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Exhibit 10.46
SECURITY AGREEMENT
Dated as of July 28, 2000
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, but solely as the Owner Trustee under
the VS Trust 2000-2
and
ABN AMRO BANK N.V.,
as the Agent for the Lenders and the Holders
and accepted and agreed to by
VERITAS SOFTWARE GLOBAL CORPORATION
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TABLE OF CONTENTS
PAGE
1. Definitions.............................................................................................. 2
2. Grant of Security Interest............................................................................... 3
3. Payment of Obligations................................................................................... 5
4. Other Covenants.......................................................................................... 5
5. Default; Remedies........................................................................................ 5
6. Remedies Not Exclusive................................................................................... 6
7. Performance by the Agent of the Borrower's Obligations................................................... 6
8. Duty of the Agent........................................................................................ 7
9. Powers Coupled with an Interest.......................................................................... 7
10. Execution of Financing Statements........................................................................ 7
11. Security Agreement Under Uniform Commercial Code......................................................... 7
12. Authority of the Agent................................................................................... 8
13. Notices.................................................................................................. 8
14. Severability............................................................................................. 8
15. Amendment in Writing; No Waivers; Cumulative Remedies.................................................... 8
16. Section Headings......................................................................................... 9
17. Successors and Assigns................................................................................... 9
18. The Borrower's Waiver of Rights.......................................................................... 9
19. GOVERNING LAW............................................................................................ 9
20. Obligations Are Without Recourse......................................................................... 9
21. Partial Release; Full Release............................................................................ 9
22. Miscellaneous............................................................................................ 10
23. Conflicts with Participation Agreement................................................................... 10
24. LESSEE AS A PARTY........................................................................................ 10
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SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of July 28, 2000 (as amended,
modified, extended, supplemented, restated and/or replaced from time to time,
this "Security Agreement"), is made between FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, not individually, but solely as
Owner Trustee under the VS Trust 0000-0 (xxx "Xxxxxxxx"), and ABN AMRO BANK N.V.
("Bank"), as agent for (a) the Lenders (hereinafter defined) under the Credit
Agreement dated as of July 28, 2000 (as amended, modified, extended,
supplemented, restated and/or replaced from time to time, the "Credit
Agreement") by and among the Borrower, the lending institutions from time to
time parties thereto (the "Lenders"), Bank as the agent for the Lenders, Credit
Suisse First Boston, as Documentation Agent, and Credit Lyonnais Los Angeles
Branch, as Syndication Agent, and (b) the holders of the certificates issued
pursuant to the Trust Agreement dated as of July 28, 2000 (as amended, modified,
extended, supplemented, restated and/or replaced from time to time, the "Trust
Agreement") among the holders from time to time parties thereto (the "Holders")
and the Borrower, in its individual capacity thereunder and in its capacity as
Owner Trustee thereunder. The Lenders and the Holders, together with their
successors and permitted assigns, are collectively referred to hereinafter as
the "Secured Parties", Bank, in its capacity as agent for the Secured Parties is
referred to hereinafter as the "Agent", and this Security Agreement is accepted
and agreed to by VERITAS Software Global Corporation, a Delaware corporation.
PRELIMINARY STATEMENT
Pursuant to the Credit Agreement, the Lenders have severally agreed to
make Loans to the Borrower in an aggregate amount not to exceed the aggregate
Lender Commitments upon the terms and subject to the conditions set forth
therein, to be evidenced by the Notes issued by the Borrower under the Credit
Agreement. Pursuant to the Trust Agreement, the Holders have agreed to purchase
the ownership interests of the Trust created thereby in an aggregate amount not
to exceed the aggregate Holder Commitments upon the terms and subject to the
conditions set forth therein, to be evidenced by the Certificates issued by the
Borrower under the Trust Agreement. The Borrower is, or shall be upon the date
of the initial Advance with respect to the Property, the legal and beneficial
owner of the Property.
It is a condition, among others, to the obligation of the Lenders to
make their respective Loans to the Borrower under the Credit Agreement and the
Holders to make their respective Holder Advances under the Trust Agreement that
the Borrower shall have executed and delivered this Security Agreement to the
Agent, for the benefit of the Lenders and the Holders.
