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EXHIBIT 10.001
EXECUTION COPY
PLEDGE AND SECURITY AGREEMENT
BETWEEN
THE BANK OF NOVA SCOTIA, AS COLLATERAL AGENT
AND
SYMANTEC CORPORATION
MARCH 30, 2001
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PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT (this "AGREEMENT") is made as of
March 30, 2001 (the "EFFECTIVE DATE"), by SYMANTEC CORPORATION, a Delaware
corporation (the "PLEDGOR") and THE BANK OF NOVA SCOTIA, acting in its capacity
as collateral agent (in such capacity, "COLLATERAL AGENT") for itself and the
Participants (as defined herein).
RECITALS
WHEREAS, pursuant to that Participation Agreement dated as of the date
hereof (as amended from time to time, the "PARTICIPATION AGREEMENT"), among
Pledgor, as Lessee, The Symantec 2001 Trust, as Lessor, The Bank of Nova Scotia,
as Agent for the Lenders, the Lenders, the Holders and the Trust Companies,
Pledgor has agreed, pursuant to Section 4.4 of the Participation Agreement, to
deliver Pledged Collateral (as defined herein) to secure the obligations of
Lessee and Construction Agent under certain lease facilities; and
WHEREAS, Pledgor has agreed to (i) pledge, assign and grant to
Collateral Agent for its benefit and the benefit of the Participants a security
interest in the Securities Account, Investment Property, Securities
Entitlements, Pledged CDs, Deposit Accounts, and related collateral; (ii)
execute and deliver this Agreement, and (iii) deliver possession of the Pledged
Collateral to Collateral Agent for the benefit of the Participants in order to
secure the payment and performance by Pledgor of all the Obligations.
NOW, THEREFORE, in consideration of the mutual promises herein contained
and in order to induce the Participants to enter into the Participation
Agreement, Pledgor hereby agrees with Collateral Agent, for the benefit of
Collateral Agent and for the ratable benefit of the Participants, as follows:
AGREEMENT
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 CAPITALIZED TERMS. Capitalized terms used but not otherwise defined
in this Agreement have the respective meanings specified in Annex A to the
Participation Agreement, and the rules of interpretation set forth therein shall
apply to this Agreement. Unless otherwise defined herein or in Annex A to the
Participation Agreement, terms used in this Agreement for which meanings are
provided in the Uniform Commercial Code as in effect in the State of New York
have such meanings as provided therein.
1.2 DEFINITIONS. When used in this Agreement, the following terms shall
have the following respective meanings:
1.2.1 "ACCOUNT OFFICE" shall mean, with respect to any Deposit
Account maintained by any Deposit Taker, the office of such Deposit Taker in New
York or such other
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state at which such Deposit Account is maintained as specified in the applicable
Deposit Taker's Acknowledgment and Agreement.
1.2.2 "CASH COLLATERAL" shall mean the collective reference to (i)
all money of Pledgor which Pledgor has delivered to Collateral Agent for deposit
with a Deposit Taker pursuant to this Agreement, and (ii) any additional money
delivered to Collateral Agent as Pledged Collateral.
1.2.3 "COLLATERAL AGENT" shall have the meaning given to that term
in the introductory paragraph.
1.2.4 "CONTROL" shall have the meaning given to that term in
Sections 9-115 and 8-106 of the UCC.
1.2.5 "CONTROL AGREEMENT" shall mean an agreement in the form of
ATTACHMENT 6 hereto duly executed and delivered by Collateral Agent, Pledgor and
Depositary Bank, as amended, supplemented or otherwise modified from time to
time with the consent of the Agent.
1.2.6 "DELIVERY OF CASH COLLATERAL" shall have the meaning given to
that term in Section 4.1.
1.2.7 "DEPOSIT ACCOUNT" shall mean any deposit account maintained by
a Deposit Taker into which Cash Collateral may be deposited at any time, and
"DEPOSIT ACCOUNTS" shall mean all such deposit accounts.
1.2.8 "DEPOSIT DATE" shall have the meaning given to that term in
Section 3.1(a).
1.2.9 "DEPOSIT TAKER" for Scotiabanc and each Lender and each other
Holder shall mean Collateral Agent; provided, that each Participant, for itself
only, may from time to time designate another Deposit Taker as provided in
Sections 5.3 and 5.4.
1.2.10 "DEPOSIT TAKER'S ACKNOWLEDGMENT AND AGREEMENT" shall have the
meaning given to that term in Subsection 5.1.2.
1.2.11 "DEPOSITARY BANK" shall mean State Street Bank and Trust
Company or such other financial institution reasonably acceptable to Collateral
Agent and Pledgor.
1.2.12 "DISQUALIFIED DEPOSIT TAKER" shall mean any Deposit Taker
with whom Collateral Agent may decline to deposit Pledged Collateral pursuant to
Section 5.1.
1.2.13 "FINANCIAL ASSETS" shall mean all financial assets (as
defined in Section 8-102(a)(9) of the UCC) of Pledgor held or maintained from
time to time by Depositary Bank pursuant to the Control Agreement and this
Agreement.
1.2.14 "INTEREST DETERMINATION DATE" shall mean the date of delivery
of the Pledged Collateral and the date of the commencement of each Interest
Period.
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1.2.15 "INTEREST PERIOD" shall mean the period commencing initially
on the date of delivery of the Pledged Collateral and thereafter on the date
immediately following the end of any such initial period or subsequent period,
and ending 30, 60, 90, 180, 270 or 360 days thereafter; provided that any
Interest Period that would otherwise extend beyond the Maturity Date shall end
on the Maturity Date.
1.2.16 "INVESTMENT PROPERTY" shall mean all investment property (as
defined in Section 9-115 of the UCC) of Pledgor held or maintained from time to
time by Depositary Bank pursuant to the Control Agreement and this Agreement.
1.2.17 "LIBOR RATE" shall mean for any Interest Determination Date
with respect to the Pledged CD Rate, the rate per annum obtained by dividing (a)
the rate per annum equal to the mid-morning average of the London Interbank
Offered Rate published by the British Banker's Association (rounded upwards, if
necessary, to the next higher 1/100th of 1%) on the day which is two (2)
Business Days prior to such Interest Determination Date, in the approximate
amount of the Pledged Collateral delivered on such Interest Determination Date
and having a maturity approximately equal to the Interest Period by (b) 1.00
minus a percentage (expressed as a decimal) equal to the then current maximum
Eurocurrency Reserve Requirements. The LIBOR Rate shall be rounded to the next
highest multiple of 1/100 of 1% if the rate is not such a multiple.
1.2.18 "LOSSES" shall have the meaning given to that term in Section
5.8.
1.2.19 "MAJORITY" shall mean, at any time, the Participants of which
aggregate at least 51% of the Commitment Percentages of all Participants.
1.2.20 "NOTICE OF SECURITY INTEREST" shall have the meaning given to
that term in Subsection 5.1.1.
1.2.21 "OBLIGATIONS" shall mean and include all liabilities and
obligations owed by the Pledgor under any of the Operative Agreements of every
kind and description and however arising (whether direct or indirect, absolute
or contingent, due or to become due, now existing or hereafter arising),
including, without limitation, the obligation of the Pledgor to pay Rent, to pay
the Maximum Residual Guarantee Amount or Construction Period Maximum Recourse
Amount, as applicable, indemnity amounts, the Permitted Lease Investment
Balance, the Purchase Option Price and/or Lease Balance, and to pay all
interest, costs, fees, charges, expenses, and attorneys' fees chargeable to the
Pledgor or payable by the Pledgor under the Operative Agreements or payable from
proceeds of the sale or disposition of a Property or Properties.
1.2.22 "OTHER LIABLE PARTY" shall mean any Person, other than
Pledgor, who may now or may at any time hereafter be primarily or secondarily
liable for any of the Obligations or who may now or may at any time hereafter
have granted to Collateral Agent or any Participant a pledge of or security
interest in any of the Pledged Collateral.
1.2.23 "PARTICIPATION AGREEMENT" shall have the meaning given to
such term in Recitals.
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1.2.24 "PLEDGED COLLATERAL" shall have the meaning given to that
term in Section 2.l hereof.
1.2.25 "PLEDGED CDS" shall mean any and all certificates of deposit
issued to Pledgor by a Deposit Taker as required by Section 4.5.
1.2.26 "PLEDGED CD RATE" shall mean for any Interest Determination
Date, the Collateral Agent's prevailing commercial rate in effect on such day;
provided that in no event shall the Pledged CD Rate be greater than the LIBOR
Rate in effect on such day minus 12.5 basis points.
1.2.27 "QUALIFIED SECURITIES" shall mean direct obligations of the
United States of America or obligations backed by the full faith and credit of
the United States of America and having maturities of two years or less from the
Deposit Date, credited to the Securities Account by Depositary Bank.
1.2.28 "SCOTIABANC" shall mean Scotiabanc Inc., a Delaware
corporation.
1.2.29 "SECURITIES ACCOUNT" shall mean the securities account (as
defined in Section 8-501 of the UCC) established and maintained from time to
time by Pledgor with Depositary Bank pursuant to this Agreement and the Control
Agreement.
1.2.30 "SECURITY ENTITLEMENT" shall mean any security entitlement
(as defined in Section 8102 of the UCC) of Pledgor to Qualified Securities or
other Investment Property credited from time to time to the Securities Account.
1.2.31 "SUPPLEMENT" shall mean a supplement to this Agreement in the
form of ATTACHMENT 2.
1.2.32 "UCC" shall mean the Uniform Commercial Code as in effect in
the State of New York from time to time, and the Uniform Commercial Code as in
effect in any other jurisdiction which governs the perfection or non-perfection
of the pledge of and security interest in the Pledged Collateral created by this
Agreement.
1.2.33 "VALUE" shall mean with respect to any Pledged Collateral on
any date, a dollar value determined as follows (without duplication):
(a) cash shall be valued at its face amount on such date;
(b) a Deposit Account shall be valued at the principal
balance thereof on such date;
(c) a Pledged CD shall be valued at the face amount thereof;
and
(d) the aggregate value of Qualified Securities shall be
calculated from the prices therefor at such time as shown on the Dow Jones
Telerate service.
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1.3 ATTACHMENTS. All attachments to this Agreement are a part hereof for
all purposes.
1.4 AMENDMENT OF DEFINED INSTRUMENTS. Unless the context otherwise
requires or unless otherwise provided herein, references in this Agreement to a
particular agreement, instrument or document also refer to and include all valid
renewals, extensions, amendments, modifications, supplements or restatements of
any such agreement, instrument or document; provided that nothing contained in
this Section shall be construed to authorize any Person to execute or enter into
any such renewal, extension, amendment, modification, supplement or restatement.
1.5 REFERENCES AND TITLES. All references in the Participation Agreement
and in the other Operative Agreements to "the Pledge Agreement" shall refer to
this Agreement as amended, restated, modified or supplemented from time to time.
All references in this Agreement to Attachments, Articles, Sections, Subsections
and other subdivisions refer to the Attachments, Articles, Sections, Subsections
and other subdivisions of this Agreement unless expressly provided otherwise.
Titles appearing at the beginning of any subdivision are for convenience only
and do not constitute any part of any such subdivision and shall be disregarded
in construing the language contained in this Agreement. The words "this
Agreement," "herein," "hereof," "hereby," "hereunder" and words of similar
import refer to this Agreement as a whole and not to any particular subdivision
unless expressly so limited. The phrases "this Article," "this Section" and
"this Subsection" and similar phrases refer only to the Articles, Sections or
Subsections hereof in which the phrase occurs. The word "or" is not exclusive,
and the word "including" (in all of its forms) means "including without
limitation." Pronouns in masculine, feminine and neuter gender shall be
construed to include any other gender, and words in the singular form shall be
construed to include the plural and vice versa unless the context otherwise
requires.
