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Exhibit 10.44
CREDIT AGREEMENT
Dated as of July 28, 2000
among
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, except as expressly
stated herein, but solely as the Owner Trustee
under the VS Trust 2000-2,
THE SEVERAL LENDERS FROM TIME TO TIME,
ABN AMRO BANK, N.V.
as the Agent,
CREDIT SUISSE FIRST BOSTON,
as Documentation Agent,
and
CREDIT LYONNAIS LOS ANGELES BRANCH,
as Syndication Agent
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS..................................................................... 1
Section 1.1 Definitions......................................................... 1
Section 1.2 Interpretation...................................................... 1
ARTICLE II AMOUNT AND TERMS OF COMMITMENTS................................................ 1
Section 2.1 Commitments......................................................... 1
Section 2.2 Notes............................................................... 2
Section 2.3 Procedure for Borrowing............................................. 2
Section 2.4 Lender Commitment Fees.............................................. 3
Section 2.5 Termination or Reduction of Commitments............................. 3
Section 2.6 Prepayments and Payments............................................ 4
Section 2.7 Conversion and Continuation Options................................. 5
Section 2.8 Interest Rates and Payment Dates.................................... 5
Section 2.9 Computation of Interest............................................. 6
Section 2.10 Pro Rata Treatment and Payments..................................... 7
Section 2.11 Notice of Amounts Payable; Mandatory Assignment..................... 7
Section 2.12 Increase of Commitments............................................. 8
ARTICLE III REPRESENTATIONS AND WARRANTIES................................................ 9
ARTICLE IV CONDITIONS PRECEDENT........................................................... 9
Section 4.1 Conditions to Effectiveness......................................... 9
Section 4.2 Conditions to Each Loan............................................. 9
ARTICLE V COVENANTS....................................................................... 9
Section 5.1 Other Activities.................................................... 9
Section 5.2 Ownership of Properties, Indebtedness............................... 9
Section 5.3 Disposition of Assets............................................... 10
Section 5.4 Compliance with Operative Agreements................................ 10
Section 5.5 Further Assurances.................................................. 10
Section 5.6 Notices............................................................. 10
Section 5.7 Discharge of Liens.................................................. 10
Section 5.8 Trust Agreement..................................................... 10
Section 5.9 Maintenance of Equity............................................... 10
ARTICLE VI EVENTS OF DEFAULT.............................................................. 11
ARTICLE VII THE AGENT..................................................................... 13
Section 7.1 Appointment......................................................... 13
Section 7.2 Delegation of Duties................................................ 14
Section 7.3 Exculpatory Provisions.............................................. 14
Section 7.4 Reliance by the Agent............................................... 14
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Section 7.5 Notice of Default................................................... 14
Section 7.6 Non-Reliance on the Agent and Other Lenders......................... 15
Section 7.7 Indemnification..................................................... 15
Section 7.8 The Agent in Its Individual Capacity................................ 16
Section 7.9 Successor Agent..................................................... 16
Section 7.10 Actions of the Agent on Behalf of Holders........................... 16
Section 7.11 The Agent's Duty of Care............................................ 17
ARTICLE VIII MATTERS RELATING TO PAYMENT AND COLLATERAL................................... 17
Section 8.1 Collection and Allocation of Payments and Other Amounts............. 17
Section 8.2 Certain Remedial Matters............................................ 17
Section 8.3 Excepted Payments................................................... 17
ARTICLE IX MISCELLANEOUS.................................................................. 18
Section 9.1 Amendments and Waivers.............................................. 18
Section 9.2 Notices............................................................. 18
Section 9.3 No Waiver; Cumulative Remedies...................................... 18
Section 9.4 Survival of Representations and Warranties.......................... 18
Section 9.5 Payment of Expenses and Taxes....................................... 18
Section 9.6 Successors and Assigns; Participations and Assignments.............. 18
Section 9.7 Participations...................................................... 18
Section 9.8 Assignments......................................................... 19
Section 9.9 The Register........................................................ 20
Section 9.10 Adjustments; Set-off................................................ 20
Section 9.11 Counterparts........................................................ 21
Section 9.12 Severability........................................................ 21
Section 9.13 Integration......................................................... 21
Section 9.14 GOVERNING LAW....................................................... 21
Section 9.15 SUBMISSION TO JURISDICTION; VENUE................................... 22
Section 9.16 Acknowledgements.................................................... 22
Section 9.17 WAIVERS OF JURY TRIAL............................................... 22
Section 9.18 Nonrecourse......................................................... 22
Section 9.19 USURY SAVINGS PROVISION............................................. 23
Section 9.20 Third Party Beneficiary............................................. 24
Section 9.21 Mutilated, Destroyed, Lost or Stolen Notes.......................... 24
SCHEDULES
Schedule 2.1 Commitments and Addresses of Lenders
EXHIBITS
Exhibit A-1 Form of Tranche A Note
Exhibit A-2 Form of Tranche B Note
Exhibit B Form of Assignment and Acceptance
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of July 28, 2000 (as amended, modified,
extended, supplemented, restated and/or replaced from time to time, the
"Agreement") is among FIRST SECURITY BANK, NATIONAL ASSOCIATION, not
individually, except as expressly stated herein, but solely as the Owner Trustee
under the VS Trust 2000-2 the "Owner Trustee" or the "Borrower"), the several
banks and other financial institutions from time to time parties to this
Agreement (the "Lenders"), ABN AMRO BANK N.V., as a Lender and as the agent for
the Lenders (the "Agent"), CREDIT SUISSE FIRST BOSTON, as documentation agent
("the Documentation Agent") and CREDIT LYONNAIS LOS ANGELES BRANCH, as
syndication agent (the "Syndication Agent").
The parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. For purposes of this Agreement, capitalized
terms used in this Agreement and not otherwise defined herein shall have the
meanings assigned to them in Appendix A to that certain Participation Agreement
dated as of July 28, 2000 (as amended, modified, extended, supplemented,
restated and/or replaced from time to time in accordance with the applicable
provisions thereof, the "Participation Agreement") among Veritas Software Global
Corporation, as Lessee and Construction Agent, the various parties thereto from
time to time, as the Guarantors, the Borrower, the various banks and other
lending institutions which are parties thereto from time to time, as the
Holders, the various banks and other lending institutions which are parties
thereto from time to time, as the Lenders, the Agent, as agent for the Lenders
and respecting the Security Documents, as the agent for the Lenders and the
Holders, to the extent of their interests, the Documentation Agent and the
Syndication Agent. Unless otherwise indicated, references in this Agreement to
articles, sections, paragraphs, clauses, appendices, schedules and exhibits are
to the same contained in this Agreement.
SECTION 1.2 INTERPRETATION. The rules of usage set forth in Appendix A
to the Participation Agreement shall apply to this Agreement.
ARTICLE II
AMOUNT AND TERMS OF COMMITMENTS
SECTION 2.1 COMMITMENTS.
(a) Subject to the terms and conditions hereof, each of the Lenders
severally agrees to make the portion of the Tranche A Loans and the Tranche B
Loans to the Borrower from time to time during the applicable Commitment Period
in respect of each portion of the
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Property in an aggregate amount up to such Lender's Commitment as is set forth
adjacent to such Lender's name in Schedule 2.1 hereto for the purpose of
enabling the Borrower to purchase the Land and to pay Property Acquisition
Costs, Property Costs and Transaction Expenses, provided, that the aggregate
principal amount at any one (1) time outstanding with respect to each of the
Tranche A Loans and the Tranche B Loans shall not exceed the amount of the
Tranche A Commitments and the Tranche B Commitments respectively. Any
prepayments of the Loans, whether mandatory or at the Borrower's election, shall
not be subject to reborrowing except as set forth in Section 5.2(d) of the
Participation Agreement.
(b) The Loans may from time to time be (i) Eurodollar Loans, (ii) ABR
Loans, or (iii) a combination thereof, as determined by the Borrower and
notified to the Agent in accordance with Sections 2.3 and 2.7. In the event the
Borrower fails to provide notice pursuant to Section 2.3, the applicable Loan
shall be an ABR Loan. Further, any Loans by the Lenders on a given date in an
aggregate amount less than $100,000 shall be ABR Loans, unless the remaining
Available Commitment for the Lenders in the aggregate is less than $100,000, in
which case the Borrower may elect a Eurodollar Loan for such remaining amount.
(c) The Commitment of each Lender to make Tranche A Loans and Tranche B
Loans shall be pro rata.
SECTION 2.2 NOTES. The Loans made by each Lender shall be evidenced by
promissory notes of the Borrower, substantially in the form of Exhibit A-1 in
the case of the Tranche A Loans (each, a "Tranche A Note") or Exhibit A-2 in the
case of the Tranche B Loans (each, a "Tranche B Note," and with the Tranche A
Notes, the "Notes"), with appropriate insertions as to payee and date, payable
to the order of such Lender and in a principal amount up to the Tranche A
Commitment or Tranche B Commitment, as the case may be, of such Lender. Each
Lender is hereby authorized to record the date, Type and amount of each Loan
made by such Lender, each continuation thereof, each conversion of all or a
portion thereof to another Type, and the date and amount of each payment or
prepayment of principal thereof on the schedule annexed to and constituting a
part of its Note, and any such recordation shall constitute prima facie evidence
of the accuracy of the information so recorded, provided, that the failure to
make any such recordation or any error in such recordation shall not affect the
Borrower's obligations hereunder or under such Note. Each Note shall (i) be
dated the Closing Date, (ii) provide that the Loans made with respect to any
portion of the Property shall mature on the Maturity Date with respect to such
portion of the Property and (iii) provide for the payment of principal in
accordance with Section 2.6(d) and the payment of interest in accordance with
Section 2.8.
SECTION 2.3 PROCEDURE FOR BORROWING.
(a) The Borrower may borrow under the Commitments during the Commitment
Period in respect of any portion of the Property on any Business Day that an
Advance may be requested pursuant to the terms of Section 5.2 of the
Participation Agreement, provided, that the Borrower shall give the Agent
irrevocable notice (which must be received by the Agent prior to 12:00 Noon, San
Francisco, California time, at least three (3) Business Days prior to the
requested Borrowing Date specifying (i) the amount to be borrowed (which on any
date shall not be in excess of the then Available Lender Commitments), (ii) the
requested Borrowing Date and the portion of the Property to which such borrowing
relates, (iii) whether the borrowing is to be
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of Eurodollar Loans, ABR Loans or a combination thereof, (iv) if the borrowing
is to be a combination of Eurodollar Loans and ABR Loans, the respective amounts
of each Type of Loan and (v) the Interest Period applicable to each Eurodollar
Loan. Pursuant to the terms of the Participation Agreement, the Borrower shall
be deemed to have delivered such notice upon the delivery of a notice by the
Construction Agent or the Lessee containing such required information. Upon
receipt of any such notice from the Borrower, the Agent shall promptly notify
each Lender thereof. Each Lender will make the amount of its pro rata share of
each borrowing available to the Agent for the account of the Borrower at the
office of the Agent specified in Section 9.2 prior to 10:00 a.m., San Francisco,
California time, on the Borrowing Date requested by the Borrower in funds
immediately available to the Agent. Such borrowing will then be made available
to the Borrower by the Agent crediting an account designated, subject to Section
9.1 of the Participation Agreement, by the Borrower on the books of such office
with the aggregate of the amounts made available to the Agent by the Lenders and
in like funds as received by the Agent. No amount of any Loan which is repaid or
prepaid by the Borrower may be reborrowed hereunder, except as set forth in
Section 5.2(d) of the Participation Agreement.