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders to make their respective Loans under the Credit Agreement and to induce
the Holders to make their respective Holder Advances under the Trust Agreement,
the Borrower hereby agrees with the Agent, for the benefit of the Lenders and
the Holders, as follows:
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1. DEFINITIONS.
(a) As used herein, the following terms shall have the following
respective meanings:
"Accounts" shall mean all "accounts," as such term is defined
in the Uniform Commercial Code, now owned or hereafter acquired by the
Borrower, including without limitation (i) all accounts receivable,
other receivables, book debts and other forms of obligations now owned
or hereafter received or acquired by or belonging or owing to the
Borrower, whether arising out of goods sold or leased or services
rendered by it or from any other transaction (including without
limitation any such obligations which may be characterized as an
account under the Uniform Commercial Code), (ii) all of the Borrower's
rights in, to and under all purchase orders or receipts now owned or
hereafter acquired by it for goods or services, (iii) all of the
Borrower's rights to any goods represented by any of the foregoing
(including without limitation unpaid sellers' rights of rescission,
replevin, reclamation and stoppage in transit and rights to returned,
reclaimed or repossessed goods), (iv) all monies due or to become due
to the Borrower under all purchase orders and contracts for the sale or
lease of goods or the performance of services or both by the Borrower
(whether or not yet earned by performance on the part of the Borrower)
now or hereafter in existence, including without limitation the right
to receive the proceeds of said purchase orders and contracts, and (v)
all collateral security and guarantees of any kind, now or hereafter in
existence, given by any Person with respect to any of the foregoing.
"Chattel Paper" shall mean any and all "chattel paper," as
such term is defined in the Uniform Commercial Code, now owned or
hereafter acquired by the Borrower, wherever located.
"Documents" shall mean any and all "documents", as such term
is defined in the Uniform Commercial Code, now owned or hereafter
acquired by the Borrower, wherever located, including without
limitation each xxxx of lading, dock warrant, dock receipt, warehouse
receipt or order for the delivery of goods, and also any other document
which in the regular course of business or financing is treated as
adequately evidencing that the person in possession of it is entitled
to receive, hold and dispose of the document and the goods it covers.
"General Intangibles" shall mean any and all "general
intangibles," as such term is defined in the Uniform Commercial Code,
now owned or hereafter acquired by the Borrower, including without
limitation all contracts, undertakings, or agreements in or under which
the Borrower may now or hereafter have any right (other than any right
evidenced by Chattel Paper, Documents or Instruments), title or
interest, including without limitation any agreements relating to the
terms of payment or the terms of performance of any Account.
"Holders" shall have the meaning specified in the first
paragraph of this Security Agreement.
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"Instruments" shall mean any and all "instruments", as such
term is defined in the Uniform Commercial Code, now owned or hereafter
acquired by the Borrower, wherever located, including without
limitation all certificated securities, all certificates of deposit,
and all notes and other, without limitation, evidences of indebtedness,
other than instruments that constitute, or are a part of a group of
writings that constitute, Chattel Paper.
"Investment Property" shall mean any and all "investment
property," as such term is defined in the Uniform Commercial Code, now
owned or hereafter acquired by the Borrower, wherever located.
"Lenders" shall have the meaning specified in the first
paragraph of this Security Agreement.
"Lessee" shall mean VERITAS Software Global Corporation, a
Delaware corporation, its successors, permitted assigns and permitted
transferees.
"Obligations" shall mean any and all obligations now existing
or hereafter arising under the Credit Agreement, the Notes, the Trust
Agreement, the Certificates and/or any other Operative Agreement.
(b) Capitalized terms used but not otherwise defined in this
Security Agreement shall have the respective meanings specified in the Credit
Agreement or Appendix A to the Participation Agreement dated as of July 28, 2000
(as amended, modified, extended, supplemented, restated and/or replaced from
time to time in accordance with the applicable provisions thereof, the
"Participation Agreement") among Lessee, the various parties thereto from time
to time as guarantors, the Borrower, the Holders, the Lenders, ABN AMRO Bank
N.V., as agent for the Lenders and respecting the Security Documents, as the
agent for the Lenders and the Holders, to the extent of their interests, Credit
Suisse First Boston, as Documentation Agent, and Credit Lyonnais Los Angeles
Branch, as Syndication Agent.
