Exhibit 10.28
MASTER TERMINATION AGREEMENT
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MASTER TERMINATION AGREEMENT ("THIS AGREEMENT") dated as of September
27, 1999 among VIRTUAL FUNDING, LIMITED PARTNERSHIP ("VIRTUAL FUNDING"),
XXXXX PARTNERS, LIMITED PARTNERSHIP ("XXXXX PARTNERS"), ML LEASING EQUIPMENT
CORP. ("MERRILL LEASING"), XXXXXXX XXXXX & CO., INC., ("XXXXXXX XXXXX"),
SILICON GRAPHICS REAL ESTATE, INC. (the "LESSEE"), SILICON GRAPHICS, INC., as
Guarantor ("SGI"), THE DAI-ICHI KANGYO BANK, LTD., NEW YORK BRANCH ("DKB"),
in its individual capacity, as issuer of the letter of credit (in such
capacity, the "L/C Bank"), as Collateral Agent and as Agent (in such
capacity, the "Agent") for THE SUMITOMO BANK, LTD. ("SUMITOMO"), UBS AG,
Stamford Branch, (formerly Swiss Bank Corporation, San Xxxxxxxxx Xxxxxx)
("UBS"), BANK OF AMERICA, N.A., (formerly Bank of America National Trust and
Savings Association) ("BANK OF AMERICA"), THE FUJI BANK, LIMITED, ("FUJI
BANK"), and ROYAL BANK OF CANADA ("ROYAL BANK" and together with DKB,
Sumitomo, UBS, Bank of America, and Fuji Bank, the "BANKS").
W I T N E S S E T H
WHEREAS, Virtual Funding, DKB, as L/C Bank and Agent, and the Banks
entered into a certain Credit Agreement, dated as of November 18, 1993, as
amended (the "CREDIT AGREEMENT");
WHEREAS, in connection with the Credit Agreement, the following
agreements, documents and instruments, among others, were executed and
delivered: (i) a certain Lease Agreement, dated as of November 18, 1993, as
amended (the "LEASE AGREEMENT"), between Virtual Funding and Lessee; (ii) a
certain Agreement for Lease, dated as of November 18, 1993, as amended (the
"AGREEMENT FOR LEASE"), between Virtual Funding and Lessee; (iii) a certain
Revolving Credit Note, dated as of March 17, 1995, made by Virtual Funding to
the order of DKB, (iv) a certain Revolving Credit Note, dated March 17, 1995,
made by Virtual Funding to the order of Sumitomo, (v) a certain Revolving
Credit Note, dated March 17, 1995, made by Virtual Funding to the order of
UBS, (vi) a certain Revolving Credit Note, dated March 17, 1995, made by
Virtual Funding to the order of Bank of America; (vii) a certain Revolving
Credit Note, dated March 17, 1995, made by Virtual Funding to the order of
Fuji Bank; (viii) a certain Revolving Credit Note, dated as of March 17,
1995, made by Virtual Funding to the order of Royal Bank; (ix) a certain
Security Agreement, dated as of November 18, 1993, (the "SECURITY
AGREEMENT"), between Virtual Funding and DKB, as Collateral Agent; (x) a
certain Lessee's Consent to Security Agreement, dated as of November 18, 1993
(the "LESSEE'S CONSENT"), among Lessee, DKB, as Collateral Agent, and Virtual
Funding; (xi) a certain Guaranty, dated as of November 18, 0000 (xxx
"XXXXXXXX") xxxx XXX to Virtual Funding; (xii) a certain Guarantor's Consent,
dated as of November 18, 1993 (the "GUARANTOR'S CONSENT"), among SGI, DKB, as
Collateral Agent, and Virtual Funding; (xiii) a certain Management Agreement,
dated as of November 18, 1993 (the "MANAGEMENT AGREEMENT"), between Virtual
Funding and Merrill Leasing; (xiv) a certain Fee Agreement, dated November
18, 1993 (the "FEE AGREEMENT"), between Virtual Funding and DKB; (xv) a
certain Shortfall Agreement, dated March 15, 1995 (the "SHORTFALL
AGREEMENT"), between Merrill Leasing and DKB, as Collateral Agent; (xvi) a
certain Letter Agreement, dated March 15, 1995 (the "LETTER AGREEMENT"),
between Xxxxxxx
Xxxxx and DKB, as Collateral Agent; (xvii) a certain Ground Lease Agreement,
dated as of [November 18, 1993] (the "GROUND LEASE"), between Virtual Funding
and Lessee; (xviii) a certain Ground Sublease Agreement, dated as of March
15, 1995 (the "SUBLEASE"), between Virtual Funding and Lessee; and (xix) a