ARTICLE 2
SECURITY INTEREST
2.1 PLEDGE AND GRANT OF SECURITY INTEREST. Pledgor hereby assigns,
pledges, hypothecates, charges, mortgages, delivers, and transfers to Collateral
Agent, for its benefit and the ratable benefit of each of the Participants, and
hereby grants to Collateral Agent, for its benefit and the ratable benefit of
each of the Participants, a continuing first priority security interest in and
against all right, title and interest of the following, whether now or hereafter
existing or acquired by Pledgor (collectively and severally, the "PLEDGED
COLLATERAL"), subject, however, to the right of Pledgor to withdraw Pledged
Collateral pursuant to Section 6.2:
(a) The Securities Account, all Investment Property and
Financial Assets from time to time credited to the Securities Account, all
Security Entitlements existing from time to time with respect to the Securities
Account or such Financial Assets and Investment Property, all Cash Collateral,
all Accounts, and all Pledged CDs issued from time to time and general
intangibles arising therefrom or relating thereto (however, "general
intangibles" as used in this clause shall not include any general intangibles
not related to the Securities Account, Financial Assets, Investment Property,
Security Entitlements, Cash Collateral, Deposit Accounts,
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or Pledged CDs issued from time to time, and thus will not include, without
limitation, any intellectual property of Pledgor); and all documents,
instruments and agreements evidencing the same; and all extensions, renewals,
modifications and replacements of the foregoing; and all interest or other
amounts payable in connection therewith;
(b) All proceeds of the foregoing (including whatever is
receivable or received when Pledged Collateral or proceeds are invested, sold,
collected, exchanged, returned, substituted or otherwise disposed of, whether
such disposition is voluntary or involuntary, including rights to payment and
return premiums and insurance proceeds under insurance with respect to any
Pledged Collateral, and all rights to payment with respect to any cause of
action affecting or relating to the Pledged Collateral); and
(c) All renewals, replacements and substitutions of items of
Pledged Collateral.
The pledge, assignment and grant of a security interest made by Pledgor
hereunder is for security of the Obligations only; the parties to this Agreement
do not intend that Pledgor's delivery of the Pledged Collateral to Collateral
Agent as herein provided will constitute an advance payment of any Obligations
or liquidated damages, nor do the parties intend that the Pledged Collateral
increase the dollar amount of the Obligations.
2.2 SECURITY FOR OBLIGATIONS. This Agreement secures the payment of all
Obligations, in full, in cash.
2.3 CONTINUING SECURITY INTEREST. This Agreement shall create a
continuing security interest in the Pledged Collateral and shall (a) remain in
full force and effect until the payment in full, in cash of all Obligations, (b)
be binding upon Pledgor, its successors, transferees and assigns, and (c) inure,
together with the rights and remedies of Collateral Agent hereunder, to the
benefit of Collateral Agent for the benefit of each Participant. Without
limiting the generality of the foregoing clause (c), any Participant may assign
or otherwise transfer (in whole or in part) its Commitment Percentage to any
other Person, and such other Person shall thereupon become vested with all the
rights and benefits in respect thereof granted to such Participant under any
Operative Agreement, (including this Agreement) or otherwise, subject, however,
to any contrary provisions in such assignment or transfer, and to the provisions
of the Operative Agreements. Upon (i) the sale, transfer or other disposition of
Pledged Collateral in accordance with any Operative Agreement or the
substitution of any Pledged Collateral, including the substitution pursuant to
Section 4, or (ii) the payment of the Obligations in full, in cash, the security
interests granted herein shall automatically terminate with respect to (A) such
Pledged Collateral (in the case of clause (i)) or (B) all Pledged Collateral (in
the case of clause (ii)). Upon any such sale, transfer, disposition or
termination, Collateral Agent or Depositary Bank, as applicable, will, at
Pledgor's sole expense, deliver to Pledgor, without any representations,
warranties or recourse of any kind whatsoever (except that Collateral Agent will
warrant that the Pledged Collateral is free of all Lessor Liens), all applicable
Pledged Collateral held by Collateral Agent hereunder, and execute and deliver
to Pledgor such documents as Pledgor shall reasonably request to evidence such
termination.
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2.4 RETURN OF PLEDGED COLLATERAL AFTER THE OBLIGATIONS ARE
SATISFIED IN FULL. If any proceeds of Pledged Collateral remain after all
Obligations have been paid and satisfied in full, Collateral Agent will deliver
or direct the Depositary Bank and/or Deposit Takers to deliver such proceeds to
Pledgor or other Persons entitled thereto by law.
ARTICLE 3
DELIVERY AND MAINTENANCE OF PLEDGED COLLATERAL DURING THE CONSTRUCTION PERIOD
3.1 DELIVERY AND MAINTENANCE OF COLLATERAL. The parties acknowledge that
no Pledged Collateral has previously been delivered to the Depositary Bank and
that upon execution of this Agreement, Qualified Securities are being delivered
to the Depositary Bank pursuant to the Participation Agreement, this Article 3
and the Control Agreement. The Pledged Collateral shall be delivered only to,
and the Pledged Collateral may be maintained only by, the Depositary Bank
subject to the following terms and conditions:
(a) Prior to 12:00 noon, New York City time, on (x) the
Business Day prior to each Funding Date requested or deemed requested pursuant
to Sections 1.6 and 4.2 of the Participation Agreement or Section 2.3 of the
Credit Agreement and (y) any day during the Construction Period, for so long as
any Obligations remain outstanding (or if such date is not a Business Day, the
next succeeding Business Day) ("DEPOSIT DATE") where the Value of Qualified
Securities in the Securities Account as of such day is less than 102% of the
aggregate outstanding Advances, unless such event is covered by a Loss described
in Section 5.8, Pledgor shall be obligated to deliver additional Qualified
Securities as Pledged Collateral to the Depositary Bank (i) in the case of a
Funding Date, in an amount having a Value equal to 102% of the Advance so
requested (or deemed requested) on such Funding Date plus an amount, if any,
required to maintain the Value of all Qualified Securities in the Securities
Account at a level equal to 102% of the aggregate outstanding Advances and (ii)
in the case of a Deposit Date which is not a Funding Date, in an amount, if any,
required to maintain the Value of Qualified Securities in the Securities Account
at a level equal to 102% of the aggregate outstanding Advances. For purposes of
compliance with this Section 3.1(a), (A) Depositary Bank shall be able to
determine the Value of Qualified Securities in the Securities Account daily and
provide fax confirmation of the same upon request by Collateral Agent, and (B)
Pledgor shall submit to Collateral Agent a certificate containing its
determination of such Value as of the last day of each month in the form of
ATTACHMENT 7 within five (5) days following the end of each month. Pledgor
covenants to maintain the Value of Qualified Securities in the Securities
Account at a level equal to 102% of the aggregate outstanding Advances, and in
addition to the deliveries required to be made on Funding Dates and Deposit
Dates, upon receipt of notice from Collateral Agent that the Value of the
Qualified Securities in the Securities Account is less than 102% of the
aggregate outstanding Advances or if Collateral Agent disagrees with any
determination regarding the Value of the Qualified Securities, Lessee shall be
obligated to deliver to Depositary Bank Qualified Securities as Pledged
Collateral in an amount required to maintain the Value of all Qualified
Securities in the Securities Account at a level equal to 102% of the aggregate
outstanding Advances as determined by Collateral Agent.
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(b) Upon Collateral Agent's receipt of a Requisition in
accordance with Section 4.2 of the Participation Agreement, Collateral Agent
shall notify Depositary Bank in writing via facsimile of the proposed Funding
Date. Pledgor shall deliver to Collateral Agent and Depositary Bank, at least
two (2) Business Days prior to Pledgor's delivery of any Qualified Securities
(other than the delivery to occur on the initial Funding Date and a delivery
pursuant to the last sentence of Section 3.1(a), where such notice may be given
contemporaneously), a written notice of its intention to deliver such Qualified
Securities in the form of ATTACHMENT 5 hereto (a "NOTICE OF DEPOSIT") setting
forth, among other things, (i) the total amount and Value of such Qualified
Securities as required by Section 3.1(a) hereof and a complete description
thereof, (ii) the proposed date of delivery (which shall be the Business Day
prior to each Funding Date for the related Advance by Pledgor pursuant to
Section 4.2 of the Participation Agreement, a Deposit Date or a date required
under a notice given pursuant to the last sentence of Section 3.1(a)) and (iii)
the name of the party from which such securities are to be received. On the
Funding Date, Depositary Bank shall provide fax confirmation to Collateral Agent
no later than 1:00 p.m., New York City time, of the Value of Qualified
Securities in the Securities Account on the Funding Date, as follows: The Bank
of Nova Scotia, Atlanta Agency, fax (404) 888-8998, Reference: Symantec
Corporation, Attention: Robert Ivy, phone (404) 877-1595.
(c) At or prior to the time Depositary Bank first receives
any Qualified Securities, Collateral Agent, Pledgor and Depositary Bank shall
have executed a Control Agreement with respect thereto.
(d) Lessee and Collateral Agent agree that (i) the possession
by Depositary Bank of any money, instruments, chattel paper or other property
constituting Collateral or evidencing Collateral or the execution of a Control
Agreement shall be deemed to be possession or Control by Collateral Agent or a
person designated by Collateral Agent for the benefit of the Participants, for
purposes of perfecting the security interest granted to Collateral Agent
hereunder pursuant to Sections 8-106, 9-115 or 9-305 of the UCC, as the case may
be, (ii) all Securities Accounts established with Depositary Bank pursuant to
this Agreement shall be "Security Accounts" within the meaning of Section 8-501
of the UCC and (iii) all Collateral from time to time on deposit in any such
Securities Account shall be deemed to be a "Financial Asset" within the meaning
of Section 8-102(a)(9) of the UCC.
ARTICLE 4
DELIVERY AND MAINTENANCE OF PLEDGED COLLATERAL FOLLOWING THE FINAL
POST-CONSTRUCTION TERM COMMENCEMENT DATE
4.1 DELIVERY OF FUNDS BY PLEDGOR. Prior to 12:00 noon, New York City
time, on the Final Post-Construction Term Commencement Date, the Pledgor shall
be obligated to deliver to the Collateral Agent immediately available funds in
substitution for the Pledged Collateral held by the Depositary Banks at that
time in U.S. Dollars to be held in the Deposit Accounts and evidenced by Pledged
CDs in an amount, if any, required to establish or maintain the Value of the
Pledged Collateral at a level equal to 100% of the aggregate outstanding
Advances less the amount of any Losses described in Section 5.8. The delivery of
the Cash Collateral referred to in this Section 4.1 is referred to in this
Agreement as the "DELIVERY OF CASH COLLATERAL."
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4.2 COVENANTS REGARDING PLEDGED COLLATERAL. Pledgor covenants to
maintain the Value of the Pledged Collateral at a level equal to 100% of the
aggregate outstanding Advances, and in addition to the deliveries required to be
made on the Final Post-Construction Term Commencement Date, upon receipt of
notice from Collateral Agent that the Value of the Pledged Collateral is less
than 100% of the aggregate outstanding Advances less the amount of any Losses
described in Section 5.8, the Pledgor shall be obligated to deliver additional
Pledged Collateral in an amount required to maintain the Value of the Pledged
Collateral at a level equal to 100% of the aggregate outstanding Advances less
the amount of any Losses described in Section 5.8. Notice of each such Delivery
of Cash Collateral shall be provided to Collateral Agent not less than two (2)
Business Days prior to such delivery in the form of ATTACHMENT 1 hereto (the
"NOTICE OF DELIVERY OF CASH COLLATERAL"). Upon receipt of any Cash Collateral
from Pledgor, Collateral Agent shall immediately deposit the same with the
Deposit Takers in accordance with the requirements of Sections 4.3 and 4.4
below.
