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EXHIBIT 10.35
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CONSTRUCTION AGENCY AGREEMENT
Dated as of March 9, 2000
between
VERITAS OPERATING CORPORATION,
as the Construction Agent
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, but solely as the
Owner Trustee under the VS Trust 2000-1
as the Lessor
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; RULES OF USAGE.......................................................1
1.1 Definitions......................................................................1
1.2 Interpretation...................................................................2
ARTICLE II APPOINTMENT OF THE CONSTRUCTION AGENT............................................2
2.1 Appointment and Acceptance.......................................................2
2.2 [Intentionally Omitted]..........................................................4
2.3 Term.............................................................................4
2.4 Scope of Authority...............................................................5
2.5 Delegation of Duties.............................................................6
2.6 Covenants of the Construction Agent..............................................6
ARTICLE III THE PROPERTIES..................................................................8
3.1 Construction.....................................................................8
3.2 Amendments; Modifications........................................................8
3.3 Failure to Complete Construction Period Properties...............................9
ARTICLE IV PAYMENT OF FUNDS.................................................................9
4.1 Right to Receive Construction Cost...............................................9
ARTICLE V EVENTS OF DEFAULT................................................................10
5.1 Events of Default...............................................................10
5.2 Damages.........................................................................11
5.3 Remedies; Remedies Cumulative...................................................11
ARTICLE VI THE LESSOR'S RIGHTS.............................................................13
6.1 Exercise of the Lessor's Rights.................................................13
6.2 The Lessor's Right to Cure the Construction Agent's Defaults....................13
ARTICLE VII MISCELLANEOUS..................................................................13
7.1 Notices.........................................................................13
7.2 Successors and Assigns..........................................................13
7.3 GOVERNING LAW...................................................................13
7.4 SUBMISSION TO JURISDICTION; VENUE; WAIVERS......................................14
7.5 Amendments and Waivers..........................................................14
7.6 Counterparts....................................................................14
7.7 Severability....................................................................14
7.8 Headings and Table of Contents..................................................14
7.9 WAIVER OF JURY TRIAL............................................................14
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CONSTRUCTION AGENCY AGREEMENT
THIS CONSTRUCTION AGENCY AGREEMENT, dated as of March 9, 2000 (as
amended, modified, extended, supplemented, restated and/or replaced from time to
time, the "Agreement"), between FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association ("FSB"), not individually, but solely as Owner
Trustee under the VS Trust 2000-1 (the "Lessor"), and VERITAS OPERATING
CORPORATION, a Delaware corporation (the "Construction Agent").
PRELIMINARY STATEMENT
A. The Lessor and the Construction Agent are parties to that certain
Lease Agreement dated as of even date herewith (as amended, modified, extended,
supplemented, restated and/or replaced from time to time, the "Lease"), pursuant
to which the Construction Agent, as lessee (in such capacity, the "Lessee") has
agreed to lease certain Land, Improvements and Equipment from the Lessor.
B. In connection with the execution and delivery of the Participation
Agreement, the Lease and the other Operative Agreements, and subject to the
terms and conditions hereof, (i) the Lessor desires to appoint the Construction
Agent as its sole and exclusive agent in connection with the identification and
acquisition of the Properties (provided, title to the Properties shall be held
in the name of the Lessor) and the development, acquisition, installation,
construction and testing of the Improvements and the Equipment in accordance
with the Plans and Specifications and pursuant to the applicable construction
contract and (ii) the Construction Agent desires, for the benefit of the Lessor,
to identify and acquire the Properties and to cause the development,
acquisition, installation, construction and testing of the Improvements, the
Equipment and the other components of the Properties in accordance with the
Plans and Specifications and to undertake such other liabilities and obligations
as are herein set forth.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS; RULES OF USAGE
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 March 9,
2000 (as amended, modified, extended,
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supplemented, restated and/or replaced from time to time in accordance with the
applicable provisions thereof, the "Participation Agreement") among the
Construction Agent, the various parties thereto from time to time, as
Guarantors, the Lessor, the various banks and lending institutions parties
thereto from time to time, as Holders, the various banks and lending
institutions parties thereto from time to time, as Lenders, and Bank of America,
N.A., as the agent for the Lenders and respecting the Security Documents, as the
agent for the Lenders and the Holders, to the extent of their interests. Unless
otherwise indicated, references in this Agreement to articles, sections,
paragraphs, clauses, appendices, schedules and exhibits are to the same
contained in this Agreement.
