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FIRST AMENDMENT TO STANDARD COMMERCIAL LEASE
This First Amendment to Standard Commercial Lease (this "Amendment")
is made as of May __, 2000 by and between Greenwood Plaza Partners, LLC, a
Colorado limited liability company ("Lessor"), and New Era of Networks, Inc., a
Delaware corporation ("Lessee").
1. RECITALS. Lessor and Lessee are parties to that certain Standard
Commercial Lease dated July 22, 1999 (the "Original Lease"). Lessor and Lessee
desire to the amend the Original Lease for their mutual benefit, all as set
forth in this Amendment. When used in this Amendment, the term "Lease" means the
Original Lease as amended by this Amendment.
2. LEASED PREMISES. Section 1.02 of the Original Lease is modified to
delete the description of the Leased Premises and to replace such description
with the following: "Lot 1, Greenwood Plaza South Filing No.6, Arapahoe County,
Colorado, including all improvements thereto and all buildings, structures, and
other improvements located thereon."
3. TERM. Section 1.03 of the Original Lease is amended to delete the
words "120 months thereafter."
4. PLACE OF PAYMENT. Section 1.05 of the Lease is amended to
provide that, commencing with the payment due June 1, 2000, rent shall be paid
by NEON to a bank account of Lessor established with Citibank, N.A., New York,
New York. Prior to May 15, 2000, Lessor shall provide the exact account
information and wiring instructions.
5. SECURITY DEPOSIT. The security deposit provided for by paragraph
1.07 of the Lease in the form of a Certificate of Deposit in the amount of
$80,000.00 and so long as Lessor owes any indebtedness to Citicorp USA, Inc.
with respect to the Leased Premises, such security deposit shall be held by
Citibank N.A. Lessee shall deposit with Citibank, N.A. in Account No. 0000000
those tenant security deposits from NEON's subtenants which exceed $100,000.00
in the aggregate, provided, however, that Lessee shall only be required to
deposit those amounts in excess of $100,000.00.
6. TAXES AND ASSESSMENTS. In the second line of paragraph 2.02(a), the
phrase "pursuant to Section 2.01" is deleted. Section 2.02(c) is revised in its
entirety as follows:
In the event Lessee fails to pay any taxes and assessments as
required by this Section 2.02, Lessor, at its option, may pay
such taxes and assessments. Such amounts shall be Additional
Rent under this Lease and shall be due on demand.
7. BUILDING SERVICES. Paragraph 4.01 is modified to read in its
entirety as follows:
Public utilities have made natural gas, water, electricity,
sanitary sewer, and telephone utilities available in the
street adjacent to the Leased Premises and Lessor has hooked
up such utilities to the appropriate building systems. Lessee
shall make appropriate arrangements with such public utilities
for utility service.
8. WINDOW COVERINGS. The first sentence of paragraph 4.05 is modified
to read in its entirety as follows:
Lessee is responsible to furnish and install window coverings
on all exterior windows in the Buildings if Lessee so elects.
Lessee's choice of window coverings is subject to the approval
of Lessor, with
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the intent that such window coverings maintain a uniform
exterior appearance of the Buildings.
9. LESSOR IMPROVEMENTS. Paragraphs 6.01 and 14.05 contemplate certain
plans and specifications to be attached to the Original Lease as Exhibit "C".
Exhibit "C" as attached to the Original Lease was incomplete. Exhibit "C" as
attached to this Amendment and is incorporated into the Lease as if originally
attached to the Original Lease.
10. CASUALTY AND INSURANCE. Paragraphs 7.01 and 7.02 are modified to
change "ninety (90) working days" to "one hundred eighty (180) days."
11. LESSOR ASSIGNMENT. The first sentence of paragraph 9.01 is revised
to read in its entirety as follows: "Lessor shall have the right to sell,
transfer, or assign, in whole or in part, its rights and obligations under this
Lease and in the Building."
12. SUBORDINATION. The first sentence of paragraph 9.04 is modified to
replace the word "Building" wherever it appears with the words "Leased
Premises."
13. ADDITIONAL REMEDY ON DEFAULT. Paragraph 11.02 of the Lease is
amended to add the following additional language at the end of paragraph 11.02
to read as follows:
(a) Subparagraph 11.02(b) which follows shall be effective and
a part of this Lease only following the occurrence of all of
the following events: (i) Lessee shall be in default under
this Lease; and (ii) the beneficiary of the Deed of Trust
securing payment of the $29,000,000.00 loan (the "Loan") made
by Citicorp USA, Inc. to Greenwood Plaza Partners, LLC which
encumbers the Leased Premises shall have declared a default
under the Loan and foreclosed such Deed of Trust and the
foreclosure sale shall have occurred; and (iii) Citicorp USA,
Inc. or its successor in interest with respect
to the Loan shall have applied toward payment of the
Loan all amounts in any bank account held as collateral for
the Loan to the extent then held as collateral and Citicorp
USA, Inc. or its successor is legally entitled to do so. Both
subparagraphs 11.02(a) and (b) shall be deemed deleted from
this Lease if the Loan is paid in full without resort to
foreclosure.
(b) For purposes of calculating damages under this Section
11.02, Lessor may elect to receive as damages the sum of (i)
all Base Rent and other sums accrued through the date of
termination of this Lease or Lessee's right to possession, and
(ii) an amount equal to the total Base Rent and other sums
payable hereunder that Lessee would have been required to pay
for the remainder of the term of the Lease discounted to
present value at the Prime Rate (defined below) then in
effect, minus the then present fair rental value of the Leased
Premises for the remainder of the term of the Lease, similarly
discounted, after deducting all anticipated costs of
reletting. For purposes hereof, the "Prime Rate" shall be the
per annum interest rate publicly announced as its prime or
base rate by a federally insured bank selected by Lessor in
the state in which the Leased Premises are located.
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14. BUILDING. Paragraph 14.03 is revised to read in its entirety as
follows:
"Building" means the two office buildings and the parking
structure located on and constituting a part of the Leased
Premises.
15. COMPLETION DATE. Paragraph 14.05 is modified by deleting from
line 6 the words "condemnation, and damages" and replacing them with the words
"and condemnation."
16. PARKING. Paragraph 16.16 of the Lease is revised to read in its
entirety as follows:
As of the date of this Amendment, Lessor provides, and will
during the Term of the Lease provide, to Lessee, 45 unreserved
surface parking spaces and 720 parking spaces located in the
parking garage. Lessee will pay Lessor a monthly parking fee
for the garage parking spaces as Additional Rent at the same
time Rent is due under this Lease based upon the following
schedule:
Years 1-5: $50.00 per month per space
Years 6-8: $57.50 per month per space
Years 9-10: $62.70 per month per space
17. MANAGEMENT AGREEMENT. Any property management agreement entered by
NEON with a property manager with respect to the Leased Premises shall provide
that it shall be terminable on 30 days' notice following termination of the
Lease.