(c) The rules of usage set forth in Appendix A to the
Participation Agreement shall apply to this Agreement.
2. GRANT OF SECURITY INTEREST. To secure payment of all
Obligations, including without limitation, all the amounts advanced under the
Credit Agreement in connection with the Notes, all the amounts advanced or
contributed under the Trust Agreement in connection with the Certificates and
all other amounts now or hereafter owing to the Lenders, the Holders or the
Agent thereunder or under any other Operative Agreement, THE BORROWER HEREBY
CONVEYS, GRANTS, ASSIGNS, TRANSFERS, HYPOTHECATES, MORTGAGES AND SETS OVER TO
THE AGENT FOR THE BENEFIT OF THE SECURED PARTIES, A FIRST PRIORITY SECURITY
INTEREST IN AND LIEN ON THE TRUST ESTATE, WHETHER NOW EXISTING OR HEREAFTER
ACQUIRED INCLUDING WITHOUT LIMITATION THE FOLLOWING:
(a) all right, title and interest of the Borrower in and to
the Operative Agreements now existing or hereafter acquired by the Borrower
(including without limitation all
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rights to payment and indemnity rights of the Borrower under the Participation
Agreement) (all of the foregoing in this paragraph (a) being referred to as the
"Rights in Operative Agreements");
(b) all right, title and interest of the Borrower in and to
all of the Equipment;
(c) all right, title and interest of the Borrower in and to
all of the Fixtures;
(d) all the estate, right, title, claim or demand whatsoever
of the Borrower, in possession or expectancy, in and to the Property, Fixtures
or Equipment or any part thereof;
(e) all right, title and interest of the Borrower in and to
all substitutes, modifications and replacements of, and all additions,
accessions and improvements to, the Fixtures and Equipment, subsequently
acquired or leased by the Borrower or constructed, assembled or placed by the
Borrower on the Property, immediately upon such acquisition, lease,
construction, assembling or placement, and in each such case, without any
further conveyance, assignment or other act by the Borrower;
(f) all right, title and interest of the Borrower in, to and
under books and records relating to or used in connection with the operation of
the Property or any portion thereof; all rights of the Borrower to the payment
of money and all property; and all rights in and to any causes of action or
choses in action now or hereafter existing in favor of the Borrower and all
rights to any recoveries therefrom;
(g) all right, title and interest of the Borrower in and to
all unearned premiums under insurance policies now held or subsequently obtained
by the Lessee relating to the Property or any portion thereof and the Borrower's
interest in and to all proceeds of any insurance policies maintained by or for
the benefit of the Borrower, including without limitation any right to collect
and receive such proceeds; and all awards and other compensation, including
without limitation the interest payable thereon and any right to collect and
receive the same, made to the present or any subsequent owner of the Property
for the taking by eminent domain, condemnation or otherwise, of all or any
portion of the Property or any easement or other right therein;
(h) all right, title and interest of the Borrower in and to
(i) all consents, licenses, certificates and other governmental approvals
relating to construction, completion, use or operation of the Property or any
portion thereof and (ii) all Plans and Specifications relating to the Property
or any portion thereof;
(i) all right, title and interest of the Borrower in and to
all Rent and all other rents, payments, purchase prices, receipts, revenues,
issues and profits payable under the Lease or pursuant to any other lease with
respect to the Property or any portion thereof;
(j) all right, title and interest of the Borrower in and to
all Instruments and Documents;
(k) all right, title and interest of the Borrower in and to
all General Intangibles;
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(l) all right, title and interest of the Borrower in and to
all Chattel Paper (including without limitation all rights under the Lease);
(m) all right, title and interest of the Borrower in and to
all money, cash or cash equivalent and bank accounts;
(n) all right, title and interest of the Borrower in and to
all Accounts;
(o) all right, title and interest of the Borrower in and to
all proceeds of letters of credit issued in favor of the Borrower in connection
with the Property or any portion thereof; and
(p) all right, title and interest of the Borrower in and to
all proceeds, both cash and noncash, of any of the foregoing.