(b) Interest accruing on each Loan during the Construction Period with
respect to any portion of the Property shall be paid on the relevant Scheduled
Interest Payment Date with the proceeds of an Interest Payment Advance pursuant
to the provisions of Section 5.1(b) of the Participation Agreement.
SECTION 2.4 LENDER COMMITMENT FEES. Promptly after receipt from the
Lessee of the payment of the Lender Commitment Fee payable pursuant to Section
7.4 of the Participation Agreement, the Agent shall distribute such payments to
the Lenders pro rata in accordance with their respective Commitments.
SECTION 2.5 TERMINATION OR REDUCTION OF COMMITMENTS.
(a) The Borrower shall have the right, upon not less than three (3)
Business Days' written notice to the Agent, to terminate the Commitments or,
from time to time, to reduce the amount of the Commitments, provided, that (i)
after giving effect to such reduction, the aggregate outstanding principal
amount of the Loans shall not exceed the aggregate Commitments and (ii) such
notice shall be accompanied by a certificate of the Construction Agent stating
that the amount equal to ninety-seven percent (97%) of aggregate Budgeted Total
Property Costs as of the date of such reduction does not exceed the aggregate
amount of Available Commitments as of such date after giving effect to such
reduction. Any such reduction (A) shall be in an amount equal to the lesser of
(1) $1,000,000 (or an even multiple thereof) or (2) the remaining Available
Commitments, (B) shall reduce permanently the Commitments then in effect and (C)
shall be pro rata for the Commitments of all Lenders and pro rata between the
Tranche A Loans and the Tranche B Loans.
(b) The Commitments respecting any particular portion of the Property
shall automatically be reduced to zero (0) with respect to such portion of the
Property upon the occurrence of the Rent Commencement Date respecting such
portion of the Property. On any date on which the Commitments shall
automatically be reduced to zero (0) pursuant to Section 6,
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the Borrower shall prepay all outstanding Loans, together with accrued unpaid
interest thereon and all other amounts owing under the Operative Agreements.
SECTION 2.6 PREPAYMENTS AND PAYMENTS.
(a) Subject to Sections 11.2(e), 11.3 and 11.4 of the Participation
Agreement, the Borrower may at any time and from time to time prepay the Loans,
in whole or in part, without premium or penalty and without setoff, deduction or
counterclaim, upon at least three (3) Business Days' irrevocable notice to the
Agent, specifying the date and amount of prepayment and whether the prepayment
is of Eurodollar Loans, ABR Loans or a combination thereof, and, if a
combination thereof, the amount allocable to each. Upon receipt of any such
notice the Agent shall promptly notify each Lender thereof. If any such notice
is given, the amount specified in such notice shall be due and payable on the
date specified therein. Amounts prepaid may not be reborrowed, and shall reduce
the Commitments and the Available Commitments, except in each case as set forth
in Section 5.2(d) of the Participation Agreement.
(b) If on any date the Agent or the Lessor shall receive any payment in
respect of (i) any Casualty, Condemnation or Environmental Violation pursuant to
Sections 15.1(a) or 15.1(g) or Article XVI of the Lease (excluding any payments
in respect thereof which are payable to the Lessee in accordance with the
Lease), or (ii) the Termination Value of any portion of the Property in
connection with the delivery of a Termination Notice pursuant to Article XVI of
the Lease, or (iii) the Termination Value of any portion of the Property in
connection with the exercise of a Purchase Option under Article XX of the Lease
or the exercise of the option of the Lessor to transfer any portion of the
Property to the Lessee pursuant to Section 20.3 of the Lease, or (iv) any
payment required to be made or elected to be made by the Construction Agent to
the Lessor pursuant to the terms of the Construction Agency Agreement, then in
each case, the Borrower shall pay such amounts to the Agent and the Agent shall
be required to apply and pay such amounts in accordance with the provisions of
Section 8.7(b)(ii) of the Participation Agreement.
(c) Each prepayment of the Loans pursuant to Section 2.6(a) shall be
allocated to reduce the respective Loan Property Costs of all portions of the
Property pro rata according to the Loan Property Costs of such portions of the
Property immediately before giving effect to such prepayment. Each prepayment of
the Loans pursuant to Section 2.6(b) shall be allocated to reduce the Loan
Property Cost of the Property or the portion(s) thereof subject to the
respective Casualty, Condemnation, Environmental Violation, termination,
purchase, transfer or other circumstance giving rise to such prepayment. Any
amounts applied to reduce the Loan Property Cost of any Construction Period
Property pursuant to this paragraph (c) shall also be applied to reduce the
Construction Loan Property Cost of such portion of the Property until such
Construction Loan Property Cost has been reduced to zero (0).
(d) The outstanding principal balance of the Loans with respect to any
portion of the Property and all other amounts then due and owing under this
Agreement with respect to such portion of the Property or otherwise with respect
to such Loans shall be due and payable in full on the applicable Maturity Date.
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SECTION 2.7 CONVERSION AND CONTINUATION OPTIONS.
(a) The Borrower may elect from time to time to convert Eurodollar
Loans to ABR Loans by giving the Agent at least three (3) Business Days' prior
irrevocable notice of such election, provided, that any such conversion of
Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto, and provided, further, to the extent an Event of Default has
occurred and is continuing on the last day of any such Interest Period, the
applicable Eurodollar Loan shall automatically be converted to an ABR Loan. The
Borrower may elect from time to time to convert ABR Loans to Eurodollar Loans by
giving the Agent at least three (3) Business Days' prior irrevocable notice of
such election. Upon receipt of any such notice, the Agent shall promptly notify
each Lender thereof. All or any part of outstanding Eurodollar Loans or ABR
Loans may be converted as provided herein, provided, that (i) no ABR Loan in
respect of any portion of the Property may be converted into a Eurodollar Loan
after the date that is one (1) month prior to the applicable Maturity Date and
(ii) such notice of conversion regarding any Eurodollar Loan shall contain an
election by the Borrower of an Interest Period for such Eurodollar Loan to be
created by such conversion and such Interest Period shall be in accordance with
the terms of the definition of the term "Interest Period" including without
limitation subparagraphs (A) through (D) thereof.
(b) Subject to the restrictions set forth in Section 2.3 hereof, except
as otherwise requested by the Borrower upon at least three (3) Business Days'
prior written notice to the Agent, in accordance with the applicable notice
provision for the conversion of ABR Loans to Eurodollar Loans set forth herein,
of the length of the next Interest Period to be applicable to such Loans, any
Eurodollar Loan shall be continued as a Eurodollar Loan of the same Interest
Period upon the expiration of the then current Interest Period with respect
thereto without the need for the Borrower to give notice to the Agent, provided,
that no Eurodollar Loan in respect of any portion of the Property may be
continued as such after the date that is one (1) month prior to the applicable
Maturity Date, provided, further, no Eurodollar Loans may be continued as such
if an Event of Default has occurred and is continuing as of the last day of the
Interest Period for such Eurodollar Loan, provided, further, that if the
Borrower shall fail to give any required notice as described above or otherwise
herein, or if such continuation is not permitted pursuant to the proceeding
proviso, such Loan shall automatically be converted to a Eurodollar Loan having
an Interest Period of one (1) month on the last day of such then expiring
Interest Period, and provided further that if such continuation is not permitted
pursuant to the second preceding proviso, such Loan shall automatically be
converted to an ABR Loan on the last day of such then expiring Interest Period.
SECTION 2.8 INTEREST RATES AND PAYMENT DATES.
(a) The Loans outstanding hereunder from time to time shall bear
interest at a rate per annum equal to either (i) with respect to a Eurodollar
Loan, the Eurodollar Rate determined for the applicable Interest Period plus the
Applicable Percentage or (ii) with respect to an ABR Loan, the ABR, as selected
by the Borrower in accordance with the provisions hereof; provided, however, (A)
upon delivery by the Agent of the notice described in Section 2.9(c), the Loans
of each of the Lenders shall bear interest at the ABR applicable from time to
time from and after the dates and during the periods specified in Section
2.9(c), (B) upon the delivery by a Lender of the notice described in Section
11.3(f) of the Participation Agreement, the Loans of such Lender
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shall bear interest at the ABR applicable from time to time from and after the
dates and during the periods specified in Section 11.3(f) of the Participation
Agreement and (C) in such other circumstances as expressly provided herein, the
Loans shall bear interest at the ABR.
(b) If (i) all or a portion of (A) the principal amount of any Loan,
(B) any interest payable thereon or (C) any other amount payable hereunder shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise) or (ii) (A) a replacement Construction Agent is hired in accordance
with the provisions of the Construction Agency Agreement, (B) Completion of any
portion of the Property has not occurred on or prior to the Construction Period
Termination Date therefor, or (C) the cost of any portion of the Property
exceeds the original Construction Budget therefor (or the applicable
Construction Budget as modified in accordance with the Operative Agreements), in
each case as previously delivered to the Agent, such overdue amount (in the case
of Section 2.8(b)(i)) or all Loans, including without limitation principal and
interest, and all other amounts payable hereunder (in the case of Section
2.8(b)(ii)) shall bear interest at a rate per annum which is the lesser of (x)
the then current rate of interest respecting such payment or other amount, as
the case may be, plus two percent (2%) and (y) the highest interest rate
permitted by applicable law, in each case from the date of such non-payment
until such payment is paid in full (whether after or before judgment) (in the
case of Section 2.8(b)(i)) or Completion of the applicable portion of the
Property (in the case of Section 2.8(b)(ii)). All such amounts referenced in
this Section 2.8(b) shall be paid upon demand.
(c) Interest shall be payable in arrears on the applicable Scheduled
Interest Payment Date (but for any Loan having an Interest Period of six (6)
months, interest shall be payable in arrears on each applicable three (3) month
anniversary date of the commencement of such Loan), provided, that (i) interest
accruing pursuant to paragraph (b) of this Section 2.8 shall be payable from
time to time on demand and (ii) each prepayment of the Loans shall be
accompanied by accrued interest to the date of such prepayment on the amount
prepaid.
SECTION 2.9 COMPUTATION OF INTEREST.
