Other Operative Documents....................................... -21-
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Section 12.2 Cumulative Rights, etc...................................................................... -21-
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Section 12.3 Survival of Agreements...................................................................... -21-
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Section 12.4 Other Liable Party.......................................................................... -22-
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Section 12.5 Termination................................................................................. -22-
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Attachment 1.........................................................................Form of Certificate of Deposit
Attachment 2..................................................................Supplement to Pledge Agreement (Land)
Attachment 3.......................................Notice of Extreme's Election to Change the Collateral Percentage
Attachment 4............................................................................Notice of Security Interest
Attachment 5...............................................................................Examples of Calculations
Attachment 6.....................................Notice of Extreme's Requirement to Withdraw Excess Cash Collateral
Attachment 7.....................................Notice of Extreme's Requirement of Direct Payments to Participants
Attachment 8.....................................Notice of Extreme's Requirement of Direct Payments to Participants
Attachment 9........................................................Notice of Extreme's Requirement of a Withdrawal
of Cash Collateral from a Disqualified Deposit Taker
Schedule 1...............................................................Financial Covenants and Negative Covenants
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PLEDGE AGREEMENT
(LAND)
This PLEDGE AGREEMENT (LAND) (this "Agreement") is made as of June 1, 2000
(the "Effective Date"), by EXTREME NETWORKS, INC., a California corporation
("Extreme"); BNP LEASING CORPORATION, a Delaware corporation ("BNPLC"); BNP
PARIBAS ("BNPLC's Parent"), as a "Participant"; and BNP PARIBAS, acting in its
capacity as agent for BNPLC and the Participants (in such capacity, "Agent").
RECITALS
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A. Extreme and BNPLC are parties to: (i) a Common Definitions and
Provisions Agreement (Land) dated as of the Effective Date (the "Common
Definitions and Provisions Agreement (Land)"); and (ii) a Purchase Agreement
(Land) dated as of the Effective Date (the "Purchase Agreement"), pursuant to
which Extreme has agreed to make a "Supplemental Payment" (as defined in the
Common Definitions and Provisions Agreement (Land)), in consideration of the
rights granted to Extreme by the Purchase Agreement.
B. Pursuant to a Participation Agreement dated the date hereof (the
"Participation Agreement"), BNPLC's Parent has agreed with BNPLC to participate
in the risks and rewards to BNPLC of the Purchase Agreement and other Operative
Documents (as defined in the Common Definitions and Provisions Agreement
(Land)), and the parties to this Agreement anticipate that other financial
institutions may become parties to the Participation Agreement as Participants,
agreeing to participate in the risks and rewards to BNPLC of the Purchase
Agreement and other Operative Documents.
C. Extreme may from time to time deliver cash collateral for its
obligations to BNPLC under the Purchase Agreement and for BNPLC's corresponding
obligations to Participants under the Participation Agreement. This Agreement
sets forth the terms and conditions governing such cash collateral.
AGREEMENT
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NOW, THEREFORE, in consideration of the above recitals and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I DEFINITIONS AND INTERPRETATION
Section 1.1 Capitalized Terms Used But Not Defined in This Agreement. All
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capitalized terms used in this Agreement which are defined in Article I of
the Common Definitions and Provisions Agreement (Land) and not otherwise defined
herein shall have the same meanings herein as set forth in the Common
Definitions and Provisions Agreement (Land). All terms used in this Agreement
which are defined in the UCC and not otherwise defined herein shall have the
same meanings herein as set forth therein, except where the context otherwise
requires.
Section 1.2 Definitions. When used in this Agreement, the following terms
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shall have the following respective meanings:
"Account" shall mean any deposit account maintained by a Deposit Taker
into which Cash Collateral may be deposited at any time, excluding the
Transition Account.
"Account Office" shall mean, with respect to any Account maintained by
any Deposit Taker, the office of such Deposit Taker in California or New
York at which such Account is maintained as specified in the applicable
Deposit Taker's Acknowledgment and Agreement.
"Agent" shall have the meaning given to that term in the introductory
paragraph hereof.
"BNPLC" shall have the meaning given to that term in the introductory
paragraph hereof.
"BNPLC's Corresponding Obligations to Participants" shall mean BNPLC's
obligations under the Participation Agreement to pay Participants their
respective Percentages of (or amounts equal to their respective Percentages
of) sums "actually received by BNPLC" (as defined in the Participation
Agreement) in satisfaction of Extreme's Purchase Agreement Obligations;
provided, however, any modification of the Participation Agreement executed
after the date hereof without Extreme's written consent shall not be
considered for purposes of determining BNPLC's Corresponding Obligations to
Participants under this Agreement.
"Cash Collateral" shall mean (i) all money of Extreme which Extreme
has delivered to Agent for deposit with a Deposit Taker pursuant to this
Agreement, and (ii) any additional money delivered to Agent as Collateral
pursuant to Section 4.9.
"Certificate of Deposit" shall mean a certificate of deposit issued by
a Deposit Taker as required by Section 5.4 below to evidence an Account
into which Cash Collateral has been deposited pursuant to this Agreement.
Each Certificate of Deposit shall be issued in an amount equal to the Value
of the Account which it evidences and shall otherwise be in the form set
forth as ATTACHMENT 1.
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"Collateral" shall have the meaning given to that term in Section 2.1
hereof.
"Collateral Imbalance" shall mean on any date prior to the Designated
Sale Date that the Value (without duplication) of Accounts maintained by
and Certificates of Deposit issued by the Deposit Taker for any Participant
(other than a Disqualified Deposit Taker) does not equal such Participant's
Percentage, multiplied by the lesser of (1) the Minimum Collateral Value in
effect on such date, or (2) the aggregate Value of all Collateral subject
to this Agreement on such date. For purposes of determining whether a
Collateral Imbalance exists, the Value of any Accounts maintained by a bank
that is acting as Deposit Taker for two or more Participants will be deemed
to be held for them in proportion to their respective Percentages, and the
Value of any Accounts maintained by a bank as Deposit Taker for both a
Participant and BNPLC (as in the case of BNPLC's Parent acting as Deposit
Taker for itself, as a Participant, and for BNPLC) will be deemed to be
held for the Participant only to the extent necessary to prevent or
mitigate a Collateral Imbalance and otherwise for BNPLC.
"Collateral Percentage" shall mean the percentage designated by
Extreme in accordance with this Agreement from time to time, but never less
than the Minimum Collateral Percentage established as provided in Part III
of Schedule 1.
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"Default" means any Event of Default and any default, event or
condition which would, with the giving of any requisite notices and the
passage of any requisite periods of time, constitute an Event of Default.
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"Deposit Taker" for BNPLC shall mean BNPLC's Parent and for each
Participant shall mean the Participant itself; provided, that each of BNPLC
and the Participants, for itself only, may from time to time designate
another Deposit Taker as provided in Sections 4.4 and 4.5 below.
"Deposit Taker Losses" shall mean the Value of any Cash Collateral
delivered to a Deposit Taker, but that the Deposit Taker will not (because
of the insolvency of the Deposit Taker, offsets by the Deposit Taker in
violation of the Deposit Taker's Acknowledgment and Agreement, or
otherwise) return to Extreme or return to Agent for disposition or
application as provided herein or as required by applicable law.
"Deposit Taker's Acknowledgment and Agreement" shall have the meaning
given to that term in subsection 4.1.2 hereof.
"Disqualified Deposit Taker" shall mean any Deposit Taker with whom
Agent may decline to deposit Collateral pursuant to Section 4.1.
"Event of Default" shall mean the occurrence of any of the following:
(a) the failure by Extreme to pay all or any part of Extreme's
Purchase Agreement Obligations when due, after giving effect to any
applicable notice and grace periods expressly provided for in the
Purchase Agreement;
(b) the failure by Extreme to provide funds as and when required
by Section 5.1 of this Agreement, if within seven Business Days after
such failure commences Extreme does not (1) cure such failure by
delivering the funds required by Section 5.1, and (2) pay to BNPLC as
additional Rent under the Land Lease an amount equal to interest at
the Default Rate (as defined in the Land Lease) on such funds for the
period from which they were first due to the date of receipt by Agent;
(c) the failure of the pledge or security interest contemplated
herein in the Transition Account or any Account, Certificate of
Deposit or Cash Collateral to be a Qualified Pledge (regardless of the
characterization of the Transition Account or any Accounts,
Certificates of Deposit or Cash Collateral as deposit accounts,
instruments or general intangibles under the UCC), unless:
(I) such failure would not exist but for a breach of this
Agreement by Agent or a breach of a Deposit Taker's
Acknowledgment and Agreement by a Deposit Taker, or
(II) within five Business Days after Extreme becomes aware
of such failure, Extreme shall (1) notify Agent, BNPLC and the
Participants of such failure, and (2) cure such failure, and (3)
to the extent required by Section 7.2.9, pay to BNPLC any
additional Base Rent that has accrued under the Land Lease
because of (or that would have accrued if BNPLC had been aware
of) such failure, together with interest at the Default Rate on
any such additional Base Rent;
(d) the failure of any representation herein by Extreme to be
true (other than a failure described in another clause of this
definition of Event of Default), if such failure is not cured within
thirty days after Extreme receives written notice thereof from Agent;
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(e) the failure of any representation made by Extreme in
subsection 7.1.1 to be true, if within fifteen (15) days after Extreme
becomes aware of such failure, Extreme does not (1) notify Agent,
BNPLC and the Participants of such failure, and (2) cure such failure,
and (3) pay to BNPLC any additional Base Rent that has accrued under
the Land Lease because of (or that would have accrued if BNPLC had
been aware of) such failure, and (4) pay to BNPLC interest at the
Default Rate on any such additional Base Rent;
(f) the failure by Extreme timely and properly to observe, keep
or perform any covenant, agreement, warranty or condition herein
required to be observed, kept or performed (other than a failure
described in another clause of this definition of Event of Default),
if such failure is not cured within thirty days after Extreme receives
written notice thereof from Agent; and
(g) the failure by BNPLC to pay when due on or after the
Designated Sale Date any of BNPLC's Corresponding Obligations to
Participants, after giving effect to any applicable notice and grace
periods expressly provided for in the Participation Agreement.
Notwithstanding the foregoing, if ever the aggregate Value of Cash
Collateral held by Agent and the Deposit Takers exceeds the Minimum
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Collateral Value then in effect, a failure of the pledge or security
interest contemplated herein in such excess Cash Collateral to be a valid,
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perfected, first priority pledge or security interest shall not constitute
an Event of Default under this Agreement. Accordingly, to provide a cure as
required to avoid an Event of Default under clauses (c) or (e) of this
definition, Extreme could deliver additional Cash Collateral - the pledge
of which or security interest in which created by this Agreement is a
Qualified Pledge - sufficient in amount to cause the aggregate Value of the
Cash Collateral then held by Agent and the Deposit Takers subject to a
Qualified Pledge hereunder to equal or exceed the Minimum Collateral Value.
"Extreme" shall have the meaning given to that term in the
introductory paragraph hereof.
"Extreme's Purchase Agreement Obligations" shall mean all of Extreme's
obligations under the Purchase Agreement, including (i) Extreme's
obligation to pay any Supplemental Payment as required under subparagraph
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1(A) of the Purchase Agreement, and (ii) any damages incurred by BNPLC
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because of (A) Extreme's breach of the Purchase Agreement or (B) the
rejection by Extreme of the Purchase Agreement in any bankruptcy or
insolvency proceeding.
"Initially Qualified Deposit Taker" means (1) BNP PARIBAS, acting
through any branch, office or agency that can lawfully maintain an Account
as a Deposit Taker hereunder, and (2) any of the fifty largest (measured by
total assets) U.S. banks, or one of the one hundred largest (measured by
total assets) banks in the world, with debt ratings of at least (i) A- (in
the case of long term debt) and A-1 (in the case of short term debt) or the
equivalent thereof by Standard and Poor's Corporation, and (ii) A3 (in the
case of long term debt) and P-2 (in the case of short term debt) or the
equivalent thereof by ▇▇▇▇▇'▇ Investor Service, Inc. The parties believe it
improbable that the ratings systems used by Standard and Poor's Corporation
and by ▇▇▇▇▇'▇ Investor Service, Inc. will be discontinued or changed, but
if such ratings systems are discontinued or changed, Extreme shall be
entitled to select and use a comparable ratings systems as a substitute for
the S&P Rating or the ▇▇▇▇▇ Rating, as the case may be, for purposes of
determining the status of any bank as an Initially Qualified Deposit Taker.