4.3 INTENTIONALLY OMITTED.
4.4 ALLOCATION OF CASH COLLATERAL AMONG DEPOSIT TAKERS. Cash Collateral
received by Collateral Agent from Pledgor will be allocated for deposit among
the Deposit Takers according to the Commitment Percentage(s) of the
Participant(s) which has/have designated such Deposit Taker.
4.5 ISSUANCE AND REDEMPTION OF CERTIFICATES OF DEPOSIT; INTEREST.
(a) Upon the receipt of funds as Cash Collateral from
Collateral Agent, each Deposit Taker shall issue, and Pledgor shall purchase, a
Pledged CD in an amount equal to the Value of the Cash Collateral. Such Deposit
Taker will hold such Pledged CD for the benefit of the Participant(s) for which
it has been designated a Deposit Taker and each other Participant. So long as no
Event of Default has occurred and is continuing, upon the written request of
Pledgor to a Deposit Taker, such Deposit Taker shall remit to Pledgor any
accrued interest on each respective Pledged CD. Each Deposit Taker shall
promptly notify Collateral Agent of the issuance of a Pledged CD in a notice
including the date of such issuance and the amount, the rate and the term of the
Pledged CD. Upon depositing any additional funds as Cash Collateral into a
Deposit Account that contained funds that had been used to purchase a Pledged
CD, the Deposit Taker receiving the deposit will cancel the outstanding Pledged
CD, and in exchange such Deposit Taker will issue, and Pledgor shall purchase, a
new Pledged CD, in an amount equal to the Value of the cancelled Pledged CD plus
the Value of the additional Cash Collateral deposited in the Deposit Account. A
Deposit Taker that has issued a Pledged CD may require the surrender of the
Pledged CD as a condition to a withdrawal from the Account, including any
withdrawal required or permitted by this Agreement. Upon surrender of a Pledged
CD in connection with a withdrawal of less than all of the funds in the Deposit
Account, the applicable Deposit Taker will concurrently issue, and Pledgor shall
purchase, a new Pledged CD in an amount equal to the aggregate Value of the
funds deposited as Cash Collateral in the Account following the withdrawal. Each
Deposit Taker shall hold all Pledged CDs for the benefit of itself and the other
Participants, subject to the pledge and security interest created hereby.
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(b) So long as no Event of Default has occurred and is
continuing, each Pledged CD shall bear interest at the Pledged CD Rate and such
Pledged CD Rate shall be maintained by the respective Deposit Taker on each
Pledged CD. Pledgor shall specify the initial Interest Period applicable to the
Pledged CD's in connection with the Notice of Delivery of Cash Collateral.
Thereafter, Pledgor shall notify Collateral Agent not less than two (2) Business
Days prior to the end of each Interest Period of the duration of the subsequent
Interest Period with respect to the Pledged CD's.
4.6 STATUS OF THE ACCOUNTS UNDER THE RESERVE REQUIREMENT REGULATIONS.
Deposit Takers shall be permitted to structure Deposit Accounts as nonpersonal
time deposits under 12 C.F.R., Part II, Chapter 204 (commonly known as
Regulation D). Accordingly, each Deposit Taker may require at least seven (7)
days' advance notice of any withdrawal or transfer of funds from Accounts it
maintains and may limit the number of withdrawals or transfers from such Deposit
Accounts to no more than six (6) in any calendar month, notwithstanding anything
to the contrary herein or in any deposit agreement that Pledgor and any Deposit
Taker may enter into with respect to any Deposit Account. As necessary to
satisfy the seven (7) days notice requirement with respect to withdrawals by
Collateral Agent when required by Pledgor pursuant to the provisions below,
Collateral Agent shall notify Deposit Takers promptly after receipt of any
notice from Pledgor described in Section 5.3.
4.7 ACKNOWLEDGMENT BY PLEDGOR THAT REQUIREMENTS OF THIS AGREEMENT ARE
COMMERCIALLY REASONABLE. Pledgor acknowledges and agrees that the requirements
set forth herein concerning receipt, deposit, withdrawal, allocation,
application and distribution of Cash Collateral by Collateral Agent, including
the requirements and time periods set forth in Article 6, are commercially
reasonable.
ARTICLE 5
PROVISIONS CONCERNING DEPOSIT TAKERS
5.1 QUALIFICATION OF DEPOSIT TAKERS GENERALLY. Collateral Agent may
decline to deposit or maintain Pledged Collateral hereunder with any Person
designated as a Deposit Taker, if such Person has failed to satisfy or no longer
satisfies the following requirements:
5.1.1 Such Person must have received from Collateral Agent and
Pledgor a completed, executed Notice of Security Interest in the form of
ATTACHMENT 3 (a "NOTICE OF SECURITY INTEREST").
5.1.2 Such Person must have executed the Acknowledgment and
Agreement of Deposit Taker at the end of such Notice of Security Interest (the
"DEPOSIT TAKER'S ACKNOWLEDGMENT AND AGREEMENT") and returned the same to
Collateral Agent. Further, such Person must have complied with the Deposit
Taker's Acknowledgment and Agreement, and the representations set forth therein
with respect to such Person must continue to be true and correct.
5.1.3 Such Person must be a commercial bank, organized under the
laws of the United States of America or a state thereof or under the laws of
another country which is doing business in the United States of America; must be
authorized to maintain deposit accounts for
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others through Account Offices in Oregon, New York or such other states as
specified in the Deposit Taker's Acknowledgment and Agreement; and must be
Collateral Agent or a Participant.
5.1.4 Such Person must have complied with the provisions in this
Agreement applicable to Deposit Takers, including the provisions of Section 4.5
concerning the issuance and redemption of certificates of deposit and
maintenance of the Pledged CD Rate.
5.1.5 Such Person must maintain Deposit Accounts and Pledged CDs in
the United States of America.
5.2 COLLATERAL AGENT AS DEPOSIT TAKER. Collateral Agent (as Deposit
Taker for itself and for Scotiabanc) shall execute a Deposit Taker's
Acknowledgment and Agreement dated not later than the Final Post-Construction
Term Commencement Date, in substantially the form contemplated in Subsection
5.1.2.
5.3 MANDATORY SUBSTITUTION FOR DISQUALIFIED DEPOSIT TAKERS. If any
Deposit Taker shall cease to satisfy the requirements set forth in Section 5.1,
the party for whom such Disqualified Deposit Taker has been designated as
Deposit Taker shall promptly (a) provide notice thereof to Collateral Agent and
Pledgor, and (b) designate a substitute Deposit Taker which new Deposit Taker
shall be a Participant or Collateral Agent and cause the substitute to satisfy
the requirements set forth in Section 5.1. Pending the designation of the
substitute and the satisfaction by it of the requirements set forth in Section
5.1, Collateral Agent may withdraw Pledged Collateral held by the Disqualified
Deposit Taker and deposit such Pledged Collateral with other Deposit Takers,
subject to Section 6.1 below.
5.4 VOLUNTARY SUBSTITUTION OF DEPOSIT TAKERS. With the written approval
of Collateral Agent, which approval will not be unreasonably withheld, each
Participant may at any time designate for itself a new Deposit Taker (in
replacement of any prior Deposit Taker acting for it hereunder) which new
Deposit Taker shall be a Participant or Collateral Agent; provided, the Person
so designated has satisfied the requirements set forth in Section 5.1.
5.5 DELIVERY OF NOTICE OF SECURITY INTEREST BY PLEDGOR AND COLLATERAL
AGENT. To the extent required for the designation of a new Deposit Taker by any
Participant pursuant to Section 5.3, or to permit the substitution or
replacement of a Deposit Taker for any Participant as provided in Sections 5.3
and 5.4, Pledgor and Collateral Agent shall promptly execute and deliver a
properly completed Notice of Security Interest to the new Deposit Taker.
5.6 CONSTRUCTIVE POSSESSION OF PLEDGED COLLATERAL. The possession by a
Deposit Taker of any deposit accounts, money, instruments, chattel paper or
other property constituting Pledged Collateral or evidencing Pledged Collateral
shall be deemed to be possession by the Participant which has so designated such
Deposit Taker, for purposes of perfecting the security interest granted to
Collateral Agent hereunder pursuant to the UCC; and notifications to a Deposit
Taker by other Persons holding any such property, and acknowledgments, receipts
or confirmations from any such Persons delivered to a Deposit Taker, shall be
deemed notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or
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agents (as applicable) of such Deposit Taker for the benefit of Collateral Agent
and each Participant for the purposes of perfecting such security interests
under the UCC.
5.7 ATTEMPTED SETOFF BY DEPOSIT TAKERS. By delivery of a Deposit Taker's
Acknowledgment and Agreement, each Deposit Taker agrees not to setoff or attempt
a setoff of, without in each case first obtaining the prior written
authorization of Collateral Agent, Obligations owed to it against any Pledged
Collateral held by it from time to time. Further, by delivery of a Deposit
Taker's Acknowledgment and Agreement, each Deposit Taker agrees not to setoff or
attempt a setoff of, without in each case first obtaining the prior written
authorization of both Pledgor and Collateral Agent, obligations owed to it other
than Obligations against any Pledged Collateral held by it from time to time.
Any Deposit Taker for any Participant shall not be permitted by the applicable
Participant, as the case may be, to violate such agreements. However, Pledgor
acknowledges and agrees (without limiting its right to recover damages from a
Deposit Taker that violates such agreements) that Collateral Agent shall not be
responsible for, or be deemed to have taken any action against Pledgor because
of, any Deposit Taker's violation of such agreements; and none of the
Participants shall be responsible for, or be deemed to have taken any action
against Pledgor because of, any violation of such agreements by a Deposit Taker
for another party.
5.8 LOSSES RESULTING FROM FAILURE OF DEPOSIT TAKER TO COMPLY WITH THIS
AGREEMENT. Any Participant, the Deposit Taker for whom (a) has become insolvent,
has had a receiver appointed or is unable to return the Cash Collateral to the
Collateral Agent or the Pledgor pursuant to the terms of this Agreement or to
pay interest on a Deposit Account for any reason whatsoever or (b) has failed to
comply with (i) the requirements of this Agreement, including, without
limitation, the failure to make all filings and to take all other actions
necessary or advisable under applicable law to establish and perfect the
security interest of Collateral Agent in the Pledged Collateral deposited with
such Deposit Taker, (ii) any Notices of Security Interest, or (iii) any Deposit
Taker's Acknowledgments and Agreements (the "RESPONSIBLE PARTICIPANT"), must
reimburse, defend, indemnify and hold harmless Collateral Agent, the other
Participants and Pledgor for, from and against any and all claims, actions,
obligations, liabilities, losses and expenses, including reasonable defense
costs, reasonable investigative fees and costs, reasonable legal fees and
expenses, and damages (the "LOSSES") resulting from such failure. Without
limiting the foregoing, if the failure of a Deposit Taker for a Responsible
Participant to comply strictly with the terms of this Agreement (including,
without limitation, the provisions of Section 4.5 concerning the issuance and
redemption of the Pledged CDs and the requirement to pay interest on the Pledged
CDs) causes, in whole or in part, the security interest of Collateral Agent in
the Pledged Collateral held by such Deposit Taker to be unperfected or causes
any other Loss, then any and all Losses suffered as a result of such
nonperfection or other Loss shall be borne solely by the Responsible Participant
and shall not be shared by Collateral Agent or the other Participants, provided
only that no Participant shall be obligated under this section to indemnify
Collateral Agent for that portion, if any, of any loss which is proximately
caused by Collateral Agent's own individual gross negligence or willful
misconduct, as determined in a final judgment rendered against Collateral Agent.