18. EXECUTION BY FACSIMILE AND COUNTERPARTS. This Amendment may be
executed in one or more counterparts, all of which shall, taken together,
constitute one and the same agreement. The parties intend that delivery may be
effected by facsimile transmission and that a facsimile copy which has been
executed by the transmitting party shall constitute an original.
19. MISCELLANEOUS. Except as modified by this Amendment, the Original
Lease is in full force and effect in accordance with its terms. Each of Lessor
and Lessee represents to the other that, to the knowledge of each, there are no
defaults under the Lease and Lessee has no defenses or offsets to payment of
Rent.
LESSOR: LESSEE:
GREENWOOD PLAZA PARTNERS, LLC, NEW ERA OF NETWORKS, INC.,
a Colorado limited liability company a Delaware corporation
By: By: /s/ XXXXXXX XXXXXXXXX
----------------------------------- ----------------------------------
Name: Xxxxxx X. Xxxx, Xx. Name: Xxxxxxx Xxxxxxxxx
Title: CEO Title: CAO
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GENERAL SECURITY AGREEMENT AND
ASSIGNMENT OF ACCOUNTS
THIS GENERAL SECURITY AGREEMENT AND ASSIGNMENT OF ACCOUNTS, dated as of
this 3rd day of May, 2000 is from NEW ERA OF NETWORKS, INC. ("Pledgor"), to and
for the benefit of CITICORP USA, INC., a Delaware corporation (which, together
with its successors, assigns, endorsees, transferees and assignees, is
hereinafter referred to as "Lender").
RECITALS
A. Lender has made a loan (the "Loan") to Greenwood Plaza Partners, LLC
("Borrower") in the amount of $29,000,000 (the "Loan"), which Loan is evidenced
by Borrower's Promissory Note of even date herewith in the amount of $29,000,000
payable to Lender (the "Note"). The Loan is evidenced by a Loan Agreement, of
even date herewith, among Borrower, Lender, and Guarantor (the "Loan
Agreement"). The Loan is fully recourse to Borrower. Defined terms used herein
and not defined herein shall have the meaning set forth in the Loan Agreement.
B. Pledgor has entered into a Standard Commercial lease with Borrower
(the "Master Lease") dated July 22, 1999 pursuant to which Pledgor has leased
the property known as 6550 and 0000 X. Xxxxxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxx,
Xxxxxxxx (the "Property").
C. Borrower shall use the Loan proceeds to payoff an existing loan to
Borrower from Pledgor. Pledgor will benefit for Lender making the Loan to
Borrower.
D. In connection with the Loan, Pledgor has established the Excess
Space TI Account, the Tenant Security Deposit Account, and the Third Party
Tenants Cash Collateral Account. As a condition precedent to the Loan, Pledgor
is required to assign, pledge, transfer and grant Lender a security interest in
all accounts of Pledgor at Citibank, N.A. intended to constitute collateral for
the Loan, including without limitation, the Excess Space TI Account, the Tenant
Security Deposit Account, and the Third Party Tenants Cash Collateral Account
(collectively, the "Accounts").
E. Pledgor's execution of this Agreement and pledging and assigning the
Accounts to Lender is a condition precedent to Lender making the Loan to
Borrower. Lender would not make the Loan to Borrower unless Pledgor entered into
this Agreement
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and pledged and assigned the Accounts to Lender. Pledgor acknowledges receipt of
adequate consideration for entering into this Agreement and pledging the
Accounts.
AGREEMENT
IN CONSIDERATION of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Pledgor agrees with Lender as follows:
1. Assignment and Pledge. For value received, Pledgor hereby sells,
assigns, pledges, transfers and grants Lender a security interest in all of
Pledgor's right, title and interest in and to the following (the "Collateral"):
(a) All checking accounts, money market accounts, passbook savings
accounts and all other accounts now or hereafter established by Pledgor at
Citibank, N.A., its affiliates or subsidiaries intended to constitute collateral
for the Loan and all renewals thereof or substitutions, additions thereto,
proceeds therefrom and all amounts at any time on deposit therein together with
all interest or dividends thereon;
(b) All amounts at any time on deposit in the Excess Space TI Account,
and all renewals or substitutions thereof, additions thereto, proceeds therefrom
and all amounts at any time on deposit therein together with all interest or
dividends thereon;
(c) All amounts at any time on deposit in the Tenant Security Deposit
Account, and all renewals or substitutions thereof, additions thereto, proceeds
therefrom and all amounts at any time on deposit therein together with all
interest or dividends thereon;
(d) All amounts at any time on deposit in the Third Party Tenants Cash
Collateral Account, and all renewals or substitutions thereof, additions
thereto, proceeds therefrom and all amounts at any time on deposit therein
together with all interest or dividends thereon;
(e) Account No. 0000000 (Excess Space TI Account) at Citibank, NA., an
interest bearing account with a rate determined by Lender and similar to the
rate paid on similar impound deposits, and all renewals or substitutions
thereof, additions thereto, proceeds therefrom and all amounts at any time on
deposit therein together with all interest or dividends thereon;
(f) Account No. 0000000 (Tenant Security Deposit Account) at Citibank,
N.A., an interest bearing account with a rate determined by Lender and similar
to the rate
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paid on similar impound deposits, and all renewals or substitutions thereof,
additions thereto, proceeds therefrom and all amounts at any time on deposit
therein together with all interest or dividends thereon;
(g) Account No. 0000000 (Third Party Tenants Cash Collateral Account)
at Citibank, N.A., an interest bearing account with a rate determined by Lender
and similar to the rate paid on similar impound deposits, and all renewals or
substitutions thereof, additions thereto, proceeds therefrom and all amounts
at any time on deposit therein together with all interest or dividends thereon.
2. Security for Obligations. This Agreement secures the payment of all
obligations of Borrower to Lender now or hereafter existing under the Note and
all other Loan Documents, including any extensions, replacements, modifications,
substitutions, amendments and renewals thereof, whether for principal,
interest, fees, expenses or otherwise (all such obligations being the
"Obligations"). Pledgor shall not have any right to withdraw funds from the
Accounts except in accordance with the Loan Agreement.
3. Representations and Warranties. Pledgor represents and warrants as
follows:
(a) Pledgor is the legal and beneficial owner of the Collateral free
and clear of any lien, claim, security interest, assignment, pledge, charge or
encumbrance whatsoever, except for the liens and security interests created by
this Agreement, and the Collateral shall remain free and clear of any other
lien, claim, security interest, assignment, pledge, charge or encumbrance of any
nature whatsoever so long as any of the Obligations remain unpaid. No financing
statement or other instrument similar in effect covering all or any part of the
Collateral is on file in any recording office, except such as may have been
filed in favor of Lender relating to this Agreement.