"Lien" shall mean, with respect to any property or assets, any right
or interest therein of a creditor to secure indebtedness of any kind which
is owed to him or any other arrangement with such creditor which provides
for the payment of such indebtedness out of such property or assets
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or which allows him to have such indebtedness satisfied out of such
property or assets prior to the general creditors of any owner thereof,
including any lien, mortgage, security interest, pledge, deposit,
production payment, rights of a vendor under any title retention or
conditional sale agreement or lease substantially equivalent thereto, tax
lien, mechanic's or materialman's lien, or any other charge or encumbrance
for security purposes, whether arising by law or agreement or otherwise,
but excluding any right of setoff which arises without agreement in the
ordinary course of business. "Lien" also means any filed financing
statement, any registration with an issuer of uncertificated securities, or
any other arrangement which would serve to perfect a Lien described in the
preceding sentence, regardless of whether such financing statement is
filed, such registration is made, or such arrangement is undertaken before
or after such Lien exists.
"Material Lease Default" shall mean any of the following:
(1) any "Event of Default" under and as defined in the Land
Lease, including any such Event of Default consisting of a failure of
Extreme to comply with the requirements of Schedule I attached to the
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Land Lease; and
(2)(a) any failure of Extreme to make any payment required by and
when first due under the Land Lease, regardless of whether any period
provided in the Land Lease for the cure of such failure by Extreme
shall have expired, and (b) any other default, event or condition
which would, with the giving of any requisite notices and the passage
of any requisite periods of time, constitute an "Event of Default"
under and as defined in the Land Lease, if such other default, event
or failure involves a material noncompliance with Applicable Law. (For
purposes of this definition, "material" noncompliance with Applicable
Law will include any noncompliance, the correction of which has been
requested by a governmental authority, or because of which a threat of
action against the Property or BNPLC has been asserted by a
governmental authority.)
"Minimum Collateral Percentage" shall mean the percentage established
as such from time to time as described in Part III of Schedule 1.
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"Minimum Collateral Value" shall mean (1) as of the Designated Sale
Date or any prior date, an amount equal to the Collateral Percentage
multiplied by the Stipulated Loss Value determined as of that date in
accordance with the Land Lease; and (2) as of any date after the Designated
Sale Date, an amount equal to the Break Even Price plus any unpaid interest
accrued on past due amounts payable pursuant to Paragraph 1(a) of the
Purchase Agreement.
"Notice of Security Interest" shall have the meaning given to
that term in subsection 4.1.1 hereof.
"Other Liable Party" shall mean any Person, other than Extreme, who
may now or may at any time hereafter be primarily or secondarily liable for
any of the Secured Obligations or who may now or may at any time hereafter
have granted to Agent a pledge of or security interest in any of the
Collateral.
"Participants" shall mean BNPLC's Parent and any other financial
institutions which may hereafter become parties to (i) this Agreement by
completing, executing and delivering to Extreme and Agent a Supplement, and
(ii) the Participation Agreement.
"Participation Agreement" shall have the meaning given to such term in
Recital B hereof.
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"Percentage" shall mean with respect to each Participant and the
Deposit Taker for such Participant, such Participant's "Percentage" under
and as defined in the Participation Agreement for purposes of computing
such Participant's right thereunder to receive payments of (or amounts
equal to a percentage of) any sales proceeds or Supplemental Payment
received by BNPLC under the Purchase Agreement. Percentages may be adjusted
from time to time as provided in the Participation Agreement or as provided
in supplements thereto executed as provided in the Participation Agreement.
"Qualified Pledge" means a pledge or security interest that
constitutes a valid, perfected, first priority pledge or security interest.
"Secured Obligations" shall mean and include both Extreme's Purchase
Agreement Obligations and BNPLC's Corresponding Obligations to
Participants.
"Supplement" shall mean a supplement to this Agreement in the form of
ATTACHMENT 2.
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"Transaction Documents" shall mean, collectively, this Agreement, the
Land Lease, the Purchase Agreement and the Participation Agreement.
"Transition Account" shall have the meaning given it in Section 5.2.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
of California from time to time, and the Uniform Commercial Code as in
effect in any other jurisdiction which governs the perfection or non-
perfection of the pledge of and security interests in the Collateral
created by this Agreement.
"Value" shall mean with respect to any Account, Certificate of Deposit
or Cash Collateral on any date, a dollar value determined as follows
(without duplication):
(a) cash shall be valued at its face amount on such date;
(b) an Account shall be valued at the principal balance thereof
on such date; and
(c) a Certificate of Deposit shall be valued at the face amount
thereof.
Section 1.3 Attachments. All attachments to this Agreement are a part
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hereof for all purposes.
Section 1.4 Amendment of Defined Instruments. Unless the context otherwise
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requires or unless otherwise provided herein, references in this Agreement to a
particular agreement, instrument or document (including references to the Land
Lease, Purchase Agreement and Participation Agreement) also refer to and include
all valid renewals, extensions, amendments, modifications, supplements or
restatements of any such agreement, instrument or document; provided that
nothing contained in this Section shall be construed to authorize any Person to
execute or enter into any such renewal, extension, amendment, modification,
supplement or restatement.
Section 1.5 References and Titles. All references in this Agreement to
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Attachments, Articles, Sections, subsections, and other subdivisions refer to
the Attachments, Articles, Sections, subsections and other subdivisions of this
Agreement unless expressly provided otherwise. Titles appearing at the
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beginning of any subdivision are for convenience only and do not constitute any
part of any such subdivision and shall be disregarded in construing the language
contained in this Agreement. The words "this Agreement", "herein", "hereof",
"hereby", "hereunder" and words of similar import refer to this Agreement as a
whole and not to any particular subdivision unless expressly so limited. The
phrases "this Article," "this Section" and "this subsection" and similar phrases
refer only to the Articles, Sections or subsections hereof in which the phrase
occurs. The word "or" is not exclusive, and the word "including" (in all of its
forms) means "including without limitation". Pronouns in masculine, feminine and
neuter gender shall be construed to include any other gender, and words in the
singular form shall be construed to include the plural and vice versa unless the
context otherwise requires.
ARTICLE II SECURITY INTEREST
Section 2.1 Pledge and Grant of Security Interest. As security for the
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Secured Obligations, Extreme hereby pledges and assigns to Agent (for the
ratable benefit of BNPLC and the Participants) and grants to Agent (for the
ratable benefit of BNPLC and the Participants) a continuing security interest
and lien in and against all right, title and interest of Extreme in and to the
following property, whether now owned or hereafter acquired by Extreme
(collectively and severally, the "Collateral"):
(a) All Cash Collateral, all Accounts, the Transition Account and all
Certificates of Deposit issued from time to time and general intangibles
arising therefrom or relating thereto (however, "general intangibles" as
used in this clause shall not include any general intangibles not related
to Cash Collateral, Accounts, the Transition Account or Certificates of
Deposit issued from time to time, and thus will not include, without
limitation, any intellectual property of Extreme); and all documents,
instruments and agreements evidencing the same; and all extensions,
renewals, modifications and replacements of the foregoing; and any interest
or other amounts payable in connection therewith; and
(b) All proceeds of the foregoing (including whatever is receivable
or received when Collateral or proceeds is invested, sold, collected,
exchanged, returned, substituted or otherwise disposed of, whether such
disposition is voluntary or involuntary, including rights to payment and
return premiums and insurance proceeds under insurance with respect to any
Collateral, and all rights to payment with respect to any cause of action
affecting or relating to the Collateral).
The pledge, assignment and grant of a security interest made by Extreme
hereunder is for security of the Secured Obligations only; the parties to this
Agreement do not intend that Extreme's delivery of the Collateral to Agent as
herein provided will constitute an advance payment of any Secured Obligations or
liquidated damages, nor do the parties intend that the Collateral increase the
dollar amount of the Secured Obligations.
Section 2.2 Return of Collateral After the Secured Obligations are
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Satisfied in Full. If any proceeds of Collateral remain after all Secured
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Obligations have been paid in full, Agent will deliver or direct the Deposit
Takers to deliver such proceeds to Extreme or other Persons entitled thereto by
law.
ARTICLE III DETERMINATION OF THE COLLATERAL PERCENTAGE
Section 3.1 Determination of the Collateral Percentage Generally.
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Effective as of the date of this Agreement, and until a new Collateral
Percentage becomes effective, the Collateral Percentage is 100%. Subject to the
provisions of this Article III, Extreme may from time to time designate a new
Collateral Percentage which is any multiple of 10% from 0% to 100% (i.e., 0%,
10%, 20%, 30%, etc.) by written notice delivered to Agent, BNPLC and the
Participants in the form of ATTACHMENT 3. Any new Collateral Percentage so
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designated shall not become effective, however, until the commencement of the
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next following Base Rent Period which is at least ten Business Days after the
receipt of such notice by Agent, BNPLC and the Participants. Further, if Extreme
provides more than one notice of a change in the Collateral Percentage to be
effective on a the first day of a particular Base Rent Period, then the latest
such notice from Extreme which satisfies the requirements of the preceding
sentence (and of Sections 3.2 and 3.3) will control. Without limiting mandatory
changes in the Collateral Percentage required by Section 3.3, in no event shall
the Collateral Percentage be changed more often than once in any calendar
quarter because of any election by Extreme to designate a new Collateral
Percentage as provided in this Section. After any Collateral Percentage becomes
effective as provided in this Article, it shall remain in effect until a
different Collateral Percentage becomes effective as provided in this Article.
Section 3.2 Limitations on Extreme's Right to Lower the Collateral
------------------------------------------------------
Percentage. Notwithstanding the foregoing, no designation by Extreme of a new
----------
Collateral Percentage will be effective to reduce the Collateral Percentage if
the designation is given, or the reduction would otherwise become effective, on
or after the Designated Sale Date or when any of the following shall have
occurred and be continuing:
3.2.1 any Material Lease Default;
3.2.2 any Event of Default under and as defined in this Agreement;
3.2.3 any Default under and as defined in this Agreement -excluding,
however, any such Default limited to a failure of Extreme described in
clause (c) or clause (e) of the definition of Event of Default above, with
respect to which the time for cure specified in clause (c) or clause (e),
as applicable, has not expired.
Section 3.3 Minimum Collateral Percentages Dependent Upon the Adjusted
----------------------------------------------------------
EBITDAR Coverage Ratio. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN
----------------------
CONTAINED, THE COLLATERAL PERCENTAGE SHALL NOT BE LESS THAN THE MINIMUM
COLLATERAL PERCENTAGE ESTABLISHED FROM TIME TO TIME AS DESCRIBED IN PART III OF
SCHEDULE 1. Accordingly, and because a new Base Rent Period will begin on the
----------
first Business Day of the first calendar month following any Failed Collateral
Test Date as provided in subparagraph 3(c)(ii)a) of the Land Lease, Extreme
-----------------------
shall be required by Section 5.1 to deliver additional Collateral on the first
Business Day of the first calendar month after any Failed Collateral Test Date.
ARTICLE IV PROVISIONS CONCERNING DEPOSIT TAKERS
Section 4.1 Qualification of Deposit Takers Generally. Agent may decline
-----------------------------------------
to deposit or maintain Collateral hereunder with any Person designated as a
Deposit Taker, if such Person has failed to satisfy or no longer satisfies the
following requirements:
4.1.1 Such Person must have received from Agent and Extreme a
completed, executed Notice of Security Interest in the form of ATTACHMENT 4
------------
(a "Notice of Security Interest") which specifically identifies any and all
Accounts in which such Person shall hold Cash Collateral delivered to it
pursuant to this Agreement and which designates Account Offices with
respect to all such Accounts in New York or California.
4.1.2 Such Person must have executed the Acknowledgment and Agreement
at the end of such Notice of Security Interest (the "Deposit Taker's
Acknowledgment and Agreement") and returned the same to Agent. Further,
such Person must have complied with the Deposit Taker's Acknowledgment and
Agreement, and the representations set forth therein with respect to such
Person must continue to be true and correct.
-8-
4.1.3 Such Person must be a commercial bank, organized under the laws
of the United States of America or a state thereof or under the laws of
another country which is doing business in the United States of America;
must be authorized to maintain deposit accounts for others through Account
Offices in New York or California (as specified in the Deposit Taker's
Acknowledgment and Agreement); and must be an Affiliate of BNPLC or the
Participant for whom such Person will act as Deposit Taker or must have a
combined capital, surplus and undivided profits of at least $500,000,000.
4.1.4 Such Person must have complied with the provisions in this
Agreement applicable to Deposit Takers, including the provisions of Section
5.4 concerning the issuance and redemption of Certificates of Deposit.
Section 4.2 Existing Deposit Takers. BNPLC's Parent (as Deposit Taker for
-----------------------
itself and for BNPLC) has received a Notice of Security Agreement dated the
Effective Date and has responded to such a notice with a Deposit Taker's
Acknowledgment and Agreement dated the Effective Date, as contemplated in
subsections 4.1.1 and 4.1.2.