In satisfaction of the indemnification obligations provided by this Section 5.8
and Section 11.4, Collateral Agent may setoff or apply such Responsible
Participant's Commitment Percentage of the proceeds of the Pledged Collateral
against the payment of such indemnification obligations and shall reduce the
obligations of Pledgor to such Responsible Participant by the amount of such
share of the
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proceeds. After the occurrence of a setoff made pursuant to this Section 5.8,
Collateral Agent shall distribute the remaining proceeds of the Pledged
Collateral to itself and the other Participants (other than the indemnifying
Responsible Party) in accordance with each parties' respective Commitment
Percentage to be held in accordance with the terms of this Agreement and, if an
Event of Default has occurred and is continuing, in accordance with the terms
and provisions of Section 9.1. Collateral Agent and the other Participants agree
that any setoff made pursuant to this Section 5.8 against the Responsible
Participant's portion of the proceeds of the Pledged Collateral shall be counted
as a distribution of such proceeds to such Responsible Participant.
Any proceeds of Pledged Collateral which are uncollectible by Collateral
Agent due to the failure of the Responsible Participant's Deposit Taker to
comply strictly with the terms of this Agreement shall be deemed proceeds of the
Pledged Collateral for purposes of the set off provided for in this Section 5.8.
ARTICLE 6
WITHDRAWAL OR OFFSET OF PLEDGED COLLATERAL
Pledgor may not withdraw, and Collateral Agent may not offset, Cash Collateral
or Financial Assets, Investment Property or Security Entitlements, except as
follows:
6.1 WITHDRAWAL OF CASH COLLATERAL FROM DEPOSIT ACCOUNTS MAINTAINED BY
DISQUALIFIED DEPOSIT TAKERS. Pledgor may from time to time require Collateral
Agent to withdraw any or all Cash Collateral from any Deposit Account maintained
by a Disqualified Deposit Taker and deposit it, still subject to the pledge and
grant of security interest hereunder, with other Deposit Takers who are not
Disqualified Deposit Takers (in accordance with the requirements of Sections 5.3
and 5.4); provided, that by a notice in the form of ATTACHMENT 4, Pledgor must
have notified Collateral Agent and each of the Participants of the required
withdrawal at least ten (10) days prior to the date upon which it is to occur.
6.2 WITHDRAWAL OF PLEDGED COLLATERAL FROM DEPOSITARY BANK. Pledgor, by
written request to Depositary Bank, may withdraw Qualified Securities and
interest earnings thereon from the Depositary Bank not more frequently than once
per month so long as the remaining Qualified Securities included in the Pledged
Collateral have a Value as determined by Collateral Agent in excess of 102% of
the aggregate outstanding Advances less the amount of any Losses described in
Section 5.8, provided that prior to any such withdrawal, the Depositary Bank
shall obtain written confirmation from the Collateral Agent as to the aggregate
outstanding Advances and the Collateral Value. Qualified Securities and interest
withdrawn pursuant to this Section 6.2 shall cease to be Pledged Collateral.
6.3 OFFSET OF PLEDGED COLLATERAL. Pledgor agrees that Collateral Agent
shall withdraw, offset against or otherwise cause to be transferred into its own
name Pledged Collateral for the benefit of the Participants in payment of that
portion of the Construction Period Maximum Recourse Amount, Maximum Residual
Guarantee Amount, Permitted Lease Investment Balance, Lease Balance, or Purchase
Option Price represented by such Pledged Collateral (i) if Lessor (or Collateral
Agent, as Lessor's assignee) or Pledgor, with the consent of
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Collateral Agent, so directs, in connection with the payment of the Maximum
Residual Guarantee Amount, Permitted Lease Investment Balance or Construction
Period Maximum Recourse Amount pursuant to Article XVI or Section 21.1 of the
Lease or Article IV or V of the Construction Agency Agreement or a purchase by
Pledgor of the Property or portion thereof or any exercise of remedies pursuant
to any of Sections 16.2, 17.2, 17.6, 20.1 or 20.2 of the Lease or Article IV or
V of the Construction Agency Agreement or (ii) pursuant to an exercise of
remedies set forth in Section 9 hereof, if Lessor (or Collateral Agent, as
Lessor's assignee) so elects. Collateral Agent shall apply any such Pledged
Collateral so withdrawn, offset or transferred in accordance with Section 12 of
the Participation Agreement. Pledgor and Collateral Agent further agree that
upon the maturity or acceleration of Pledgor's obligation to pay the
Construction Period Maximum Recourse Amount, Maximum Residual Guarantee Amount,
Permitted Lease Investment Balance, Lease Balance or Purchase Option Price, any
and all amounts of Pledged Collateral that have been deposited by Pledgor
pursuant to this Agreement and that have not been withdrawn by Pledgor or offset
or applied by Collateral Agent (in accordance with the terms of this Agreement)
as of such maturity or acceleration date, shall be applied at Collateral Agent's
election by Collateral Agent and Lessor to satisfy Pledgor's obligation to pay
such portion of the Construction Period Maximum Recourse Amount, Maximum
Residual Guarantee Amount, Permitted Lease Investment Balance, Lease Balance or
Purchase Option Price, as applicable, represented by such remaining Pledged
Collateral.
ARTICLE 7
REPRESENTATIONS AND COVENANTS OF PLEDGOR
7.1 REPRESENTATIONS OF PLEDGOR. Pledgor represents to Collateral Agent
and the Participants as follows:
7.1.1 Pledgor is the legal and beneficial owner of the Pledged
Collateral (or, in the case of after-acquired Pledged Collateral, at the time
Pledgor acquires rights in the Pledged Collateral, will be the legal and
beneficial owner thereof). No other Person has (or, in the case of
after-acquired Pledged Collateral, at the time Pledgor acquires rights therein,
will have) any right, title, claim or interest (by way of Lien, purchase option
or otherwise) in, against or to the Pledged Collateral, except for rights
created hereunder.
7.1.2 Collateral Agent has (or in the case of after-acquired Pledged
Collateral, at the time Pledgor acquires rights therein, will have) a valid,
first priority, perfected pledge of and security interest in the Pledged
Collateral regardless of the characterization of the Pledged Collateral as
deposit accounts, instruments, securities, financial assets, investment property
or general intangibles under the UCC, but assuming that the representations of
each Deposit Taker in its Deposit Taker's Acknowledgment and Agreement are true.
7.1.3 Pledgor has delivered to Collateral Agent, Depositary Bank and
each Deposit Taker, as appropriate, together with all necessary stock powers,
endorsements, assignments and other necessary instruments of transfer, the
originals of all documents, instruments and agreements evidencing Pledged
Collateral.
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7.1.4 To the knowledge of Pledgor, neither the ownership or the
intended use of the Pledged Collateral by Pledgor, nor the pledge of Accounts or
the grant of the security interest by Pledgor to Collateral Agent herein, nor
the exercise by Collateral Agent of its rights or remedies hereunder, will (a)
violate any provision of (i) applicable law or statute, (ii) the certificate of
incorporation, charter or bylaws of Pledgor, or (iii) any agreement, judgment,
license, order or permit applicable to or binding upon Pledgor, or (b) result in
or require the creation of any Lien, charge or encumbrance upon any assets or
properties of Pledgor except as expressly contemplated in this Agreement. Except
as expressly contemplated in this Agreement, no consent, approval, authorization
or order of, and no notice to or filing with any court, governmental authority
or third party is required in connection with the pledge or grant by Pledgor of
the security interest contemplated herein or the exercise by Collateral Agent of
its rights and remedies hereunder.
7.1.5 With respect to the Control Agreement and the Securities
Account (a) at all times the Securities Account is and shall be a securities
account for which Depositary Bank is the securities intermediary, (b) at all
times Financial Assets credited to the Securities Account shall constitute
securities held by the Depositary Bank or Securities Entitlements in the name of
Depositary Bank with other financial intermediaries or with a Federal Reserve
Bank, (c) the information regarding the Qualified Securities from time to time
credited to the Securities Account is and shall at all times be accurate and
complete in all respects, (d) neither Pledgor, Depositary Bank nor any other
Person shall have theretofore or shall thereafter execute any agreement
conferring Control of any of the Pledged Collateral to any Person except the
Agent as provided in this Agreement, and (e) no Person shall have notice of any
other security interest, Lien or interest in the Pledged Collateral.
7.1.6 Pledgor is incorporated under the laws of the State of
Delaware.
7.2 COVENANTS OF PLEDGOR. Pledgor hereby agrees as follows:
7.2.1 Pledgor, at Pledgor's expense, shall promptly procure, execute
and deliver to Collateral Agent all documents, instruments and agreements and
perform all acts which are necessary, or which Collateral Agent or any Deposit
Taker may reasonably request, to establish, maintain, preserve, protect and
perfect the Pledged Collateral, the pledge thereof to Collateral Agent or the
security interest granted to Collateral Agent therein and the first priority of
such pledge or security interest, or to enable Collateral Agent to exercise and
enforce its rights and remedies hereunder with respect to any Pledged
Collateral. Without limiting the generality of the preceding sentence, Pledgor
shall (a) procure, execute and deliver to Collateral Agent all stock powers,
endorsements, assignments, financing statements and other instruments of
transfer reasonably requested by Collateral Agent or such Participant, (b)
deliver to Collateral Agent promptly upon receipt all originals of Pledged
Collateral consisting of instruments, documents and chattel paper, and, to the
extent practicable, (c) cause the security interest of Collateral Agent in any
Pledged Collateral consisting of securities to be recorded or registered in the
books of any financial intermediary or clearing corporation requested by
Collateral Agent.
7.2.2 Pledgor shall not use or consent to any use of any Pledged
Collateral in violation of any provision of this Agreement or any other
Operative Agreement.
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7.2.3 Pledgor shall pay promptly when due all taxes and other
governmental charges, all Liens and all other charges now or hereafter imposed
upon, relating to or affecting any Pledged Collateral.
7.2.4 Without thirty (30) days' prior written notice to Collateral
Agent, Pledgor shall not change Pledgor's name or place of business (or, if
Pledgor has more than one place of business, its chief executive office) or
jurisdiction of incorporation.
7.2.5 Pledgor shall appear in and defend, on behalf of Collateral
Agent when necessary or appropriate, any action or proceeding which may affect
its title to or Collateral Agent's interest in the Pledged Collateral.
7.2.6 Pledgor shall ensure that at all times the Control Agreement
is in effect and that the Securities Account contains only Qualified Securities
or cash proceeds thereof.
7.2.7 Subject to the express rights of Pledgor under Article 6,
Pledgor shall not surrender or lose possession of (other than to Collateral
Agent or a Deposit Taker pursuant hereto), sell, encumber, lease, rent, option
or otherwise dispose of or transfer any Pledged Collateral or right or interest
therein, and Pledgor shall keep the Pledged Collateral free of all Liens.
7.2.8 Pledgor will not take any action which would in any manner
impair the value or enforceability of Collateral Agent's pledge of or security
interest in any Pledged Collateral, nor will Pledgor fail to take any action
which is required to prevent (and which Pledgor knows is required to prevent) an
impairment of the value or enforceability of Collateral Agent's pledge of or
security interest in any Pledged Collateral.
7.2.9 Pledgor shall pay (and shall indemnify and hold harmless
Collateral Agent and each Participant from and against) any and all Losses
arising or incurred by Collateral Agent or any Participant in connection with or
because of (a) the interest acquired by Collateral Agent and each Participant in
any Pledged Collateral pursuant to this Agreement, or (b) the negotiation or
administration of this Agreement, whether such Losses are incurred at the time
of execution of this Agreement or at any time in the future; provided, however,
that Losses under this Section 7.2.9 shall not include Losses that are included
in Section 5.8. Costs and expenses included in such Losses may include, without
limitation, all filing and recording fees, taxes, UCC search fees and reasonable
attorneys' fees incurred by Collateral Agent with respect to the Pledged
Collateral.