(b) Pledgor has legal title and good right and lawful authority to
pledge, assign and deliver the Collateral.
(c) Pledgor will not create, assume or suffer to exist any lien on the
Collateral other than pursuant to this Agreement.
(d) The pledge of the Collateral pursuant to this Agreement creates a
valid and, with execution of a letter by Citibank, N.A. in the form of Exhibit A
attached hereto, a perfected, first priority security interest in the
Collateral securing the payment of the Obligations.
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(f) The pledge of the Collateral pursuant to this Agreement constitutes an
absolute and unconditional pledge of the Accounts and all amounts on deposit
therein as cash collateral security for the Loan. Such pledge is unrelated to
the Master Lease and Lender's rights to the Collateral are not contingent upon a
default under the Master Lease, or a failure to complete any construction on the
Property, or any other condition, other than an event of default under the Loan.
(e) The pledge of the Collateral pursuant to this Agreement is made for
the purpose of inducing Lender to make the Loan to Borrower, which Lender would
not make without such pledge, and the proceeds of such Loan will be used to
repay the outstanding loan from Pledgor to Borrower.
(f) Pledgor has full power to enter into and perform its obligations
under this Agreement and all other documents contemplated hereby or executed
pursuant hereto. The execution and delivery of this Agreement and all other
documents contemplated hereby or executed pursuant hereto and the performance
and observance of their terms, conditions and obligations have been duly
authorized by all necessary action on the part of Pledgor. This Agreement and
all other documents contemplated hereby or executed pursuant hereto constitute
or will constitute when executed and delivered by Pledgor, valid and binding
obligations of Pledgor enforceable in accordance with their terms.
(g) The execution and delivery of this Agreement and all other documents
contemplated hereby or executed pursuant hereto and the consummation of all
transactions contemplated hereby and thereby, do not and will not conflict
with, or be in contravention of, any of Pledgor's governing documents, any law,
order, rule or regulation applicable to Pledgor or any agreement or instrument
to which Pledgor is a party or by which the Property is bound or affected, and
will not result in the creation of any lien, charge or encumbrance of any
nature upon the Property other than that contemplated hereby.
4. Covenants/Further Assurances. Pledgor agrees that, at any time and from
time to time, at the expense of Pledgor, Pledgor will promptly execute and
deliver all further instruments and documents and take all further action that
may be necessary or desirable, or that Lender may request, in order to perfect
and protect the assignment and security interest granted or purported to be
granted hereby or to enable Lender to exercise and enforce its rights and
remedies hereunder with respect to any Collateral. Without limiting the
generality of the foregoing, Pledgor will execute and file such financing or
continuation statements, or amendments thereto, and such other assignments,
instruments or notices, as may be necessary or desirable, or as Lender may
request, in order to perfect and preserve the assignment and security interest
granted or purported to be granted hereby.
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5. Waiver/Withdraw of Collateral.
(a) Pledgor waives any right to require Lender to proceed against any
other person, including Borrower or any Guarantor, or to apply any other
collateral or security which Lender may hold at any time for the account of the
Borrower or Pledgor, or to exercise any other remedy. Without limiting the
generality of the foregoing, the Pledgor specifically waives demand, protest,
notice of protest, notice of default or dishonor (other than as specifically
provided for in Section 6 below), notice of payment and non-payment, notice of
default and non-payment at maturity (other than as specifically provided for in
Section 6 below) and agrees that the Obligations and the rights of the Lender
pursuant to this Agreement shall not be waived or modified in any respect by any
release, substitution, or addition of collateral, security, guarantors, or
endorsers with respect to the Obligations.
(b) Pledgor acknowledges and agrees that, except as specifically set
forth in the Loan Agreement with respect to certain releases of the Collateral
under the conditions set forth therein, Pledgor has no right to and hereby
relinquishes any right to withdraw or remove or have access to or the use of the
Collateral or any funds in the Accounts.
6. Events of Default. The occurrence of any one or more of the
following events or existence of any one or more of the following conditions
shall constitute an Event of Default under this Agreement and all other Loan
Documents:
(a) Borrower shall fail to pay, when due, the principal of or interest
on the Note, or any installment thereof (whether due on the date provided for
herein or by acceleration or otherwise).
(b) Pledgor shall fail to observe or perform any term, condition or
covenant of this Agreement, and such failure shall not be cured within 10 days
after notice from Lender.
(c) Any material representation or warranty made by Pledgor herein or
in connection with the making of the Loan or in any certificate, statement or
report made pursuant to this Agreement is false, misleading or erroneous in any
material respect.
(d) There shall occur a default, or the occurrence of any event or
circumstance defined as an Event of Default, under any of the Loan Documents
other than this Agreement.
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7. Remedies. Upon the occurrence and during the continuance of an Event
of Default hereunder or an event which, with the giving of notice or the lapse
of time, or both, would become an Event of Default hereunder:
(a) Pledgor hereby irrevocably constitutes and appoints Lender its
respective true and lawful attorney, with full power of substitution: to demand,
collect, and receive payment of any and all monies or proceeds due or to become
due under the Collateral; to execute any and all instruments required for the
withdrawal or repayment of same, or any part thereof; and to complete such
instruments in any respect; and in all respects to deal with the Collateral as
the holder thereof; and, in its discretion, file any claim or take any other
action or proceeding, either in its own name or in the name of the Pledgor which
Lender may deem necessary or appropriate to protect and preserve the right,
title, assignment, pledge, transfer, and interest of Lender hereunder.
(b) All payments received by Pledgor under or in connection with the
Collateral shall be received in trust for the benefit of Lender, shall be
segregated from other funds of Pledgor and shall be forthwith paid over to
Lender in the same form as so received (with any necessary endorsement), to the
extent of the Obligations then due.
(c) All payments made under or in connection with the Collateral and
received by Lender may, in the discretion of Lender, be held by Lender as
collateral for, and/or then or at any time thereafter applied in whole or in
part by Lender against, all or any part of the Obligations in such order as
Lender shall elect. Any surplus of such payments held by Lender and remaining
after payment in full of all the Obligations shall be paid over to Pledgor or to
whomsoever may be lawfully entitled to receive such surplus.
(d) Take possession of the Collateral and apply all or any part of the
Collateral to repay the Loan and satisfy Borrower's Obligations in such order
as Lender may elect, irrespective of whether there is any breach or default
under the Master Lease. Pledgor acknowledges that such a breach or default is
not a condition to application of the Collateral by Lender to repay the Loan
because the pledge of the Collateral is absolute and unrelated to the Master
Lease.
(e) Lender may exercise in respect of the Collateral, in addition to
other rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party on default under the Uniform
Commercial Code (the "Code").
8. Indemnity. Pledgor agrees to indemnify Lender from and against any
and all claims, losses and liabilities growing out of or resulting from this
Agreement (including,
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without limitation, enforcement of this Agreement), except claims, losses or
liabilities resulting from Lender's gross negligence or willful misconduct.