Section 4.3 Replacement of Participants Proposed by Extreme. So long as no
-----------------------------------------------
Event of Default has occurred and is continuing, BNPLC shall not unreasonably
withhold its approval for a substitution under the Participation Agreement of a
new Participant proposed by Extreme for any Participant, the Deposit Taker for
whom would no longer meet the requirements for an Initially Qualified Deposit
Taker; provided, however, that (A) the proposed substitution can be accomplished
without a release or breach by BNPLC of its rights and obligations under the
Participation Agreement; (B) the new Participant will agree (by executing a
Supplement and a supplement to the Participation Agreement as contemplated
therein and by other agreements as may be reasonably required by BNPLC and
Extreme) to become a party to the Participation Agreement and to this Agreement,
to designate an Initially Qualified Deposit Taker as the Deposit Taker for it
under this Agreement and to accept a Percentage under the Participation
Agreement equal to the Percentage of the Participant to be replaced; (C) the new
Participant (or Extreme) will provide the funds required to pay the termination
fee by Section 6.4 of the Participation Agreement to accomplish the
-----------
substitution; (D) Extreme (or the new Participant) agrees in writing to
indemnify and defend BNPLC for any and all Losses incurred by BNPLC in
connection with or because of the substitution, including the cost of preparing
supplements to the Participation Agreement and this Agreement and including any
cost of defending and paying any claim asserted by the Participant to be
replaced because of the substitution (but not including any liability of BNPLC
to such Participant for damages caused by BNPLC's bad faith or gross negligence
in the performance of BNPLC's obligations under the Participation Agreement
prior to the substitution); (E) the new Participant shall be a reputable
financial institution having a net worth of no less than seven and one half
percent (7.5%) of total assets and total assets of no less than
$10,000,000,000.00 (all according to then recent audited financial statements);
and (F) in no event will BNPLC be required to approve a substitution pursuant to
this Section 4.3 which will replace a Participant that is an Affiliate of BNPLC.
BNPLC shall attempt in good faith to assist (and cause BNPLC's Parent to attempt
in good faith to assist) Extreme in identifying a new Participant that Extreme
may propose to substitute for an existing Participant pursuant to this Section,
as Extreme may reasonably request from time to time. However, in no event shall
BNPLC itself, or any of its Affiliates, be required to take the Percentage of
any Participant to be replaced.
Section 4.4 Mandatory Substitution for Disqualified Deposit Takers. If any
------------------------------------------------------
Deposit Taker shall cease to satisfy the requirements set forth in Section 4.1,
the party for whom such Disqualified Deposit Taker has been designated as
Deposit Taker (i.e., BNPLC or the applicable Participant) shall promptly (1)
provide notice thereof to Agent and Extreme, and (2) designate a substitute
Deposit Taker and cause the substitute to satisfy the requirements set forth in
Section 4.1. Pending the designation of the substitute and the satisfaction by
it of the requirements set forth in Section 4.1, Agent may withdraw Collateral
held by
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the Disqualified Deposit Taker and deposit such Collateral with other Deposit
Takers, subject to Section 5.3 below.
Section 4.5 Voluntary Substitution of Deposit Takers. With the written
----------------------------------------
approval of Agent, which approval will not be unreasonably withheld, BNPLC or
any Participant may at any time designate for itself a new Deposit Taker (in
replacement of any prior Deposit Taker acting for it hereunder); provided, the
Person so designated has satisfied the requirements set forth in Section 4.1;
and, provided further, unless the designation of a new Deposit Taker is required
by Section 4.4 to replace a Disqualified Deposit Taker, at the time of the
replacement such Person must be an Initially Qualified Deposit Taker.
Section 4.6 Delivery of Notice of Security Interest by Extreme and
------------------------------------------------------
Agent. To the extent required for the designation of a new Deposit Taker by
-----
BNPLC or any Participant pursuant to Section 4.5, or to permit the substitution
or replacement of a Deposit Taker for BNPLC or any Participant as provided in
Sections 4.4 and 4.5, Extreme and Agent shall promptly execute and deliver any
properly completed Notice of Security Interest requested by BNPLC or the
applicable Participant.
Section 4.7 Constructive Possession of Collateral. The possession by a
-------------------------------------
Deposit Taker of any deposit accounts, money, instruments, chattel paper or
other property constituting Collateral or evidencing Collateral shall be deemed
to be possession by Agent or a person designated by Agent, for purposes of
perfecting the security interest granted to Agent hereunder pursuant to the UCC
or other Applicable Law; and notifications to a Deposit Taker by other Persons
holding any such property, and Acknowledgments, receipts or confirmations from
any such Persons delivered to a Deposit Taker, shall be deemed notifications to,
or Acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of such Deposit Taker for the benefit of Agent
for the purposes of perfecting such security interests under Applicable Law.
Section 4.8 Attempted Setoff by Deposit Takers. By delivery of a
----------------------------------
Deposit Taker's Acknowledgment and Agreement, each Deposit Taker shall be
required to agree not to setoff or attempt a setoff, without in each case first
--------------------------
obtaining the prior written authorization of Agent, Secured Obligations owed to
--------------------------------------------------
it against any Collateral held by it from time to time. Further, by delivery of
a Deposit Taker's Acknowledgment and Agreement, each Deposit Taker shall be
required to agree not to setoff or attempt a setoff, without in each case first
--------------------------
obtaining the prior written authorization of both Extreme and Agent, obligations
-------------------------------------------------------------------
owed to it other than Secured Obligations against any Collateral held by it from
time to time. Any Deposit Taker for BNPLC or a Participant shall not be
permitted by BNPLC or the applicable Participant, as the case may be, to violate
such agreements. However, Extreme acknowledges and agrees (without limiting its
right to recover damages from a Deposit Taker that violates such agreements)
that Agent shall not be responsible for, or be deemed to have taken any action
against Extreme because of, any Deposit Taker's violation of such agreements;
and, neither BNPLC nor any Participant shall be responsible for, or be deemed to
have taken any action against Extreme because of, any violation of such
agreements by a Deposit Taker for another party.
Section 4.9 Deposit Taker Losses. Agent shall not be responsible for
--------------------
any Deposit Taker Losses. However, Deposit Taker Losses with respect to a
Deposit Taker for a particular Participant shall reduce the amount of BNPLC's
Corresponding Obligations to Participants which are payable to such Participant
as provided in Section 2.2 of the Participation Agreement. Further, when Deposit
-----------
Taker Losses with respect to a Deposit Taker for a particular Participant are
incurred in excess of the payments of Secured Obligations that such Participant
would then have been entitled to receive under the Participation Agreement but
for such Deposit Taker Losses, such Participant must immediately pay the excess
to Agent as additional Collateral hereunder, failing which Extreme may recover
any damages suffered by it because of the Deposit Taker Losses from such Deposit
Taker or such Participant.
-10-
Section 4.10 Losses Resulting from Failure of Deposit Taker to Comply
--------------------------------------------------------
with this Agreement. Any Participant, the Deposit Taker for whom has failed to
-------------------
comply with the requirements of this Agreement or any Notices of Security
Interest and any Deposit Taker's Acknowledgments and Agreements (the
"Responsible Participant") must defend, indemnify, and hold harmless BNPLC,
Agent and the other Participants from and against any Losses resulting from such
failure. Without limiting the foregoing, if the failure of a Deposit Taker for a
Responsible Participant to comply strictly with the terms of this Agreement
(including, without limitation, the provisions of Section 5.4 concerning the
issuance and redemption of Certificates of Deposit and the requirement that any
cash deposits be held in a deposit account located in either New York or
California) causes, in whole or in part, the security interest of Agent in the
Collateral held by such Deposit Taker to be unperfected, then any and all Losses
suffered as a result of such nonperfection shall be borne solely by the
Responsible Participant and shall not be shared by BNPLC, Agent or the other
Participants.
ARTICLE V DELIVERY AND MAINTENANCE OF CASH COLLATERAL
Section 5.1 Delivery of Funds by Extreme. On the first day of any Base
----------------------------
Rent Period, and on any other date designated in a notice given by Agent to
Extreme at least three Business Days prior to the date so designated, Extreme
must deliver to Agent, subject to the pledge and security interest created
hereby, funds as Cash Collateral then needed (if any) to cause the Value of the
Collateral to be no less than the Minimum Collateral Value. Each delivery of
funds required by the preceding sentence must be received by Agent no later than
12:00 noon (San Francisco time) on the date it is required; if received after
12:00 noon it will be considered for purposes of the Improvements Lease as
received on the next following Business Day. At least five Business Days prior
to the first day of any Base Rent Period upon which it is expected that Extreme
will be required to deliver additional funds pursuant to this Section, Extreme
shall notify BNPLC, Agent and each of the Participants thereof and of the amount
Extreme expects to deliver to Agent as Cash Collateral on the applicable Base
Rent Date. In addition to required deliveries of Cash Collateral as provided in
the foregoing provisions, Extreme may on any date (whether or not the first day
of a Base Rent Period) deliver additional Cash Collateral to Agent as necessary
to prevent any Default from becoming an Event of Default. Upon receipt of any
funds delivered to it by Extreme as Cash Collateral, Agent shall immediately
deposit the same with the Deposit Takers in accordance with the requirements of
Sections 5.3 and 5.4 below.
Section 5.2 Transition Account. Pending deposit in the Accounts or
------------------
other application as provided herein, all Cash Collateral received by Agent
shall be credited to and held by Agent in an account (the "Transition Account")
styled "Extreme Collateral Account, held for the benefit of BNP Leasing
Corporation and the Participants," separate and apart from all other property
and funds of Extreme or other Persons, and no other property or funds shall be
deposited in the Transition Account. The books and records of Agent shall
reflect that the Transition Account and all Cash Collateral on deposit therein
are owned by Extreme, subject to a pledge and security interest in favor of
Agent for the benefit of BNPLC and Participants.
Section 5.3 Allocation of Cash Collateral Among Deposit Takers. Funds
--------------------------------------------------
received by Agent from Extreme as Cash Collateral will be allocated for deposit
among the Deposit Takers as follows:
first, to the extent possible the funds will be allocated as required
-----
to rectify and prevent any Collateral Imbalance; and
second, the funds will be allocated to the Deposit Taker for BNPLC,
------
unless the Deposit Taker for BNPLC has become a Disqualified Deposit
Taker, in which case the funds will be allocated to other Deposit
Takers who are not Disqualified Deposit Takers as Agent deems
appropriate.
-11-
Further, if for any reason a Collateral Imbalance is determined by Agent to
exist, Agent shall, as required to rectify or mitigate the Collateral Imbalance,
promptly reallocate Collateral among Deposit Takers by withdrawing Cash
Collateral from some Accounts and redepositing it in other Accounts. (If any
party to this Agreement believes that the Value of the Accounts held by a
particular Deposit Taker causes a Collateral Imbalance to exist, that party will
promptly notify BNPLC, Extreme and Agent.) Subject to the foregoing, and
provided that Agent does not thereby create or exacerbate a Collateral
Imbalance, Agent may withdraw and redeposit Cash Collateral in order to
reallocate the same among Deposit Takers from time to time as Agent deems
appropriate. For purposes of illustration only, examples of the allocations
required by this Section are set forth in ATTACHMENT 5.
------------
Section 5.4 Issuance and Redemption of Certificates of Deposit. Upon
--------------------------------------------------
the receipt of any deposit of Cash Collateral from Agent, each Deposit Taker
shall issue a Certificate of Deposit evidencing the Account into which such
deposit is made and deliver such Certificate of Deposit to Agent for the benefit
of BNPLC and the Participants. Each Certificate of Deposit shall be issued in an
amount equal to the Value of the Account which it evidences and shall otherwise
be in the form set forth as ATTACHMENT 1 to this Agreement. Upon depositing any
------------
Cash Collateral into an Account that is already evidenced by an outstanding
Certificate of Deposit, Agent will surrender the outstanding Certificate of
Deposit, and in exchange the Deposit Taker receiving the deposit will issue a
new Certificate of Deposit, evidencing the total amount of Cash Collateral in
the Account after the deposit. A Deposit Taker that has issued a Certificate of
Deposit may require the surrender of the Certificate of Deposit as a condition
to a withdrawal from the Account evidenced thereby, including any withdrawal
required or permitted by this Agreement. Upon surrender of a Certificate of
Deposit in connection with a withdrawal of less than all of the Cash Collateral
in the Account evidenced thereby, the applicable Deposit Taker will concurrently
issue a new Certificate of Deposit to Agent, evidencing the balance of the Cash
Collateral remaining on deposit in the Account after the withdrawal.
Notwithstanding the foregoing, if any Certificate of Deposit held by Agent shall
be destroyed, lost or stolen, the Deposit Taker that issued the Certificate,
upon the written request of Agent, shall issue a new Certificate of Deposit to
Agent in lieu of and in substitution for the Certificate of Deposit so
destroyed, lost or stolen. However, as applicant for the substitute Certificate
of Deposit, Agent must indemnify (at no cost to Extreme) the applicable Deposit
Taker against any liability on the Certificate of Deposit destroyed, lost or
stolen, and Agent shall furnish to the Deposit Taker an affidavit of an officer
of Agent setting forth the fact of destruction, loss or theft and confirming the
status of Agent as holder of the Certificate of Deposit immediately prior to the
destruction, loss or theft. If any Certificate of Deposit held by Agent shall
become mutilated, the Deposit Taker that issued the Certificate, upon the
written request of Agent, shall issue a new Certificate of Deposit to Agent in
exchange and substitution for the mutilated Certificate of Deposit. Agent shall
hold all Certificates of Deposit for the benefit of BNPLC and the Participants,
subject to the pledge and security interest created hereby.