7.2.10 Without limiting the foregoing, within five (5) Business Days
after Pledgor becomes aware of any failure of the pledge or security interest
contemplated herein in any Deposit Account or Securities Account, Financial
Assets, Pledged CD or Cash Collateral to be a valid, perfected, first priority
pledge or security interest (regardless of the characterization of any Account
or any Pledged Collateral as deposit accounts, securities accounts, instruments
or general intangibles under the UCC), Pledgor shall notify Collateral Agent and
the Participants of such failure.
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ARTICLE 8
AUTHORIZED ACTION BY COLLATERAL AGENT
8.1 POWER OF ATTORNEY. Pledgor hereby irrevocably appoints Collateral
Agent as Pledgor's attorney-in-fact for the purpose of authorizing Collateral
Agent to perform (but Collateral Agent shall not be obligated to and shall incur
no liability to Pledgor or any third party for failure to perform) any act which
Pledgor is obligated by this Agreement to perform, and to exercise, consistent
with the other provisions of this Agreement, such rights and powers as Pledgor
might exercise with respect to the Pledged Collateral during any period in which
a Default or Event of Default has occurred and is continuing, including the
right to (a) collect by legal proceedings or otherwise and endorse, receive and
receipt for all dividends, interest, payments, proceeds and other sums and
property now or hereafter payable on or on account of the Pledged Collateral;
(b) enter into any extension, reorganization, deposit, merger, consolidation or
other agreement pertaining to, or deposit, surrender, accept, hold or apply
other property in exchange for the Pledged Collateral; (c) insure, process,
preserve and enforce the Pledged Collateral; (d) make any compromise or
settlement, and take any action it deems advisable, with respect to the Pledged
Collateral; (e) pay any indebtedness of Pledgor relating to the Pledged
Collateral; and (f) execute UCC financing statements and other documents,
instruments and agreements required hereunder. Pledgor agrees that such care as
Collateral Agent gives to the safekeeping of its own property of like kind shall
constitute reasonable care of the Pledged Collateral when in Collateral Agent's
possession; provided, however, that Collateral Agent shall not be obligated to
Pledgor to give any notice or take any action to preserve rights against any
other Person in connection with the Obligations or with respect to the Pledged
Collateral.
ARTICLE 9
DEFAULT AND REMEDIES
9.1 REMEDIES. In addition to all other rights and remedies granted to
Collateral Agent by this Agreement, the other Operative Agreements, the UCC and
other applicable laws, Collateral Agent may, upon the occurrence and during the
continuance of any Event of Default, exercise any one or more of the following
rights and remedies, all of which will be in furtherance of its rights as a
secured party under the UCC:
9.1.1 collect, receive, appropriate or realize upon the Pledged
Collateral or otherwise foreclose or enforce the pledge of or security interests
in any or all Pledged Collateral in any manner permitted by applicable law or in
this Agreement;
9.1.2 notify Depositary Bank to pay or transfer all or any portion
of the Pledged Collateral held by Depositary Bank directly to Collateral Agent;
and
9.1.3 notify any or all Deposit Takers to pay all or any portion of
the Pledged Collateral held by such Deposit Taker(s) directly to Collateral
Agent.
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Collateral Agent shall distribute the proceeds of all Pledged Collateral
received by Collateral Agent after the occurrence of an Event of Default to
itself and the Participants for application to the Obligations pursuant to the
terms of the Operative Agreements. If any proceeds of Pledged Collateral remain
after all Obligations have been paid in full, Collateral Agent will deliver or
direct the Depositary Bank or Deposit Takers to deliver such proceeds to Pledgor
or other Persons entitled thereto. In any case where notice of any sale or
disposition of any Pledged Collateral is required, Pledgor hereby agrees that
five (5) days' notice of such sale or disposition is reasonable.
ARTICLE 10
OTHER RECOURSE
10.1 RECOVERY NOT LIMITED. To the fullest extent permitted by applicable
law, Pledgor waives any right to require that Collateral Agent proceed against
any other Person, exhaust any Pledged Collateral or other security for the
Obligations, have any Other Liable Party joined with Pledgor in any suit arising
out of the Obligations or this Agreement, or pursue any other remedy in their
power. Pledgor waives any and all notice of acceptance of this Agreement.
Pledgor further waives notice of the creation, modification, rearrangement,
renewal or extension for any period of any of the Obligations of any Other
Liable Party from time to time and any defense arising by reason of any
disability or other defense of any Other Liable Party or by reason of the
cessation from any cause whatsoever of the liability of any Other Liable Party.
Until all of the Obligations shall have been paid in full, Pledgor shall have no
right to subrogation, reimbursement, contribution or indemnity against any Other
Liable Party and Pledgor waives the right to enforce any remedy which Collateral
Agent has or may hereafter have against any Other Liable Party, and waives any
benefit of and any right to participate in any other security whatsoever now or
hereafter held by Collateral Agent or any Participant. Pledgor authorizes
Collateral Agent, without notice or demand and without any reservation of rights
against Pledgor and without affecting Pledgor's liability hereunder or on the
Obligations, from time to time to (a) take or hold any other property of any
type from any other Person as security for the Obligations, and exchange,
enforce, waive and release any or all of such other property, (b) after any
Event of Default, apply or require the application of the Pledged Collateral (in
accordance with this Agreement) or such other property in any order they may
determine and to direct the order or manner of sale thereof as they may
determine, (c) renew, extend for any period, accelerate, modify, compromise,
settle or release any of the obligations of any Other Liable Party with respect
to any or all of the Obligations or other security for the Obligations, and (d)
release or substitute any Other Liable Party.
ARTICLE 11
PROVISIONS CONCERNING COLLATERAL AGENT
In the event of any conflict between the following and other provisions
in this Agreement, the following will control:
11.1 APPOINTMENT AND AUTHORITY. Each Participant hereby irrevocably
authorizes Collateral Agent, and Collateral Agent hereby undertakes, to take all
actions and to exercise such
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powers under this Agreement as are specifically delegated to Collateral Agent by
the terms hereof, together with all other powers reasonably incidental thereto.
The relationship of Collateral Agent to the Participants is only that of one
commercial bank acting as collateral agent for others, and nothing herein shall
be construed to constitute Collateral Agent a trustee or other fiduciary for any
Participant or anyone claiming through or under a participant nor to impose on
Collateral Agent duties and obligations other than those expressly provided for
in this Agreement. With respect to any matters not expressly provided for in
this Agreement and any matters which this Agreement places within the discretion
of Collateral Agent, Collateral Agent shall not be required to exercise any
discretion or take any action, and it may request instructions from the
Participants with respect to any such matter, in which case it shall be required
to act or to refrain from acting (and shall be fully protected and free from
liability to all Participants in so acting or refraining from acting) upon the
instructions of the Majority, including itself and Scotiabanc; provided,
however, that Collateral Agent shall not be required to take any action which
exposes it to a risk of personal liability that it considers unreasonable or
which is contrary to this Agreement or the other documents referenced herein or
to applicable law.
11.2 EXCULPATION, COLLATERAL AGENT'S RELIANCE, ETC. Neither Collateral
Agent nor any of its directors, officers, agents, attorneys or employees shall
be liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement, INCLUDING THEIR NEGLIGENCE OF ANY KIND, except
that each shall be liable for its own gross negligence or willful misconduct.
Without limiting the generality of the foregoing, Collateral Agent (a) may treat
the rights of any Participant under its Participation Agreement as continuing
until Collateral Agent receives written notice of the assignment or transfer of
those rights in accordance with such Participation Agreement, signed by such
Participant and in form satisfactory to Collateral Agent; (b) may consult with
legal counsel (including counsel for Pledgor), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts, unless the action taken or omitted constitutes
misconduct; (c) makes no warranty or representation and shall not be responsible
for any statements, warranties or representations made in or in connection with
this Agreement, any Operative Agreements or the other documents referenced
herein; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of the
Operative Agreements on the part of any party thereto, or to inspect the
property (including the books and records) of any party thereto; (e) shall not
be responsible to any Participant for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Operative Agreement or
any instrument or document furnished in connection therewith; (f) may rely upon
the representations and warranties of Pledgor, Participants, Depositary Bank and
Deposit Takers in exercising its powers hereunder; and (g) shall incur no
liability under or in respect of the Operative Agreements by acting upon any
notice, consent, certificate or other instrument or writing (including any
telecopy, telegram, cable or telex) believed by it to be genuine and signed or
sent by the proper Person or Persons.
11.3 PARTICIPANT'S CREDIT DECISIONS. Each Participant acknowledges that
it has, independently and without reliance upon Collateral Agent or any other
Participant, made its own analysis of Pledgor and the transactions contemplated
hereby and its own independent decision to enter into the Operative Agreements
to which it is a party. Each Participant also acknowledges that it will,
independently and without reliance upon Collateral Agent or any other
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Participant and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Operative Agreements.
11.4 INDEMNITY. Each Participant agrees to indemnify Collateral Agent
(to the extent not reimbursed by Pledgor within ten (10) days after demand) from
and against such Participant's Commitment Percentage of any and all Losses of
any kind or nature whatsoever which to any extent (in whole or in part) may be
imposed on, incurred by, or asserted against Collateral Agent growing out of,
resulting from or in any other way associated with any of the Pledged
Collateral, the Operative Agreements and the transactions and events (including
the enforcement thereof) at any time associated therewith or contemplated
therein. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LOSSES
ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR
THEORY OF STRICT LIABILITY, OR ARE CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT
ACT OR OMISSION OF ANY KIND BY COLLATERAL AGENT, PROVIDED ONLY THAT NO
PARTICIPANT SHALL BE OBLIGATED UNDER THIS SECTION TO INDEMNIFY COLLATERAL AGENT
FOR THAT PORTION, IF ANY, OF ANY LOSS WHICH IS PROXIMATELY CAUSED BY COLLATERAL
AGENT'S OWN INDIVIDUAL GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AS DETERMINED IN
A FINAL JUDGMENT RENDERED AGAINST COLLATERAL AGENT. Cumulative of the foregoing,
each Participant agrees to reimburse Collateral Agent promptly upon demand for
such Participant's Commitment Percentage share of any costs and expenses to be
paid to Collateral Agent by Pledgor hereunder to the extent that Collateral
Agent is not timely reimbursed by Pledgor as provided in Subsection 7.2.9. As
used in this Section the term "Collateral Agent" shall refer not only to the
Person designated as such in the introductory paragraph of this Agreement, but
also to each director, officer, agent, attorney, employee, representative and
Affiliate of such Person.
11.5 COLLATERAL AGENT'S RIGHTS AS PARTICIPANT AND DEPOSIT TAKER. In its
capacity as a Participant, The Bank of Nova Scotia shall have the same rights
and obligations as any Participant and may exercise such rights as though it
were not Collateral Agent. In its capacity as a Deposit Taker, The Bank of Nova
Scotia shall have the same rights and obligations as any Deposit Taker and may
exercise such rights as though it were not Collateral Agent. The Bank of Nova
Scotia and any of its Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, and generally engage in any kind of business with
Pledgor or its Affiliates, all as if The Bank of Nova Scotia were not designated
as Collateral Agent hereunder and without any duty to account therefor to any
other Participant.
11.6 INVESTMENTS. Whenever Collateral Agent in good faith determines
that it is uncertain about how to distribute any funds which it has received
hereunder, or whenever Collateral Agent in good faith determines that there is
any dispute among the Participants about how such funds should be distributed,
Collateral Agent may choose to defer distribution of the funds which are the
subject of such uncertainty or dispute. If Collateral Agent in good faith
believes that the uncertainty or dispute will not be promptly resolved, or if
Collateral Agent is otherwise required to invest funds pending distribution,
Collateral Agent shall invest such funds pending distribution, all interest on
any such investment shall be distributed upon the distribution of such
investment and in the same proportion and to the same Persons as such
investment. All
20.
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moneys received by Collateral Agent for distribution to Participants shall be
held by Collateral Agent pending such distribution solely as Collateral Agent
hereunder, and Collateral Agent shall have no equitable title to any portion
thereof.