1.2 INTERPRETATION.
The rules of usage set forth in Appendix A to the Participation
Agreement shall apply to this Agreement.
ARTICLE II
APPOINTMENT OF THE CONSTRUCTION AGENT
2.1 APPOINTMENT AND ACCEPTANCE.
Subject to the terms and conditions hereof, the Lessor hereby
irrevocably designates and appoints the Construction Agent as its exclusive
agent and as general contractor, and the Construction Agent accepts such
appointment, in connection with the identification and acquisition from time to
time of the Properties (provided, title to the Properties shall be held in the
name of the Lessor) and the development, acquisition, installation, construction
and testing of the Improvements, the Equipment and the other components of the
Properties in accordance with the Plans and Specifications on the Land, and
pursuant to the terms of the Operative Agreements. Notwithstanding any
provisions hereof or in any other Operative Agreement to the contrary, the
Construction Agent acknowledges and agrees that the Lessor shall advance no more
than the sum of the aggregate Commitment of the Lenders plus the aggregate
amount of the Holder Commitments of the Holders in regard to the Properties
(including without limitation for any and all Advances in the aggregate from the
Lenders under the Credit Agreement and from the Holders under the Trust
Agreement). After the Construction Agent gains knowledge or a reasonable
expectation that the costs for any Property shall exceed the original
Construction Budget (or exceed the Construction Budget as modified in accordance
with the Operative Agreements) for such Property or that Completion for any
Property shall not occur on or prior to the Construction Period Termination
Date, the Construction Agent shall promptly (and in any event within five (5)
Business Days of gaining such knowledge or expectation) notify the Agent in
writing of the same. If at any time prior to the Construction Period Termination
Date, the Lessor or the Agent shall have (x) determined in its respective
reasonable good faith judgment that (i) the sum of the Available Commitments and
the Available Holder Commitments shall be less than the amounts necessary for
Completion of all Properties or (ii) Completion of one or more Properties shall
not occur on or prior to the Construction Period Termination Date or (y)
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received any notice from the Construction Agent as referenced in the preceding
provisions of this paragraph, then in any such case Lessor shall have the option
(at the direction of the Agent) to replace the Construction Agent with a new
construction agent selected by the Lessor (at the direction of the Agent) to
finalize the Completion of the Properties. The cost and expense incurred to
finalize the Completion of the Properties as referenced in the preceding
sentence shall be the responsibility of the Construction Agent and shall be
payable by the Construction Agent on demand; provided, in no event shall the
obligations of the Construction Agent for such costs and expenses exceed the
Maximum Amount; provided, further, amounts expended by the Lessor to finalize
the Completion of the Properties as referenced in the preceding sentence shall
be added to the Property Cost.
Costs in excess of each original Construction Budget (or the
Construction Budget as modified in accordance with the Operative Agreements) in
each case as previously delivered to the Agent for each Property shall not be
the responsibility of the Construction Agent but instead shall be paid by the
Lenders and the Holders to the extent, but only to the extent, that (after
taking into account such excess costs and any other items of excess cost which
are then known to the Construction Agent or are reasonable for the Construction
Agent to expect) the conditions precedent set forth in Section 5.4 of the
Participation Agreement are satisfied.