Section 5.5 Status of the Accounts Under the Reserve Requirement
----------------------------------------------------
Regulations. Deposit Takers shall be permitted to structure the Accounts as
-----------
nonpersonal time deposits under 12 C.F.R., Part II, Chapter 204 (commonly known
as "Regulation D"). Accordingly, each Deposit Taker may require at least seven
days advance notice of any withdrawal or transfer of funds from Accounts it
maintains and may limit the number of withdrawals or transfers from such
Accounts to no more than six in any calendar month, notwithstanding anything to
the contrary herein or in any deposit agreement that Extreme and any Deposit
Taker may enter into with respect to any Account. As necessary to satisfy the
seven days notice requirement with respect to withdrawals by Agent when required
by Extreme pursuant to the provisions below, Agent shall notify Deposit Takers
promptly after receipt of any notice from Extreme described in subsection 6.1.2
or 6.2.1 or in Section 6.3.
Section 5.6 Acknowledgment by Extreme that Requirements of this
---------------------------------------------------
Agreement are Commercially Reasonable. Extreme acknowledges and agrees that the
-------------------------------------
requirements set forth herein concerning receipt,
-12-
deposit, withdrawal, allocation, application and distribution of Cash Collateral
by Agent, including the requirements and time periods set forth in the next
Article, are commercially reasonable.
ARTICLE VI WITHDRAWAL OF CASH COLLATERAL
Extreme may not withdraw Cash Collateral, except as follows:
Section 6.1 Withdrawal of Collateral Prior to the Designated Sale Date.
----------------------------------------------------------
Extreme may require Agent to present Certificates of Deposit for payment and
withdraw Cash Collateral from Accounts on any date prior to the Designated Sale
Date and to deliver such Cash Collateral to Extreme (which delivery shall be
free and clear of all liens and security interests hereunder); provided,
however, that in each case:
6.1.1 Such withdrawal and delivery of the Cash Collateral to Extreme
will not cause the Value of the remaining Collateral to be less than the
Minimum Collateral Value.
6.1.2 by a notice in the form of ATTACHMENT 6, Extreme must give
------------
Agent, BNPLC and the Participants notice of the required withdrawal at
least ten days prior to the date upon which the withdrawal is to occur.
6.1.3 No Default or Event of Default shall have occurred and be
continuing at the time Extreme gives the notice required by the preceding
subsection or on the date upon which the withdrawal is required.
6.1.4 Extreme must pay to Agent any and all costs incurred by
Agent in connection with the withdrawal.
6.1.5 Agent shall determine the Accounts from which to make any
withdrawal required by Extreme pursuant to this Section as necessary to
prevent or mitigate any Collateral Imbalance.
Section 6.2 Withdrawal and Application of Cash Collateral to Reduce or
----------------------------------------------------------
Satisfy the Secured Obligations to the Participants. To reduce the "Break Even
---------------------------------------------------
Price" or "Supplemental Payment" required under (and as defined in) the Purchase
Agreement (and, thus, to reduce the Secured Obligations), Extreme may require
Agent to withdraw Cash Collateral then held by or for Agent pursuant to this
Agreement on the Designated Sale Date and to deliver the same on the Designated
Sale Date or on any date thereafter prior to an Event of Default (which delivery
shall be free and clear of all liens and security interests hereunder) directly
to the Participants in proportion to their respective rights to payment of
BNPLC's Corresponding Obligations to Participants and for application thereto or
the reduction thereof pursuant to Section 2.2 of the Participation Agreement;
-----------
provided, that:
6.2.1 by a notice in the form of ATTACHMENT 7, Extreme must have
------------
notified Agent, BNPLC and each of the Participants of the required
withdrawal and payment to Participants at least ten days prior to the date
upon which it is to occur;
6.2.2 the required withdrawal shall be made as determined by Agent,
first, from the Accounts maintained by the Deposit Takers for the
Participants, and then (to the extent necessary) from the Accounts
maintained by the Deposit Taker for BNPLC; and
6.2.3 in any event, no withdrawals or payments directly to
Participants shall be required by this Section 6.2 (or permitted over the
objection of BNPLC) in excess of those required to satisfy BNPLC's
Corresponding Obligations to Participants or to reduce such obligations to
zero under the Participation Agreement.
-13-
Section 6.3 Withdrawal and Application of Cash Collateral to Reduce or
----------------------------------------------------------
Satisfy the Secured Obligations to BNPLC. To satisfy Extreme's Purchase
----------------------------------------
Agreement Obligations, Extreme may require Agent to withdraw any Cash Collateral
held by the Deposit Taker for BNPLC pursuant to this Agreement on the Designated
Sale Date and to deliver the same on the Designated Sale Date or on any date
thereafter prior to an Event of Default (which delivery shall be free and clear
of all liens and security interests hereunder) directly to BNPLC as a payment on
behalf of Extreme of amounts due under the Purchase Agreement; provided, that by
a notice in the form of ATTACHMENT 8, Extreme must have notified Agent and BNPLC
of the required withdrawal and payment to BNPLC at least ten days prior to the
date upon which it is to occur.
Section 6.4 Withdrawal of Cash Collateral From Accounts Maintained by
---------------------------------------------------------
Disqualified Deposit Takers. Extreme may from time to time prior to the
---------------------------
Designated Sale Date (regardless of the existence of any Default or Event of
Default) require Agent to withdraw any or all Cash Collateral from any Account
maintained by a Disqualified Deposit Taker and deposit it, still subject to the
pledge and grant of security interest hereunder, with other Deposit Takers who
are not Disqualified Deposit Takers (in accordance with the requirements of
Sections 5.3 and 5.4) on any date prior to the Designated Sale Date; provided,
that by a notice in the form of ATTACHMENT 9, Extreme must have notified Agent,
BNPLC and each of the Participants of the required withdrawal at least ten days
prior to the date upon which it is to occur.
ARTICLE VII REPRESENTATIONS AND COVENANTS OF EXTREME
Section 7.1 Representations of Extreme. Extreme represents to BNPLC, Agent
--------------------------
and the Participants as follows:
7.1.1 Extreme is the legal and beneficial owner of the Collateral (or,
in the case of after-acquired Collateral, at the time Extreme acquires
rights in the Collateral, will be the legal and beneficial owner thereof).
No other Person has (or, in the case of after-acquired Collateral, at the
time Extreme acquires rights therein, will have) any right, title, claim or
interest (by way of Lien, purchase option or otherwise) in, against or to
the Collateral, except for rights created hereunder.
7.1.2 Agent has (or in the case of after-acquired Collateral, at the
time Extreme acquires rights therein, will have) a valid, first priority,
perfected pledge of and security interest in the Collateral, regardless of
the characterization of the Collateral as deposit accounts, instruments or
general intangibles under the UCC, but assuming that the representations of
each Deposit Taker in its Deposit Taker's Acknowledgment and Agreement are
true.
7.1.3 Extreme has delivered to Agent, together with all necessary
stock powers, endorsements, assignments and other necessary instruments of
transfer, the originals of all documents, instruments and agreements
evidencing Accounts, Certificates of Deposit or Cash Collateral.
7.1.4 Extreme's chief executive office is located at the address of
Extreme set forth in Article II of the Common Definitions and Provisions
Agreement (Land) or at another address in California specified in a notice
that Extreme has given to Agent as required by Section 7.2.4.
7.1.5 To the knowledge of Extreme, neither the ownership or the
intended use of the Collateral by Extreme, nor the pledge of Accounts or
the grant of the security interest by Extreme to Agent herein, nor the
exercise by Agent of its rights or remedies hereunder, will (i) violate any
provision of (a) Applicable Law, (b) the articles or certificate of
incorporation, charter or bylaws of Extreme, or (c) any agreement,
judgment, license, order or permit applicable to or binding upon Extreme,
or (ii) result in or require the creation of any Lien, charge or
encumbrance upon any
-14-
assets or properties of Extreme except as expressly contemplated in this
Agreement. Except as expressly contemplated in this Agreement, to the
knowledge of Extreme no consent, approval, authorization or order of, and
no notice to or filing with any court, governmental authority or third
party is required in connection with the pledge or grant by Extreme of the
security interest contemplated herein or the exercise by Agent of its
rights and remedies hereunder.
Section 7.2 Covenants of Extreme. Extreme hereby agrees as follows:
--------------------
7.2.1 Extreme, at Extreme's expense, shall promptly procure, execute
and deliver to Agent all documents, instruments and agreements and perform
all acts which are necessary, or which Agent may reasonably request, to
establish, maintain, preserve, protect and perfect the Collateral, the
pledge thereof to Agent or the security interest granted to Agent therein
and the first priority of such pledge or security interest or to enable
Agent to exercise and enforce its rights and remedies hereunder with
respect to any Collateral. Without limiting the generality of the preceding
sentence, Extreme shall (A) procure, execute and deliver to Agent all stock
powers, endorsements, assignments, financing statements and other
instruments of transfer requested by Agent, (B) deliver to Agent promptly
upon receipt all originals of Collateral consisting of instruments,
documents and chattel paper, (C) cause the security interest of Agent in
any Collateral consisting of securities to be recorded or registered in the
books of any financial intermediary or clearing corporation requested by
Agent, and (D) reimburse Agent upon request for any legal opinion Agent may
elect to obtain from a nationally recognized commercial law firm authorized
to practice in New York concerning the enforceability, first priority and
perfection of Agent's security interest in any Collateral maintained in New
York, if BNPLC or any Participant should at any time elect to use a Deposit
Taker that will maintain one or more Accounts in New York.
7.2.2 Extreme shall not use or consent to any use of any Collateral in
violation of any provision of this Agreement or any other Transaction
Document or any Applicable Law.
7.2.3 Extreme shall pay promptly when due all taxes and other
governmental charges, all Liens and all other charges now or hereafter
imposed upon, relating to or affecting any Collateral.
7.2.4 Without thirty days' prior written notice to Agent, Extreme
shall not change Extreme's name or place of business (or, if Extreme has
more than one place of business, its chief executive office).
7.2.5 Extreme shall appear in and defend, on behalf of Agent, any
action or proceeding which may affect Extreme's title to or Agent's
interest in the Collateral.
7.2.6 Subject to the express rights of Extreme under Article VI,
Extreme shall not surrender or lose possession of (other than to Agent or a
Deposit Taker pursuant hereto), sell, encumber, lease, rent, option, or
otherwise dispose of or transfer any Collateral or right or interest
therein, and Extreme shall keep the Collateral free of all Liens.
7.2.7 Extreme will not take any action which would in any manner
impair the value or enforceability of Agent's pledge of or security
interest in any Collateral, nor will Extreme fail to take any action which
is required to prevent (and which Extreme knows is required to prevent) an
impairment of the value or enforceability of Agent's pledge of or security
interest in any Collateral.
7.2.8 Extreme shall pay (and shall indemnify and hold harmless Agent
from and against) all Losses incurred by Agent in connection with or
because of (A) the interest acquired by Agent in any Collateral pursuant to
this Agreement, or (B) the negotiation or administration of this Agreement,
whether such Losses are incurred at the time of execution of this Agreement
or at any
-15-
time in the future. Costs and expenses included in such Losses may include,
without limitation, all filing and recording fees, taxes, UCC search fees
and Attorneys' Fees incurred by Agent with respect to the Collateral.
7.2.9 Without limiting the foregoing, within five Business Days after
Extreme becomes aware of any failure of the pledge or security interest
contemplated herein in the Transition Account or any Account, Certificate
of Deposit or Cash Collateral to be a valid, perfected, first priority
pledge or security interest (regardless of the characterization of the
Transition Account or any Accounts, Certificates of Deposit or Cash
Collateral as deposit accounts, instruments or general intangibles under
the UCC), Extreme shall notify Agent, BNPLC and the Participants of such
failure. In addition, if the failure would not exist but for Extreme's
delivery of Cash Collateral to Agent subject to prior Liens or other claims
by one or more third parties, or but for the grant by Extreme itself of any
Lien or other interest in the Collateral to one or more third parties,
then, in addition to any other remedies available to BNPLC or Agent under
the circumstances, Extreme must pay to BNPLC any additional Base Rent that
has accrued under the Land Lease because of (or that would have accrued if
BNPLC had been aware of) the failure, together with interest at the Default
Rate on any such additional Base Rent.