certain Interest Rate Agreement, dated as of July 1, 1996, (the "INTEREST
RATE AGREEMENT"), between Virtual Funding and Lessee ( collectively the
INTEREST RATE AGREEMENT, SUBLEASE, GROUND LEASE, LETTER AGREEMENT, SHORTFALL
AGREEMENT, FEE AGREEMENT, MANAGEMENT AGREEMENT, GUARANTOR'S CONSENT,
GUARANTY, LESSEE'S CONSENT, SECURITY AGREEMENT, AGREEMENT FOR LEASE, LEASE
AGREEMENT and CREDIT AGREEMENT are herein referred to as the "Facility No. 1
Documents");
WHEREAS, Xxxxx Partners, DKB, as agent and the banks parties thereto
entered into a certain Loan Agreement, dated as of November 18, 1993, as
amended (the "LOAN AGREEMENT");
WHEREAS, in connection with the Loan Agreement, the following
agreements, documents and instruments, among others, were executed and
delivered: (i) a certain Facility #2 Security Agreement, dated as of
November 18, 1993, (the "FACILITY #2 SECURITY AGREEMENT"), between Xxxxx
Partners and DKB, as Collateral Agent; (ii) a certain Note, dated March 15,
1995, made by Xxxxx Partners to the order of DKB; (iii) a certain Notice of
Pledge, dated November 18, 1993, (the "NOTICE OF PLEDGE"), between Xxxxx
Partners and Virtual Funding; and (iv) a certain Fee Agreement, dated
November 18, 1993, (the "FACILITY #2 FEE AGREEMENT"), between Xxxxx Partners
and DKB (collectively the FACILITY #2 FEE AGREEMENT, NOTICE OF PLEDGE,
FACILITY #2 SECURITY AGREEMENT and LOAN AGREEMENT are herein referred to as
the "Facility No. 2 Documents");
WHEREAS, the parties hereto desire to terminate the Facility No. 1
Documents and the Facility No. 2 Documents;
NOW, THEREFORE, in consideration of the agreements set forth below, and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. CAPITALIZED TERMS. Capitalized terms used but not defined herein
shall have the respective meanings given to them in the Credit Agreement or
Lease Agreement, as the case may be.
2. TERMINATION OF THE DOCUMENTS. Each of the parties hereto agrees
that (i) except with respect to those provisions which expressly survive the
termination of the Facility No. 1 Documents and Facility No. 2 Documents, the
Facility No. 1 Documents and Facility No. 2 Documents to which it is a party
are hereby terminated, such termination to be effective as of the date
hereof, (ii) any requirement for notice (whether written or oral) with
respect to the termination of any of the Facility No. 1 Documents and
Facility No. 2 Documents is hereby waived by the respective parties to the
Facility No. 1 Documents and Facility No. 2 Documents and (iii) any other
requirement or condition precedent to the termination of any of the Facility
No. 1 Documents and Facility No. 2 Documents is hereby waived or shall be
deemed to have been satisfied, as the case may be.
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3. TERMINATION OF SECURITY; DELIVERY OF INSTRUMENTS. (i) DKB hereby
agrees with Virtual Funding and Xxxxx Partners to deliver to Virtual Funding
and Xxxxx Partners for the benefit of SGI and the Lessee on the date hereof
executed UCC-3 termination statements and such other instruments and
documents that Virtual Funding, Xxxxx Partners, SGI or the Lessee may
reasonably request in order to evidence the termination of DKB's security
interest in the property of Virtual Funding, Xxxxx Partners, SGI and the
Lessee. DKB further agrees to take, at the sole cost and expense of the
party requesting same, all action that Virtual Funding, Xxxxx Partners, SGI
or the Lessee may reasonably request to notify the Banks that DKB's security
interest in such collateral has been terminated, and (ii) Virtual Funding
hereby agrees to deliver to the Lessee two quitclaim deeds, each conveying
Virtual Funding's interest in and to real property and improvements
comprising the Parcels of Property and Units of Equipment (in each case as
defined in the Lease Agreement.).