11.7 BENEFIT OF ARTICLE 11. The provisions of this Article (other than
the following Section 11.8) are intended solely for the benefit of Collateral
Agent and Participants, and Pledgor shall not be entitled to rely on any such
provision or assert any such provision in a claim or defense against Collateral
Agent or any Participant. Collateral Agent and Participants may waive or amend
such provisions as they desire without any notice to or consent of Pledgor so
long as no waiver or amendment imposes additional obligations on Pledgor.
11.8 RESIGNATION. Collateral Agent may resign at any time by giving
written notice thereof to the Participants and Pledgor. Upon any such
resignation, the Majority shall have the right to appoint a successor Collateral
Agent, subject to Pledgor's consent, such consent not to be unreasonably
withheld. A successor must be appointed for any retiring Collateral Agent, and
such Collateral Agent's resignation shall become effective when such successor
accepts such appointment. If, within thirty (30) days after the date of the
retiring Collateral Agent's resignation, no successor Collateral Agent has been
appointed and has accepted such appointment, then the retiring Collateral Agent
may appoint a successor Collateral Agent, which shall be a commercial bank
organized or licensed to conduct a banking or trust business under the laws of
the United States of America or of any state thereof. Upon the acceptance of any
appointment as Collateral Agent hereunder by a successor Collateral Agent, the
retiring Collateral Agent shall be discharged from its duties and obligations
under this Agreement. After any retiring Collateral Agent's resignation
hereunder, the provisions of this Article 11 shall continue to inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Collateral Agent.
ARTICLE 12
MISCELLANEOUS
12.1 PROVISIONS INCORPORATED FROM OTHER OPERATIVE AGREEMENTS. Reference
is made to Annex A to the Participation Agreement and the other Operative
Agreements for a statement of the terms thereof. Without limiting the generality
of the foregoing, the provisions of Annex A to the Participation Agreement are
incorporated into this Agreement for all purposes as if set forth in this
Article.
12.2 CUMULATIVE RIGHTS, ETC. Except as herein expressly provided to the
contrary, the rights, powers and remedies of Collateral Agent under this
Agreement shall be in addition to all rights, powers and remedies given to it by
virtue of any applicable law, any other Operative Document or any other
agreement, all of which rights, powers, and remedies shall be cumulative and may
be exercised successively or concurrently without impairing their respective
rights hereunder. Pledgor waives any right to require Collateral Agent to
proceed against any Person or to exhaust any Pledged Collateral or to pursue any
remedy in Collateral Agent's power.
12.3 SURVIVAL OF AGREEMENTS. All representations and warranties of
Pledgor herein, and all covenants and agreements herein shall survive the
execution and delivery of this
21.
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Agreement, the execution and delivery of any other Operative Agreements and the
creation of the Obligations and continue until terminated or released as
provided herein.
12.4 OTHER LIABLE PARTY. Neither this Agreement nor the exercise by
Collateral Agent or the failure of Collateral Agent to exercise any right, power
or remedy conferred herein or by law shall be construed as relieving any Other
Liable Party from liability on the Obligations or any deficiency thereon. This
Agreement shall continue irrespective of the fact that the liability of any
Other Liable Party may have ceased or irrespective of the validity or
enforceability of any other agreement evidencing or securing the Obligations to
which Pledgor or any Other Liable Party may be a party, and notwithstanding the
reorganization, death, incapacity or bankruptcy of any Other Liable Party, or
any other event or proceeding affecting any Other Liable Party.
12.5 TERMINATION. Upon satisfaction in full of all inured Obligations
and upon written request for the termination hereof delivered by Pledgor to
Collateral Agent, (a) this Agreement and the pledge and security interest
created hereby shall terminate and all rights to the material shall revert to
Pledgor and (b) Collateral Agent will, upon Pledgor's request and at Pledgor's
expense execute and deliver to Pledgor such documents as Pledgor shall
reasonably request to evidence such termination and release.
12.6 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES (OTHER THAN GENERAL OBLIGATIONS LAW SECTION 5-1401), EXCEPT AS TO
MATTERS RELATING TO THE CREATION, PERFECTION AND ENFORCEMENT OF LIENS AND
SECURITY INTERESTS AND THE EXERCISE OF REMEDIES WITH RESPECT THERETO, WHICH
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE IN
WHICH THE PLEDGED COLLATERAL IS LOCATED.
12.7 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.
[The signature pages follow.]
22.
24
IN WITNESS WHEREOF, Pledgor and Collateral Agent have caused this
Agreement to be executed as of the date first written above.
PLEDGOR: SYMANTEC CORPORATION
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
COLLATERAL AGENT: THE BANK OF NOVA SCOTIA
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
ACKNOWLEDGED AND AGREED:
LESSOR: THE SYMANTEC 2001 TRUST
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as trustee
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
25
PARTICIPANTS: SCOTIABANC INC., as a Holder
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
THE BANK OF NOVA SCOTIA, as a Lender
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
FUJI BANK, LIMITED, as Documentation
Agent and as a Lender
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
FBTC LEASING CORP., as a Holder
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
KEYBANK NATIONAL ASSOCIATION, as
Syndication Agent, as a Lender, and
as a Holder
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
AIB INTERNATIONAL FINANCE, as a Lender
and as a Holder
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
26
PARTICIPANTS (CON'T): WELLS FARGO BANK, as a Lender
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
BANK HAPOALIM BM, as a Lender
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
BNP PARIBAS, as a Lender
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
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ATTACHMENT 1
NOTICE OF DELIVERY OF CASH COLLATERAL
To: The Bank of Nova Scotia, Portland Branch
Attn: Karn Hanhart, Senior Accounting Clerk
Fax: 503-222-5502
Telephone: 503-222-4396
From: Symantec Corporation
Date:______________
COLLATERAL FUNDING NOTICE
On ____________________, Symantec Corporation will deposit $_________________as
required per the Pledge and Security Agreement dated March 30, 2001, and per the
collateral Deposit Agreement dated ____________________.
Please provide indicative rates for Negotiable Certificate of Deposits for
$____________ for terms of 30, 60, 90, 180, 270 or 360 days.
Signed:_________________________________________
________________________________________________________________________________
To: Symantec Corporation
Attn: ___________________
Fax: ____________________
Telephone: ______________
From: The Bank of Nova Scotia, Portland Branch - Karn Hanhart
Date: _______________________
CD INFORMATION NOTICE
Per your request dated ______________________, for collateral deposits to be
deposited on __________________, we provide the following indicative rates:
NEGOTIABLE CERTIFICATES OF DEPOSIT:
Amount Term Indicative Rate Maturity Date
-------------------------------------------------------------------
Signed:_______________________________________________
The Bank of Nova Scotia, Portland Branch
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ATTACHMENT 2
SUPPLEMENT TO PLEDGE
AND SECURITY AGREEMENT
[_________________, _____]
The Bank of Nova Scotia
580 California Street, Suite 2100
San Francisco, California 94104
Attention: Chris Johnson
Symantec Corporation
20330 Stevens Creek Blvd.
Cupertino, CA 95014
Attn: Treasury
1. Reference is made to that Pledge and Security Agreement (the "PLEDGE
AGREEMENT") dated as of March 30, 2001 by SYMANTEC CORPORATION, a Delaware
corporation (the "PLEDGOR") and THE BANK OF NOVA SCOTIA, acting in its capacity
as collateral agent (in such capacity, "COLLATERAL AGENT") for itself and the
Participants. Unless otherwise defined herein, all capitalized terms used in
this Supplement have the respective meanings given to those terms in the Pledge
Agreement.
2. The undersigned hereby certifies to Collateral Agent and Pledgor that
the undersigned has become a party to the Participation Agreement by executing
an Assignment and Acceptance as provided therein and that its percentage
thereunder is ___________%.
i3. The undersigned, by executing and delivering this Supplement to Collateral
Agent and Pledgor, hereby agrees to become a party to the Pledge Agreement and
agrees to be bound by all of the terms thereof applicable to Participants. The
Deposit Taker for the undersigned shall be ______________________, until such
time as another Deposit Taker for the undersigned shall be designated in
accordance with Sections 5.3 or 5.4 of the Pledge Agreement. The undersigned
certifies to Collateral Agent and Pledgor that such Deposit Taker satisfies the
requirements of a Deposit Taker set forth in Section 5.1 of the Pledge
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Supplement as of the day
indicated above.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
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ATTACHMENT 3
NOTICE OF SECURITY INTEREST
[__________________, _____]
[Name of Deposit Taker]
[Address of Deposit Taker]
____________________________
____________________________
1. Reference is made to that Pledge and Security Agreement (the "PLEDGE
AGREEMENT") dated as of March 30, 2001 by SYMANTEC CORPORATION, a Delaware
corporation (the "PLEDGOR") and THE BANK OF NOVA SCOTIA, acting in its capacity
as collateral agent (in such capacity, "COLLATERAL AGENT") for itself and the
Participants. Unless otherwise defined herein, all capitalized terms used in
this Notice of Security Interest ("NOTICE") have the respective meanings given
to those terms in the Pledge Agreement.
2. Pledgor hereby instructs the addressee of this Notice ("DEPOSIT
TAKER") to establish Account(s) as provided in this Pledge Agreement at the
following Account Office(s):
which Account(s) shall hold Cash Collateral, and to issue certificates of
deposit evidencing such Account(s) and the amount of Cash Collateral held
therein from time to time, payable to the order of Pledgor as provided in the
Pledge Agreement.
3. Pledgor and Collateral Agent hereby notify Deposit Taker that,
pursuant to the Pledge Agreement, Pledgor has granted to Collateral Agent for
the ratable benefit of itself and each other Participant as security for the
Obligations, a pledge of and security interest in all Accounts and other Pledged
Collateral maintained by Pledgor with Deposit Taker, including the Account(s)
described in Section 2 above.
4. In furtherance of such grant, Pledgor and Collateral Agent hereby
authorize and direct Deposit Taker to:
(a) hold all Pledged Collateral for Collateral Agent and the
Participants, separate and apart from all other property and funds of Pledgor
and all other Persons and to permit no other funds to be deposited or credited
to the Account(s);
(b) make a notation in its books and records of the interest of
Collateral Agent and the Participants in the Pledged Collateral and that the
Account(s) and all deposits therein or sums credited thereto are subject to a
pledge and security interest in favor of Collateral Agent;
(c) issue and redeem certificates of deposit evidencing the
Account(s), as directed by Collateral Agent pursuant to the Pledge Agreement;
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(d) take such other steps as Collateral Agent may reasonably request
to record, maintain, validate and perfect its pledge of and security interest in
the Pledged Collateral; and
(e) upon receipt of notice from Collateral Agent that an Event of
Default has occurred, transfer and deliver to Collateral Agent or its nominee,
together with all necessary endorsements, all or such portion of the Pledged
Collateral held by Deposit Taker as Collateral Agent shall direct; provided,
however, that in connection therewith the Deposit Taker may require compliance
by Collateral Agent with the provisions in Section 5.1 of the Pledge Agreement
for redemption of any outstanding certificates of deposit which evidence the
Account(s).
5. Pledgor and Collateral Agent agree that (a) the possession by Deposit
Taker of all money, instruments, chattel paper and other property constituting
Pledged Collateral shall be deemed to be possession by Deposit Taker for itself
and the other Participants, for purposes of perfecting the security interest
granted to Collateral Agent under the Pledge Agreement pursuant to Articles 8
and 9 of the UCC, and (b) notifications by Deposit Taker to other Persons
holding any such property, and acknowledgments, receipts or confirmations from
such Persons delivered to Deposit Taker, shall be deemed notifications to, or
acknowledgments, receipts or confirmation from, financial intermediaries,
bailees or agents (as applicable) of the Deposit Taker for the benefit of
Collateral Agent for the purposes of perfecting such security interests under
applicable law.