9. Security Interest Absolute. All rights of Lender and the assignment
and security interest hereunder, and all obligations of Pledgor hereunder, shall
be absolute and unconditional, irrespective of:
(a) any lack of validity or enforceability of the Loan Documents;
(b) any change in the time, manner or place of payment of, or in any
other term of; all or any of the Obligations or any other amendment or waiver of
or any consent to any departure from the Loan Documents;
(c) any amendment, modification or restatement of the Loan Documents;
(d) any exchange, release or nonperfection of any other collateral, or
any release or amendment or waiver of or consent to departure from any guaranty,
for all or any of the Obligations;
(e) the existence of any claim, setoff, defense or other right that
Borrower or Pledgor may have at any time against Lender or any other person,
whether in connection with this Agreement or the Loan Documents; or
(f) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, which might otherwise constitute a defense
available to, or a discharge of, Pledgor or a third-party grantor of a security
interest.
10. Amendments, Etc. No amendment or waiver of any provision of this
Agreement nor consent to any departure by Pledgor herefrom, shall in any event
be effective unless the same shall be in writing and signed by Lender, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which give.
11. Notices. Any notice required to be given to any party pursuant to
any provision of this Agreement shall be given in the manner prescribed in the
Loan Agreement.
12. Continuing Security Interest; Transfer of Note; Release of
Collateral. This Agreement shall create a continuing security interest in the
Collateral and shall (a) remain in full force and effect until the payment in
full of the Obligations (except that if Lender enters into a written agreement
to voluntarily extend the Loan without Pledgor's consent, then this Agreement
and Lender's security interest in the Collateral shall terminate),
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(b) be binding upon Pledgor, its successors and assigns and (c) inure, together
with the rights and remedies of Lender hereunder, to the benefit of Lender, its
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (c), Lender may assign or otherwise transfer the Note, or
any other Loan Document, or any portion thereof to any other person or entity,
and such other person or entity shall thereupon become vested with all the
benefits in respect thereof granted to Lender herein or otherwise.
13. Miscellaneous. (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado.
(b) Unless otherwise defined herein, terms used in Article 9 of the
Uniform Commercial Code in the State of Colorado are used herein as therein
defined.
(c) Jurisdiction and Venue. At the sole option of Lender, any action
concerning this Agreement or any other Loan Document may be brought in (i) the
Colorado District Court for the City and County of Denver, Colorado, (ii) in the
United States District Court for the District of Colorado, or (iii) any New York
state or federal court sitting in New York County, State of New York, and
Pledgor hereby irrevocably agrees that all claims in respect of any such action
or proceeding may be heard and determined in any of the courts described above.
Pledgor hereby consents to nonexclusive venue and jurisdiction in any of the
courts described above and hereby irrevocably waives the defense of inconvenient
forum to the maintenance of any such action or proceeding.
(d) Waiver of Jury Trial. Pledgor hereby waives any right to jury trial
of any claim, cross-claim or counterclaim relating to or arising out of or in
connection with this Agreement any of the other Loan Documents.
(e) Provisions Several/Illegality. The unenforceability or invalidity
of any provision or provisions hereof shall not render any other provision or
provisions herein contained unenforceable or invalid and in lieu of each such
illegal, invalid or unenforceable provision there shall be added automatically
as a part of this Agreement a provision as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible and be legal, valid, and
enforceable.
(f) Counterparts. This Agreement may be executed in counterparts, each
of which shall constitute an original.
[SIGNATURE APPEARS ON NEXT PAGE]
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IN WITNESS WHEREOF, Pledgor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
PLEDGOR:
NEW ERA OF NETWORKS, INC.
By: /s/ XXXXXXX XXXXXXXXX
---------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
-------------------------------------------
Title: Chief Administrative Officer
------------------------------------------
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EXHIBIT A
(Attached to and forming a part of
the General Security Agreement and Assignment of Accounts
between New Era of Networks, Inc. as Assignor
and Citicorp USA, Inc. as Assignee
dated May __, 2000)
FORM OF CITIBANK PLEDGE LETTER
Citibank, N.A.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Re: Pledge of accounts
Gentlemen:
Reference is made to that certain Loan Agreement dated of even date
herewith (the "Loan Agreement") by and between Greenwood Plaza Partners, LLC, as
Borrower, and Citicorp USA, Inc., a Delaware corporation, as Lender. Defined
terms used in this letter and not defined herein, shall have the meanings
ascribed to them in the Loan Agreement.
Pursuant to a General Security Agreement and Assignment of Accounts,
dated of even date herewith, executed by New Era of Networks, Inc. ("Pledgor")
in favor of Lender, a copy of which is attached hereto, Pledgor has pledged and
assigned to Lender, and has granted Lender a security interest in, any and all
checking accounts, money market accounts, passbook savings accounts and all
other accounts now or hereafter established by Pledgor with Lender, its
affiliates and subsidiaries that are intended to constitute collateral under the
loan to Borrower, including without limitation, (1) the Excess Space TI Account,
established pursuant to the Loan Agreement, which account is currently Account
No. 0000000 at Citibank, N.A., (2) the Tenant Security Deposit Account,
established pursuant to the Loan Agreement, which account is currently Account
No. 0000000 at Citibank, N.A., and (3) the Third Party Tenants Cash Collateral
Account, established pursuant to the Loan Agreement, which account is currently
Account No. 0000000 at Citibank, N.A.
Lender will deposit the proceeds of the Permanent Cash Collateral
Account, the Excess Space TI Account, the Tenant Security Deposit Account and
the Third Party Tenants
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Cash Collateral Account in the account numbers described above, subject to
Lender's first lien and security interest in the Accounts.
By this letter, Lender and Pledgor authorize and request that you hold
the Accounts as Lender's agent for the sole limited purpose of allowing Lender's
security interest to be perfected by possession in accordance with applicable
law. Lender and Pledgor further request that you act in accordance with
Lender's instructions as to transfers of funds from time to time out of the
Accounts and that you waive your right of set-off with respect to the Accounts.
By executing this letter you (1) acknowledge the existence of the assignment to
and security interest of Lender in the Accounts, (2) agree that you will xxxx
your records with respect to such Accounts to reflect Lender's Security
Interest, (3) agree to act in accordance with Lender's instructions as to
transfer of funds from time to time out of the Accounts, (4) will not allow any
funds to be withdrawn or transferred from the Accounts without Lender's
consent, (5) agree that you waive your right to setoff with respect to the
Accounts and (6) agree that you will respond to any legal process effecting the
Accounts by noting in your response the existence of Lender's interest in the
Accounts.