(a) Whenever it is calculated on the basis of the Prime Lending Rate,
interest shall be calculated on the basis of a year of three hundred sixty-five
(365) days (or three hundred sixty-six (366) days, as the case may be) for the
actual days elapsed; and, otherwise, interest shall be calculated on the basis
of a year of three hundred sixty (360) days for the actual days elapsed. The
Agent shall as soon as practicable notify the Borrower and the Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a Loan
resulting from a change in the ABR or the Eurocurrency Reserve Requirements
shall become effective as of the day on which such change becomes effective. The
Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error.
(c) If the Eurodollar Rate cannot in good faith be determined by the
Agent in the manner specified in the definition of the term "Eurodollar Rate",
the Agent shall give telecopy or
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telephonic notice thereof to the Borrower, the Lessee and the Lenders as soon as
practicable thereafter. Until such time as the Eurodollar Rate can be determined
by the Agent in the manner specified in the definition of such term, no further
Eurodollar Loans shall be made or shall be continued as such at the end of the
then current Interest Period nor shall the Borrower have the right to convert
ABR Loans to Eurodollar Loans.
SECTION 2.10 PRO RATA TREATMENT AND PAYMENTS.
(a) Each borrowing by the Borrower from the Lenders hereunder and any
reduction of the Commitments of the Lenders shall be made pro rata according to
their respective Commitments. Subject to the provisions of Section 8.7 of the
Participation Agreement and Section 2.11(b) hereof, each payment (including
without limitation each prepayment) by the Borrower on account of principal of
and interest on the Loans shall be made pro rata according to the respective
outstanding principal amounts on the Loans then held by the Lenders. All
payments (including without limitation prepayments) to be made by the Borrower
hereunder and under the Notes, whether on account of principal, interest or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 10:00 a.m., San Francisco, California time, on the due date thereof to the
Agent, for the account of the Lenders, at the Agent's office specified in
Section 9.2, in Dollars and in immediately available funds. The Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day; provided, however, if such payment includes an amount of interest
calculated with reference to the Eurodollar Rate and the result of such
extension would be to extend such payment into another calendar month, then such
payment shall be made on the immediately preceding Business Day. In the case of
any extension of any payment of principal pursuant to the preceding two (2)
sentences, interest thereon shall be payable at the then applicable rate during
such extension.
(b) Unless the Agent shall have been notified in writing by any Lender
prior to a borrowing that such Lender will not make its share of such borrowing
available to the Agent, the Agent may assume that such Lender is making such
amount available to the Agent, and the Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
amount is not made available to the Agent by the required time on the Borrowing
Date therefor, such Lender shall pay to the Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available to
the Agent. A certificate of the Agent submitted to any Lender with respect to
any amounts owing under this Section 2.10(b) shall be conclusive in the absence
of manifest error. If such Lender's share of such borrowing is not made
available to the Agent by such Lender within three (3) Business Days of such
Borrowing Date, the Agent shall also be entitled to recover such amount with
interest thereon at the rate as set forth above on demand from the Borrower.
SECTION 2.11 NOTICE OF AMOUNTS PAYABLE; MANDATORY ASSIGNMENT.
(a) In the event that any Lender becomes aware that any amounts are or
will be owed to it pursuant to Sections 11.2, 11.3 or 11.4 of the Participation
Agreement or that it is unable to make Eurodollar Loans, then it shall promptly
notify the Borrower, the Lessee and the
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Agent thereof and, as soon as possible thereafter, such Lender shall submit to
the Borrower (with a copy to the Agent) a certificate indicating the amount
owing to it and the calculation thereof. The amounts set forth in such
certificate shall be prima facie evidence of the obligations of the Borrower
hereunder.
(b) In the event (i) any Lender shall fail to make available to the
Agent such Lender's ratable portion of any Advance (and no Default or Event of
Default shall have occurred and be continuing) or (ii) that any Lender delivers
to the Borrower a certificate in accordance with Section 2.11(a) in connection
with amounts payable pursuant to Sections 11.2(e) or 11.3 of the Participation
Agreement or such Lender is required to make Loans as ABR Loans in accordance
with Section 11.3(d) of the Participation Agreement, or (iii) any Lender does
not consent to an increase in the aggregate Lender Commitments and aggregate
Holder Commitments requested pursuant to a Commitment Increase Request delivered
pursuant to Section 5.12 of the Participation Agreement, then, subject to
Section 9.1 of the Participation Agreement, the Borrower may, at its own expense
(provided, such amounts shall be reimbursed or paid entirely (as elected by the
Borrower) by the Lessee, as Supplemental Rent) and in the discretion of the
Borrower, (i) require such Lender to transfer or assign, in whole or (with such
Lender's consent) in part, without recourse (in accordance with Section 9.8),
all or (with such Lender's consent) part of its interests, rights (except for
rights to be indemnified for actions taken while a party hereunder) and
obligations under this Agreement to a replacement bank or institution if the
Borrower (subject to Section 9.1 of the Participation Agreement), with the full
cooperation of such Lender, can identify a Person who is ready, willing and able
to be such replacement bank or institution with respect thereto and such
replacement bank or institution (which may be another Lender) shall assume such
assigned obligations and, in the case of a transfer or assignment pursuant to
clause (iii) above, such replacement is willing to consent to the increase
requested in such Commitment Increase Request, or (ii) during such time as no
Default or Event of Default has occurred and is continuing, terminate the
Commitment of such Lender and prepay all outstanding Loans of such Lender;
provided, however, that (x) subject to Section 9.1 of the Participation
Agreement, the Borrower or such replacement bank or institution, as the case may
be, shall have paid to such Lender in immediately available funds the principal
of and interest accrued to the date of such payment on the Loans made by it
hereunder and all other amounts owed to it hereunder (and, if such Lender is
also a Holder, all Holder Advances and Holder Yield accrued and unpaid thereon),
(y) any termination of Commitments shall be subject to the terms of Section
2.5(a) and (z) such assignment or termination of the Commitment of such Lender
and prepayment of Loans does not conflict with any law, rule or regulation or
order of any court or Governmental Authority.
SECTION 2.12 INCREASE OF COMMITMENTS. The Commitment of each Lender
may be increased pursuant to the agreement of such Lender, in its sole and
absolute discretion, in accordance with the provisions set forth in Section 2.1
of the Construction Agency Agreement or the provisions of Section 5.12 of the
Participation Agreement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this Agreement and to
make the Loans, each of the Trust Company and the Owner Trustee hereby makes and
affirms the representations and warranties set forth in Section 6.1 of the
Participation Agreement to the same extent as if such representations and
warranties were set forth in this Agreement in their entirety.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.1 CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Agreement is subject to the satisfaction of all conditions precedent set forth
in Section 5.3 of the Participation Agreement required by said Section to be
satisfied on or prior to the Closing Date.
SECTION 4.2 CONDITIONS TO EACH LOAN. The agreement of each Lender to
make any Loan requested to be made by it on any date is subject to the
satisfaction of all conditions precedent set forth in Section 5.3 and 5.4 of the
Participation Agreement required by said Sections to be satisfied on or prior to
the date of the applicable Loan.
Each borrowing by the Borrower hereunder shall constitute a
representation and warranty by the Borrower as of the date of such Loan that the
conditions contained in this Section 4.2 have been satisfied.
ARTICLE V
COVENANTS
So long as any Obligations remain outstanding or unpaid and until the
Commitments have been terminated:
SECTION 5.1 OTHER ACTIVITIES. The Borrower shall not conduct, transact
or otherwise engage in, or commit to transact, conduct or otherwise engage in,
any business or operations other than the entry into, and exercise of rights and
performance of obligations in respect of, the Operative Agreements and other
activities incidental or related to the foregoing.
SECTION 5.2 OWNERSHIP OF PROPERTIES, INDEBTEDNESS. The Borrower shall
not own, lease, manage or otherwise operate any properties or assets other than
in connection with the activities described in Section 5.1, or incur, create,
assume or suffer to exist any Indebtedness or other consensual liabilities or
financial obligations other than as may be incurred, created or assumed or as
may exist in connection with the activities described in Section 5.1 (including
without limitation the Loans and other obligations incurred by the Borrower
hereunder).
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SECTION 5.3 DISPOSITION OF ASSETS. The Borrower shall not convey,
sell, lease, assign, transfer or otherwise dispose of any of its property,
business or assets, whether now owned or hereafter acquired, except to the
extent expressly contemplated by the Operative Agreements.
SECTION 5.4 COMPLIANCE WITH OPERATIVE AGREEMENTS. The Borrower shall
at all times observe and perform all of the covenants, conditions and
obligations required to be performed by it (whether in its capacity as the
Lessor, the Owner Trustee or otherwise) under each Operative Agreement to which
it is a party.
SECTION 5.5 FURTHER ASSURANCES. At any time and from time to time,
upon the written request of the Agent, and at the expense of the Borrower
(provided, such amounts shall be reimbursed or paid entirely (as elected by the
Borrower) by the Lessee, as Supplemental Rent), the Borrower will promptly and
duly execute and deliver such further instruments and documents and take such
further action as the Agent or the Majority Lenders may reasonably request for
the purpose of obtaining or preserving the full benefits of this Agreement and
the other Operative Agreements and of the rights and powers herein or therein
granted.
SECTION 5.6 NOTICES. If on any date, a Responsible Officer of the
Borrower shall obtain actual knowledge of the occurrence of a Default or Event
of Default, the Borrower will give written notice thereof to the Agent within
five (5) Business Days after such date.
SECTION 5.7 DISCHARGE OF LIENS. Neither the Borrower nor the Trust
Company will create or permit to exist at any time, and will, at its own
expense, promptly take such action as may be necessary duly to discharge, or
cause to be discharged, all Lessor Liens attributable to it, provided, that the
Borrower and the Trust Company shall not be required to discharge any Lessor
Lien while the same is being contested in good faith by appropriate proceedings
diligently prosecuted so long as such proceedings shall not involve any material
danger of impairment of any of the Liens contemplated by the Security Documents
or of the sale, forfeiture or loss of, and shall not materially interfere with
the disposition of, the Property or any portion thereof or title thereto or any
interest therein or the payment of Rent.
SECTION 5.8 TRUST AGREEMENT. Without prejudice to any right under the
Trust Agreement of the Owner Trustee to resign, the Owner Trustee (a) agrees not
to terminate or revoke the trust created by the Trust Agreement except as
permitted by Article VIII of the Trust Agreement, (b) agrees not to amend,
supplement, terminate, revoke or otherwise modify any provision of the Trust
Agreement in any manner which could reasonably be expected to have an adverse
effect on the rights or interests of the Agent or the Lenders hereunder or under
the other Operative Agreements and (c) agrees to comply with all of the terms of
the Trust Agreement.
SECTION 5.9 MAINTENANCE OF EQUITY. At all times during the term of
this Agreement, the aggregate amount of all outstanding Holder Advances shall be
at least three percent (3.0%) of the sum of (i) the aggregate amount of all
outstanding Loans and (ii) the aggregate amount of all outstanding Holder
Advances.