ARTICLE VIII AUTHORIZED ACTION BY AGENT
Section 8.1 Power of Attorney. Extreme hereby irrevocably appoints Agent as
-----------------
Extreme's attorney-in-fact for the purpose of authorizing Agent to perform (but
Agent shall not be obligated to and shall incur no liability to Extreme or any
third party for failure to perform) any act which Extreme is obligated by this
Agreement to perform, and to exercise, consistent with the other provisions of
this Agreement, such rights and powers as Extreme might exercise with respect to
the Collateral during any period in which a Default or Event of Default has
occurred and is continuing, including the right to (a) collect by legal
proceedings or otherwise and endorse, receive and receipt for all dividends,
interest, payments, proceeds and other sums and property now or hereafter
payable on or on account of the Collateral; (b) enter into any extension,
reorganization, deposit, merger, consolidation or other agreement pertaining to,
or deposit, surrender, accept, hold or apply other property in exchange for the
Collateral; (c) insure, process, preserve and enforce the Collateral; (d) make
any compromise or settlement, and take any action it deems advisable, with
respect to the Collateral; (e) pay any indebtedness of Extreme relating to the
Collateral; and (f) execute UCC financing statements and other documents,
instruments and agreements required hereunder. Extreme agrees that such care as
Agent gives to the safekeeping of its own property of like kind shall constitute
reasonable care of the Collateral when in Agent's possession; provided, however,
-------- -------
that Agent shall not be obligated to Extreme to give any notice or take any
action to preserve rights against any other Person in connection with the
Secured Obligations or with respect to the Collateral.
ARTICLE IX DEFAULT AND REMEDIES
Section 9.1 Remedies. In addition to all other rights and remedies granted
--------
to Agent, BNPLC or the Participants by this Agreement, the Land Lease, the
Purchase Agreement, the Participation Agreement, the UCC and other Applicable
Laws, Agent may, upon the occurrence and during the continuance of any Event of
Default, exercise any one or more of the following rights and remedies, all of
which will be in furtherance of its rights as a secured party under the UCC:
(a) Agent may collect, receive, appropriate or realize upon the
Collateral or otherwise foreclose or enforce the pledge of or security
interests in any or all Collateral in any manner permitted by Applicable
Law or in this Agreement; and
-16-
(b) Agent may notify any or all Deposit Takers to pay all or any
portion of the Collateral held by such Deposit Taker(s) directly to Agent.
Agent shall distribute the proceeds of all Collateral received by Agent after
the occurrence of an Event of Default to BNPLC and the Participants for
application to the Secured Obligations. If any proceeds of Collateral remain
after all Secured Obligations have been paid in full, Agent will deliver or
direct the Deposit Takers to deliver such proceeds to Extreme or other Persons
entitled thereto. In any case where notice of any sale or disposition of any
Collateral is required, Extreme hereby agrees that seven (7) Business Days
notice of such sale or disposition is reasonable.
ARTICLE X OTHER RECOURSE
Section 10.1 Recovery Not Limited. To the fullest extent permitted by
--------------------
applicable law, Extreme waives any right to require that Agent, BNPLC or the
Participants proceed against any other Person, exhaust any Collateral or other
security for the Secured Obligations, or to have any Other Liable Party joined
with Extreme in any suit arising out of the Secured Obligations or this
Agreement, or pursue any other remedy in their power. Extreme waives any and all
notice of acceptance of this Agreement. Extreme further waives notice of the
creation, modification, rearrangement, renewal or extension for any period of
any of the Secured Obligations of any Other Liable Party from time to time and
any defense arising by reason of any disability or other defense of any Other
Liable Party or by reason of the cessation from any cause whatsoever of the
liability of any Other Liable Party. Until all of the Secured Obligations shall
have been paid in full, Extreme shall have no right to subrogation,
reimbursement, contribution or indemnity against any Other Liable Party and
Extreme waives the right to enforce any remedy which Agent, BNPLC or any
Participant has or may hereafter have against any Other Liable Party, and waives
any benefit of and any right to participate in any other security whatsoever now
or hereafter held by Agent, BNPLC or any Participant. Extreme authorizes Agent,
BNPLC and the Participants, without notice or demand and without any reservation
of rights against Extreme and without affecting Extreme's liability hereunder or
on the Secured Obligations, from time to time to (a) take or hold any other
property of any type from any other Person as security for the Secured
Obligations, and exchange, enforce, waive and release any or all of such other
property, (b) after any Event of Default, apply or require the application of
the Collateral (in accordance with this Agreement) or such other property in any
order they may determine and to direct the order or manner of sale thereof as
they may determine, (c) renew, extend for any period, accelerate, modify,
compromise, settle or release any of the obligations of any Other Liable Party
with respect to any or all of the Secured Obligations or other security for the
Secured Obligations, and (d) release or substitute any Other Liable Party.
ARTICLE XI PROVISIONS CONCERNING AGENT
In the event of any conflict between the following and other provisions in
this Agreement, the following will control:
Section 11.1 Appointment and Authority. BNPLC and each Participant hereby
-------------------------
irrevocably authorizes Agent, and Agent hereby undertakes, to take all actions
and to exercise such powers under this Agreement as are specifically delegated
to Agent by the terms hereof, together with all other powers reasonably
incidental thereto. The relationship of Agent to the Participants is only that
of one commercial bank acting as collateral agent for others, and nothing herein
shall be construed to constitute Agent a trustee or other fiduciary for any
Participant or anyone claiming through or under a Participant nor to impose on
Agent duties and obligations other than those expressly provided for in this
Agreement. With respect to any matters not expressly provided for in this
Agreement and any matters which this Agreement places within the discretion of
Agent, Agent shall not be required to exercise any discretion or take any
action, and it may request instructions from BNPLC and Participants with respect
to any such matter, in
-17-
which case it shall be required to act or to refrain from acting (and shall be
fully protected and free from liability to all Participants in so acting or
refraining from acting) upon the instructions of the Majority, as defined in the
Participation Agreement, including itself as a Participant and BNPLC; provided,
however, that Agent shall not be required to take any action which exposes it to
a risk of personal liability that it considers unreasonable or which is contrary
to this Agreement or the other documents referenced herein or to Applicable Law.
Section 11.2 Exculpation, Agent's Reliance, Etc. Neither Agent nor any of
----------------------------------
its directors, officers, agents, attorneys, or employees shall be liable for any
action taken or omitted to be taken by any of them under or in connection with
this Agreement, INCLUDING THEIR NEGLIGENCE OF ANY KIND, except that each shall
be liable for its own gross negligence or willful misconduct. Without limiting
the generality of the foregoing, Agent (1) may treat the rights of any
Participant under its Participation Agreement as continuing until Agent receives
written notice of the assignment or transfer of those rights in accordance with
such Participation Agreement, signed by such Participant and in form
satisfactory to Agent; (2) may consult with legal counsel (including counsel for
Extreme), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts, unless
the action taken or omitted constitutes misconduct; (3) makes no warranty or
representation and shall not be responsible for any statements, warranties or
representations made in or in connection with this Agreement or the other
documents referenced herein; (4) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the terms, covenants or
conditions of the Transaction Documents on the part of any party thereto, or to
inspect the property (including the books and records) of any party thereto; (5)
shall not be responsible to any Participant for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Transaction
Document or any instrument or document furnished in connection therewith; (6)
may rely upon the representations and warranties of Extreme, Participants and
Deposit Takers in exercising its powers hereunder; and (7) shall incur no
liability under or in respect of the Transaction Documents by acting upon any
notice, consent, certificate or other instrument or writing (including any
telecopy, telegram, cable or telex) believed by it to be genuine and signed or
sent by the proper Person or Persons.
Section 11.3 Participant's Credit Decisions. Each Participant acknowledges
------------------------------
that it has, independently and without reliance upon Agent or any other
Participant, made its own analysis of Extreme and the transactions contemplated
hereby and its own independent decision to enter into the Transaction Documents
to which it is a party. Each Participant also acknowledges that it will,
independently and without reliance upon Agent or any other Participant and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Transaction Documents.
Section 11.4 Indemnity. Each Participant agrees to indemnify Agent (to the
---------
extent not reimbursed by Extreme within ten days after demand) from and against
such Participant's Percentage of any and all Losses of any kind or nature
whatsoever which to any extent (in whole or in part) may be imposed on, incurred
by, or asserted against Agent growing out of, resulting from or in any other way
associated with any of the Collateral, the Transaction Documents and the
transactions and events (including the enforcement thereof) at any time
associated therewith or contemplated therein. THE FOREGOING INDEMNIFICATION
SHALL APPLY WHETHER OR NOT SUCH LOSSES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN
WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY, OR ARE CAUSED,
IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY AGENT,
PROVIDED ONLY THAT NO PARTICIPANT SHALL BE OBLIGATED UNDER THIS SECTION TO
INDEMNIFY AGENT FOR THAT PORTION, IF ANY, OF ANY LOSS WHICH IS PROXIMATELY
CAUSED BY AGENT'S OWN INDIVIDUAL GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AS
DETERMINED IN A
-18-
FINAL JUDGMENT RENDERED AGAINST AGENT. Cumulative of the foregoing, each
Participant agrees to reimburse Agent promptly upon demand for such
Participant's Percentage share of any costs and expenses to be paid to Agent by
Extreme hereunder to the extent that Agent is not timely reimbursed by Extreme
as provided in subsection 7.2.8. As used in this Section the term "Agent" shall
refer not only to the Person designated as such in the introductory paragraph of
this Agreement, but also to each director, officer, agent, attorney, employee,
representative and Affiliate of such Person.
Section 11.5 Agent's Rights as Participant and Deposit Taker. In its
-----------------------------------------------
capacity as a Participant, BNP PARIBAS shall have the same rights and
obligations as any Participant and may exercise such rights as though it were
not Agent. In its capacity as a Deposit Taker, BNP PARIBAS shall have the same
rights and obligations as any Deposit Taker and may exercise such rights as
though it were not Agent. BNP PARIBAS and any of its Affiliates may accept
deposits from, lend money to, act as Trustee under indentures of, and generally
engage in any kind of business with Extreme or its Affiliates, all as if BNP
PARIBAS were not designated as the Agent hereunder and without any duty to
account therefor to any other Participant.
Section 11.6 Investments. Whenever Agent in good faith determines that it
-----------
is uncertain about how to distribute any funds which it has received hereunder,
or whenever Agent in good faith determines that there is any dispute among BNPLC
and Participants about how such funds should be distributed, Agent may choose to
defer distribution of the funds which are the subject of such uncertainty or
dispute. If Agent in good faith believes that the uncertainty or dispute will
not be promptly resolved, or if Agent is otherwise required to invest funds
pending distribution, Agent shall invest such funds pending distribution, all
interest on any such investment shall be distributed upon the distribution of
such investment and in the same proportion and to the same Persons as such
investment. All moneys received by Agent for distribution to BNPLC or
Participants shall be held by Agent pending such distribution solely as Agent
hereunder, and Agent shall have no equitable title to any portion thereof.
Section 11.7 Benefit of Article XI. The provisions of this Article (other
---------------------
than the following Section 11.8) are intended solely for the benefit of Agent,
BNPLC and Participants, and Extreme shall not be entitled to rely on any such
provision or assert any such provision in a claim or defense against Agent,
BNPLC or any Participant. Agent, BNPLC and Participants may waive or amend such
provisions as they desire without any notice to or consent of Extreme.
Section 11.8 Resignation. Agent may resign at any time by giving written
-----------
notice thereof to BNPLC, Participants and Extreme. Upon any such resignation the
Majority (as defined in the Participation Agreement) shall have the right to
appoint a successor Agent, subject to Extreme's consent, such consent not to be
unreasonably withheld. A successor must be appointed for any retiring Agent, and
such Agent's resignation shall become effective when such successor accepts such
appointment. If, within thirty days after the date of the retiring Agent's
resignation, no successor Agent has been appointed and has accepted such
appointment, then the retiring Agent may appoint a successor Agent, which shall
be a commercial bank organized or licensed to conduct a banking or trust
business under the laws of the United States of America or of any state thereof.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
the retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation hereunder, the provisions
of this Article 10.1 shall continue to inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent.
-19-
ARTICLE XII MISCELLANEOUS
Section 12.1 Provisions Incorporated From Other Operative Documents.
------------------------------------------------------
Reference is made to the Common Definitions and Provisions Agreement (Land), to
the Purchase Agreement and to the Participation Agreement for a statement of the
terms thereof. Without limiting the generality of the foregoing, the provisions
of Article II of the Common Definitions and Provisions Agreement (Land) are
incorporated into this Agreement for all purposes as if set forth in this
Article.
Section 12.2 Cumulative Rights, etc. Except as herein expressly provided to
----------------------
the contrary, the rights, powers and remedies of Agent, BNPLC and the
Participants under this Agreement shall be in addition to all rights, powers and
remedies given to them by virtue of any Applicable Law, any other Document or
any other agreement, all of which rights, powers, and remedies shall be
cumulative and may be exercised successively or concurrently without impairing
their respective rights hereunder. Extreme waives any right to require Agent,
BNPLC or any Participant to proceed against any Person or to exhaust any
Collateral or to pursue any remedy in Agent's, BNPLC's or such Participant's
power.