Subject to the Lenders and the Holders not agreeing to continue making
Advances in accordance with the provisions of the next paragraph and in the
event from time to time (a) the Construction Agent gains knowledge or a
reasonable expectation that the costs for any Property shall exceed the original
Construction Budget (or exceed the Construction Budget as modified in accordance
with the Operative Agreements) or that Completion for any Property shall not
occur on or prior to the Construction Period Termination Date or (b) the Lessor
or the Agent shall have determined in its respective reasonable good faith
judgment that the sum of the Available Commitments and the Available Holder
Commitments shall be less than the amounts necessary for Completion of all
Properties or that Completion of one or more Properties shall not occur on prior
to the Construction Period Termination Date, the Construction Agent shall elect
and comply (within ten (10) days of the Construction Agent gaining such
knowledge or expectation or within ten (10) days of the Lessor or the Agent
making such determination and giving written notice of the same to the
Construction Agent, as referenced in subsections (a) and (b) above of this
paragraph) with one of the options set forth in the following subsections (i) or
(ii) (collectively, the "Construction Agent Options"): (i) the Construction
Agent shall pay to the Lessor, on a date designated by the Lessor, an aggregate
amount equal to (A) the Termination Value for all, but not less than all, the
Properties plus (B) any and all fees and expenses incurred by or on behalf of
the Lessor or the Agent in connection with the Properties (including without
limitation the transfer thereof) and on such date the Lessor shall transfer and
convey to the Construction Agent all right, title and interest of the Lessor in
and to the Properties or (ii) the Construction Agent shall pay to the Lessor, on
a date designated by the Lessor, an aggregate amount equal to the Maximum Amount
and on and after such date, the Construction Agent shall be irrevocably deemed,
without any further action, to have relinquished all right, title and interest
in and to all, but not less than all, the Properties and to have transferred and
conveyed all such right, title and interest to the Lessor. In connection with
any transfer of the Properties as referenced above in this Section 2.1 by the
Lessor to the Construction Agent, the Lessor shall
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execute and deliver to the Construction Agent, at the cost and expense of the
Construction Agent (subject to the limitations described in the next sentence),
each of the following: (w) special or limited warranty Deeds conveying each
Property to the Construction Agent free and clear of the Lien of the Lease, the
Lien of the Credit Documents and any Lessor Liens; (x) a Xxxx of Sale conveying
each Property (to the extent it is personal property) to the Construction Agent
free and clear of the Lien of the Lease, the Lien of the Credit Documents and
any Lessor Liens; (y) any real estate tax affidavit or other document required
by law to be executed and filed in order to record the applicable Deed; and (z)
FIRPTA affidavits. The Lessor (at the discretion of the Agent) shall elect
whether the out-of-pocket fees and expenses associated with the transfer of the
Properties shall be paid by either (i) sales proceeds from the Properties, (ii)
the Lessor (but only to the extent amounts are available therefor with respect
to the Available Commitments and the Available Holder Commitments or each Lender
and each Holder approves the necessary increases in the Available Commitments
and the Available Holder Commitments to fund such fees and expenses) or (iii)
the Construction Agent; provided, if the Construction Agent funds such fees and
expenses (as referenced in subsection (iii)) then the Maximum Amount will be
reduced accordingly, as more specifically described in the definition of
"Maximum Amount". Amounts funded by the Lenders and the Holders with respect to
the foregoing shall be added to the Property Cost. All of the foregoing
documentation must be in form and substance reasonably satisfactory to the
Lessor. Subject to the foregoing, all, but not less than all, the Properties
shall be conveyed to the Construction Agent "AS-IS", "WHERE-IS" and in then
present physical condition.
In the event the costs in excess of any original Construction Budget
previously delivered to the Agent for any Property are not funded by the Lenders
and the Holders because (after taking into account such excess costs and any
other items of excess cost which are then known to the Construction Agent or are
reasonable for the Construction Agent to expect) the conditions precedent set
forth in Section 5.4 of the Participation Agreement are not satisfied, then if,
but only if, all the Holders and all the Lenders agree at such time, (a) such
excess costs shall be funded and (b) the Holder Commitments and the Lender
Commitments shall be increased accordingly.
2.2 [INTENTIONALLY OMITTED].
2.3 TERM.
This Agreement shall commence on the date hereof and, unless the Lessor
(in its sole discretion) elects otherwise, this Agreement shall terminate on the
Construction Period Termination Date. If this Agreement expires prior to the
Completion of all, but not less than all, the Properties, then the Lessor may
either (i) hire a new construction agent (at the direction of the Agent) to
finalize the Completion of all Properties or (ii) require the Construction Agent
to continue to perform hereunder and to achieve Completion of all Properties.
The cost and expense incurred to finalize the Completion of the Properties as
referenced in the preceding sentence shall be the responsibility of the
Construction Agent and shall be payable by the Construction Agent on demand;
provided, in no event shall the obligations of the Construction Agent for such
costs and expenses exceed the Maximum Amount; provided, further, amounts
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expended by the Lessor to finalize the Completion of the Properties as
referenced in the preceding sentence shall be added to the Property Cost.