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ARTICLE VI
EVENTS OF DEFAULT
Upon the occurrence of any of the following specified events (each an "Event
of Default"):
(a) Except as provided in Section 6(c), the Borrower shall default in
the payment when due of any principal on the Loans or default in the payment
when due of any interest on the Loans, and in either such case, such default
shall continue for three (3) or more days; or
(b) Except as provided in Sections 6(a) and 6(c), the Borrower shall
default, and such default shall continue for three (3) or more days, in the
payment of any amount owing under any Credit Document; or
(c) (i) The Borrower shall default in the payment of any amount due on
the Maturity Date owing under any Credit Document or (ii) the Borrower shall
default in the payment when due of any principal or interest on the Loans
payable with regard to any obligation of Lessee to pay any Termination Value
when due or to pay Basic Rent or Supplemental Rent at such time as any
Termination Value is due; or
(d) The Borrower shall default in the due performance or observance by
it of any term, covenant or agreement contained in any Credit Document to which
it is a party (other than those referred to in paragraphs (a), (b) and (c)
above), provided, that in the case of any such default under Sections 5.4, 5.5
or 5.8(c), such default shall have continued unremedied for a period of at least
fifteen (15) days after notice to the Borrower by the Agent or the Majority
Lenders, provided, further, if any such default under Sections 5.4, 5.5 or
5.8(c) is not capable of remedy within such fifteen (15) day period but may be
remedied with further diligence and if the Borrower has and continues to pursue
diligently such remedy, then the Borrower shall be granted additional time to
pursue such remedy but in no event more than an additional thirty (30) days; or
(e) Any representation, warranty or statement made or deemed made by
the Borrower herein or in any other Credit Document or by the Borrower or the
Lessee in the Participation Agreement, or in any statement or certificate
delivered or required to be delivered pursuant hereto or thereto, shall prove to
be untrue in any material respect on the date as of which made or deemed made;
or
(f) (i) Any Lease Event of Default shall have occurred and be
continuing, or (ii) the Owner Trustee shall default in the due performance or
observance by it of any term, covenant or agreement contained in the
Participation Agreement or in the Trust Agreement to or for the benefit of the
Agent or a Lender, provided, that in the case of this clause (ii) such default
shall have continued unremedied for a period of at least fifteen (15) days after
notice to the Owner Trustee and Lessee by the Agent or the Majority Lenders,
provided, further, that in the case of this clause (ii), such default is not
capable of remedy within such fifteen (15) day period but may be remedied with
further diligence and if the Borrower has and continues to pursue diligently
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such remedy, then the Borrower shall be granted additional time to pursue such
remedy but in no event more than an additional thirty (30) days; or
(g) The Borrower shall commence a voluntary case concerning itself
under the Bankruptcy Code; or an involuntary case is commenced against the
Borrower under the Bankruptcy Code and the petition is not contravened within
ten (10) days after commencement of the case or an involuntary case is commenced
against the Borrower and the petition is not dismissed within sixty (60) days
after commencement of the case; or a custodian (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or substantially all of the
property of the Borrower; or the Borrower commences any other proceeding under
any reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to the Borrower, or there is
commenced against the Borrower any such proceeding which remains undismissed for
a period of sixty (60) days; or the Borrower is adjudicated insolvent or
bankrupt, or any order of relief or other order approving any such case or
proceeding is entered; or the Borrower suffers any appointment of any custodian
or the like for it or any substantial part of its property to continue
undischarged or unstayed for a period of sixty (60) days; or the Borrower makes
a general assignment for the benefit of creditors; or any corporate or
partnership action is taken by the Borrower for the purpose of effecting any of
the foregoing; or
(h) Any Security Document shall cease to be in full force and effect,
or shall cease to give the Agent the Liens, rights, powers and privileges
purported to be created thereby (including without limitation a first priority
perfected security interest in, and Lien on, all of the Property), in favor of
the Agent on behalf of the Lenders and the Holders, superior to and prior to the
rights of all third Persons and subject to no other Liens (except in each case
to the extent expressly permitted herein or in any Operative Agreement); or
(i) The Lease shall cease to be enforceable against the Lessee; or
(j) One (1) or more judgments or decrees shall be entered against the
Borrower involving a liability of $100,000 or more in the aggregate for all such
judgments and decrees for the Borrower and any such judgments or decrees shall
not have been vacated, discharged or stayed or bonded pending appeal within
sixty (60) days from the entry thereof, then, and in any such event, (A) if such
event is an Event of Default specified in paragraph (g) above with respect to
the Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the Notes shall immediately become due and payable, and
(B) if such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Majority Lenders, the Agent
may, or upon the request of the Majority Lenders, the Agent shall, by notice to
the Borrower declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) with the consent of the
Majority Lenders, the Agent may, or upon the request of the Majority Lenders,
the Agent shall, by notice to the Borrower, declare the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this Agreement and
the Notes to be due and payable forthwith, whereupon the same shall immediately
become due and payable (any of the foregoing occurrences or actions referred to
in clause (A) or (B) above, an "Acceleration"). Except as
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expressly provided above in this Section 6, presentment, demand, protest and all
other notices of any kind are hereby expressly waived.
Upon the occurrence of any Event of Default and at any time thereafter
so long as any Event of Default shall be continuing, the Agent shall, upon the
written instructions of the Majority Secured Parties, exercise any or all of the
rights and powers and pursue any and all of the remedies available to it
hereunder and (subject to the terms thereof) under the other Credit Documents,
the Lease and the other Operative Agreements and shall have any and all rights
and remedies available under the Uniform Commercial Code or any provision of
law.
Upon the occurrence of any Event of Default and at any time thereafter
so long as any Event of Default shall be continuing, the Agent may, and upon
request of the Majority Secured Parties shall, proceed to protect and enforce
this Agreement, the Notes, the other Credit Documents and the Lease by suit or
suits or proceedings in equity, at law or in bankruptcy, and whether for the
specific performance of any covenant or agreement herein contained or in
execution or aid of any power herein granted, or for foreclosure hereunder, or
for the appointment of a receiver or receivers for the Property or any portion
thereof or for the recovery of judgment for the indebtedness secured thereby or
for the enforcement of any other proper, legal or equitable remedy available
under applicable laws.
The Borrower shall be liable for any and all accrued and unpaid amounts
due hereunder before, after or during the exercise of any of the foregoing
remedies, including without limitation all reasonable legal fees and other
reasonable costs and expenses incurred by the Agent or any Lender by reason of
the occurrence of any Event of Default or the exercise of remedies with respect
thereto.
ARTICLE VII
THE AGENT
SECTION 7.1 APPOINTMENT. Each Lender hereby irrevocably designates and
appoints the Agent as the agent of such Lender under this Agreement and the
other Operative Agreements, and each such Lender irrevocably authorizes the
Agent, in such capacity, to execute the Operative Agreements as agent for and on
behalf of such Lender, to take such action on behalf of such Lender under the
provisions of this Agreement and the other Operative Agreements and to exercise
such powers and perform such duties as are expressly delegated to the Agent by
the terms of this Agreement and other Operative Agreements, together with such
other powers as are reasonably incidental thereto. Without limiting the
generality of the foregoing, each of the Lenders hereby specifically
acknowledges the terms and provisions of the Participation Agreement and directs
the Agent to exercise such powers, make such decisions and otherwise perform
such duties as are delegated to the Agent thereunder without being required to
obtain any specific consent with respect thereto from any Lender, unless the
matter under consideration is a Unanimous Vote Matter or otherwise requires the
consent of the Majority Lenders and/or the Majority Secured Parties.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and no implied
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covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Operative Agreement or otherwise exist
against the Agent.
SECTION 7.2 DELEGATION OF DUTIES. The Agent may execute any of its
duties under this Agreement and the other Operative Agreements by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
SECTION 7.3 EXCULPATORY PROVISIONS. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(a) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Operative
Agreement (except for its or such Person's own gross negligence or willful
misconduct) or (b) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrower or the
Lessee or any officer thereof contained in this Agreement or any other Operative
Agreement or in any certificate, report, statement or other document referred to
or provided for in, or received by the Agent under or in connection with, this
Agreement or any other Operative Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Operative Agreement or for any failure of the Borrower or the Lessee
to perform its obligations hereunder or thereunder. The Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Operative Agreement, or to inspect the properties, books
or records of the Borrower or the Lessee.
SECTION 7.4 RELIANCE BY THE AGENT. The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any Note, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it in good faith to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including without limitation counsel to the Borrower or the Lessee),
independent accountants and other experts selected by the Agent. The Agent may
deem and treat the payee of any Note as the owner thereof for all purposes
unless a written notice of assignment, negotiation or transfer thereof shall
have been filed with the Agent. The Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other Operative
Agreement unless it shall first receive such advice or concurrence of the
Majority Lenders, the Majority Secured Parties or all Secured Parties, as the
case may be, as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Operative Agreements in accordance
with a request of the Majority Lenders, the Majority Secured Parties or all
Secured Parties, as the case may be, and such and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Notes (or all Secured Parties, as the case may be).
SECTION 7.5 NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has
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received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Agent receives such a
notice, the Agent shall give notice thereof to the Lenders. The Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Majority Secured Parties; provided, that unless and
until the Agent shall have received such directions, the Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Secured Parties; provided, further, the foregoing shall
not limit (a) the rights of the Majority Secured Parties to elect remedies as
set forth in Section 6 and/or (b) the rights of the Majority Secured Parties or
all Secured Parties, as the case may be, as described in the Participation
Agreement (including without limitation Sections 8.2(h) and 8.6 of the
Participation Agreement).
SECTION 7.6 NON-RELIANCE ON THE AGENT AND OTHER LENDERS. Each Lender
expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Agent hereinafter
taken, including without limitation any review of the affairs of the Borrower or
the Lessee, shall be deemed to constitute any representation or warranty by the
Agent to any Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the -Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrower and the
Lessee and made its own decision to make its Loans hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon the Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Operative Agreements, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and the Lessee. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of the
Borrower or the Lessee which may come into the possession of the Agent or any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates.
SECTION 7.7 INDEMNIFICATION. The Lenders agree to indemnify the Agent,
in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Commitment Percentages in effect on the date on which
indemnification is sought under this Section 7.7 (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with their Commitment
Percentages immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including without limitation at any time following the payment of the Notes) be
imposed on, incurred by or asserted against any of them in any way
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relating to or arising out of, the Commitments, this Agreement, any of the other
Operative Agreements or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by any of them under or in connection with any of the foregoing;
provided, that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the gross negligence or willful
misconduct of the Agent. The agreements in this Section 7.7 shall survive the
payment of the Notes and all other amounts payable hereunder.
SECTION 7.8 THE AGENT IN ITS INDIVIDUAL CAPACITY. The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Borrower or the Lessee as though the Agent were not
the Agent hereunder and under the other Operative Agreements. With respect to
its Loans made or renewed by it and any Note issued to it, the Agent shall have
the same rights and powers under this Agreement and the other Operative
Agreements as any Lender and may exercise the same as though it were not the
Agent, and the terms "Lender" and "Lenders" shall include the Agent in its
individual capacity.