Section 12.3 Survival of Agreements. All representations and warranties of
----------------------
Extreme herein, and all covenants and agreements herein shall survive the
execution and delivery of this Agreement, the execution and delivery of any
other Transaction Documents and the creation of the Secured Obligations and
continue until terminated or released as provided herein.
Section 12.4 Other Liable Party. Neither this Agreement nor the exercise by
------------------
Agent or the failure of Agent to exercise any right, power or remedy conferred
herein or by law shall be construed as relieving any Other Liable Party from
liability on the Secured Obligations or any deficiency thereon. This Agreement
shall continue irrespective of the fact that the liability of any Other Liable
Party may have ceased or irrespective of the validity or enforceability of any
other agreement evidencing or securing the Secured Obligations to which Extreme
or any Other Liable Party may be a party, and notwithstanding the
reorganization, death, incapacity or bankruptcy of any Other Liable Party, or
any other event or proceeding affecting any Other Liable Party.
Section 12.5 Termination. Following the Designated Sale Date, upon
-----------
satisfaction in full of all Secured Obligations and upon written request for the
termination hereof delivered by Extreme to Agent, (i) this Agreement and the
pledge and security interest created hereby shall terminate and all rights to
the Collateral shall revert to Extreme and (ii) Agent will, upon Extreme's
request and at Extreme's expense execute and deliver to Extreme such documents
as Extreme shall reasonably request to evidence such termination and release.
[The signature pages follow.]
-20-
IN WITNESS WHEREOF, Extreme, BNPLC, Agent and the Participants whose
signatures appear below have caused this Agreement to be executed as of June 1,
2000.
"Extreme"
EXTREME NETWORKS, INC.
By:_________________________
Name:____________________
Title:___________________
[Continuation of signature pages to Pledge Agreement (Land) dated to be
effective June 1, 2000]
"BNPLC"
BNP LEASING CORPORATION
By: ____________________________
▇▇▇▇▇ ▇. ▇▇▇, Vice President
[Continuation of signature pages to Pledge Agreement (Land) dated to be
effective June 1, 2000]
"AGENT"
BNP PARIBAS
By:_______________________
Name:__________________
Title:_________________
"PARTICIPANT"
BNP PARIBAS
By:_______________________
Name:__________________
Title:_________________
ATTACHMENT 1
TO PLEDGE AGREEMENT
-------------------
CERTIFICATE OF DEPOSIT
(No. _________)
[---------, -----]
[NAME OF THE ISSUING
DEPOSIT TAKER AND THE
ADDRESS OF ITS APPLICABLE
ACCOUNT OFFICE]
Payable to
the order of: BNP PARIBAS, as Agent under the Pledge Agreement (Land) dated
June 1, 2000, among Extreme Networks, Inc., BNP Leasing
Corporation, BNP PARIBAS and any other financial institutions
which are from time to time Participants under such Pledge
Agreement (Land) and BNP PARIBAS, acting in its capacity as agent
for BNPLC and the Participants
Dollars
-------------------------------------------------------------------------------
in current funds, without interest, seven days after presentment of this
certificate properly endorsed.
The bank issuing this certificate acknowledges and certifies that on the date
indicated above the payee deposited the dollar amount indicated above, and that
such amount shall be payable as provided above.
_________________________
Authorized Signature
ATTACHMENT 2
TO PLEDGE AGREEMENT
-------------------
SUPPLEMENT TO PLEDGE AGREEMENT
------------------------------
[----------, ----]
BNP PARIBAS
_______________________
_______________________
_______________________
Extreme Networks, Inc.
_______________________
_______________________
_______________________
1. Reference is made to the Pledge Agreement (Land) (the "Pledge Agreement")
dated June 1, 2000 among Extreme Networks, Inc. ("Extreme"), BNP Leasing
Corporation ("BNPLC"), BNP PARIBAS and any other financial institutions which
are from time to time Participants under such Pledge Agreement (collectively,
the "Participants") and BNP PARIBAS, acting in its capacity as agent for BNPLC
and the Participants (in such capacity, "Agent"). Unless otherwise defined
herein, all capitalized terms used in this Supplement have the respective
meanings given to those terms in the Pledge Agreement.
2. The undersigned hereby certifies to Agent and Extreme that the undersigned
has become a party to the Participation Agreement by executing a supplement as
provided therein and that its Percentage thereunder is ______%.
3. The undersigned, by executing and delivering this Supplement to Extreme and
Agent, hereby agrees to become a party to the Pledge Agreement and agrees to be
bound by all of the terms thereof applicable to Participants. The Deposit Taker
for the undersigned shall be _________________, until such time as another
Deposit Taker for the undersigned shall be designated in accordance with
Sections 4.4 or 4.5 of the Pledge Agreement. The undersigned certifies to Agent
and Extreme that such Deposit Taker is an Initially Qualified Deposit Taker and
satisfies the requirements for a Deposit Taker set forth in Section 4.1 of the
Pledge Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Supplement as of the day
and year indicated above.
[__________________________________________]
By:_________________________________________
Name:_________________________________
Title:________________________________
ATTACHMENT 3
TO PLEDGE AGREEMENT
-------------------
NOTICE OF EXTREME'S ELECTION TO CHANGE THE COLLATERAL PERCENTAGE
----------------------------------------------------------------
[---------, -----]
BNP PARIBAS
[address of BNP]
Re: Pledge Agreement (Land) (the "Pledge Agreement") dated June 1, 2000 among
--
Extreme Networks, Inc., BNP Leasing Corporation, BNP PARIBAS and any
other financial institutions which are from time to time
Participants under such Pledge Agreement and BNP PARIBAS, acting in
its capacity as agent for BNPLC and the Participants
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings assigned
to them in the Pledge Agreement referenced above. This letter constitutes notice
to you, as Agent under the Pledge Agreement, that pursuant to Section 3.1 of the
Pledge Agreement, Extreme elects to change the Collateral Percentage to:
__________ percent (___%),
on the following Base Rent Date (which will be the first day of a new Base Rent
Period):
----------, ----
Extreme expects that multiplying the new Collateral Percentage specified above
against Stipulated Loss Value of:
____________________________ Dollars ($__________),
will result in an expected new Minimum Collateral Value of:
____________________________ Dollars ($__________).
[NOTE: THE NEXT PARAGRAPH WILL BE INCLUDED ONLY IN A NOTICE OF AN INCREASE IN
THE COLLATERAL PERCENTAGE, BECAUSE OF WHICH EXTREME WILL BE REQUIRED TO DELIVER
ADDITIONAL CASH COLLATERAL TO SATISFY THE MINIMUM COLLATERAL VALUE REQUIREMENTS
IN SECTION 5.1 OF THE PLEDGE AGREEMENT:
Because of the increase in the Collateral Percentage which will result from
this notice and the corresponding increase in the Minimum Collateral Value,
Extreme will deliver additional Cash Collateral to you as required by Section
5.1 of the Pledge Agreement no later than 12:00 noon (San Francisco time) on the
Base Rent Date specified above, in the amount of:
____________________________ Dollars ($__________).]
To assure you that Extreme has satisfied the conditions to its right to change
the Collateral Percentage as provided in this notice, and to induce you to rely
upon this notice in discharging your responsibilities under the Pledge
Agreement, Extreme certifies to you that:
1. Extreme is giving this notice to you, BNPLC and the Participants at
least ten Business Days prior to the Base Rent Date specified above, and such
Base Rent Date is the commencement of a Base Rent Period.
2. No Event of Default or other event or circumstance that would,
pursuant to Section 3.2 of the Pledge Agreement, preclude Extreme from
designating the new Collateral Percentage above has occurred and is continuing,
and Extreme does not anticipate that on the Base Rent Date specified above
there will have occurred and be continuing any such Event of Default or other
event or circumstance.
3. The new Collateral Percentage specified by Extreme above is not less
than the Minimum Collateral Percentage currently in effect.
NOTE: YOU SHALL BE ENTITLED TO DISREGARD THIS NOTICE IF THE STATEMENTS ABOVE ARE
-----
NOT CORRECT. HOWEVER, WE ASK THAT YOU NOTIFY EXTREME IMMEDIATELY IF FOR ANY
REASON YOU BELIEVE THIS NOTICE IS DEFECTIVE.
EXTREME NETWORKS, INC.
By:____________________________________
Name:_____________________________
Title:____________________________
[cc BNPLC and all Participants]
-2-
ATTACHMENT 4
TO PLEDGE AGREEMENT
-------------------
NOTICE OF SECURITY INTEREST
---------------------------
[---------, -----]
[Name of Deposit Taker]
[Address of Deposit Taker]
1. Reference is made to the Pledge Agreement (Land) (the "Pledge Agreement")
dated June 1, 2000 among Extreme Networks, Inc. ("Extreme"), BNP Leasing
Corporation ("BNPLC"), BNP PARIBAS and any other financial institutions which
are from time to time Participants under such Pledge Agreement (collectively,
the "Participants") and BNP PARIBAS, acting in its capacity as agent for BNPLC
and the Participants (in such capacity, "Agent"). Unless otherwise defined
herein, all capitalized terms used in this Notice have the respective meanings
given to those terms in the Pledge Agreement.
2. Extreme has informed Agent that Extreme has established with the addressee
of this Notice (the "Deposit Taker") the following non-interest bearing
Account(s) to be maintained at the following Account Office(s):
Account Account Account
Type Office Number
------------ ------- -------
Time Deposit _______ _______
Time Deposit _______ _______
Time Deposit _______ _______
Extreme has further informed Agent that Extreme intends to maintain Cash
Collateral in such Account(s), and that to evidence such Account(s) and the
amount of Cash Collateral held therein from time to time, Extreme has authorized
the Deposit Taker to issue Certificates of Deposit payable to the order of Agent
as provided in the Pledge Agreement.
3. Extreme and Agent hereby notify Deposit Taker that, pursuant to the
Pledge Agreement, Extreme has granted to Agent, for the ratable benefit of BNPLC
and the Participants as security for the Secured Obligations, a pledge of and
security interest in all Accounts and other Collateral maintained by Extreme
with Deposit Taker, including the Account(s) described in Section 2 above.
4. In furtherance of such grant, Extreme and Agent hereby authorize and
direct Deposit Taker to:
(a) hold all Collateral for Agent and as Agent's bailee,
separate and apart from all other property and funds of Extreme and all
other Persons and to permit no other funds to be deposited or credited
to the Account(s);
(b) make a notation in its books and records of the interest of Agent
in the Collateral and that the Account(s) and all deposits therein or sums
credited thereto are subject to a pledge and security interest in favor of
Agent;
(c) issue and redeem Certificates of Deposit evidencing the
Account(s), as directed by Agent pursuant to the Pledge Agreement;
(d) take such other steps as Agent may reasonably request to record,
maintain, validate and perfect its pledge of and security interest in the
Collateral; and
(e) upon receipt of notice from Agent that an Event of Default has
occurred, transfer and deliver to Agent or its nominee, together with all
necessary endorsements, all or such portion of the Collateral held by
Deposit Taker as Agent shall direct; provided, however, that in connection
therewith the Deposit Taker may require compliance by Agent with the
provisions in Section 5.4 of the Pledge Agreement for redemption of any
outstanding Certificates of Deposit which evidence the Account(s).
5. Extreme and Agent agree that (a) the possession by Deposit Taker of
all money, instruments, chattel paper and other property constituting Collateral
shall be deemed to be possession by Agent or a person designated by Agent, for
purposes of perfecting the security interest granted to Agent hereunder pursuant
to Section 9305, 8313 or 8213 of the UCC (as the case may be), and (b)
--------------------------
notifications by Deposit Taker to other Persons holding any such property, and
Acknowledgments, receipts or confirmations from such Persons delivered to
Deposit Taker, shall be deemed notifications to, or Acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Deposit Taker for the benefit of Agent for the purposes of perfecting
such security interests under applicable law.
6. As contemplated by the Pledge Agreement, please acknowledge Deposit
Taker's receipt of, and consent to, this notice and confirm the representations
and agreements set forth in the Acknowledgment and Agreement attached hereto by
executing the same and returning this letter to Agent. For your files, a copy of
this letter is enclosed which you may retain. The authorizations and directions
set forth herein may not be revoked or modified without the written consent of
Agent.
"AGENT"
BNP PARIBAS
By: _________________________________
Name:____________________________
Title:___________________________
"EXTREME"
EXTREME NETWORKS, INC.