2.4 SCOPE OF AUTHORITY.
(a) The Lessor hereby expressly authorizes the Construction
Agent, or any agent or contractor of the Construction Agent, and the
Construction Agent unconditionally agrees for the benefit of the Lessor,
subject to Section 2.4(b), to take all action necessary or desirable for
the performance and satisfaction of any and all of the Lessor's
obligations under any construction agreement and to fulfill all of the
obligations of the Construction Agent including without limitation:
(i) the identification and assistance with the acquisition
of Properties in accordance with the terms and conditions of the
Participation Agreement;
(ii) all design and supervisory functions relating to the
development, acquisition, installation, construction and testing
of the related Improvements, Equipment and other components of
the applicable Property and performing all engineering work
related thereto;
(iii) (A) negotiating, entering into, performing and
enforcing all contracts and arrangements to acquire the
Properties and to procure the equipment necessary to construct
the Properties and (B) negotiating, executing, performing and
enforcing all contracts and arrangements to develop, acquire,
install, construct and test the Improvements, the Equipment and
the other components of the Properties on such terms and
conditions as are customary and reasonable in light of local and
national standards and practices and the businesses in which the
Lessee is engaged;
(iv) obtaining all necessary permits, licenses, consents,
approvals, entitlements and other authorizations, including
without limitation all of the foregoing required for the
Properties and the use and occupancy thereof and those required
under applicable Law (including without limitation Environmental
Laws), from all Governmental Authorities in connection with the
development, acquisition, installation, construction and testing
of the Improvements, the Equipment and the other components of
the Properties substantially in accordance with the Plans and
Specifications;
(v) maintaining all books and records with respect to the
Properties and the construction, operation and management
thereof;
(vi) performing any other acts necessary in connection
with the identification and acquisition of the Properties and the
development, acquisition, installation, construction and testing
of the related Improvements, Equipment and
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all other additional components of the Properties in accordance
with the Plans and Specifications;
(vii) the right to submit notices pursuant to Section 2.3
of the Credit Agreement and to receive the proceeds of Advances
directly from the Agent;
(viii) the right to contest all mechanics' and
materialmens' liens in accordance with the requirements for
Permitted Liens; and
(ix) the right to bring or defend any claims or seek
resolution of disputes arising from Construction Agent's
performance of any of the foregoing actions.
(b) Neither the Construction Agent nor any of its Affiliates or
agents shall enter into any contract or consent to any contract in the
name of the Lessor without the Lessor's prior written consent, such
consent to be given or withheld in the exercise of the Lessor's
reasonable discretion; provided, however, that (i) no such contract will
increase the obligations of the Lessor beyond the obligations of the
Lessor as are expressly set forth in the Operative Agreements and (ii)
each such contract shall expressly limit recourse against the Lessor to
the assets of the VS Trust 2000-1 and shall otherwise be non-recourse to
the Lessor on terms and conditions that are reasonably acceptable to the
Lessor.
(c) Subject to the terms and conditions of this Agreement and the
other Operative Agreements, the Construction Agent shall have sole
management and control over the installation, construction and testing
means, methods, sequences and procedures with respect to the Properties.
2.5 DELEGATION OF DUTIES
The Construction Agent may execute any of its duties under this
Agreement by or through agents, contractors, employees or attorneys-in-fact;
provided, however, that no such delegation shall limit or reduce in any way the
Construction Agent's duties and obligations under this Agreement.