SECTION 7.9 SUCCESSOR AGENT. The Agent may resign at any time as the
Agent upon thirty (30) days' notice to the Lenders, the Borrower and, so long as
no Lease Event of Default shall have occurred and be continuing, the Lessee. If
the Agent shall resign as the Agent under this Agreement, the Majority Lenders
shall appoint from among the Lenders a successor Agent which successor Agent
shall be subject to the approval of the Borrower and, so long as no Lease Event
of Default shall have occurred and be continuing, the Lessee, such approval not
to be unreasonably withheld or delayed. If no successor Agent is appointed prior
to the effective date of the resignation of the resigning Agent, the Agent may
appoint, after consulting with the Lenders and subject to the approval of the
Borrower and, so long as no Lease Event of Default shall have occurred and be
continuing, the Lessee, such approval not to be unreasonably withheld or
delayed, a successor Agent from among the Lenders (or such other Person as shall
be acceptable to the Majority Lenders). If no successor Agent has accepted
appointment as the Agent by the date which is thirty (30) days following a
retiring Agent's notice of resignation, the retiring Agent's notice of
resignation shall nevertheless thereupon become effective and the Lenders shall
perform all of the duties of the Agent until such time, if any, as the Majority
Lenders appoint a successor Agent, as provided for above. Upon the effective
date of such resignation, only such successor Agent shall succeed to all the
rights, powers and duties of the retiring Agent and the term "Agent" shall mean
such successor agent and the retiring Agent's rights, powers and duties in such
capacity shall be terminated. After any retiring Agent resigns hereunder as the
Agent, the provisions of this Article VII and Section 9.5 shall inure to their
respective benefit as to any actions taken or omitted to be taken by it while it
was the Agent under this Agreement.
SECTION 7.10 ACTIONS OF THE AGENT ON BEHALF OF HOLDERS. The parties
hereto specifically acknowledge and consent to the Agent's acting on behalf of
the Holders as provided in the Participation Agreement, and, in any such case,
the Lenders acknowledge that the Holders shall be entitled to vote as "Secured
Parties" hereunder to the extent required or permitted by the Operative
Agreements (including without limitation Sections 8.2(h) and 8.6 of the
Participation Agreement).
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SECTION 7.11 THE AGENT'S DUTY OF CARE. Other than the exercise of
reasonable care to assure the safe custody of the Collateral while being held by
the Agent hereunder or under any other Operative Agreement, the Agent shall have
no duty or liability to preserve rights pertaining thereto, it being understood
and agreed that the Lessee shall be responsible for preservation of all rights
in the Collateral, and the Agent shall be relieved of all responsibility for the
Collateral upon surrendering it or tendering the surrender of it to the Lessee.
The Agent shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which the Agent accords its own property,
which shall be no less than the treatment employed by a reasonable and prudent
agent in the industry, it being understood that the Agent shall not have
responsibility for taking any necessary steps to preserve rights against any
parties with respect to any of the Collateral.
ARTICLE VIII
MATTERS RELATING TO PAYMENT AND COLLATERAL
SECTION 8.1 COLLECTION AND ALLOCATION OF PAYMENTS AND OTHER AMOUNTS.
The Lessee, the Construction Agent, the Agent, the Lenders, the Holders and the
Borrower have agreed pursuant to the terms of Section 8.7 of the Participation
Agreement to a procedure for the allocation and distribution of certain payments
and distributions, including without limitation the proceeds of Collateral.
SECTION 8.2 CERTAIN REMEDIAL MATTERS. Notwithstanding any other
provision of this Agreement or any other Credit Document:
(a) the Borrower shall at all times retain to the exclusion of
all other parties, all rights to Excepted Payments payable to it and to demand,
collect or commence an action at law to obtain such payments and to enforce any
judgment with respect thereto; and
(b) the Borrower and each Holder shall at all times retain the
right, but not to the exclusion of the Agent, (i) to retain all rights with
respect to insurance that Article XIV of the Lease specifically confers upon the
"Lessor", (ii) to provide such insurance as the Lessee shall have failed to
maintain or as the Borrower or any Holder may desire, and (iii) to bring an
action to enforce compliance by the Lessee with the provisions of Articles VIII,
IX, X, XI, XIV and XVII of the Lease.
SECTION 8.3 EXCEPTED PAYMENTS. Notwithstanding any other provision of
this Agreement or the Security Documents, any Excepted Payment received at any
time by the Agent shall be distributed promptly to the Person entitled to
receive such Excepted Payment. Such funds, if not distributed on the day
received, shall be invested in money market funds authorized to invest in short
term securities issued or guaranteed as to principal and interest by the U.S.
Government and repurchase agreements with respect to such securities, including
such funds to which the Owner Trustee or an affiliate provides management advice
or other services for a fee. Interest earnings on such funds invested in
accordance with this Section 8.3 shall be paid to the Lessee.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.1 AMENDMENTS AND WAIVERS. None of the terms or provisions of
this Agreement may be terminated, amended, supplemented, waived or modified
except in accordance with the terms of Section 12.4 of the Participation
Agreement.
SECTION 9.2 NOTICES. All notices required or permitted to be given
under this Agreement shall be given in accordance with Section 12.2 of the
Participation Agreement.
SECTION 9.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and
no delay in exercising, on the part of the Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Credit Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or future
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
SECTION 9.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made by the Borrower under the Operative
Agreements shall survive the execution and delivery of this Agreement and the
Notes and the making of the Loans hereunder.
SECTION 9.5 PAYMENT OF EXPENSES AND TAXES. The Borrower agrees to
(with funds provided by the Lessee as Supplemental Rent): (a) pay all reasonable
out-of-pocket costs and expenses of (i) the Agent whether or not the
transactions herein contemplated are consummated, in connection with the
negotiation, preparation, execution and delivery of the Operative Agreements and
the documents and instruments referred to therein (including without limitation
the reasonable fees and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Battle & ▇▇▇▇▇▇ LLP) and
any amendment, waiver or consent relating thereto (including without limitation
the reasonable fees and disbursements of counsel to the Agent) and (ii) the
Agent and each of the Lenders in connection with the enforcement of the
Operative Agreements and the documents and instruments referred to therein
(including without limitation the reasonable fees and disbursements of counsel
for the Agent and for each of the Lenders) and (b) pay and hold each of the
Lenders harmless from and against any and all present and future stamp and other
similar taxes with respect to the foregoing matters and save each of the Lenders
harmless from and against any and all liabilities with respect to or resulting
from any delay or omission (other than to the extent attributable to such
Lender) to pay such taxes.
SECTION 9.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Agent, all future holders of the Notes and their respective
successors and assigns, except that the Borrower may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of each Lender.
SECTION 9.7 PARTICIPATIONS. Subject to and in accordance with Section
10.1 of the Participation Agreement, each Lender may sell participations to one
or more Persons (each, a
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"Participant") in all or a portion of its rights, obligations or rights and
obligations under the Operative Agreements (including all or a portion of its
Commitment or its Loans); provided, however, that (a) such Lender's obligations
under the Operative Agreements shall remain unchanged, (b) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (c) the Participant shall be entitled to the benefit of the
yield protection provisions contained in Sections 11.2(e), 11.3 and 11.4 of the
Participation Agreement and the right of set-off contained in Section 12.15 of
the Participation Agreement, and (d) the Borrower shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under the Operative Agreements, and such Lender shall retain the
sole right to enforce the obligations of the Borrower relating to its Loans and
its Notes and to approve any amendment, modification, or waiver of any provision
of the Operative Agreements (other than amendments, modifications, or waivers
decreasing the amount of principal of or the rate at which interest is payable
on such Loans or Notes, extending any scheduled principal payment date or date
fixed for the payment of interest on such Loans or Notes, or extending its
Commitment). Reasonably promptly in connection with granting any participation,
the granting Lender shall notify the Borrower, the Lessee and the Agent of the
identity of such Participant; provided, however, that the failure to so notify
any such Parties in a timely manner will not affect the validity of such grant.
Any Lender may furnish any information concerning the Borrower, the
Lessee or any Subsidiaries of the Lessee in the possession of such Lender from
time to time to participants (including prospective participants), subject,
however, to the provisions of Section 12.13 of the Participation Agreement.
SECTION 9.8 ASSIGNMENTS.
(a) Subject to and in accordance with Section 10.1 of the Participation
Agreement, each Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under the Operative Agreements (including,
without limitation, all or a portion of its Loans, its Notes, and its
Commitment); provided, however, that
(1) each such assignment shall be to an Eligible Assignee;
(2) except in the case of an assignment to another Lender or
an assignment of all of a Lender's rights and obligations under the
Operative Agreements, any such partial assignment shall be in an amount
at least equal to $5,000,000 or an integral multiple of $1,000,000 in
excess thereof;
(3) each such assignment by a Lender shall be of a constant,
and not varying, percentage of all of its rights and obligations under
the Operative Agreements and the Notes; and
(4) the parties to such assignment shall execute and deliver
to the Agent for its acceptance an Assignment and Acceptance
substantially in the form of Exhibit B hereto, together with any Note
subject to such assignment and a processing fee of $3,500.
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Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights and benefits of a Lender under the
Operative Agreements and the assigning Lender shall, to the extent of such
assignment, relinquish its rights and be released from its obligations under the
Operative Agreements. Upon the consummation of any assignment pursuant to this
Section, the assignor, the Agent and the Borrower shall make appropriate
arrangements so that, if required, new Notes are issued to the assignor and the
assignee. The cost of issuance of such new Notes shall be allocated to the
assignor and the assignee as determined by such parties. If the assignee is not
incorporated under the laws of the United States of America or a state thereof,
it shall deliver to the Borrower and the Agent certification as to exemption
from deduction or withholding of Taxes in accordance with Section 11.2(e) of the
Participation Agreement.
(b) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and payment
of the processing fee, the Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit B hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the parties thereto.
(c) Notwithstanding any other provision set forth in any Operative
Agreement, any Lender may at any time assign and pledge all or any portion of
its Loans and its Notes to any Federal Reserve Bank as collateral security
pursuant to Regulation A and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning Lender from its
obligations hereunder.
(d) Any Lender may furnish any information concerning the Borrower, the
Lessee or any Subsidiaries of the Lessee in the possession of such Lender from
time to time to assignees (including prospective assignees), subject, however,
to the provisions of Section 12.13 of the Participation Agreement.