(All of the foregoing property and rights and interests now owned or
held or subsequently acquired by the Borrower and described in the foregoing
clauses (a) through (p) are collectively referred to as the "Trust Property").
TO HAVE AND TO HOLD the Trust Property and the rights and privileges
hereby granted unto the Agent (for the benefit of the Lenders and the Holders)
its successors and assigns for the uses and purposes set forth, until all of the
obligations owing to the Lenders, the Holders and the Agent under the Operative
Agreements are paid in full; provided, that EXCLUDED from the Trust Property at
all times and in all respects shall be all Excepted Payments.
3. PAYMENT OF OBLIGATIONS. The Borrower shall pay all Obligations
in accordance with the terms of the Credit Agreement, the Notes, the Trust
Agreement, the Certificates and the other Operative Agreements and perform each
term to be performed by it under the Credit Agreement, the Notes, the Trust
Agreement, the Certificates and the other Operative Agreements.
4. OTHER COVENANTS. At any time and from time to time, upon the
reasonable written request of the Agent, and at the expense of the Borrower
(with funds provided by the Lessee for such purpose), the Borrower will promptly
and duly execute and deliver such further instruments and documents and take
such further actions as the Agent reasonably may request for the purposes of
obtaining or preserving the full benefits of this Security Agreement and of the
rights and powers granted by this Security Agreement.
5. DEFAULT; REMEDIES.
(a) If a Credit Agreement Event of Default has occurred and is
continuing:
(i) the Agent, in addition to all other remedies
available at law or in equity, shall have the right forthwith to enter
upon the Property (or any other place where any component of the
Property is located at such time) without charge, and take possession
of all or any portion of the Trust Property, and to re-let the Trust
Property and receive the rents, issues and profits thereof, to make
repairs and to apply said rentals and
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profits, after payment of all necessary or proper charges and expenses,
on account of the amounts hereby secured (subject to the Excepted
Payments); and
(ii) the Agent, shall, as a matter of right, be
entitled to the appointment of a receiver for the Trust Property, and
the Borrower hereby consents to such appointment and waives notice of
any application therefor.
(b) If a Credit Agreement Event of Default has occurred and is
continuing, the Agent may proceed by an action at law, suit in equity or other
appropriate proceeding, to protect and enforce its rights, whether for the
foreclosure of the Lien of this Security Agreement, or for the specific
performance of any agreement contained herein or for an injunction against the
violation of any of the terms hereof. The proceeds of any sale of any of the
Trust Property shall be applied pursuant to Section 8.7 of the Participation
Agreement. In addition, the Agent may proceed under Section 11 hereof.
(c) The Borrower hereby waives the benefit of all
appraisement, valuation, stay, extension and redemption laws now or hereafter in
force and all rights of marshalling in the event of any sale of the Trust
Property or any portion thereof or interest therein.
6. REMEDIES NOT EXCLUSIVE. The Agent shall be entitled to enforce
payment of the indebtedness and performance of the Obligations and to exercise
all rights and powers under this Security Agreement or under any of the other
Operative Agreements or other agreements or any laws now or hereafter in force,
notwithstanding some or all of the Obligations may now or hereafter be otherwise
secured, whether by deed of trust, mortgage, security agreement, pledge, Lien,
assignment or otherwise. Neither the acceptance of this Security Agreement nor
its enforcement, shall prejudice or in any manner affect the Agent's right to
realize upon or enforce any other security now or hereafter held by the Agent,
it being agreed that the Agent shall be entitled to enforce this Security
Agreement and any other security now or hereafter held by the Agent in such
order and manner as the Agent may determine in its absolute discretion. No
remedy conferred hereunder or under any other Operative Agreement upon or
reserved to the Agent is intended to be exclusive of any other remedy herein or
therein or by law provided or permitted, but each shall be cumulative and shall
be in addition to every other remedy given hereunder or thereunder or now or
hereafter existing at law or in equity or by statute. Every power or remedy
given by any of the Operative Agreements to the Agent or to which it may
otherwise be entitled, may be exercised, concurrently or independently, from
time to time and as often as may be deemed expedient by the Agent. In no event
shall the Agent, in the exercise of the remedies provided in this Security
Agreement (including without limitation in connection with the assignment of
Rents to the Agent, or the appointment of a receiver and the entry of such
receiver onto all or any part of the Land), be deemed a "mortgagee in
possession" or a "pledgee in possession", and the Agent shall not in any way be
made liable for any act, either of commission or omission, in connection with
the exercise of such remedies.