2.6 COVENANTS OF THE CONSTRUCTION AGENT.
The Construction Agent hereby covenants and agrees that it will:
(a) following the Construction Commencement Date for each
Property, cause the development, acquisition, installation, construction
and testing of such Property to be prosecuted in a good and workmanlike
manner, and respecting each Property in accordance with the applicable
Plans and Specifications, the Construction Budget, the applicable
contracts relating to the Improvements, the Equipment, other components
of such Property and procurement of construction materials, the
applicable construction
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contracts, the applicable construction schedule, prevalent industry
practices and otherwise in accordance with Section 3.1 hereof;
(b) [Intentionally Omitted];
(c) cause the Completion Date for any Improvements to occur on or
before the earlier of (i) the date that is eighteen (18) months after
the Initial Closing Date or (ii) the Construction Period Termination
Date, in each case free and clear (by removal or bonding) of Liens or
claims for materials supplied or labor or services performed in
connection with the development, acquisition, installation, construction
or testing thereof, except for Permitted Liens; provided, that the
failure to cause the Completion for any Property by such date shall not
be deemed a breach hereunder if such delay is caused by a Force Majeure
Event and Completion is accomplished within three (3) months of the date
otherwise applicable but for this proviso; provided, further, to the
extent such failure to complete is caused by a Force Majeure Event
extending beyond such three (3) month period, the Construction Agent
shall elect one of the Construction Agent Options set forth in Section
2.1 and, if such election is not made within ten (10) Business Days of
the end of such three (3) month period, the Construction Agent shall be
deemed to have elected to purchase all the Properties for the
Termination Value in accordance with the provisions of Section 2.1;
(d) use its good faith efforts to cause all outstanding punch
list items with respect to such Improvements to be completed promptly
following the Completion Date;
(e) at all times subsequent to the initial Advance respecting a
Property (i) cause good and marketable title to the applicable Property
to vest in the Owner Trustee (ii) cause a valid, perfected, first
priority Lien on the applicable Property to be in place in favor of the
Agent (for the benefit of the Lenders and the Holders), (iii) file all
necessary documents under the applicable real property law and Article 9
of the Uniform Commercial Code to perfect such title and Liens and (iv)
subject to the terms of Article XIII of the Lease relating to Permitted
Contests, not permit Liens (other than Permitted Liens and Lessor Liens)
to be filed or maintained respecting the applicable Property;
(f) no less than five (5) Business Days prior to the scheduled
date for the initial Construction Advance to be made in connection with
any Property, the Construction Agent shall deliver to the Agent (for the
benefit of the Lessor) true, complete and correct copies of the
Construction Budget therefor. Thereafter, the Construction Agent, on a
monthly basis, shall deliver to the Lessor true, correct and complete
copies of any material modifications of the Construction Budget and
progress reports regarding the development, acquisition, installation,
construction and testing of the Properties;
(g) procure insurance for the Properties during the Construction
Period in accordance with the provisions of Article XIV of the Lease;
and
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(h) on or before the Construction Period Termination Date (which
date shall be subject to extension pursuant to the provisions of Section
2.1 in the sole and absolute discretion of the Lenders and the Holders),
cause the Rent Commencement Date to occur with respect to all Properties
or purchase any such Properties for an amount equal to the sum
referenced in Section 5.3(b) hereof and otherwise in compliance with the
other terms and provisions of the Operative Agreements.
ARTICLE III
THE PROPERTIES
3.1 CONSTRUCTION.
The Construction Agent shall cause the Improvements, the Equipment and
all other components of the Properties to be developed, acquired, installed,
constructed and tested in compliance with all Legal Requirements, all Insurance
Requirements, all manufacturer's specifications and standards and the standards
maintained by the Construction Agent for similar properties owned or operated by
the Construction Agent, unless non-compliance, individually or in the aggregate,
shall not have and could not be reasonably expected to have a Material Adverse
Effect.
3.2 AMENDMENTS; MODIFICATIONS.
(a) The Construction Agent may at any time revise, amend or
modify (i) the Plans and Specifications without the consent of the
Lessor; provided, that any such amendment to the Plans and
Specifications does not (x) result in the Completion Date of the
Improvements occurring on or after the Construction Period Termination
Date or (y) result in the cost of all Improvements exceeding the amount
specified in the Construction Budget, as amended from time to time, or
an amount equal to the sum of the then Available Commitments plus the
then Available Holder Commitments (reduced by the amount, if any,
necessary to pay for the cost of construction and development of
Improvements on other Properties which are currently under construction
but have not yet been completed (such amount the "Unfunded Amount")),
and (ii) the Construction Budget and enter into any related amendments,
modifications or supplements without the consent of the Lessor;
provided, that such revisions, amendments or modifications to the Plans
and Specifications or related amendments, modifications or supplements
to the Construction Budget do not result in any increase in total
Property Costs greater than the amount specified in the Construction
Budget, as amended from time to time, or the then Available Commitments
and Available Holder Commitment (reduced by the Unfunded Amount).