By: ___________________________________
Name:______________________________
Title:_____________________________
-2-
ACKNOWLEDGMENT AND AGREEMENT
OF DEPOSIT TAKER
Deposit Taker hereby acknowledges receipt of, and consents to, the
above notice, acknowledges that it will hold the Collateral for Agent and as
Agent's bailee, agrees to comply with the authorizations and directions set
forth above and represents to and agrees with Extreme and Agent as follows:
(a) Deposit Taker is a commercial bank, organized under the
laws of the United States of America or a state thereof or under the laws
of another country which is doing business in the United States of America.
Deposit Taker is authorized to maintain deposit accounts for others through
the Account Offices specified in the above notice, and Deposit Taker will
not move the accounts described in the above notice to other offices
without the prior written authorization of Agent and Extreme.
(b) Deposit Taker has a combined capital, surplus and undivided
profits of at least $500,000,000.
(c) The information set forth above regarding the Account(s) is
accurate. Such Account(s) is (are) currently open and Deposit Taker has no
prior notice of any other pledge, security interest, Lien, adverse claim or
interest in such Account(s).
(d) Deposit Taker shall promptly notify Extreme and Agent if
the representations made by Deposit Taker above cease to be true and
correct.
(e) Deposit Taker shall not (i) allow the withdrawal of funds from
any Account by any Person other than Agent, or (ii) without in each case
--------------------
first obtaining the prior written authorization of Agent, setoff or attempt
--------------------------------------------------------
to setoff any Secured Obligations owed to Deposit Taker against any
Collateral held from time to time by Deposit Taker, or (iii) without in
----------
each case first obtaining the prior written authorization of both Extreme
-------------------------------------------------------------------------
and Agent, setoff or attempt to setoff any obligations owed to Deposit
---------
Taker other than Secured Obligations, against any Collateral held from time
to time by Deposit Taker.
[__________________________________]
By:_________________________________
Name:_________________________
Title:________________________
[Date]
ATTACHMENT 5
TO PLEDGE AGREEMENT
-------------------
EXAMPLES OF CALCULATIONS REQUIRED
---------------------------------
TO AVOID A COLLATERAL IMBALANCE
-------------------------------
The examples below are provided to illustrate the calculations required
for allocations of Cash Collateral in a manner that will avoid a Collateral
Imbalance. The examples are not intended to reflect actual numbers under this
Agreement or actual Percentages of BNPLC or any of the Participants; nor are the
examples intended to provide a formula for the allocations that would be
appropriate in every case. The examples also reflect adjustments that would be
appropriate if the Collateral Percentage were adjusted from time to time from
and after the Effective Date.
EXAMPLE NO. 1
Assumptions:
-----------
1. Two Participants ("Participant A" and "Participant B") are parties to the
Participation Agreement with BNPLC. Participant A's Percentage is 50% and
Participant B's Percentage is 45%, leaving BNPLC with a Percentage of 5%.
2. On the Effective Date, the Initial Funding Advance was $12,000,000,
resulting in a Stipulated Loss Value of $12,000,000, allocable as follows:
A. BNPLC's Parent (providing BNPLC's share) (5%)...................................... $ 600,000
B. Participant A (50%)................................................................ 6,000,000
C. Participant B (45%)................................................................ 5,400,000
----------
TOTAL.............................................................................. $12,000,00
3. The Minimum Collateral Value on the Effective Date was $7,200,000
(reflecting a Collateral Percentage of 60% times Stipulated Loss Value).
4. On the Effective Date, Extreme had delivered to Agent Cash Collateral of
$7,200,000, equal to the Minimum Collateral Value, as required by Section
5.1 of this Agreement.
Allocation of Cash Collateral Required: To avoid a Collateral Imbalance under
--------------------------------------
these assumptions, Agent would be required to allocate the $7,200,000 to the
Deposit Takers for BNPLC and the Participants as follows:
A. BNPLC's Deposit Taker (5% of Minimum Collateral Value)............................. $ 360,000
B. Participant A's Deposit Taker (50% of Minimum Collateral Value).................... 3,600,000
C. Participant B's Deposit Taker (45% of Minimum Collateral Value)................... 3,240,000
------------
TOTAL.............................................................................. $ 7,200,000
EXAMPLE NO. 2
Assumptions: Assume the same facts as in Example No. 1, and in addition assume
-----------
that:
1. Effective as of the first Base Rent Date, Extreme increased its Collateral
Percentage from 60% to
80%, raising the Minimum Collateral Value to $9,600,000. Because of such
increase, Extreme also delivered an additional $2,400,000 as Cash
Collateral to Agent on the first Base Rent Date, bringing the total of all
Cash Collateral delivered by Extreme to $9,600,000 as required by Section
5.1 of this Agreement.
2. Also effective as of the first Base Rent Date, a new Participant approved
by Extreme ("Participant C") became a party to this Agreement and the
Participation Agreement, taking a Percentage of 20%. Simultaneously,
Participant A and Participant B entered into supplements to the
Participation Agreement which reduced their Percentages to 40% and 35%,
respectively.
Allocation of Cash Collateral Required: To avoid a Collateral Imbalance under
--------------------------------------
these assumptions, Agent would be required to allocate the Cash Collateral as
required to leave the Deposit Takers for BNPLC and the Participants with the
following amounts:
A. BNPLC's Deposit Taker (5% of Minimum Collateral Value)................................. $ 480,000
B. Participant A's Deposit Taker (40% of Minimum Collateral Value)........................ 3,840,000
C. Participant B's Deposit Taker (35% of Minimum Collateral Value)........................ 3,360,000
D. Participant C's Deposit Taker (20% of Minimum Collateral Value)....................... 1,920,000
----------
TOTAL.................................................................................. $9,600,000
Thus, to prevent a Collateral Imbalance, Agent would have to allocate the
$2,400,000 of additional Cash Collateral it received on the first Base Rent Date
as follows:
A. BNPLC's Deposit Taker ($480,000 less $360,000 already on deposit) .................... $ 120,000
B. Participant A's Deposit Taker ($3,840,000 less $3,600,000 already on deposit)......... 240,000
C. Participant B's Deposit Taker ($3,360,000 less $3,240,000 already on deposit)......... 120,000
D. Participant C's Deposit Taker ($1,920,000 less $0 already on deposit)................ $1,920,000
----------
TOTAL................................................................................. $2,400,000
EXAMPLE NO. 3
Assumptions: Assume the same facts as in Example No. 2, except that:
----------- -----------
1. Instead of increasing its Collateral Percentage from 60% to 80%, Extreme
increased its Collateral Percentage to 70% on the first Base Rent Date,
raising the Minimum Collateral Value to $8,400,000. Because of such
increase, Extreme delivered an additional $1,200,000 as additional Cash
Collateral to Agent on the first Base Rent Date, bringing the total of all
Cash Collateral delivered by Extreme to $8,400,000 as required by Section
5.1 of this Agreement.
Allocation of Cash Collateral Required: To avoid a Collateral Imbalance under
--------------------------------------
these assumptions, Agent would be required to allocate the Cash Collateral as
required to leave the Deposit Takers for BNPLC and the Participants with the
following amounts:
A. BNPLC's Deposit Taker (5% of Minimum Collateral Value).............................. $ 420,000
B. Participant A's Deposit Taker (40% of Minimum Collateral Value)..................... 3,360,000
C. Participant B's Deposit Taker (35% of Minimum Collateral Value)..................... 2,940,000
D. Participant C's Deposit Taker (20% of Minimum Collateral Value).................... 1,680,000
----------
TOTAL............................................................................... $8,400,000
-2-
Thus, to prevent a Collateral Imbalance, Agent would have to allocate the
$1,200,000 of additional Cash Collateral it received on the first Base Rent Date
as follows:
A. BNPLC's Deposit Taker ($420,000 less $360,000 already on deposit) ........................ $ 60,000
B. Participant A's Deposit Taker ($3,360,000 less $3,600,000 already on deposit)............. (240,000)
C. Participant B's Deposit Taker ($2,940,000 less $3,240,000 already on deposit)............. (300,000)
D. Participant C's Deposit Taker ($1,680,000 less $0 already on deposit).................... 1,680,000
----------
TOTAL..................................................................................... $1,200,000
NOTE: THE NEGATIVE AMOUNTS (IN PARENTHESIS) ABOVE REPRESENT REQUIRED WITHDRAWALS
---- -----------
RATHER THAN DEPOSITS. AS EXAMPLE NO. 3 ILLUSTRATES, TO AVOID A COLLATERAL
IMBALANCE AGENT MAY FROM TIME TO TIME HAVE TO WITHDRAW CASH COLLATERAL HELD BY
THE DEPOSIT TAKER FOR ONE PARTICIPANT AND DEPOSIT IT IN AN ACCOUNT MAINTAINED BY
A DEPOSIT TAKER FOR ANOTHER PARTICIPANT.
-3-
ATTACHMENT 6
TO PLEDGE AGREEMENT
-------------------
NOTICE OF EXTREME'S REQUIREMENT TO
----------------------------------
WITHDRAW EXCESS CASH COLLATERAL
-------------------------------
[_________, _____]
BNP PARIBAS
[address of BNP]
Re: Pledge Agreement (Land) dated June 1, 2000 among Extreme Networks,
--
Inc., BNP Leasing Corporation, BNP PARIBAS and any other financial
institutions which are from time to time Participants under such
Pledge Agreement (Land) and BNP PARIBAS, acting in its capacity as
agent for BNPLC and the Participants
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Pledge Agreement (Land) referenced above (the "Pledge
Agreement"). This letter constitutes notice to you, as Agent under the Pledge
Agreement, that pursuant to Section 6.1 of the Pledge Agreement, Extreme
requires you to withdraw from the Accounts and return to Extreme the following
amount:
__________________ Dollars ($__________)
on the following date:
----------, ----
To assure you that Extreme has satisfied the conditions to its right to
require such withdrawal, and to induce you to comply with this notice, Extreme
certifies to you that:
1. Your withdrawal and delivery of the amount specified above to
Extreme will not cause the Value of the remaining Collateral to be less
than the Minimum Collateral Value. After giving effect to such withdrawal,
the Collateral remaining in the Accounts maintained by the Deposit Takers
will be:
__________________ Dollars ($__________),
and the Minimum Collateral Value on the date specified above will equal:
__________________ Dollars ($__________).
Such Minimum Collateral Value equals the Collateral Percentage of:
__________ percent (___%),
times the Stipulated Loss Value of:
__________________ Dollars ($__________).
2. Extreme is giving this notice to you, BNPLC and the Participants
at least ten days prior to the date specified above.
3. No Default or Event of Default has occurred and is continuing as
of the date of this notice, and Extreme does not anticipate that any
Default or Event of Default will have occurred and be continuing on the
date upon which the withdrawal is required.
4. Extreme agrees that you may determine the Accounts from which to
make any withdrawal required by Extreme pursuant to this Section as
necessary to prevent or mitigate any Collateral Imbalance.
NOTE: YOU SHALL BE ENTITLED TO DISREGARD THIS NOTICE IF THE STATEMENTS
----
ABOVE ARE NOT CORRECT OR IF THE DATE FOR WITHDRAWAL SPECIFIED ABOVE IS LESS
THAN TEN DAYS AFTER YOUR RECEIPT OF THIS NOTICE. HOWEVER, WE ASK THAT YOU
NOTIFY EXTREME IMMEDIATELY IF FOR ANY REASON YOU BELIEVE THIS NOTICE IS
DEFECTIVE.
-2-
Please remember that the express terms of Certificates of Deposit issued
pursuant to the Pledge Agreement require presentment of the Certificates of
Deposit seven days before Cash Collateral is to be withdrawn from the Accounts
they evidence. Accordingly, you must present Certificates of Deposit to Deposit
Takers seven days prior to the withdrawal of Cash Collateral required by this
notice. For your convenience, we have attached a letter as Annex 1 to this
-------
notice that you might execute and send to Deposit Takers to advise them of your
intent to withdraw and of your presentment of Certificates of Deposit as
required in connection therewith. The attached letter also sets forth the
amounts Extreme believes you must withdraw from each Account to avoid a
Collateral Imbalance.
EXTREME NETWORKS, INC.