7. PERFORMANCE BY THE AGENT OF THE BORROWER'S OBLIGATIONS. If the
Borrower fails to perform or comply with any of its agreements contained herein
the Agent, at its option, but without any obligation so to do, may perform or
comply, or otherwise cause performance or compliance, with such agreement. The
expenses of the Agent incurred in connection with actions undertaken as provided
in this Section 7, together with interest thereon at a rate per
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annum equal to the Overdue Rate, from the date of payment by the Agent to the
date reimbursed by the Borrower, shall be payable by the Borrower (with funds
provided by the Lessee for such purpose) to the Agent on demand and constitutes
part of the Obligations secured hereby.
8. DUTY OF THE AGENT. The Agent's sole duty with respect to the
custody, safekeeping and physical preservation of any Trust Property in its
possession, under Section 9-207 of the Uniform Commercial Code or otherwise,
shall be to deal with it in the same manner as the Agent deals with similar
property for its own account. Neither the Agent, any Lender, any Holder nor any
of their respective directors, officers, employees, shareholders, partners or
agents shall be liable for failure to demand, collect or realize upon any of the
Trust Property or for any delay in doing so or shall be under any obligation to
sell or otherwise dispose of any Trust Property upon the request of the Borrower
or any other Person or to take any other action whatsoever with regard to the
Trust Property or any part thereof.
9. POWERS COUPLED WITH AN INTEREST. All powers, authorizations
and agencies contained in this Security Agreement are coupled with an interest
and are irrevocable until this Security Agreement is terminated and the Liens
created hereby are released.
10. EXECUTION OF FINANCING STATEMENTS. Pursuant to Section 9-402
of the Uniform Commercial Code, the Borrower authorizes the Agent at the expense
of the Borrower (such amounts to be paid with funds provided by the Lessee for
such purpose) to file financing statements with respect to the Trust Property
under this Security Agreement without the signature of the Borrower in such form
and in such filing offices as the Agent reasonably determines appropriate to
perfect the security interests of the Agent under this Security Agreement. A
carbon, photographic or other reproduction of this Security Agreement shall be
sufficient as a financing statement for filing in any jurisdiction. For purposes
of such financing statement, the Borrower shall be deemed to be the debtor, and
the Agent shall be deemed to be the secured party. The address of the Borrower
is 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attention: Xxx X. Xxxxx,
Vice President, and the address of the Agent is ABN AMRO Bank N.V., 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxx Xxxxxxxx.
11. SECURITY AGREEMENT UNDER UNIFORM COMMERCIAL CODE.
(a) It is the intention of the parties hereto that this
Security Agreement as it relates to matters of the grant, perfection and
priority of security interests the subject hereof, shall constitute a security
agreement within the meaning of the Uniform Commercial Code of the State in
which the Trust Property is located. If a Credit Agreement Event of Default
shall occur, then in addition to having any other right or remedy available at
law or in equity, the Agent may proceed under the applicable Uniform Commercial
Code and exercise such rights and remedies as may be provided to a secured party
by such Uniform Commercial Code with respect to all or any portion of the Trust
Property which is personal property (including without limitation taking
possession of and selling such property). If the Agent shall elect to proceed
under the Uniform Commercial Code, then fifteen (15) days' notice of sale of the
personal property shall be deemed reasonable notice and the reasonable expenses
of retaking, holding, preparing for sale, selling and the like incurred by the
Agent shall include, but not be limited to, attorneys' fees and legal expenses.
At the Agent's request, the Borrower shall assemble such personal property and
make
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it available to the Agent at a place designated by the Agent which is reasonably
convenient to both parties.