By this letter, Pledgor (1) acknowledges that Citibank, N.A. is holding
the Accounts as agent for Lender in order to perfect Lender's lien on and
security interest in the Accounts, (2) hereby specifically instructs Citibank,
N.A. to act upon instructions from Lender with respect to the Accounts and, in
the event of conflicting instructions from Pledgor and Lender, to rely in all
instances upon the instructions of Lender, and (3) releases and relinquishes any
right to withdraw funds from the Accounts without Lender's consent. Pledgor
hereby agrees to indemnify and hold Citibank, N.A. harmless from relying on
such instructions.
Kindly acknowledge your acceptance of your appointment as agent for
Lender, your receipt of these instructions by signing your enclosed copy of this
letter and returning it to Lender.
Very truly yours,
CITICORP USA, INC., a Delaware
corporation
By: /s/ X.X. XXXXXXXX
------------------------------------------
Name: X.X. Xxxxxxxx
----------------------------------------
Title: VP
----------------------------------------
A-2
15
NEW ERA OF NETWORKS, INC.
By:
------------------------------------------
Name:
----------------------------------------
Title:
--------------------------------------
AGREED AND ACCEPTED as of
the day first above written:
CITIBANK, N.A.
By: /s/ XXXX X. XXXXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
X-0
00
Xxx 0, 0000
Xxxxxxxx, N.A.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
RE: PLEDGE OF ACCOUNTS FROM NEON
Gentlemen:
Reference is made to that certain Loan Agreement dated of even date
herewith (the "Loan Agreement") by and between Greenwood Plaza Partners, LLC, as
Borrower, and Citicorp USA, Inc., a Delaware corporation, as Lender. Defined
terms used in this letter and not defined herein, shall have the meanings
ascribed to them in the Loan Agreement.
Pursuant to a General Security Agreement and Assignment of Accounts and
General Hypothecation Agreement, dated of even date herewith, executed by New
Era of Networks, Inc. ("Pledgor") in favor of Lender, a copy of which is
attached hereto, Pledgor has pledged and assigned to Lender, and has granted
Lender a security interest in, any and all checking accounts, money market
accounts, passbook savings accounts and all other accounts now or hereafter
established by Pledgor with Lender, its affiliates and subsidiaries that are
intended to constitute collateral under the loan to Borrower, including without
limitation, (1) the Permanent Cash Collateral Account, which currently is
Account No. 554797 at Citibank, N.A., (2) the Excess Space TI Account,
established pursuant to the Loan Agreement, which account is currently Account
No. 0000000 at Citibank, N.A., (3) the Tenant Security Deposit Account,
established pursuant to the Loan Agreement, which account is currently Account
No. 0000000 at Citibank, N.A., and (4) the Third Party Tenants Cash Collateral
Account, established pursuant to the Loan Agreement, which account is currently
Account No. 0000000 at Citibank, N.A.
Lender will deposit the proceeds of the Permanent Cash Collateral Account,
the Excess Space TI Account, the Tenant Security Deposit Account and the Third
Party Tenants Cash Collateral Account in the account numbers described above,
subject to Lender's first lien and security interest in the Accounts.
By this letter, Lender and Pledgor authorize and request that you hold the
Accounts as Lender's agent for the sole limited purpose of allowing Lender's
security interest to be perfected by possession in accordance with applicable
law. Lender and Pledgor further request that you act in accordance with Lender's
instructions as to transfers of funds from time to time out of the Accounts and
that you waive your right of set-off with respect to the Accounts. By executing
this letter you
17
Citibank, N.A.
May 3, 2000
Page 2
(1) acknowledge the existence of the assignment to and security interest of
Lender in the Accounts. (2) agree that you will xxxx your records with respect
to such Accounts to reflect Lender's Security Interest, (3) agree to act in
accordance with Lender's instructions as to transfer of funds from time to time
out of the Accounts, (4) will not allow any funds to be withdrawn or transferred
from the Accounts without Lender's Consent, (5) agree that you waive your right
to setoff with respect to the Accounts and (6) agree that you will respond to
any legal process effecting the Accounts by noting in your response the
existence of Lender's interest in the Accounts.
By this letter, Pledgor (1) acknowledges that Citibank, N.A. is holding the
Accounts as agent for Lender in order to perfect Lender's lien on and security
interest in the Accounts, (2) hereby specifically instructs Citibank, N.A. to
act upon instructions from Lender with respect to the Accounts and, in the event
of conflicting instructions from Pledgor and Lender, to rely in all instances
upon the instructions of Lender, and (3) releases and relinquishes any right to
withdraw funds from the Accounts without Lender's consent. Pledgor hereby agrees
to indemnify and hold Citibank, N.A. harmless from relying on such instructions.
Kindly acknowledge your acceptance of your appointment as agent for Lender,
your receipt of these instructions by signing your enclosed copy of this letter
and returning it to Lender.
Very truly yours,
CITICORP USA, INC., a Delaware
corporation
By: /s/ X. X. XXXXXXXX
-----------------------------------
Name: X. X. Xxxxxxxx
---------------------------------
Title: V.P.
--------------------------------
18
Citibank, N.A.
May 3, 2000
Page 3
NEW ERA OF NETWORKS, INC.
By: /s/ XXXXXXX XXXXXXXXX
----------------------------------
Name: XXXXXXX XXXXXXXXX
--------------------------------
Title: CHIEF ADMINISTRATIVE OFFICER
-------------------------------
AGREED AND ACCEPTED as of
the day first above written:
CITIBANK, N.A.
By: /s/ XXXX X. XXXXXXXX
---------------------------------------
Name: XXXX X. XXXXXXXX
----------------------------------
Title: VICE PRESIDENT
---------------------------------
19
GENERAL HYPOTHECATION AGREEMENT CITICORP USA, INC.
Not for Consumer Transactions
In consideration of any liability of Greenwood Plaza Partners, LLC to
Citicorp USA, Inc. (the "Lender") and/or in order to induce the Lender, acting
in its discretion, to make loans or otherwise to extend or continue credit at
any time(s) to Greenwood Plaza Partners, LLC, the undersigned hereby agree(s):
I. That, as security for that certain Loan from Lender to Greenwood
Plaza Partners, LLC in the amount of $29,000,000, as evidenced by that certain
Loan Agreement of even date herewith (the "Loan Agreement") and all obligations
in connection therewith (the "Obligations"), the undersigned hereby pledges and
grants to the Lender a lien upon, a security interest in and an assignment of
any and all property (as defined below) in which the undersigned at any time has
rights and which at any time has been delivered, transferred, pledged, mortgaged
or assigned to, or deposited in or credited to (a) the Permanant Cash Collateral
Account (as defined in the Loan Agreement), or any other account in which the
Permanent Cash Collateral (as defined in the Loan Agreement) is held, or (b)
Account No. 554797 in the name of the undersigned maintained by Citibank, N.A.