4. TERMINATION OF CREDIT AGREEMENT AND SURRENDER OF THE NOTES. Upon
payment to the Banks of an aggregate amount equal to one hundred twenty
million eight hundred fifty-nine thousand dollars ($120,859,000.00), which
aggregate amount shall constitute payment in full of all Indebtedness (as
defined in the Credit Agreement) owing by Virtual Funding to the Banks under
the Credit Agreement, (i) DKB hereby agrees to surrender to Virtual Funding
the Revolving Credit Note, dated March 17, 1995, from Virtual Funding to DKB
in the principal amount of twenty-three million five hundred thousand dollars
($23,500,000), (ii) Sumitomo hereby agrees to surrender to Virtual Funding
the Revolving Credit Note, dated March 17, 1995, from Virtual Funding to
Sumitomo in the principal amount of twenty million dollars ($20,000,000),
(iii) UBS hereby agrees to surrender to Virtual Funding the Revolving Credit
Note, dated March 17, 1995, from Virtual Funding to Swiss Bank in the
principal amount of twenty million dollars ($20,000,000), (iv) Bank of
America hereby agrees to surrender to Virtual Funding the Revolving Credit
Note, dated March 17, 1995, from Virtual Funding to Bank of America in the
principal amount of twenty million dollars ($20,000,000), (v) Fuji Bank
hereby agrees to surrender to Virtual Funding the Revolving Credit Note,
dated as of March 17, 1995, from Virtual Funding to Fuji Bank in the
principal amount of twenty million dollars ($20,000,000), (vi) Royal Bank
hereby agrees to surrender to Virtual Funding the Revolving Credit Note,
dated March 17, 1995, from Virtual Funding to Royal Bank in the principal
amount of twenty million dollars ($20,000,000), and (vii) each of DKB,
Sumitomo, UBS, Bank of America, Fuji Bank and Royal Bank hereby agrees to
deliver, at Virtual Funding's sole cost and expense such other instruments
and documents that Virtual Funding may reasonably request in order to
evidence the termination of the Credit Agreement, promptly upon Virtual
Funding's request therefor.
5. TERMINATION OF LOAN AGREEMENT AND SURRENDER OF NOTE. Upon payment
to DKB of an aggregate amount equal to one million one hundred two thousand
seven hundred twenty-five dollars ($1,102,725.00), which aggregate amount
shall constitute payment in full of all Indebtedness (as defined in the Loan
Agreement) owing by Xxxxx Partners to DKB under the Loan Agreement, (i) DKB
hereby agrees to surrender to Xxxxx Partners for the benefit of SGI and the
Lessee the Note, dated March 15, 1995 from Xxxxx Partners to DKB in the
principal amount of one million one hundred seven thousand six hundred eighty
dollars ($1,107,680), and (ii) DKB hereby agrees to deliver, at Xxxxx
Partners' sole cost and expense such other instruments and documents that
Xxxxx Partners may reasonably request in order to evidence the termination of
the Loan Agreement, promptly upon Xxxxx Partners' request therefor.
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6. GUARANTY. SGI, as Guarantor, agrees that it shall remain liable
under the Guaranty entered into with respect to its guaranty of any and all
agreements and indemnities surviving under the Lease Agreement and the
Agreement for Lease.
7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each
of which counterparts, when executed and delivered, shall be deemed an
original and all of which counterparts, taken together, shall constitute one
and the same Agreement.
8. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed on the date first above written.
VIRTUAL FUNDING, XXXXX PARTNERS,
LIMITED PARTNERSHIP, LIMITED PARTNERSHIP,
By: Virtual Capital, Inc., its general By: Xxxxx Capital, Inc., its
partner general partner
By:__________________________ By: _______________________
Name: Name:
Title: Title:
XXXXXXX XXXXX & CO., INC. ML LEASING EQUIPMENT CORP.
By: ___________________________ By: ____________________________
Name: Name:
Title: Title:
SILICON GRAPHICS REAL ESTATE, SILICON GRAPHICS, INC.
INC.
By: ___________________________ By: ____________________________
Name: Name:
Title: Title:
THE DAI-ICHI KANGYO BANK, THE DAI-ICHI KANGYO BANK,
LTD., NEW YORK BRANCH, as LTD., NEW YORK BRANCH, as
Agent and Collateral Agent under Agent and Collateral Agent under
the Facility No. 1 Documents the Facility No. 2 Documents
By: ___________________________ By: ____________________________
Name: Name:
Title: Title:
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THE DAI-ICHI KANGYO BANK, THE DAI-ICHI KANGYO BANK,
LTD., NEW YORK BRANCH, as LTD., NEW YORK BRANCH, as
a Bank under the Facility No. 1 a Bank under the Facility No. 2
Documents Documents
By: ___________________________ By: ___________________________
Name: Name:
Title: Title:
THE DAI-ICHI KANGYO BANK, THE SUMITOMO BANK, LTD.
LTD., NEW YORK BRANCH, as
L/C Bank
By: ___________________________ By: ___________________________
Name: Name:
Title: Title:
UBS AG, BANK OF AMERICA, N.A.
STAMFORD BRANCH
By: ___________________________ By: ____________________________
Name: Name:
Title: Title:
THE FUJI BANK, LIMITED ROYAL BANK OF CANADA
By: ___________________________ By: ____________________________
Name: Name:
Title: Title:
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