SECTION 9.9 THE REGISTER. The Agent shall maintain at its address
referred to in Section 12.2 of the Participation Agreement a copy of each
Assignment and Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Loans owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
SECTION 9.10 ADJUSTMENTS; SET-OFF. Except as otherwise expressly
provided in Section 8.1 hereof and Section 8.7 of the Participation Agreement
where, and to the extent, one (1) Lender is entitled to payments prior to other
Lenders, if any Lender (a "Benefitted Lender") shall at any time receive any
payment of all or part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 6(g), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such
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other Lender's Loans, or interest thereon, such Benefitted Lender shall purchase
for cash from the other Lenders a participating interest in such portion of each
such other Lender's Loan, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary to cause
such Benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, however, that
if all or any portion of such excess payment or benefits is thereafter recovered
from such Benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the event of such recovery, but without
interest.
(b) In addition to any rights now or hereafter granted under applicable
law or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default, the Agent and each Lender is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to the Borrower or to any other Person, any
such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other Indebtedness at
any time held or owing by the Agent or such Lender (including without limitation
by branches and agencies of the Agent or such Lender wherever located) to or for
the credit or the account of the Borrower against and on account of the
obligations and liabilities of the Borrower to the Agent or such Lender under
this Agreement or under any of the other Operative Agreements, including without
limitation all interests in obligations of the Borrower purchased by any such
Lender pursuant to Section 9.10(a), and all other claims of any nature or
description arising out of or connected with this Agreement or any other
Operative Agreement, irrespective or whether or not the Agent or such Lender
shall have made any demand and although said obligations, liabilities or claims,
or any of them, shall be contingent or unmatured.
SECTION 9.11 COUNTERPARTS. This Agreement may be executed by one (1)
or more of the parties to this Agreement on any number of separate counterparts
(including without limitation by telecopy), and all of said counterparts taken
together shall be deemed to constitute one (1) and the same instrument. A set of
the copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the Agent.
SECTION 9.12 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 9.13 INTEGRATION. This Agreement and the other Credit
Documents represent the agreement of the Borrower, the Agent, and the Lenders
with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Agent or any Lender
relative to subject matter hereof not expressly set forth or referred to herein
or in the other Credit Documents.
SECTION 9.14 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK.
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SECTION 9.15 SUBMISSION TO JURISDICTION; VENUE. THE PROVISIONS OF THE
PARTICIPATION AGREEMENT RELATING TO SUBMISSION TO JURISDICTION AND VENUE ARE
HEREBY INCORPORATED BY REFERENCE HEREIN, MUTATIS MUTANDIS.
SECTION 9.16 ACKNOWLEDGEMENTS. The Borrower hereby acknowledges that:
(a) neither the Agent nor any Lender has any fiduciary relationship
with or duty to the Borrower arising out of or in connection with this Agreement
or any of the other Credit Documents, and the relationship between the Agent
(and the Lenders) and the Borrower, in connection herewith or therewith is
solely that of debtor and creditor; and
(b) no joint venture is created hereby or by the other Credit Documents
or otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Borrower and the Lenders.
SECTION 9.17 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENT AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT
ALLOWED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
SECTION 9.18 NONRECOURSE. In addition to and not in limitation of
Section 12.9 of the Participation Agreement, anything to the contrary contained
in this Agreement or in any other Operative Agreement notwithstanding, no
Exculpated Person shall be personally liable in any respect for any liability or
obligation hereunder or under any other Operative Agreement including without
limitation the payment of the principal of, or interest on, the Notes, or for
monetary damages for the breach of performance of any of the covenants contained
in this Agreement, the Notes or any of the other Operative Agreements. The Agent
and the Lenders agree that, in the event any of them pursues any remedies
available to them under this Agreement, the Notes or any other Operative
Agreement, neither the Agent nor the Lenders shall have any recourse against the
Borrower, nor any other Exculpated Person, for any deficiency, loss or claim for
monetary damages or otherwise resulting therefrom and recourse shall be had
solely and exclusively against the Trust Estate and the Lessee; but nothing
contained herein shall be taken to prevent recourse against or the enforcement
of remedies against the Trust Estate in respect of any and all liabilities,
obligations and undertakings contained in this Agreement, the Notes or any other
Operative Agreement. The Agent and the Lenders further agree that the Borrower
shall not be responsible for the payment of any amounts owing hereunder
(excluding principal and interest (other than Overdue Interest) in respect of
the Loans) (such non-excluded amounts, "Supplemental Amounts") except to the
extent that payments of Supplemental Rent designated by the Lessee for
application to such Supplemental Amounts shall have been paid by the Lessee
pursuant to the Lease (it being understood that the failure by the Lessee for
any reason to pay any Supplemental Rent in respect of such Supplemental Amounts
shall nevertheless be deemed to constitute a default by the Borrower for the
purposes of Section 6). Notwithstanding the foregoing provisions of this Section
9.18, nothing in this Agreement or any other Operative Agreement shall (a)
constitute a waiver, release or discharge of any obligation evidenced or secured
by this Agreement or any other Credit Document, (b) limit the right of the
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Agent or any Lender to name the Borrower as a party defendant in any action or
suit for judicial foreclosure and sale under any Security Document, or (c)
affect in any way the validity or enforceability of any guaranty (whether of
payment and/or performance) given to the Lessor, the Agent or the Lenders, or of
any indemnity agreement given by the Borrower, in connection with the Loans made
hereunder.
SECTION 9.19 USURY SAVINGS PROVISION. IT IS THE INTENT OF THE PARTIES
HERETO TO CONFORM TO AND CONTRACT IN STRICT COMPLIANCE WITH APPLICABLE USURY LAW
FROM TIME TO TIME IN EFFECT. TO THE EXTENT ANY PAYMENTS HEREUNDER ARE
HEREINAFTER CHARACTERIZED BY ANY COURT OF COMPETENT JURISDICTION AS THE
REPAYMENT OF PRINCIPAL AND INTEREST THEREON, THE FOLLOWING PROVISIONS OF THIS
SECTION 9.19 SHALL APPLY. ANY SUCH PAYMENTS SO CHARACTERIZED AS INTEREST MAY BE
REFERRED TO HEREIN AS "INTEREST." ALL AGREEMENTS AMONG THE PARTIES HERETO ARE
HEREBY LIMITED BY THE PROVISIONS OF THIS PARAGRAPH WHICH SHALL OVERRIDE AND
CONTROL ALL SUCH AGREEMENTS, WHETHER NOW EXISTING OR HEREAFTER ARISING AND
WHETHER WRITTEN OR ORAL. IN NO WAY, NOR IN ANY EVENT OR CONTINGENCY (INCLUDING
WITHOUT LIMITATION PREPAYMENT OR ACCELERATION OF THE MATURITY OF ANY
OBLIGATION), SHALL ANY INTEREST TAKEN, RESERVED, CONTRACTED FOR, CHARGED, OR
RECEIVED UNDER THIS AGREEMENT OR OTHERWISE, EXCEED THE MAXIMUM NONUSURIOUS
AMOUNT PERMISSIBLE UNDER APPLICABLE LAW. IF, FROM ANY POSSIBLE CONSTRUCTION OF
ANY OF THE OPERATIVE AGREEMENTS OR ANY OTHER DOCUMENT OR AGREEMENT, INTEREST
WOULD OTHERWISE BE PAYABLE IN EXCESS OF THE MAXIMUM NONUSURIOUS AMOUNT, ANY SUCH
CONSTRUCTION SHALL BE SUBJECT TO THE PROVISIONS OF THIS PARAGRAPH AND SUCH
AMOUNTS UNDER SUCH DOCUMENTS OR AGREEMENTS SHALL BE AUTOMATICALLY REDUCED TO THE
MAXIMUM NONUSURIOUS AMOUNT PERMITTED UNDER APPLICABLE LAW, WITHOUT THE NECESSITY
OF EXECUTION OF ANY AMENDMENT OR NEW DOCUMENT OR AGREEMENT. IF THE AGENT OR ANY
LENDER SHALL EVER RECEIVE ANYTHING OF VALUE WHICH IS CHARACTERIZED AS INTEREST
WITH RESPECT TO THE OBLIGATIONS OWED HEREUNDER OR UNDER APPLICABLE LAW AND WHICH
WOULD, APART FROM THIS PROVISION, BE IN EXCESS OF THE MAXIMUM LAWFUL AMOUNT, AN
AMOUNT EQUAL TO THE AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE INTEREST SHALL,
WITHOUT PENALTY, BE APPLIED TO THE REDUCTION OF THE COMPONENT OF PAYMENTS DEEMED
TO BE PRINCIPAL AND NOT TO THE PAYMENT OF INTEREST, OR REFUNDED TO THE BORROWER
OR ANY OTHER PAYOR THEREOF, IF AND TO THE EXTENT SUCH AMOUNT WHICH WOULD HAVE
BEEN EXCESSIVE EXCEEDS THE COMPONENT OF PAYMENTS DEEMED TO BE PRINCIPAL. THE
RIGHT TO DEMAND PAYMENT OF ANY AMOUNTS EVIDENCED BY ANY OF THE OPERATIVE
AGREEMENTS DOES NOT INCLUDE THE RIGHT TO RECEIVE ANY INTEREST WHICH HAS NOT
OTHERWISE ACCRUED ON THE DATE OF SUCH DEMAND, AND NEITHER THE AGENT NOR ANY
LENDER INTENDS TO CHARGE OR RECEIVE ANY UNEARNED INTEREST IN THE EVENT OF SUCH
DEMAND. ALL INTEREST PAID OR AGREED TO BE PAID TO THE AGENT OR ANY
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LENDER SHALL, TO THE EXTENT PERMITTED BY APPLICABLE LAW, BE AMORTIZED, PRORATED,
ALLOCATED, AND SPREAD THROUGHOUT THE FULL STATED TERM (INCLUDING WITHOUT
LIMITATION ANY RENEWAL OR EXTENSION) OF THIS AGREEMENT SO THAT THE AMOUNT OF
INTEREST ON ACCOUNT OF SUCH PAYMENTS DOES NOT EXCEED THE MAXIMUM NONUSURIOUS
AMOUNT PERMITTED BY APPLICABLE LAW.
SECTION 9.20 THIRD PARTY BENEFICIARY. The parties hereto acknowledge
and agree that the Lessee is a third party beneficiary of this Agreement and has
all rights attendant thereto.
SECTION 9.21 MUTILATED, DESTROYED, LOST OR STOLEN NOTES. If any Note
shall become mutilated, destroyed, lost or stolen, the Owner Trustee shall, upon
the written request and at the sole cost and expense of the holder of such Note,
issue a new Note in the form of Exhibit A-1 or Exhibit A-2 hereto, as
applicable, payable to the same holder and dated the same date as the Note so
mutilated, destroyed, lost or stolen. The Agent shall make a notation on each
new Note of the amount of all payments or prepayments of principal and interest
theretofore made on the Note so mutilated, destroyed, lost or stolen and the
date to which interest on such old Note has been paid. If the Note being
replaced has become mutilated, such Note shall be surrendered to the Agent and
forwarded to the Owner Trustee by the Agent. If the Note being replaced has been
destroyed, lost or stolen, the holder of such Note shall furnish to the Owner
Trustee and the Agent (a) such security or indemnity as may be required by them
to save the Owner Trustee and the Agent harmless and (b) evidence satisfactory
to the Owner Trustee and the Agent of the destruction, loss or theft of such
Note and of the ownership thereof.