(the "Securities Intermediary") and all assets on deposit therein,
(collectively, the "Pledged Account") and that is otherwise at any time in the
possession or under the control or recorded on the books of or has been
transferred to the Lender, the Securities Intermediary or any other third
party(ies) acting in its behalf or designated by it to the extent identified
with or intended for deposit in the Pledged Account. Stock dividends and the
distributions on account of any stock or other securities subject to the terms
and provisions hereof shall be deemed an increment thereto and if not received
directly by the Lender shall be delivered immediately to it by the undersigned
in form for transfer.
II. That the Lender shall exercise reasonable care in the custody of
any property at any time(s) in its possession or control hereunder, or otherwise
subject to the terms and provisions hereof, but shall be deemed to have
exercised reasonable care if such property is accorded treatment substantially
equal to that which the Lender accords its own property (it being understood
that the Lender shall have no responsibility for ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relative to any property and whether or not the Lender has or is deemed
to have knowledge of such matters), or if the Lender takes such action with
respect to the property as the undersigned shall reasonably request in writing
and to which the Lender consents, but no failure to comply with any such request
nor any omission to do any such act requested by the undersigned shall be deemed
a failure to exercise reasonable care, nor shall any failure of the Lender to
take necessary steps to preserve rights against any parties with respect to any
property in its possession or control, or otherwise subject to the terms and
provisions hereof, be deemed a failure to exercise reasonable care.
III. That, in addition to its rights and interests as herein set forth,
the Lender may, as its option at any time after the occurrence of an Event of
Default under the Loan Agreement and with or without notice to the undersigned,
appropriate and apply to the payment or reduction, either in whole or in part
of the amount owing on any one or more of the Obligations, then due, any and all
moneys now or hereafter with the Lender, any affiliate of the Lender or any
third party acting in its behalf or designated by it, on deposit or otherwise to
the credit of or belonging to the undersigned in the Pledged Account. The
undersigned understands and agrees that the Lender shall not be obligated to
assert or enforce any rights, liens or security
20
interests hereunder or to take any action in reference thereto, and that the
Lender may in its discretion at any time(s) relinquish its rights as to
particular property or in any instance without thereby affecting or invalidating
its rights hereunder as to any other property hereinbefore referred to or in any
similar or other circumstance.
IV. That, so long as any of the Obligations shall remain unpaid, the
undersigned will not, unless the Lender shall otherwise consent in writing,
create or suffer to exist any lien, security interest or other charge or
encumbrance, or any other type of preferential arrangement, upon or with respect
to the Pledged Account.
V. That, so long as any of the Obligations shall remain unpaid the
undersigned will maintain at all times in the Pledged Account assets acceptable
to the Lender, consisting of cash and cash equivalents. Such cash and cash
equivalents, and any additional securities, cash and cash equivalents pledged to
the Lender from time to time and deposited in the Pledged Account, together with
any income and distributions in connection with the securities (including stock
splits) and any proceeds thereof deposited in the Pledged Account, shall be the
"Pledged Collateral", provided that the Pledged Collateral specifically excludes
Xxxxxxx'x Account No. 554796 and any amounts on deposit therein.
VI. That, so long as any of the Obligations shall remain unpaid, the
undersigned may not withdraw any Pledged Collateral from the Pledged Account.
VII. That each type of Pledged Collateral shall at all times be cash or
cash equivalents as determined by Lender in Lender's sole and absolute
discretion.
VIII. That the undersigned shall comply with the following minimum
collateral value requirements:
(a) If at any time the loanable value of the Pledged Collateral
as reasonably determined by Lender is less than $5,000,000, the
undersigned shall deposit additional Pledged Collateral into the
Pledged Account, as specified by the Lender in its sole discretion, so
that, after giving effect to such deposit or repayment, the loanable
value of the Pledged Collateral as reasonably determined by Lender is
at least $5,000,000, or such lower amount as may be approved by
Lender. The loanable value of any collateral shall be determined by
Lender at the time that the collateral is included as part of the
Pledged Collateral. The loanable value of cash and cash equivalence
acceptable to Lender (e.g., short term U.S. Government Treasuries)
shall generally be 100% of the market value. The loanable value of
other types of Pledged Collateral may be less than 100% of the fair
market value and such loanable value shall be determined by Lender in
its sole discretion.
IX. That in the event of the happening of any one or more of the
following, any one of which shall constitute an event of default, to wit: (a)
the non-payment of any of the Obligations when payable, or, in the case of
Obligations payable on demand, when payment is demanded; (b) the failure of the
undersigned forthwith to furnish additional collateral to the satisfaction of
the Lender to the extent required hereunder, or to perform or observe any other
covenant or obligation hereunder, or under any instrument, agreement or other
document delivered in connection herewith; (c) any representation or warranty
made by the undersigned under or in connection herewith shall have been
incorrect when made or deemed made; (d) the insolvency, death, failure in or
suspension of business, termination of current
2
21
employment, dissolution or termination of existence of the undersigned or any
guarantor or endorser of any of the Obligations, except as otherwise permitted
by the Loan Agreement; (e) the filing of a petition in bankruptcy by or against
the undersigned or any such guarantor or endorser, or the commencement of any
proceedings in bankruptcy, or under any Acts of Congress relating to the relief
of debtors, for the relief or readjustment of any indebtedness of the
undersigned or any such guarantor or endorser, either through the commencement
of voluntary liquidation, reorganization, composition, extension or otherwise,
or the taking of any action by the undersigned or any such guarantor or endorser
authorizing any of the foregoing; (f) the making of an assignment for the
benefit of creditors or the taking advantage of any insolvency law by the
undersigned or any such guarantor or endorser; (g) the appointment of a
receiver, conservator, liquidator, or similar officer for, or for any property
of, the undersigned or any such guarantor or endorser; (h) the occurrence of a
default or event of default under the Loan Agreement; (i) the attachment of or
restraint as to any Pledged Collateral -- then, or at any time after the
happening of any such event of default, any or all of the Obligations then
existing, although otherwise unmatured or contingent, shall at the option of the
Lender, become due and payable forthwith, without demand upon or notice to the
undersigned; provided, however, that in the event of any actual or deemed entry
of an order for relief with respect to the undersigned, under the Federal
Bankruptcy Code, any or all of the Obligations then existing, although otherwise
unmatured or contingent, shall automatically become and be due and payable.
Furthermore, upon the occurrence of any such event of default the Lender shall
have all of the rights and remedies provided to a secured party by the Uniform
Commercial Code in effect in New York State and Colorado State at that time and
the undersigned further agrees that (1) in the event that notice is necessary,
written notice mailed to the undersigned at the address given below three
business days prior to the date of public sale of property subject to the
security interest of the Lender or prior to the date after which private sale or
any other disposition of said property will be made shall constitute reasonable
notice, but notice given in any other reasonable manner or at any other
reasonable time shall be sufficient; (2) without precluding any other methods of
sale, the sale of property shall have been made in a commercially reasonable
manner if conducted in conformity with reasonable commercial practices of banks
disposing of similar property, but in any event, the Lender may sell at its
option on such terms as it may choose without assuming any credit risk and
without obligation to advertise; and (3) the Lender may require the
undersigned to assemble the property subject to the security interest of the
Lender and to make such property available to the Lender at a time and place
designated by the Lender, all at the expense of the undersigned. Upon the
occurrence of an event of default, if the fair market value of the Pledged
Collateral exceeds $5,000,000, the maximum amount Lender shall be entitled to
hereunder shall be Pledged Collateral with a fair market value of $5,000,000 (on
the date that Lender exercises its rights with respect to such collateral).