(b) The Construction Agent agrees that it will not implement any
revision, amendment or modification to the Plans and Specifications for
any Property if the aggregate effect of such revision, amendment or
modification, when taken together with
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any previous or contemporaneous revision, amendment or modification to
the Plans and Specifications for any Property, would cause a reduction
in the fair market value of the Properties below the Termination Value
therefor when completed, unless such revision, amendment or modification
is required by Legal Requirements or Section 9.1 of the Lease.
3.3 FAILURE TO COMPLETE CONSTRUCTION PERIOD PROPERTIES.
Until termination of the Lease Agreement and the Construction Agency
Agreement, the Construction Agent shall promptly and diligently complete the
development, acquisition, refinancing, installation, construction and testing of
such Construction Period Property substantially in accordance with the Plans and
Specifications and with the terms hereof and cause the Completion Date with
respect to such Construction Period Property to occur on or prior to the
Construction Period Termination Date.
If, prior to the Completion Date with respect to any particular
Property, the Construction Agent shall abandon or permanently discontinue the
construction and development of one or more Construction Period Properties
(which abandonment or permanent discontinuance shall be deemed to have occurred
if no work at any such Construction Period Property site is undertaken or
completed during a period of thirty (30) days or more after construction has
commenced for reasons other than a Force Majeure Event), then the Construction
Agent shall pay to the Lessor, on a date designated by the Lessor, an aggregate
amount equal to the Termination Value of the Properties, and on such date Lessor
shall transfer and convey to the Construction Agent all right, title and
interest of Lessor in and to the Properties, at the cost and expense of the
Construction Agent. The Lessor shall convey such property "AS IS," "WHERE-IS"
and in its then present physical condition to the Construction Agent or its
designee free and clear of Lessor Liens. If Lessor does not require the
Construction Agent to pay such amount, the Construction Agent shall promptly and
diligently complete the development, acquisition, refinancing, installation,
construction and testing of the Construction Period Properties in substantial
accordance with the Plans and Specifications and with the terms hereof and cause
the Completion Date with respect to the Construction Period Properties to occur
on or before the Construction Period Termination Date.
ARTICLE IV
PAYMENT OF FUNDS
4.1 RIGHT TO RECEIVE CONSTRUCTION COST.
(a) In connection with the development, acquisition,
installation, construction and testing of any Property and during the
course of the construction of the Improvements on any Property, the
Construction Agent may request that the Lessor advance funds for the
payment of Property Acquisition Costs or other Property Costs, and the
Lessor will comply with such request to the extent provided for under
the Participation Agreement.
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The Construction Agent and the Lessor acknowledge and agree that the
Construction Agent's right to request such funds and the Lessor's
obligation to advance such funds for the payment of Property Acquisition
Costs or other Property Costs is subject in all respects to the terms
and conditions of the Participation Agreement and each of the other
Operative Agreements. Without limiting the generality of the foregoing
it is specifically understood and agreed that in no event shall the
aggregate amounts advanced by the Lenders and the Holders for Property
Acquisition Costs or other Property Costs and any other amounts due and
owing hereunder or under any of the other Operative Agreements exceed
the sum of the aggregate Commitment of the Lenders plus the aggregate
amount of the Holder Commitments, including without limitation such
amounts owing for (i) development, acquisition, installation,
construction and testing of the Properties or (ii) additional amounts
which accrue or become due and owing under the Credit Agreement or Trust
Agreement as obligations of the Lessor prior to any Completion Date.
(b) The proceeds of any funds made available to the Lessor to pay
Property Acquisition Costs or other Property Costs shall be made
available to the Construction Agent in accordance with the Requisition
relating thereto and the terms of the Participation Agreement. The
Construction Agent will use such proceeds only to pay the Property
Acquisition Costs or other Property Costs set forth in the Requisition
relating to such funds.