[signature pages to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, except as
expressly stated herein, but solely as the Owner
Trustee under the VS Trust 2000-2
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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29
ABN AMRO BANK N.V.,
as the Agent and a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
26
30
CREDIT SUISSE FIRST BOSTON, as a Lender
and Documentation Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
27
31
CREDIT LYONNAIS LOS ANGELES BRANCH,
as a Lender and Syndication Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President and Manager
28
32
THE FUJI BANK, LIMITED, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President & Group Head
29
33
AIB INTERNATIONAL FINANCE, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director
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DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH, as a
Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
31
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THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as a Lender
By: /s/ ▇▇▇ ▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇
Title: Senior Vice President & Manager
32
36
THE SUMITOMO BANK, LIMITED, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and Manager
33
37
COMERICA BANK - CALIFORNIA, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. WAYS
Name: ▇▇▇▇▇▇ ▇. Ways
Title: AVP
34
38
FLEET NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
35
39
▇▇▇▇▇ FARGO BANK N.A., as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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40
FBTC LEASING CORP., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
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KEYBANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
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SCHEDULE 2.1
TRANCHE A TRANCHE B
COMMITMENT COMMITMENT
NAME AND ADDRESS OF LENDERS AMOUNT/PERCENTAGE AMOUNT/PERCENTAGE
ABN AMRO Bank N.V. $47,361,375.89/ $9,244,909.22/
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ 23.20271208% 29.26530301%
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Schedule 2.1 - Page 1
43
TRANCHE A TRANCHE B
COMMITMENT COMMITMENT
NAME AND ADDRESS OF LENDERS AMOUNT/PERCENTAGE AMOUNT/PERCENTAGE
Credit Lyonnais Los Angeles $21,546,039.90/ $3,334,506.18/
Branch 10.55557510% 10.55557512%
CREDIT CONTACT:
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, Vice President
Address: Credit Lyonnais Los Angeles Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
OPERATIONS CONTACT:
Name: ▇▇▇▇▇ ▇▇▇, Operations Assistant
Address: Credit Lyonnais Los Angeles Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
WIRING INSTRUCTIONS:
Name of Credit Bank: Federal Reserve Bank of New York
Account Name: Credit Lyonnais New York
ABA: ▇▇▇▇▇▇▇▇▇
In Favor Of: Credit Lyonnais Los Angeles Branch
Attention: Loan Servicing
Reference: Veritas Software
Schedule 2.1 - Page 2
44
TRANCHE A TRANCHE B
COMMITMENT COMMITMENT
NAME AND ADDRESS OF LENDERS AMOUNT/PERCENTAGE AMOUNT/PERCENTAGE
Credit Suisse First Boston $22,143,092.78/ $3,426,907.22/
10.84807602% 10.84807604%
CREDIT CONTACT:
Name: ▇▇▇▇▇▇ ▇▇▇▇, Vice President
Address: Credit Suisse First ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇.▇▇▇
BACK-UP CREDIT CONTACT:
Name: Janko Gogija
Address: Credit Suisse First ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇.▇▇▇
OPERATIONS CONTACT:
Name: ▇▇▇ ▇▇▇▇▇
Address: Credit Suisse First Boston
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇
WIRING INSTRUCTIONS:
Name of Credit Bank: The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA Routing #: 021 000 018
Account #: ▇▇▇-▇▇▇▇-▇▇▇
Account Name: CSFB NY Loan Clearing
Reference: Veritas Corp.
Schedule 2.1 - Page 3
45
TRANCHE A TRANCHE B
COMMITMENT COMMITMENT
NAME AND ADDRESS OF LENDERS AMOUNT/PERCENTAGE AMOUNT/PERCENTAGE
Deutsche Bank AG New York Branch and/or $23,700,643.89/ $3,667,956.79/
Cayman Islands Branch 11.61113261% 11.61113261%
CREDIT CONTACT:
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
Address: Deutsche Bank AG
New York Branch
▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇.▇▇▇
OPERATIONS CONTACT:
Name: ▇▇▇▇▇▇▇ ▇▇▇, Account Administrator
Address: Deutsche Bank AG
New York Branch
▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇/4139
E-Mail: ________________
DOCUMENTATION CONTACT:
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director In Counsel
Address: Legal Department
Deutsche Bank AG New York Branch
▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
WIRING INSTRUCTIONS:
Name of Credit Bank: Deutsche Bank AG New York Branch
ABA #: ▇▇▇▇▇▇▇▇▇
Ref for principal and interest: "...principal and/or interest"
Ref for Fees: "....fees"
Schedule 2.1 - Page 4
46
TRANCHE A TRANCHE B
COMMITMENT COMMITMENT
NAME AND ADDRESS OF LENDERS AMOUNT/PERCENTAGE AMOUNT/PERCENTAGE
Fleet National Bank $17,955,033.25/ $2,778,755.15/
8.79631259% 8.79631260%
CREDIT CONTACT:
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇_▇_▇▇▇▇@▇▇▇▇▇.▇▇▇
OPERATIONS CONTACT:
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ____________
WIRING INSTRUCTIONS:
Name of Credit Bank: Fleet National Bank
City, State: Boston, MA
ABA #: ▇▇▇-▇▇▇-▇▇▇
For Further Credit To: Commercial Loan in Process
Account #: ▇▇▇▇▇▇▇-03156
Reference: Veritas Software
Schedule 2.1 - Page 5
47
TRANCHE A TRANCHE B
COMMITMENT COMMITMENT
NAME AND ADDRESS OF LENDERS AMOUNT/PERCENTAGE AMOUNT/PERCENTAGE
KeyBank National Association $17,955,033.25/ $2,778,755.15/
8.79631259% 8.79631260%
CREDIT CONTACT:
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Address: KeyBank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule 2.1 - Page 6
48
TRANCHE A TRANCHE B
COMMITMENT COMMITMENT
NAME AND ADDRESS OF LENDERS AMOUNT/PERCENTAGE AMOUNT/PERCENTAGE
The Fuji Bank, Limited $10,266,185.57/
5.02948539%
CREDIT CONTACT:
Name: Mano ▇▇▇▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: _____________
OPERATIONS CONTACT:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: _____________
WIRING INSTRUCTIONS:
Name of Credit Bank: Bankers Trust Company
City, State: New York, NY
ABA #: ▇▇▇▇▇▇▇▇▇
For Further Credit to: The Fuji Bank, Limited, Los Angeles Agency
Account #: ▇▇▇▇▇▇▇▇
Attention: Loan Administration
Reference: Veritas Software
Schedule 2.1 - Page 7
49
TRANCHE A TRANCHE B
COMMITMENT COMMITMENT
NAME AND ADDRESS OF LENDERS AMOUNT/PERCENTAGE AMOUNT/PERCENTAGE
FBTC Leasing Corp. $1,588,814.43/
5.02948538%
CREDIT CONTACT:
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇_▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇.▇▇
BACKUP CREDIT CONTACT:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ___________
E-Mail: ____________
ADMINISTRATIVE CONTACTS:
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ____________
Name: ▇▇▇▇ ▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
WIRING INSTRUCTIONS:
Name of Credit Bank: Fuji Bank and Trust Company
ABA #: 02600-8905
Account Name: FBTC Leasing Corp.
Account #: 001-900269
Attention: ▇▇▇▇ ▇▇▇▇
Schedule 2.1 - Page 8
50
TRANCHE A TRANCHE B
COMMITMENT COMMITMENT
NAME AND ADDRESS OF LENDERS AMOUNT/PERCENTAGE AMOUNT/PERCENTAGE
The Sumitomo Bank, Limited $12,374,960.62/
6.06259094%
CREDIT CONTACT:
Name: San ▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ____________
BACK-UP CREDIT CONTACT:
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
OPERATIONS CONTACTS:
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ____________
WIRING INSTRUCTIONS:
Name of Credit Bank: Citibank, N.A.
City, State: New York, NY
ABA #: ▇▇▇▇▇▇▇▇▇
Account Name: The Sumitomo Bank, Limited, New York Branch
Account #: ▇▇▇▇▇▇▇▇
Attention: Loan Operations
Schedule 2.1 - Page 9
51
TRANCHE A TRANCHE B
COMMITMENT COMMITMENT
NAME AND ADDRESS OF LENDERS AMOUNT/PERCENTAGE AMOUNT/PERCENTAGE
The Industrial Bank of Japan, Limited $8,659,793.81/ $1,340,206.19/
4.24250138% 4.24250139%
CREDIT CONTACT:
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
OPERATIONS CONTACT:
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ____________
WIRING INSTRUCTIONS:
Name of Credit Bank: The Industrial Bank of Japan, Limited New York Branch
City, State: New York, NY
ABA#: ▇▇▇-▇▇▇-▇▇▇
For Further Credit To: Veritas Software (Milpitas I)
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Credit Administrative Department
Schedule 2.1 - Page 10
52
TRANCHE A TRANCHE B
COMMITMENT COMMITMENT
NAME AND ADDRESS OF LENDERS AMOUNT/PERCENTAGE AMOUNT/PERCENTAGE
Comerica Bank - California $7,793,814.43/ $1,206,185.57/
3.81825124% 3.81825125%
CREDIT CONTACT:
Name: ▇▇▇▇▇▇ ▇. Ways
Address: ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇_▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
OPERATIONS CONTACT:
Name: ▇▇▇▇▇▇ ▇. Ways
Address: ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇_▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
WIRING INSTRUCTIONS:
Name of Credit Bank: Comerica Bank - California
City, State: San Jose, CA
ABA #: ▇▇▇▇▇▇▇▇▇
For Further Credit To: Veritas Software Corporation
Account #: To Be Determined
Attention: Rob Ways
Schedule 2.1 - Page 11
53
TRANCHE A TRANCHE B
COMMITMENT COMMITMENT
NAME AND ADDRESS OF LENDERS AMOUNT/PERCENTAGE AMOUNT/PERCENTAGE
AIB International Finance $7,182,013.30/ $1,111,502.06/
3.51852503% 3.5182504%
CREDIT CONTACT:
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇
Address: Corporate Banking
AIB ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇
Phone: ▇▇▇-▇-▇▇▇▇▇▇▇
Fax: ▇▇▇-▇-▇▇▇▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇@▇▇▇.▇▇/▇▇▇▇▇▇▇.▇.▇▇▇▇▇@▇▇▇.▇▇
OPERATIONS CONTACT:
Name: ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇▇
Address: Business Support
AIB ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇
Phone: ▇▇▇-▇-▇▇▇▇▇▇▇
Fax: ▇▇▇-▇-▇▇▇▇▇▇▇
E-Mail: _________________
WIRING INSTRUCTIONS:
Name of Credit Bank: Chase Manhattan Bank
City, State: New York
Method of Payment: SSWIFTCODE: ▇▇▇▇ US33
ESWIFTCODE: AIB KIE 2D
CHAPS NO.: 041833
Account #: 001-1-599-907
Attention: ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇▇
Schedule 2.1 - Page 12
54
TRANCHE A TRANCHE B
COMMITMENT COMMITMENT
NAME AND ADDRESS OF LENDERS AMOUNT/PERCENTAGE AMOUNT/PERCENTAGE
▇▇▇▇▇ Fargo Bank, N.A. $7,182,013.30/ $1,111,502.06/
3.51852503% 3.51852504%
CREDIT CONTACT:
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
OPERATIONS CONTACT:
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Address: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
E-Mail: ____________
WIRING INSTRUCTIONS:
Name of Credit Bank: ▇▇▇▇▇ Fargo Bank N.A.