X. That all rights of the Lender and liens of the Lender shall continue
unimpaired, and that the undersigned shall be and remain bound by the
Obligations in accordance with the terms thereof, notwithstanding the release of
any of the aforementioned property, or of any rights or interests therein, or
any delay, extension of time, renewal, compromise or other indulgence granted by
the Lender in reference to any of the Obligations or any promissory note, draft,
xxxx of exchange or other instrument or other obligations given in connection
therewith or constituting a part of the said property, the undersigned hereby
waiving all notice of any such delay, extension, release, substitution, renewal,
compromise or other indulgence, and hereby consenting to be bound thereby as
fully and effectually as if the undersigned had expressly agreed thereto in
advance.
XI. That the Lender may, at its option and without obligation to do so,
at any time after an event of default transfer to or register in the name of its
nominee(s), including any "clearing corporation"
3
22
or "custodian bank" as defined in the Uniform Commercial Code in effect in the
state of New York or Colorado and any nominee(s) thereof, all or any part of
the aforementioned property and it may do so before or after the maturity of any
of the Obligations and with or without notice to the undersigned.
XII. That the Lender may assign or otherwise transfer all or any of the
Obligations, and may deliver all or any of the property to the transferee(s),
who shall thereupon become vested with all the powers and rights in respect
thereof given to the Lender herein or otherwise and the Lender shall thereafter
be forever relieved and fully discharged from any liability or responsibility
with respect thereto, all without prejudice to the retention by the Lender of
all rights and powers not so transferred. Furthermore that the Lender may, in
connection with any such assignment, transfer or delivery, disclose to the
assignee or transferee or proposed assignee or proposed transferee any
information relating to the undersigned furnished to the Lender by or on behalf
of the undersigned, provided, that, prior to any such disclosure, the assignee
or transferee or proposed assignee or proposed transferee shall agree to
preserve the confidentiality of any confidential information related to the
undersigned received by it from the Lender.
XIII. That, if this agreement is executed by two or more parties, they
shall be severally bound and committed hereunder, and the term "undersigned"
wherever used herein shall be construed to refer to each of such parties
separately, all in the same manner and with the same effect as if each of them
had signed separate instruments. If any party hereto is a partnership, the
agreements herein contained shall remain in force and applicable notwithstanding
changes in the individuals comprising the partnership, and the term
"undersigned" shall include any altered or successor partnerships, but the
predecessor partnerships and their partners shall not thereby be released from
any liability.
XIV. That the Lender is authorized, at its option, to file Financing
Statement(s), Amendments and Continuation Statement(s) without the signature of
the undersigned with respect to any of the aforementioned property;
XV. That, the Lender is irrevocably appointed the attorney-in-fact of
the undersigned with full authority in the place and stead of the undersigned
and in the name of the undersigned, in the Lender's name or otherwise, from time
to time in the Lender's discretion, to take any action and to execute any
instrument, document or agreement (including, without limitation, financing
statements, amendments thereto and continuation statements) which the Lender may
deem necessary or advisable to accomplish the purposes of this agreement
including, without limitation, to perfect, preserve, and protect the security
interest granted or purported to be granted hereunder.
XVI. That, to induce the Lender to make any advance or extend any
credit secured hereby, the undersigned represents and warrants as follows (which
representations and warranties shall be deemed to be repeated on the date of
each such advance or extension of credit after the date hereof): (a) If the
undersigned is not an individual, it is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization; (b) the
execution, delivery and performance of this agreement are within the capacity
and powers of the undersigned, have been duly authorized by all necessary
action, and do not contravene (i) if the undersigned is not an individual, the
charter and other organizational documents of the undersigned, or (ii) any law,
regulation or contractual restriction binding on or affecting the undersigned;
(c) no authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required for the due
execution, delivery and performance of this agreement by the undersigned; (d)
this agreement is the legal, valid and binding obligation of the undersigned,
enforceable against the undersigned in accordance with its terms; (e) there is
no action or
4
23
proceeding affecting the undersigned pending before any court, governmental
agency or arbitrator, or threatened, and there is no other action or proceeding
affecting the undersigned or any of the shareholders, directors, officers,
partners, members or similar parties (as applicable) of the undersigned, pending
before any court, governmental agency or arbitrator, or threatened; which in
each case purports to affect the legality, validity or enforceability of this
agreement or any document executed or delivered in connection herewith by the
undersigned.
XVII. That all notices by the Lender to the undersigned hereunder shall
be in writing and sent by certified or registered mail, return receipt
requested, by overnight delivery service, or by hand-delivery to the address
of the undersigned specified below. All such notices shall be deemed given (i)
if sent by certified or registered mail, three business days after being
postmarked or (ii) if sent by overnight delivery service or by hand-delivery,
when received at such address or when delivery is refused.
XVIII. That, in case any provision in or obligation under this
agreement or any other document related to this agreement shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision
or obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.
XIX. That this agreement and the other documents related to this
agreement constitute the entire understanding between the parties hereto with
respect to the subject matter hereof and supersede any prior or contemporaneous
agreements, written or oral, with respect thereto.
XX. That this agreement shall be deemed to have been made under, and
shall be governed by, the laws of the State of Colorado in all respects,
including matters of construction, validity and performance, and that none of
its terms or provisions may be waives, altered, modified, or amended except as
the Lender may consent thereto in writing.
XXI. That, without limiting the right of the Lender to bring any action
or proceeding against the undersigned or against property of the undersigned
including, without limitation, property pledged to the Lender under this
agreement (an "Action"), in the courts of other jurisdictions, the undersigned
hereby irrevocably submits to the jurisdiction of any New York State, Colorado
State or Federal court sitting in New York City or Colorado, and the undersigned
hereby irrevocably agrees that any Action may be heard and determined in such
New York State court, Colorado State court or in such Federal court. The
undersigned hereby irrevocably waives, to the fullest extent it may effectively
do so, the defense of an inconvenient forum to the maintenance of any Action in
any jurisdiction. The undersigned hereby irrevocably agrees that the summons and
complaint or any other process in any Action in any jurisdiction may be served
by mailing to any of the addresses set forth below or by hand delivery to a
person of suitable age and discretion at any of the addresses set forth below.