By: ______________________________
Name:_______________________
Title:______________________
[cc BNPLC and all Participants]
-3-
Annex 1
-------
TO EXTREME'S NOTICE OF REQUIREMENT TO
-------------------------------------
WITHDRAW CASH EXCESS COLLATERAL
-------------------------------
[_________, _____]
Deposit Takers on the
Attached Distribution List
Re: Pledge Agreement (Land) dated June 1, 2000 among Extreme Networks,
--
Inc., BNP Leasing Corporation, BNP PARIBAS and any other financial
institutions which are from time to time Participants under such
Pledge Agreement (Land) and BNP PARIBAS, acting in its capacity as
agent for BNPLC and the Participants
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Pledge Agreement (Land) referenced above (the "Pledge
Agreement"). This letter constitutes notice from the undersigned, as Agent under
the Pledge Agreement, that pursuant to Section 6.1 of the Pledge Agreement,
Extreme requires Agent to withdraw from the Accounts and return to Extreme the
amounts listed below on the following date:
__________, ____
Accordingly, on such date, the undersigned intends to withdraw the
following amounts from the following Accounts, and with this letter the
undersigned is presenting Certificates of Deposit as required in connection with
such withdrawal:
Deposit Taker Account No. Amount
1.________________ ___________________ $________
2.________________ ___________________ $________
3.________________ ___________________ $________
4.________________ ___________________ $________
TOTAL WITHDRAWALS: $========
BNP PARIBAS, AS AGENT
By: ____________________________________
Name:_______________________________
Title:______________________________
[cc BNPLC and Extreme]
-4-
ATTACHMENT 7
TO PLEDGE AGREEMENT
-------------------
NOTICE OF EXTREME'S REQUIREMENT OF
----------------------------------
DIRECT PAYMENTS TO PARTICIPANTS
-------------------------------
[_________, _____]
BNP PARIBAS
[address of BNP]
Re: Pledge Agreement (Land) dated June 1, 2000 among Extreme Networks,
--
Inc., BNP Leasing Corporation, BNP PARIBAS and any other financial
institutions which are from time to time Participants under such
Pledge Agreement (Land) and BNP PARIBAS, acting in its capacity as
agent for BNPLC and the Participants
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Pledge Agreement (Land) referenced above (the "Pledge
Agreement"). This letter constitutes notice to you, as Agent under the Pledge
Agreement, that pursuant to Section 6.2 of the Pledge Agreement, Extreme
requires you to withdraw from the Accounts and pay directly to the Participants
(in proportion to their respective Percentages) the following amount:
____________________________ Dollars ($__________)
on the following date (which, Extreme acknowledges, must be the Designated Sale
Date or a date thereafter prior to an Event of Default):
__________, ____
The amount specified above equals the following percentage (equal to
the aggregate of all Participant's Percentages):
___________percent (___%),
times the total of all Cash Collateral presently pledged under the Pledge
Agreement:
____________________________ Dollars ($__________).
To assure you that Extreme has satisfied the conditions to its right to
require such withdrawal, and to induce you to comply with this notice, Extreme
certifies to you that Extreme is giving this notice to you, BNPLC and the
Participants at least ten days prior to the date of required withdrawal and
payment specified above.
Please remember that the express terms of Certificates of Deposit issued
pursuant to the Pledge Agreement require presentment of the Certificates of
Deposit seven days before Cash Collateral is to be withdrawn from the Accounts
they evidence. Accordingly, you must present Certificates of Deposit to Deposit
Takers seven days prior to the withdrawal of Cash Collateral required by this
notice. For your convenience, we have attached a letter as Annex 1 to this
-------
notice that you might execute and send to Deposit Takers to advise them of your
intent to withdraw and of your presentment of Certificates of Deposit as
required in connection therewith. The attached letter also sets forth the
amounts Extreme believes you must withdraw from each Account to comply with
subsection 6.2.2 of the Pledge Agreement.
EXTREME NETWORKS, INC.
By:______________________________________
Name:_______________________________
Title:______________________________
[cc BNPLC and all Participants]
-2-
Annex 1
-------
TO EXTREME'S NOTICE OF REQUIREMENT TO
-------------------------------------
WITHDRAW CASH COLLATERAL FOR
----------------------------
DIRECT PAYMENTS TO PARTICIPANTS
-------------------------------
[_________, _____]
Deposit Takers on the
Attached Distribution List
Re: Pledge Agreement (Land) dated June 1, 2000 among Extreme Networks,
--
Inc., BNP Leasing Corporation, BNP PARIBAS and any other financial
institutions which are from time to time Participants under such
Pledge Agreement (Land) and BNP PARIBAS, acting in its capacity as
agent for BNPLC and the Participants
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Pledge Agreement (Land) referenced above (the "Pledge
Agreement"). This letter constitutes notice from the undersigned, as Agent under
the Pledge Agreement, that pursuant to Section 6.2 of the Pledge Agreement,
Extreme requires Agent to withdraw from the Accounts and pay to the Participants
(in proportion to their respective Percentages) the amounts listed below on the
following date:
__________, ____
Accordingly, on such date, the undersigned intends to withdraw the
following amounts from the following Accounts, and with this letter the
undersigned is presenting Certificates of Deposit as required in connection with
such withdrawal:
Deposit Taker Account No. Amount
1._________________ __________________ $__________
2._________________ __________________ $__________
3._________________ __________________ $__________
4._________________ __________________ $__________
TOTAL WITHDRAWALS: $==========
BNP PARIBAS, AS AGENT
By: __________________________________
Name:_____________________________
Title:____________________________
[cc BNPLC and Extreme]
-3-
ATTACHMENT 8
TO PLEDGE AGREEMENT
-------------------
NOTICE OF EXTREME'S REQUIREMENT OF
----------------------------------
DIRECT PAYMENT TO BNPLC
-----------------------
[_________, _____]
BNP PARIBAS
[address of BNP]
Re: Pledge Agreement (Land) dated June 1, 2000 among Extreme Networks,
--
Inc., BNP Leasing Corporation, BNP PARIBAS and any other financial
institutions which are from time to time Participants under such
Pledge Agreement (Land) and BNP PARIBAS, acting in its capacity as
agent for BNPLC and the Participants
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Pledge Agreement (Land) referenced above (the "Pledge
Agreement"). This letter constitutes notice to you, as Agent under the Pledge
Agreement, that pursuant to Section 6.3 of the Pledge Agreement, Extreme
requires you to withdraw from the Account maintained by the Deposit Taker for
BNPLC and pay directly to BNPLC on behalf of Extreme as a payment required by
the Purchase Agreement the following amount:
____________________________ Dollars ($__________)
on the following date (which, Extreme acknowledges, must be the Designated Sale
Date or a date thereafter prior to an Event of Default):
__________, ____
To assure you that Extreme has satisfied the conditions to its right to
require such withdrawal, and to induce you to comply with this notice, Extreme
certifies to you that Extreme is giving this notice to you and BNPLC at least
ten days prior to the date of required withdrawal and payment specified above.
Please remember that the express terms of Certificates of Deposit
issued pursuant to the Pledge Agreement require presentment of the Certificates
of Deposit seven days before Cash Collateral is to be withdrawn from the
Accounts they evidence. Accordingly, you must present Certificates of Deposit to
the Deposit Taker for BNPLC seven days prior to the withdrawal of Cash
Collateral required by this notice. For your convenience, we have attached a
letter as Annex 1 to this notice that you might execute and send to the Deposit
-------
Taker for BNPLC to advise it of your intent to withdraw and of your presentment
of Certificates of Deposit as required in connection therewith. The attached
letter also sets forth the amount Extreme believes you must withdraw to comply
with Section 6.3 of the Pledge Agreement.
EXTREME NETWORKS, INC.
By:________________________________
Name:________________________
Title:_______________________
[cc BNPLC]
Annex 1
-------
TO EXTREME'S NOTICE OF REQUIREMENT OF
-------------------------------------
DIRECT PAYMENT TO BNPLC
-----------------------
[_________, _____]
[Name of the Deposit Taker for BNPLC]
[Address of such Deposit Taker]
Re: Pledge Agreement (Land) dated June 1, 2000 among Extreme Networks,
--
Inc., BNP Leasing Corporation, BNP PARIBAS and any other financial
institutions which are from time to time Participants under such
Pledge Agreement (Land) and BNP PARIBAS, acting in its capacity as
agent for BNPLC and the Participants
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Pledge Agreement (Land) referenced above (the "Pledge
Agreement"). This letter constitutes notice from the undersigned, as Agent under
the Pledge Agreement, that pursuant to Section 6.3 of the Pledge Agreement,
Extreme requires Agent to withdraw from the Account maintained by you, as
Deposit Taker for BNPLC, the sum of:
____________________________ Dollars ($__________)
and pay the same to BNPLC as a payment required by the Purchase Agreement on the
following date:
__________, ____
Accordingly, on such date, the undersigned intends to withdraw such
amount from the following Account maintained by you as Deposit Taker for BNPLC,
and with this letter the undersigned is presenting Certificate(s) of Deposit as
required in connection with such withdrawal.
BNP PARIBAS, AS AGENT
By: __________________________________
Name:_____________________________
Title:____________________________
[cc BNPLC and Extreme]
-2-
ATTACHMENT 9
TO PLEDGE AGREEMENT
-------------------
NOTICE OF EXTREME'S REQUIREMENT OF A WITHDRAWAL
-----------------------------------------------
OF CASH COLLATERAL FROM
-----------------------
A DISQUALIFIED DEPOSIT TAKER
----------------------------
[_________, _____]
BNP PARIBAS
[address of BNP]
Re: Pledge Agreement (Land) dated June 1, 2000 among Extreme Networks,
--
Inc., BNP Leasing Corporation, BNP PARIBAS and any other financial
institutions which are from time to time Participants under such
Pledge Agreement (Land) and BNP PARIBAS, acting in its capacity as
agent for BNPLC and the Participants
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Pledge Agreement (Land) referenced above (the "Pledge
Agreement"). This letter constitutes notice to you, as Agent under the Pledge
Agreement, that pursuant to Section 6.4 of the Pledge Agreement, Extreme
requires you to withdraw from the following Account maintained by the following
Deposit Taker:
Deposit Taker Account No.
----------------------- -------------------
Cash Collateral in the following amount:
______________________ Dollars ($__________)
and to deposit such Cash Collateral with other Deposit Takers who are not
Disqualified Deposit Takers no later than ten days after the date upon which you
receive this notice.
To assure you that Extreme has the right to require such withdrawal, and to
induce you to comply with this notice, Extreme certifies to you that the Deposit
Taker specified above has become a Disqualified Deposit Taker because it no
longer satisfies the requirements listed in Section 4.1 of the Pledge Agreement.
Specifically, such Deposit Taker no longer satisfies the following requirements:
[EXTREME MUST INSERT HERE A DESCRIPTION OF WHICH REQUIREMENTS THE DEPOSIT TAKER
NO LONGER SATISFIES AND HOW EXTREME HAS DETERMINED THAT THE REQUIREMENTS ARE NO
LONGER SATISFIED, ALL IN SUFFICIENT DETAIL TO PERMIT THE PARTICIPANT FOR WHOM
SUCH DEPOSIT TAKER HAS BEEN MAINTAINING AN ACCOUNT TO RESPOND IF IT BELIEVES
THAT EXTREME IS IN
ERROR.]
Please remember that the express terms of Certificates of Deposit issued
pursuant to the Pledge Agreement require presentment of the Certificates of
Deposit seven days before Cash Collateral is to be withdrawn from the Accounts
they evidence. Accordingly, you must present Certificates of Deposit to the
Deposit Taker specified above seven days prior to the withdrawal of Cash
Collateral required by this notice. For your convenience, we have attached a
letter as Annex 1 to this notice that you might execute and send to such Deposit
-------
Taker to advise it of your intent to withdraw and of your presentment of
Certificates of Deposit as required in connection therewith. The attached letter
also sets forth the amount Extreme believes you must withdraw to comply with
Section 6.4 of the Pledge Agreement.
EXTREME NETWORKS, INC.
By:_________________________________
Name:__________________________
Title:_________________________
[cc BNPLC]
-2-
Annex 1
-------
TO EXTREME'S NOTICE OF REQUIREMENT OF A WITHDRAWAL
--------------------------------------------------
OF CASH COLLATERAL FROM
-----------------------
A DISQUALIFIED DEPOSIT TAKER
----------------------------
[_________, _____]
[Name of the Deposit Taker for BNPLC]
[Address of such Deposit Taker]
Re: Pledge Agreement (Land) dated June 1, 2000 among Extreme Networks,
--
Inc., BNP Leasing Corporation, BNP PARIBAS and any other financial
institutions which are from time to time Participants under such
Pledge Agreement (Land) and BNP PARIBAS, acting in its capacity as
agent for BNPLC and the Participants
Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Pledge Agreement (Land) referenced above (the "Pledge
Agreement"). This letter constitutes notice from the undersigned, as Agent under
the Pledge Agreement, that pursuant to Section 6.4 of the Pledge Agreement,
Extreme has advised Agent that you are a Disqualified Deposit Taker, and Extreme
requires Agent to withdraw from the Account maintained by you, as a Deposit
Taker under the Pledge Agreement, the sum of:
____________________________ Dollars ($__________)
no later than the following date:
__________, ____
Accordingly, on such date, the undersigned intends to withdraw such amount
from the Account maintained by you as Deposit Taker (Account No. __________),
and with this letter the undersigned is presenting Certificate(s) of Deposit as
required in connection with such withdrawal.
BNP PARIBAS, AS AGENT
By: _______________________________
Name:__________________________
Title:_________________________
[cc BNPLC and Extreme]
-3-
Schedule 1
TO PLEDGE AGREEMENT
-------------------
[IN PLACE OF THIS PAGE, SUBSTITUTE SCHEDULE 1 ATTACHED TO THE LEASE]