ARTICLE V
EVENTS OF DEFAULT
5.1 EVENTS OF DEFAULT.
If any one (1) or more of the following events (each an "Event of
Default") shall occur:
(a) the Construction Agent fails to apply any funds paid by the
Lessor to the Construction Agent in a manner consistent with the
requirements of the Operative Agreements and as specified in the
applicable Requisition for the development, acquisition, installation,
construction and testing of the Properties and related Improvements and
Equipment or otherwise respecting the Properties to the payment of
Property Acquisition Costs or other Property Costs;
(b) the Construction Agent shall fail to make any payment
required pursuant to the terms of this Agreement (including without
limitation pursuant to Sections 2.1 and 3.3) within three (3) Business
Days after the same has become due and payable;
(c) any Event of Default (as such term is defined in Appendix A
to the Participation Agreement) shall have occurred and not be cured
within any cure period expressly permitted under the terms of the
applicable Operative Agreement; and
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(d) the Construction Agent shall fail to observe or perform any
term, covenant or condition of any Operative Agreement other than as set
forth in paragraphs (a), (b) or (c) of this Section 5.1 and such failure
to observe or perform any such term, covenant or condition shall
continue for more than thirty (30) days after the earlier of an officer
of the Construction Agent becoming aware of such default or notice
thereof by the Lessor; provided, however, that if such failure is of a
nature that is not capable of being cured within such thirty (30) day
period, and the Construction Agent promptly commences appropriate steps
to cure such failure within such thirty (30) day period and continues to
pursue such cure with diligence and good faith thereafter, unless Lessor
shall determine that such delay could reasonably be expected to have a
Material Adverse Effect, such thirty (30) day period shall be extended
for an additional sixty (60) days;
then, in any such event, the Lessor may, in addition to the other rights and
remedies provided for in this Agreement, terminate this Agreement by giving the
Construction Agent three (3) days written notice of such termination and upon
the expiration of the time fixed in such notice and the payment of all amounts
owing by the Construction Agent hereunder (including without limitation any
amounts specified under Section 5.3 hereof), this Agreement shall terminate. The
Construction Agent shall pay all costs and expenses incurred by or on behalf of
the Lessor, including without limitation fees and expenses of counsel, as a
result of any Event of Default hereunder.
5.2 DAMAGES.
The termination of this Agreement pursuant to Section 5.1 shall in no
event relieve the Construction Agent of its liability and obligations hereunder,
all of which shall survive any such termination.
5.3 REMEDIES; REMEDIES CUMULATIVE.
(a) If an Event of Default hereunder shall have occurred and be
continuing, the Lessor shall have all rights available to the Lessor
under the Lease and the other Operative Agreements and all other rights
otherwise available at law, equity or otherwise.
(b) Upon the occurrence of an Event of Default, the Lessor shall
have (in addition to its rights otherwise described in this Agreement or
existing at law, equity or otherwise) the option (and shall be deemed
automatically, and without any further action, to have exercised such
option upon the occurrence of any Lease Event of Default arising under
Sections 17.1(g), (h) (i) or (j) of the Lease) to transfer and convey to
the Construction Agent upon a date designated by the Lessor all right,
title and interest of the Lessor in and to any Property or Properties
(including without limitation any Land and/or any Improvements, any
interest in any Improvements, any Equipment and any Property then under
construction) for which the Rent Commencement Date has not yet occurred
(a "Construction Period Property"). On any transfer and conveyance date
specified by the Lessor pursuant to this Section 5.3(b), (i) the Lessor
shall transfer and convey (at the cost
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of the Construction Agent) all right, title and interest of the Lessor
in and to any or all such Construction Period Properties free and clear
of the Lien of the Lease and all Lessor Liens, (ii) the Construction
Agent hereby covenants and agrees that it will accept such transfer and
conveyance of right, title and interest in and to the respective
Construction Period Property or Construction Period Properties and (iii)
the Construction Agent hereby promises to pay to the Lessor, as
liquidated damages (it being agreed that it would be impossible
accurately to determine actual damages), an aggregate amount equal to
the Termination Value of such Construction Period Properties plus other
costs and expenses described in Section 2.1 hereof. The Construction
Agent specifically acknowledges and agrees that its obligations under
this Section 5.3(b), including without limitation its obligations to
accept the transfer and conveyance of Construction Period Properties and
its payment obligations described in subparagraph (iii) of this Section
5.3(b), shall be absolute and unconditional under any and all
circumstances and shall be performed and/or paid, as the case may be,
without notice or demand and without any abatement, reduction,
diminution, setoff, defense, counterclaim or recoupment whatsoever.