City, State: San Francisco, CA
ABA #: ▇▇▇▇▇▇▇▇▇
For Further Credit To: Veritas Software Corporatoin
Account #: GL #2712-507201
Attention: Loan Accounting/▇▇▇▇▇▇▇ ▇▇▇▇▇
TOTAL $204,120,000.00/ 100.00% $31,590,000.00/ 100.00%
Schedule 2.1 - Page 13
55
EXHIBIT A-1
[FORM OF]
TRANCHE A NOTE
VS TRUST 2000-2
July ___, 2000
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as the Owner Trustee
under the VS Trust ▇▇▇▇-▇ (▇▇▇ "▇▇▇▇▇▇▇▇"), hereby unconditionally promises to
pay to the order of [Lender] (the "Lender"), at the office of ABN AMRO BANK
N.V., located at [__________] or at such other address as may be specified by
ABN AMRO BANK N.V., in lawful money of the United States of America and in
immediately available funds, on the applicable Maturity Date, the aggregate
unpaid principal amount of all Tranche A Loans made by the Lender to the
Borrower in respect of the relevant portion of the Property pursuant to Section
2.1 of the Credit Agreement (as defined below). The Borrower agrees to pay
interest in like money at such office on the unpaid principal amount hereof from
time to time outstanding at the rates and on the dates specified in Section 2.8
of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of each
Tranche A Loan made pursuant to the Credit Agreement and the date and amount of
each payment or prepayment of principal thereof, each continuation thereof and
each conversion of all or a portion thereof to another Type. Each such
endorsement shall constitute prima facie evidence of the accuracy of the
information endorsed. The failure to make any such endorsement or any error in
such endorsement shall not affect the obligations of the Borrower in respect of
such Loan.
This Note (a) is one (1) of the Notes referred to in the Credit
Agreement dated as of July 28, 2000 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the Lender, the other banks and financial institutions from time to
time parties thereto, ABN AMRO Bank N.V., as the Agent, Credit Suisse First
Boston, as Documentation Agent, and Credit Lyonnais Los Angeles Branch, as
Syndication Agent, (b) is subject to the provisions of the Credit Agreement
(including without limitation Section 9.18 thereof) and (c) is subject to
optional and mandatory prepayment in whole or in part as provided in the Credit
Agreement. Reference is hereby made to the Credit Documents for a description of
the properties and assets in which a security interest has been granted, the
nature and extent of the security and the guarantees, the terms and conditions
upon which the security interests and each guarantee were granted and the rights
of the holder of this Note in respect thereof.
A-1-1
56
Upon the occurrence of any one (1) or more of the Events of Default,
all amounts then remaining unpaid on this Note shall become, or may be declared
to be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
[The remainder of this page has been left blank intentionally.]
A-1-2
57
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but solely as
the Owner Trustee under the VS Trust 2000-2
By:________________________________________
Name:______________________________________
Title:_____________________________________
▇-▇-▇
▇▇
▇▇▇▇▇▇▇ ▇-▇
[FORM OF]
TRANCHE B NOTE
VS TRUST 2000-2
July ___, 2000
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as the Owner Trustee
under the VS Trust ▇▇▇▇-▇ (▇▇▇ "▇▇▇▇▇▇▇▇"), hereby unconditionally promises to
pay to the order of [Lender] (the "Lender") at the office of ABN AMRO BANK N.V.
located at [__________] or at such other address as may be specified by ABN AMRO
BANK N.V., in lawful money of the United States of America and in immediately
available funds, on the applicable Maturity Date, the aggregate unpaid principal
amount of all Tranche B Loans made by the Lender to the Borrower in respect of
the relevant portion of the Property pursuant to Section 2.1 of the Credit
Agreement (as defined below). The Borrower agrees to pay interest in like money
at such office on the unpaid principal amount hereof from time to time
outstanding at the rates and on the dates specified in Section 2.8 of such
Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of each
Tranche B Loan made pursuant to the Credit Agreement and the date and amount of
each payment or prepayment of principal thereof, each continuation thereof and
each conversion of all or a portion thereof to another Type. Each such
endorsement shall constitute prima facie evidence of the accuracy of the
information endorsed. The failure to make any such endorsement or any error in
such endorsement shall not affect the obligations of the Borrower in respect of
such Loan.
This Note (a) is one (1) of the Notes referred to in the Credit
Agreement dated as of July 28, 2000 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the Lender, the other banks and financial institutions from time to
time parties thereto, ABN AMRO Bank N.V., as the Agent, Credit Suisse First
Boston, as Documentation Agent and Credit Lyonnais Los Angeles Branch, as
Syndication Agent, (b) is subject to the provisions of the Credit Agreement
(including without limitation Section 9.18 thereof) and (c) is subject to
optional and mandatory prepayment in whole or in part as provided in the Credit
Agreement. Reference is hereby made to the Credit Documents for a description of
the properties and assets in which a security interest has been granted, the
nature and extent of the security and the guarantees, the terms and conditions
upon which the security interests and each guarantee were granted and the rights
of the holder of this Note in respect thereof.
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59
Upon the occurrence of any one (1) or more of the Events of Default,
all amounts then remaining unpaid on this Note shall become, or may be declared
to be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
[The remainder of this page has been left blank intentionally.]
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60
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but solely as
the Owner Trustee under the VS Trust 2000-2
By:________________________________________
Name:______________________________________
Title:_____________________________________
▇-▇-▇
▇▇
▇▇▇▇▇▇▇ ▇
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of July 28, 2000
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its
individual capacity, but solely as the Owner Trustee under the VS Trust 2000-2
(the "Owner Trustee" or the "Borrower"), the Lenders named therein, ABN AMRO
Bank N.V., as the Agent, Credit Suisse First Boston, as Documentation Agent, and
Credit Lyonnais Los Angeles Branch, as Syndication Agent. Unless otherwise
defined herein, terms defined in the Credit Agreement (or pursuant to Section 1
of the Credit Agreement, defined in other agreements) and used herein shall have
the meanings given to them in or pursuant to the Credit Agreement.
[____________________] (the "Assignor") and [_______________] (the
"Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), a [___%] interest (the "Assigned Interest")
in and to the Assignor's rights and obligations under the Credit Agreement with
respect to the credit facility contained in the Credit Agreement as are set
forth on Schedule 1 hereto (the "Assigned Facility"), in a principal amount for
the Assigned Facility as set forth on Schedule 1.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Operative
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Operative Agreement or
any other instrument or document furnished pursuant thereto, other than that it
has not created any adverse claim upon the interest being assigned by it
hereunder and that such interest is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, or any other obligor or the
performance or observance by the Borrower, or any other obligor of any of their
respective obligations under the Credit Agreement or any other Operative
Agreement or any other instrument or document furnished pursuant hereto or
thereto; and (c) attaches the Note held by it evidencing the Assigned Facility
and requests that the Agent exchange such Note for a new Note payable to the
Assignee and (if the Assignor has retained any interest in the Assigned
Facility) a new Note payable to the Assignor in the respective amounts which
reflect the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received copies of the Operative
B-1
62
Agreements, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (c) agrees that it will, independently and without
reliance upon the Assignor, the Agent or any other Lender 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 Credit
Agreement, the other Operative Agreements or any other instrument or document
furnished pursuant hereto or thereto; (d) appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement, the other Operative Agreements or any
other instrument or document furnished pursuant hereto or thereto as are
delegated to the Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Credit Agreement and the other Operative Agreements to which Assignee is a
party and will perform in accordance herewith all the obligations which by the
terms of the Credit Agreement and the other Operative Agreements to which
Assignee is a party are required to be performed by it as a Lender including
without limitation, if it is organized under the laws of a jurisdiction outside
the U.S., its obligation pursuant to Section 11.2(e) of the Participation
Agreement.
4. The effective date of this Assignment and Acceptance shall be
[________, _____] (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for acceptance by
it and recording by the Agent pursuant to Section 9.9 of the Credit Agreement,
effective as of the Effective Date (which shall not, unless otherwise agreed to
by the Agent, be earlier than five (5) Business Days after the date of such
acceptance and recording by the Agent).
5. Upon such acceptance and recording, from and after the Effective
Date, the Agent shall make all payments in respect of the Assigned Interest
(including without limitation payments of principal, interest, fees and other
amounts) to the Assignee whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by the Agent for
periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a party
to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Operative Agreements and shall be bound by the provisions thereof and (b)
the Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement and the other Operative Agreements.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
8. This Assignment and Acceptance may be executed by one (1) or more of
the parties hereto on any number of separate counterparts (including without
limitation by telecopy), and all of said counterparts taken together shall be
deemed to constitute one (1) and the same instrument.
B-2
63
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
[Name of Assignor]
By:________________________________________
Name:______________________________________
Title:_____________________________________
[Name of Assignee]
By:________________________________________
Name:______________________________________
Title:_____________________________________
Consented To:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but solely as
the Owner Trustee under the VS Trust 2000-2
By:________________________________________
Name:______________________________________
Title:_____________________________________
ABN AMRO BANK N.V.,
as the Agent
By:________________________________________
Name:______________________________________
Title:_____________________________________
[consents required only to the extent expressly provided in Section 9.8
of the Credit Agreement]
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64
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT,
DATED AS OF JULY 28, 2000,
AMONG
FIRST SECURITY BANK, NATIONAL ASSOCIATION
NOT INDIVIDUALLY,
BUT SOLELY AS THE OWNER TRUSTEE,
THE LENDERS NAMED THEREIN,
ABN AMRO BANK N.V., AS THE AGENT
FOR THE LENDERS (IN SUCH CAPACITY, THE "AGENT")
Name of Assignor: ____________________________________
Name of Assignee: ____________________________________
Effective Date of Assignment: ____________________________________
CREDIT FACILITY PRINCIPAL AMOUNT COMMITMENT
ASSIGNED ASSIGNED PERCENTAGE ASSIGNED
____________ $____________ ___________%
[Name of Assignor]
By:________________________________________
Name:______________________________________
Title:_____________________________________
[Name of Assignee]
By:________________________________________
Name:______________________________________
Title:_____________________________________
B-4