6. As contemplated by the Pledge Agreement, please acknowledge Deposit
Taker's receipt of, and consent to, this Notice and confirm the representations
and agreements set forth in the Deposit Taker's Acknowledgment and Agreement
attached hereto by executing the same and returning this letter to Collateral
Agent. For your files, a copy of this letter is enclosed which you may retain.
The authorizations and directions set forth herein may not be revoked or
modified without the written consent of Collateral Agent.
COLLATERAL AGENT THE BANK OF NOVA SCOTIA
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
PLEDGOR SYMANTEC CORPORATION
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
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31
ACKNOWLEDGMENT AND AGREEMENT
OF DEPOSIT TAKER
Deposit Taker hereby acknowledges receipt of, and consents to, the above
Notice, acknowledges that it will hold the Pledged Collateral for Collateral
Agent, agrees to comply with the authorizations and directions set forth above
and represents to and agrees with Collateral Agent and Pledgor as follows:
(a) Deposit Taker is a commercial bank, organized under the laws of
the United States of America or a state thereof or under the laws of another
country which is doing business in the United States of America. Deposit Taker
is authorized to maintain deposit accounts for others through the Account
Offices specified in the above notice, and Deposit Taker will not move the
accounts described in the above notice to other offices without the prior
written authorization of Collateral Agent and Pledgor.
(b) Deposit Taker has no prior notice of any other pledge, security
interest, Lien, adverse claim or interest in the Account(s) to be established.
(c) Deposit Taker shall promptly notify Collateral Agent and Pledgor
if the representations made by Deposit Taker above cease to be true and correct.
(d) Deposit Taker shall not (i) allow the withdrawal of funds from
any Account by any Person other than Collateral Agent or (ii) without in each
case first obtaining the prior written authorization of Collateral Agent, setoff
or attempt to setoff any Obligations owed to Deposit Taker against any Pledged
Collateral held from time to time by Deposit Taker, or (iii) without in each
case first obtaining the prior written authorization of both Pledgor and
Collateral Agent, setoff or attempt to setoff any obligations owed to Deposit
Taker other than Obligations, against any Pledged Collateral held from time to
time by Deposit Taker.
__________________________________________
By: ______________________________________
Name: ____________________________________
Dated: ___________________________________
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ATTACHMENT 4
NOTICE OF PLEDGOR'S REQUIREMENT OF A WITHDRAWAL
OF CASH COLLATERAL FROM
A DISQUALIFIED DEPOSIT TAKER
[__________________, _____]
[Collateral Agent]
or
[Participant]
Re: Pledge and Security Agreement dated as of March 30, 2001 by
SYMANTEC CORPORATION, a Delaware corporation (the "PLEDGOR") and
THE BANK OF NOVA SCOTIA, acting in its capacity as collateral
agent (in such capacity, "COLLATERAL AGENT") for itself and the
Participants
Ladies and Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Pledge and Security Agreement referenced above (the
"PLEDGE AGREEMENT"). This letter constitutes notice to you, as [Collateral
Agent/Participant] under the Pledge Agreement, that pursuant to Section 5.1 of
the Pledge Agreement, Pledgor requires [you/Collateral Agent] to withdraw from
the following Deposit Account maintained by the following Deposit Taker:
Deposit Taker Account No.
________________________________________________________________________________
________________________________________________________________________________
Cash Collateral in the following amount:
___________________________ Dollars ($_______________)
and to deposit such Cash Collateral with other Deposit Takers who are not
Disqualified Deposit Takers no later than ten (10) days after the date upon
which you receive this notice.
To assure you that Pledgor has the right to require such withdrawal, and
to induce you to comply with this notice, Pledgor certifies to you that the
Deposit Taker specified above has become a Disqualified Deposit Taker because it
no longer satisfies the requirements listed in Section 5.1 of the Pledge
Agreement. Specifically, such Deposit Taker no longer satisfies the following
requirements:
[PLEDGOR MUST INSERT HERE A DESCRIPTION OF WHICH REQUIREMENTS THE DEPOSIT TAKER
NO LONGER SATISFIES AND HOW PLEDGOR HAS DETERMINED THAT THE REQUIREMENTS ARE NO
LONGER SATISFIED, ALL IN
1.
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SUFFICIENT DETAIL TO PERMIT THE PARTICIPANT FOR WHOM SUCH DEPOSIT TAKER HAS BEEN
MAINTAINING AN ACCOUNT TO RESPOND IF IT BELIEVES THAT PLEDGOR IS IN ERROR.]
Please remember that the express terms of the Pledged CDs issued
pursuant to the Pledge Agreement require presentment of the Pledged CDs seven
(7) days before Cash Collateral is to be withdrawn from the Deposit Accounts
they evidence. Accordingly, [you/Collateral Agent] must present the Pledged CDs
to the Deposit Taker specified above seven (7) days prior to the withdrawal of
Cash Collateral required by this notice. For your convenience, we have attached
a letter as Annex 1 to this notice that [you/Collateral Agent] might execute and
send to such Deposit Taker to advise it of [your/Collateral Agent's] intent to
withdraw and of [your/Collateral Agent's] presentment of Pledged CDs as required
in connection therewith. The attached letter also sets forth the amount Pledgor
believes [you/Collateral Agent] must withdraw to comply with Section 5.1 of the
Pledge Agreement.
SYMANTEC CORPORATION
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
2.
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ANNEX 1
TO PLEDGOR'S NOTICE OF REQUIREMENT OF A WITHDRAWAL
OF CASH COLLATERAL FROM
A DISQUALIFIED DEPOSIT TAKER
[________________, ______]
[Name of the Deposit Taker]
[Address of such Deposit Taker]
Re: Pledge and Security Agreement dated as of March 30, 2001 by
SYMANTEC CORPORATION, a Delaware corporation (the "PLEDGOR") and
THE BANK OF NOVA SCOTIA, acting in its capacity as collateral
agent (in such capacity, "COLLATERAL AGENT"), for itself and the
Participants
Ladies and Gentlemen:
Capitalized terms used in this letter are intended to have the meanings
assigned to them in the Pledge Agreement referenced above (the "PLEDGE
AGREEMENT"). This letter constitutes notice from the undersigned, as Collateral
Agent under the Pledge Agreement, that pursuant to Section 6.1 of the Pledge
Agreement, Pledgor has advised Collateral Agent that you are a Disqualified
Deposit Taker, and Pledgor requires Collateral Agent to withdraw from the
Deposit Account maintained by you, as a Deposit Taker under the Pledge
Agreement, the sum of:
______________________ Dollars ($____________)
no later than the following date:
_______________, _____
Accordingly, on such date, the undersigned intends to withdraw such
amount from the Deposit Account maintained by you as Deposit Taker (Account No.
____), and with this letter the undersigned shall be deemed to have presented
Pledged CDs which you now hold as required in connection with such withdrawal.
[COLLATERAL AGENT]
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
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ATTACHMENT 5
NOTICE OF DEPOSIT
[DATE]
The Bank of Nova Scotia
580 California Street, Suite 2100,
San Francisco, CA,
Attn: Chris Johnson, Managing Director
Fax: (415) 397-0791
State Street Bank and Trust Company
Goodwin Square
225 Asylum Street
Hartford, CT 06103
Attn: Corporate Trust Administration
Fax: (860) 244-1897
1. Reference is made to:
(a) The Participation Agreement dated as of March 30, 2001 (as
amended, supplemented or otherwise modified from time to time, the
"Participation Agreement") among Symantec Corporation ("Lessee" and
"Construction Agent"), Scotiabanc Inc. ("Lessor"), the Lessors and
Lenders which are from time to time lenders under such Participation
Agreement (collectively, the "Participants"), and The Bank of Nova
Scotia, acting in its capacity as agent for the Lenders (in such
capacity, "Agent"); and
(b) The Pledge and Security Agreement dated as of March 30, 2001
(the "Pledge Agreement") between Lessee and Agent.
Unless otherwise defined herein, all capitalized terms used in this
Notice of Deposit have the respective meanings given to those terms in Annex A
to the Participation Agreement and in the Pledge Agreement.
2. Pursuant to Section 3.1(b) of the Pledge Agreement, Lessee hereby
notifies the Agent and Depositary Bank that Lessee intends to deposit Qualified
Securities with a Value of $______ on ____________, 200_, as more particularly
described on Exhibit A attached hereto, and requests that such deposit be held
in a Securities Account as Pledged Collateral.
SYMANTEC CORPORATION
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
1.
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EXHIBIT A
TO NOTICE OF DEPOSIT
INITIAL ACCOUNT
2.
37
ATTACHMENT 6
CONTROL AGREEMENT
MARCH 30, 2001
The Bank of Nova Scotia, with an office at 580 California Street, Suite
2100, San Francisco, CA, Facsimile: (415) 397-0791, Attention: Chris Johnson,
Managing Director, as collateral agent for the Lenders ("COLLATERAL AGENT");
Symantec Corporation, a Delaware corporation having its principal place
of business at 20330 Steven Creek Blvd., Cupertino, CA 95014, Facsimile: (408)
517-8118, Attention: Treasury ("PLEDGOR"); and
State Street Bank and Trust Company, a Massachusetts trust company
having its Corporate Trust office at 225 Asylum Street, Hartford, CT 06103,
Facsimile: (860) 244-1897, Attention: Corporate Trust Administration (Symantec
2001 Control Agreement) ("BANK") hereby agree as follows:
RECITALS:
A. Bank has established its securities account number 127215-010 in the
name of Pledgor (the "ACCOUNT").
B. Pledgor and Collateral Agent have entered into a Pledge and Security
Agreement (the "PLEDGE AGREEMENT"), in which Pledgor has granted Collateral
Agent, on behalf of the Participants, a security interest in the Account and the
Financial Assets held in the Account.
C. Collateral Agent, Pledgor and Bank are entering into this Agreement
to provide for the control of the Account and to perfect the security interest
of Collateral Agent in the Account and all of the Financial Assets held in the
Account as more fully described in the Pledge Agreement.
D. Pledgor and Collateral Agent are parties to that certain
Participation Agreement dated as of March 30, 2001 among Pledgor, Construction
Agent, Lessor, the financial institutions which are from time to time
participants under such Participation Agreement (collectively, with their
investment affiliates, "PARTICIPANTS"), Wilmington Trust Company and Collateral
Agent, as Agent for the Lenders named therein.
E. Unless otherwise defined herein, all capitalized terms used in this
Agreement have the respective meanings given to those terms in Annex A to the
Participation Agreement and the Pledge Agreement.
TERMS
SECTION 1. THE ACCOUNT. Bank hereby represents and warrants to
Collateral Agent and Pledgor that (a) the Account is a securities account for
which the Bank is the securities intermediary, and the Account has been
established in the name of Pledgor as recited above, (b)
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at all times property credited to the Account shall constitute certificated
securities held by the Bank or Security Entitlements in the name of the Bank
with other financial intermediaries or with a Federal Reserve Bank, (c) EXHIBIT
A attached hereto is a complete and accurate statement of the Account and the
Financial Assets held therein and any free credit balance thereunder as of the
date hereof, (d) EXHIBIT A does not reflect any Financial Assets which are
registered in the name of Pledgor, payable to its order, or specially endorsed
to it, which have not been endorsed to Bank or in blank, (e) this Agreement, the
security entitlements arising out of the Financial Assets carried in the Account
are valid and legally binding obligations of Bank, (f) the Bank's jurisdiction,
for purposes of perfection and priority of the Liens granted to Collateral Agent
pursuant to this Agreement and the Pledge Agreement, is the State of New York,
and (g) except for the claims and interest of Collateral Agent and of Pledgor in
the Account, Bank does not know of any claim to or interest in the Account or in
any financial asset carried therein. Bank, Pledgor and Collateral Agent agree
that all property held by Bank in the Account will be treated as financial
assets under Article 8 of the Uniform Commercial Code of the State of New York.