Notwithstanding the foregoing provisions of this Section 5.3(b), the
Lessor shall have the right in its sole discretion to rescind any
exercise of its option under this Section 5.3(b) upon the giving of its
written confirmation of such rescission to the Construction Agent on or
prior to the earlier to occur of (a) the actual date of transfer and (b)
the date one hundred and twenty (120) days after the date the Lessor has
given notice of its intent to transfer and convey any Property to the
Construction Agent as referenced above in this Section 5.3(b).
(c) The Construction Agent shall have the right to cure an Event
of Default hereunder with respect to any given Property by purchasing
such Property from the Lessor (to the extent such Event of Default is no
longer continuing with respect to any other Property remaining subject
to this Agreement after such purchase) for an amount equal to the
liquidated damages amount set forth in Section 5.3(b) of this Agreement.
(d) No failure to exercise and no delay in exercising, on the
part of the Lessor, any right, remedy, power or privilege under this
Agreement or under the other Operative Agreements shall operate as a
waiver thereof; nor shall any single or partial exercise of any right
remedy, power or privilege under this Agreement preclude any other or
further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges provided
in this Agreement are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
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ARTICLE VI
THE LESSOR'S RIGHTS
6.1 EXERCISE OF THE LESSOR'S RIGHTS.
Subject to the Excepted Payments, the Construction Agent and the Lessor
hereby acknowledge and agree that, subject to and in accordance with the terms
of the Security Agreement made by the Lessor in favor of the Agent, the rights
and powers of the Lessor under this Agreement have been assigned to the Agent.
6.2 THE LESSOR'S RIGHT TO CURE THE CONSTRUCTION AGENT'S DEFAULTS.
The Lessor, without waiving or releasing any obligation or Event of
Default, may (but shall be under no obligation to) remedy any Event of Default
for the account of and at the sole cost and expense of the Construction Agent.
All out-of-pocket costs and expenses so incurred (including without limitation
fees and expenses of counsel), together with interest thereon at the Overdue
Rate from the date on which such sums or expenses are paid by the Lessor, shall
be paid by the Construction Agent to the Lessor on demand.
ARTICLE VII
MISCELLANEOUS
7.1 NOTICES.
All notices required or permitted to be given under this Agreement shall
be in writing and delivered as provided in Section 12.2 of the Participation
Agreement.
7.2 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
Lessor, the Construction Agent and their respective successors and the assigns
of the Lessor. The Construction Agent may not assign this Agreement or any of
its rights or obligations hereunder or with respect to any Property in whole or
in part to any Person without the prior written consent of the Agent, the
Lenders, the Holders and the Lessor.
7.3 GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES.
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7.4 SUBMISSION TO JURISDICTION; VENUE; WAIVERS.
The provisions of the Participation Agreement relating to submission to
jurisdiction AND venue are hereby incorporated by reference herein, mutatis
mutandis.
7.5 AMENDMENTS AND WAIVERS.
This Agreement may not be terminated, amended, supplemented, waived or
modified except in accordance with the provisions of Section 12.4 of the
Participation Agreement.
7.6 COUNTERPARTS.
This Agreement may be executed in any number of separate counterparts
and all of said counterparts taken together shall be deemed to constitute one
(1) and the same instrument.
7.7 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.
7.8 HEADINGS AND TABLE OF CONTENTS.
The headings and table of contents contained in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
7.9 WAIVER OF JURY TRIAL.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE LESSOR AND THE
CONSTRUCTION AGENT IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND ANY COUNTERCLAIM
THEREUNDER.
[signature page follows]
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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.
VERITAS OPERATING CORPORATION, as the
Construction Agent
By: /s/ XXX XXXXXXX
----------------------------------
Name: Xxx Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but
solely as Owner Trustee under the VS
Trust 2000-1, as the Lessor
By: /s/ XXX X. XXXXX
----------------------------------
Name: Xxx X. Xxxxx
Title: Vice President