Such service will be complete on the date such process is so mailed or
delivered, and the undersigned will have thirty days from such completion of
service in which to respond in the manner provided by law. The undersigned may
also be served in any other manner permitted by law, in which event the
undersigned's time to respond shall be the time provided by law.
XXII. THAT BOTH THE UNDERSIGNED AND THE LENDER HEREBY WAIVE ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING UNDER OR
RELATING TO ANY OBLIGATION OR THIS AGREEMENT.
5
24
XXIII. That, until the Lender has given written notice to the
Securities Intermediary that the Obligations have been paid in full and that any
obligation of the Lender to make loans or other financial accommodations to the
undersigned or the Borrower has been terminated (a "Notice of Termination"),
(x) the undersigned shall have no right, and the Securities Intermediary will
not permit the undersigned, to withdraw or transfer all or any financial assets
or credit balances in the Pledged Account, without the written consent of the
Lender in each instance, and (y) the Securities Intermediary shall not, without
the written consent of the Lender in each instance, accept or honor any
instructions from or on behalf of the undersigned in respect of the Pledged
Account, without the written consent of the Lender in each instance.
XXIV. That, notwithstanding any other agreement between the undersigned
and the Securities Intermediary or any obligation of the Securities Intermediary
to the undersigned to the contrary, the Securities Intermediary agrees (x)
as frequently as requested by the Lender, to transfer all available credit
balances and financial assets in the Pledged Account to such account as may be
designated by the Lender by wire transfer, depository transfer check, automatic
clearing house electronic transfer, or otherwise, as the Lender may direct in
its sole discretion and (y) to manage the Pledged Account and all financial
assets and other items therein as the Lender may direct in writing from time
to time (including using its best efforts to place or negotiate orders to sell
securities in the Pledged Account and transferring the proceeds of sale to the
Lender in accordance herewith), in each case until such time as the Securities
Intermediary receives a Notice of Termination from the Lender.
XXV. That the undersigned hereby irrevocably authorizes and instructs
the Securities Intermediary to perform and comply with the terms of this
agreement with respect to the Pledged Account.
Dated, this 3rd day of May, 2000.
ACKNOWLEDGED AND AGREED:
NEW ERA OF NETWORKS, INC.
/s/ XXXXXXX XXXXXXXXX
----------------------------------
Signature
Name: XXXXXXX XXXXXXXXX
Title: CHIEF ADMINISTRATIVE OFFICER
Address: 0000 XXXXXXXXX XXXXX XXXX.
XXXXXXXXX XXXXXXX, XX
CITICORP USA, INC.
By: /s/ X. X. XXXXXXXX
---------------------
Name: X. X. Xxxxxxxx
Title: Vice President
6
25
Securities Intermediary:
CITIBANK NA
By: /s/ XXXX X. XXXXXXXX
-----------------------------
Name: XXXX X. XXXXXXXX
Title: Vice President
7
26
$29MM Term Loan
May 3, 2000
Citibank, N.A.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
RE: Account No. 554797 in the name of New Era of Networks, Inc.
("Pledgor"), maintained at Citibank, N.A. (the "Pledged Account").
Gentlemen:
Pursuant to a General Hypothecation Agreement dated of even date herewith
(together with all amendments, restatements, or modifications which may occur at
any time and from time to time, the "Hypothecation Agreement"), executed by the
Pledgor in favor of Citicorp USA, Inc. ("Lender"), a copy of which is attached,
the Pledgor has granted to Lender a lien upon and security interest in the
property more specifically described in the Hypothecation Agreement, which
property includes, but is not limited to, (i) the Pledged Account, (ii) all
securities, cash, cash equivalents and all other assets or investments from time
to time deposited therein and (iii) all income and proceeds of the foregoing
(collectively, the "Pledged Collateral").
The undersigned hereby notify you of the existence of Lender's first lien on
and security interest in the Collateral and request that you hold the Collateral
as Lender's agent for purpose of allowing Lender's security interest to be
perfected in accordance with applicable law.
The Pledgor hereby irrevocably and unconditionally instructs you (without
further authority from the Pledgor) (i) to xxxx your records to reflect Lender's
lien on and security interest in the Pledged Collateral, (ii) to provide Lender
with a copy of any and all documentation and information forwarded to the
Pledgor relating to the Pledged Collateral, including, without limitation,
copies of each statement generated with respect to the Pledged Account, (iii) to
not close the Pledged Account or release, sell, substitute or otherwise
transfer any of the Pledged Collateral to the Pledgor or any third party,
without the prior written consent of Lender.
The Pledgor further hereby irrevocably and unconditionally instructs and
authorizes you, without further authority from the Pledgor, to promptly follow
any and all instructions received from Lender from time to time with respect to
the Pledged Collateral, including without limitation instructions as to the
transfer, exchange, redemption or other disposition of any of the Pledged
Collateral, it being agreed that any expenses chargeable by you in connection
with such instructions shall be for the Pledgor's account. The Pledgor
expressly acknowledges that such instruction and authorization is intended to
give Lender "control" of the Pledged Account as defined in the Uniform
Commercial Code as enacted in the State of New York and Colorado for the
purposes of attaching and perfecting Lender's security interest in the Pledged
Collateral pursuant to the New York and Colorado UCC. The Pledgor further agrees
to indemnify and hold you harmless from any claim, lawsuit, demand or damage
arising out of or in connection with your accepting instructions as to the
Pledged Collateral in compliance with the terms and conditions of this letter.
27
Page 2
The instructions and other provisions contained in this letter shall remain in
full force and effect until Lender gives you notice in writing revoking the
same. Until such notice, you are directed to follow only the instructions of
Lender with respect to the Pledged Collateral, except for instructions as to
voting and other consensual rights which shall remain exercisable by the Pledgor
until Lender shall otherwise elect and notify you.
This letter shall be governed by and construed in accordance with the laws of
the State of Colorado.
Kindly acknowledge (i) your receipt of this letter, (ii) your agreements to act
as Lender's agent as described above and in accordance with all the instructions
and provisions hereof and (iii) your confirmation that you have marked your
records to reflect Lender's lien on and security interest in the Pledged
Collateral, by signing the enclosed copy of this letter and returning it to
Lender.
28
Page 3
Each party signing below represents and warrants that such party, as well as any
individual signing on such party's behalf, has due authority to sign and deliver
this letter.
Very truly yours,
PLEDGOR: CITICORP USA, INC.
NEW ERA OF NETWORKS, INC. By: /s/ X.X. XXXXXXXX
-------------------------------
By: /s/ XXXXXXX XXXXXXXXX Name: X.X. Xxxxxxxx
------------------------------- Title: Vice President
Name: Xxxxxxx Xxxxxxxxx
Title: Chief Administrative Officer
Agreed to and accepted as of the day first written above:
CITIBANK, N.A.
By: /s/ XXXX X. XXXXXXXX
-------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