SECTION 2. INTENTIONALLY OMITTED.
SECTION 3. PRIORITY OF LIEN. Pledgor hereby grants to Collateral Agent,
for the benefit of Participants, a security interest in the Account and all
Financial Assets held therein. Bank consents to the security interest. Bank
hereby confirms that the Account is a cash account and that it will not advance
any margin or other credit to Pledgor therein, either directly executing
purchase orders in excess of any credit balance or money market mutual funds
held in the Account, executing sell orders on securities not held in the Account
or by allowing it to trade in instruments such as options and commodities
contracts that create similar obligations, nor hypothecate or grant any security
or similar interest in any securities carried in the Account. Bank hereby waives
and releases all liens, encumbrances, claims and rights of setoff Bank may have
against the Account or any Financial Asset held in the Account or any credit
balance in the Account and agrees that hereafter, except in respect and to the
extent of payment of its customary fees and commissions, it will not assert any
such lien, encumbrance, claim or right or the priority thereof against the
Account or any Financial Asset held in the Account or any credit balance in the
Account. Bank will not agree with any third party that Bank will comply with
entitlement orders concerning the Account and any Financial Assets held therein
originated by such third party without the prior written consent of Collateral
Agent and Pledgor.
SECTION 4. CONTROL. Bank will comply with entitlement orders originated
by Collateral Agent at any time concerning the Account and all Financial Assets
held therein without further consent by Pledgor. So long as no Notice of
Exclusive Control has been received by Bank and not been rescinded, subject to
Section 3 above, Bank shall make trades of financial assets held in the Account
at the instruction of Pledgor, or its authorized representatives, and comply
with requests for withdrawals from, and entitlement orders concerning, the
Account and the Financial Assets held therein from Pledgor, or its authorized
representatives, to which Collateral Agent has consented in writing pursuant to
Section 6.2 of the Pledge Agreement or otherwise. After Bank receives the Notice
of Exclusive Control, it will immediately cease complying with instructions or
entitlement orders concerning the Account originated by Pledgor or its
representatives. For purposes of this Agreement, a "Notice of Exclusive Control"
shall mean a written notice provided to Bank by Collateral Agent which
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states that Collateral Agent is thereby exercising exclusive control over the
Account and the Financial Assets held therein until such notice is rescinded.
SECTION 5. STATEMENTS, CONFIRMATIONS AND NOTICES OF ADVERSE CLAIMS. Bank
will send copies of all statements (which statements shall be sent no less
frequently than once per calendar month), confirmations and other correspondence
concerning the Account simultaneously to each of Pledgor and Collateral Agent at
the addresses set forth in the heading of this Agreement. Further, if any person
asserts any lien, encumbrance or adverse claim against the Account or in any
financial asset carried therein, Bank will promptly notify Collateral Agent and
Pledgor thereof.
SECTION 6. RESPONSIBILITY OF BANK. Except for (i) advancing margin or
other credit to Pledgor in violation of Section 3 above or (ii) complying with
entitlement orders from Pledgor or permitting withdrawals by Pledgor, in either
case in violation of Section 4 above, Bank shall have no responsibility or
liability to Collateral Agent for making trades of Financial Assets held in the
Account at the instruction of Pledgor, or its authorized representatives, or
complying with entitlement orders concerning the Account from Pledgor, or its
authorized representatives, which are received by Bank before Bank receives a
Notice of Exclusive Control or after Bank receives a notice of rescission of
such Notice of Exclusive Control. Bank shall have no responsibility or liability
to Pledgor for complying with a Notice of Exclusive Control or complying with
entitlement orders concerning the Account or Financial Assets held therein
originated by Collateral Agent during such time after a Notice of Exclusive
Control has been received and not rescinded. Bank shall have no duty to
investigate or make any determination as to whether an Event of Default exists
and shall comply with a Notice of Exclusive Control even if it believes that an
Event of Default does not exist. Neither this Agreement nor the Pledge Agreement
imposes or creates any obligation or duty of Bank other than those expressly set
forth herein.
SECTION 7. TAX REPORTING. For Tax reporting purposes, all income shall
be allocated to Pledgor.
SECTION 8. REPRESENTATIONS AND WARRANTIES. Bank represents and warrants
to Pledgor, Collateral Agent and the Participants as follows:
(i) Bank is a trust company, organized under the laws of the
Commonwealth of Massachusetts and has the power to open and maintain Accounts.
(ii) Bank or its parent bank has a combined capital, surplus and
undivided profits of at least $500,000,000.
(iii) Bank or its parent bank has a debt rating of "A" (or its
equivalent) or better from Standard & Poors Ratings Group and/or a debt rating
of "A" (or its equivalent) or better from Moody's Investors Service.
SECTION 9. COVENANTS. Bank hereby agrees as follows:
(i) Bank shall notify Pledgor and Collateral Agent if the
representations and warranties made by Bank in Section 9 hereof cease to be true
and correct.
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(ii) Bank shall hold all Financial Assets in the Account for
Collateral Agent and as Collateral Agent's bailee and subject to Collateral
Agent's Control.
(iii) Bank shall make a notation in its books and records of
Collateral Agent's and Pledgor's interest in the Financial Assets held by Bank.
(iv) The Account will be governed by the law of the State of New
York and Bank shall not change such governing law without Collateral Agent's
express written agreement.
SECTION 10. TERMINATION. The rights and powers granted herein to
Collateral Agent have been granted in order to perfect its security interest in
the Account and the Financial Assets held therein, are powers coupled with an
interest and will neither be affected by the bankruptcy of Pledgor nor by the
lapse of time. The obligations of Bank under Sections 3, 4 and 5 above shall
continue in effect until the security interest of Collateral Agent in the
Account and the Financial Assets held therein has been terminated pursuant to
the terms of the Pledge Agreement and Collateral Agent has notified Bank of such
termination in writing. Collateral Agent agrees to notify Bank of such
termination promptly following such termination. Upon receipt of such notice the
obligations of Bank under Sections 3, 4 and 5 above with respect to the
operation and maintenance of the Account after the receipt of such notice shall
terminate, Collateral Agent shall have no further right to originate entitlement
orders concerning the Account and the Financial Assets held therein and Bank may
take such steps as Pledgor may request to vest full ownership and control of the
Account and the Financial Assets in Pledgor, including, but not limited to,
transferring all of the Financial Assets and credit balances in the Account to
another securities account in the name of Pledgor or its designee.
Notwithstanding the foregoing, this Agreement may be terminated by the Bank upon
sixty (60) days' prior written notice to the Pledgor and the Collateral Agent.
Prior to the end of the sixty day notice period, the Bank shall deliver all
Financial Assets held in the Account to any successor securities intermediary
that the Pledgor and the Collateral Agent jointly may designate in writing, or,
in the absence of such writing, shall deliver the Financial Assets held in the
Account to the Collateral Agent, or redeem the Financial Assets and deliver the
proceeds to the Collateral Agent, as secured party under the Pledge Agreement,
whichever the Collateral Agent may direct.
SECTION 11. THIS AGREEMENT. This Agreement, the schedules and exhibits
hereto and the agreements and instruments required to be executed and delivered
hereunder set forth the entire agreement of the parties with respect to the
subject matter hereof and supersede and discharge all prior agreements (written
or oral) and negotiations and all contemporaneous oral agreements concerning
such subject matter and negotiations. There are no oral conditions precedent to
the effectiveness of this Agreement.
SECTION 12. AMENDMENTS. No amendment, modification or termination of
this Agreement or waiver of any right hereunder shall be binding on any party
hereto unless it is in writing and is signed by the party to be charged.
SECTION 13. SEVERABILITY. If any term or provision set forth in this
Agreement shall be invalid or unenforceable, the remainder of this Agreement, or
the application of such terms or provisions to persons or circumstances, other
than those to which it is held invalid or
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unenforceable, shall be construed in all respects as if such invalid or
unenforceable term or provision were omitted.
SECTION 14. SUCCESSORS. The terms of this Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
successors or assigns.
SECTION 15. RULES OF CONSTRUCTION. In this Agreement, words in the
singular number include the plural, and in the plural include the singular;
words of the masculine gender include the feminine and the neuter, and when the
sense so indicates words of the neuter gender may refer to any gender and the
word "or" is disjunctive but not exclusive. The captions and section numbers
appearing in this Agreement are inserted only as a matter of convenience. They
do not define, limit or describe the scope or intent of the provisions of this
Agreement.
SECTION 16. NOTICES. Any notice, request or other communication required
or permitted to be given under this Agreement shall be in writing and deemed to
have been properly given when delivered in person or by a nationally recognized
overnight courier service, or when sent by telecopy or other electronic means
and electronic confirmation of error free receipt is received, or when sent by
certified or registered United States mail, return receipt requested, postage
prepaid, addressed to the party at the address set forth next to such parties'
name at the heading of this Agreement. Any such notice shall be effective upon
receipt or refusal. Any party may change its address for notices in the manner
set forth above.
SECTION 17. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which shall constitute one and the same instrument, and
any party hereto may execute this Agreement by signing and delivering one or
more counterparts.
SECTION 18. CHOICE OF LAW. The parties hereto agree that certain
material events, occurrences and transactions relating to this Agreement bear a
reasonable relationship to the State of New York. The validity, terms,
performance and enforcement of this Agreement shall be governed by those laws of
the State of New York which are applicable to agreements which are negotiated,
executed, delivered and performed solely in the State of New York.
SECTION 19. AUTHORIZED OFFICERS OF THE COLLATERAL AGENT. For the
purposes of this Agreement, the following persons, among others, are officers of
the Collateral Agent, any one of whom individually is authorized to deliver
notices, orders and instructions, and to take other actions, on behalf of the
Collateral Agent hereunder: Chris Johnson, a Managing Director of The Bank of
Nova Scotia as of the date hereof, and Ed Kofman, a Director of The Bank of Nova
Scotia as of the date hereof. The Collateral Agent may designate other Persons
from time to time authorized to act on its behalf hereunder by written notice to
the Bank.
SECTION 20. BANK NOT LIABLE FOR INVESTMENT PERFORMANCE. The parties
acknowledge that the securities carried in the Account will fluctuate in value
over time and agree that the Bank shall not be liable for the investment
performance of such securities now or in the future or any decline in the value
of the securities as a result of market fluctuations. The parties further
acknowledge that the Bank is not acting in the capacity of investment advisor to
any of them but is solely acting in the capacity of securities intermediary.
[signature page follows]
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IN WITNESS WHEREOF, Pledgor, Collateral Agent and Bank have caused this
Control Agreement to be executed as of the day and year first above written.
THE BANK OF NOVA SCOTIA
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
SYMANTEC CORPORATION
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
STATE STREET BANK AND TRUST
COMPANY
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
6.
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EXHIBIT A
TO CONTROL AGREEMENT
INITIAL ACCOUNT
7.
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ATTACHMENT 7
CERTIFICATE OF ACCOUNT VALUE
[DATE]
Reference is hereby made to that certain Pledge and Security Agreement
dated as of March 30, 2001 (the "AGREEMENT") between Symantec Corporation
("Pledgor") and The Bank of Nova Scotia ("Collateral Agent"). Pursuant to
Section 3.1(a) of the Agreement, the Pledgor hereby certifies to the Collateral
Agent, the Lessor and the Participants (as defined in Annex A to the
Participation Agreement referred to in the Agreement) as follows:
- -------------------------------------------------------------------------------------------------
Month Ended Value of Qualified Aggregate Outstanding Required Value* of
Securities Advances Qualified Securities
- -------------------------------------------------------------------------------------------------
________________ $______________ $______________ $______________
- -------------------------------------------------------------------------------------------------
*Required Value = 102% of the Aggregate Outstanding Advances.
Pledgor represents and warrants to Collateral Agent, Lessor and
Participants that the information set forth herein is true and correct.
Symantec Corporation
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
8.