(b) The Borrower, upon request by the Agent from time to time,
shall execute, acknowledge and deliver to the Agent one (1) or more separate
security agreements, in form satisfactory to the Agent, covering all or any part
of the Trust Property and will further execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered, any financing statement,
affidavit, continuation statement or certificate or other document as the Agent
may request in order to perfect, preserve, maintain, continue or extend the
security interest under, and the priority of the Liens granted by, this Security
Agreement and such security instrument. The Borrower further agrees to pay to
the Agent (with funds provided by the Lessee for such purpose) on demand all
reasonable costs and expenses incurred by the Agent in connection with the
preparation, execution, recording, filing and re-filing of any such document and
all reasonable costs and expenses of any record searches for financing
statements the Agent shall reasonably require. The filing of any financing or
continuation statements in the records relating to personal property or chattels
shall not be construed as in any way impairing the right of the Agent to proceed
against any property encumbered by this Security Agreement.
12. AUTHORITY OF THE AGENT. The Borrower acknowledges that the
rights and responsibilities of the Agent under this Security Agreement with
respect to any action taken by the Agent or the exercise or non-exercise by the
Agent of any option, voting right, request, judgment or other right or remedy
provided for herein or resulting or arising out of this Security Agreement shall
be governed by the Credit Agreement and Section 8.6 of the Participation
Agreement and by such other agreements with respect thereto as may exist from
time to time (until such time as all amounts due and owing to the Secured
Parties and the Agent under the Operative Agreements have been paid in full),
but the Agent shall be conclusively presumed to be acting as agent for the
Secured Parties with full and valid authority so to act or refrain from acting,
and the Borrower shall be under no obligation, or entitlement, to make any
inquiry respecting such authority.
13. NOTICES. All notices required or permitted to be given under
this Security Agreement shall be in writing and delivered as provided in Section
12.2 of the Participation Agreement.
14. SEVERABILITY. Any provision of this Security Agreement which
is prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof.
15. AMENDMENT IN WRITING; NO WAIVERS; CUMULATIVE REMEDIES.
(a) None of the terms or provisions of this Security Agreement
may be waived, amended, supplemented or otherwise modified except in accordance
with the terms of Section 12.4 of the Participation Agreement.
(b) No failure to exercise, nor any delay in exercising, on
the part of the Agent, any right, power or privilege hereunder shall operate as
a waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further
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exercise thereof or the exercise of any other right, power or privilege. A
waiver by the Agent of any right or remedy hereunder on any one (1) occasion
shall not be construed as a bar to any right or remedy which the Agent would
otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
16. SECTION HEADINGS. The section headings used in this Security
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
17. SUCCESSORS AND ASSIGNS. This Security Agreement shall be
binding upon the successors of the Borrower, and the Borrower shall not assign
any of its rights or obligations hereunder or with respect to any of the Trust
Property without the prior written consent of the Agent. This Security Agreement
shall inure to the benefit of the Agent, the Lenders, the Holders and their
respective successors and assigns, in accordance with their respective interest
herein.
18. THE BORROWER'S WAIVER OF RIGHTS. Except as otherwise set forth
herein, to the fullest extent permitted by law, the Borrower waives the benefit
of all laws now existing or that may subsequently be enacted providing for (a)
any appraisement before sale of any portion of the Trust Property, (b) any
extension of the time for the enforcement of the collection of the indebtedness
or the creation or extension of a period of redemption from any sale made in
collecting such debt and (c) exemption of any portion of the Trust Property from
attachment, levy or sale under execution or exemption from civil process. Except
as otherwise set forth herein, to the fullest extent the Borrower may do so, the
Borrower agrees that the Borrower will not at any time insist upon, plead, claim
or take the benefit or advantage of any law now or hereafter in force providing
for any appraisement, valuation, stay, exemption, extension or redemption, or
requiring foreclosure of this Security Agreement before exercising any other
remedy granted hereunder and the Borrower, for the Borrower and its successors
and assigns, and for any and all Persons ever claiming any interest in the Trust
Property, to the extent permitted by law, hereby waives and releases all rights
of redemption, valuation, appraisement, stay of execution, notice of election to
mature or declare due the whole of the Obligations and marshalling in the event
of foreclosure of the Liens hereby created.
19. GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
SECTION 11(a) HEREOF, THIS SECURITY AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
20. OBLIGATIONS ARE WITHOUT RECOURSE. The provisions of the
Participation Agreement relating to limitations on liability are hereby
incorporated by reference herein, Mutatis Mutandis.
21. PARTIAL RELEASE; FULL RELEASE. The Agent may release for such
consideration as it may require (but subject to the provisions of Section 12.4
of the Participation Agreement) any portion of the Trust Property without (as to
the remainder of the Trust Property) in any way impairing or affecting the Lien,
security interest and priority herein provided for the Agent
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compared to any other Lien holder or secured party. Further, the Agent shall
execute and deliver to the Borrower such documents and instruments as may be
required to release the Lien and security interest created by this Security
Agreement with respect to the Property or any portion thereof as provided in
Section 8.8 of the Participation Agreement or to grant the easements and permit
the other matters provided for in Section 8.5 of the Participation Agreement.
22. MISCELLANEOUS
(a) This Security Agreement is one (1) of the documents which
create Liens and security interests that secure payment and performance of the
Obligations. The Agent, at its election, may commence or consolidate in a single
action all proceedings to realize upon all such Liens and security interests.
The Borrower hereby waives (i) any objections to the commencement or
continuation of an action to foreclose the Lien of this Security Agreement or
exercise of any other remedies hereunder based on any action being prosecuted or
any judgment entered with respect to the Obligations or any Liens or security
interests that secure payment and performance of the Obligations and (ii) any
objections to the commencement of, continuation of, or entry of a judgment in
any such other action based on any action or judgment connected to this Security
Agreement. In case of a foreclosure sale, the Trust Property may be sold, at the
Agent's election, in one (1) parcel or in more than one (1) parcel and the Agent
is specifically empowered (without being required to do so, and in its sole and
absolute discretion) to cause successive sales of portions of the Trust Property
to be held.
(b) This Security Agreement may not be amended, waived,
discharged or terminated except in accordance with Section 12.4 of the
Participation Agreement. Upon the prior written consent of the Majority Secured
Parties and unless such matter is a Unanimous Vote Matter, the Agent may release
any portion of the Trust Property or any other security, and grant such
extensions and indulgences in relation to the Obligations secured hereby without
in any manner affecting the priority of the Lien hereof on any part of the Trust
Property.
(c) THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO
SUBMISSION TO JURISDICTION AND VENUE ARE HEREBY INCORPORATED BY REFERENCE
HEREIN, MUTATIS MUTANDIS.
23. CONFLICTS WITH PARTICIPATION AGREEMENT. Notwithstanding any
other provision hereof, in the event of any conflict between the terms of this
Security Agreement and the Participation Agreement, the terms of the
Participation Agreement shall govern.
24. LESSEE AS A PARTY. LESSEE HAS EXECUTED THIS SECURITY AGREEMENT
FOR THE PURPOSE OF SUBJECTING TO THE SECURITY INTERESTS GRANTED HEREUNDER ALL OF
ITS RIGHT, TITLE, ESTATE AND INTEREST, IF ANY, IN AND TO THE TRUST PROPERTY TO
SECURE ALL OBLIGATIONS OF ALL CREDIT PARTIES UNDER THE OPERATIVE AGREEMENTS.
ACCORDINGLY, LESSEE HEREBY GRANTS TO THE AGENT (FOR THE BENEFIT OF THE LENDERS
AND THE HOLDERS) A SECURITY INTEREST IN AND TO ALL OF ITS RIGHT, TITLE, ESTATE
AND INTEREST, IF ANY, IN AND TO THE TRUST PROPERTY (TO THE EXTENT LESSEE HAS ANY
RIGHT, TITLE OR INTEREST THEREIN AND WITHOUT REGARD TO ANY LANGUAGE IN SECTION 2
OR THE DEFINITION OF "TRUST PROPERTY" OR
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ANY DEFINITION OF ANY ITEM CONSTITUTING THE TRUST PROPERTY WHICH OTHERWISE WOULD
LIMIT THE TRUST PROPERTY TO THE RIGHT, TITLE AND INTEREST OF THE BORROWER
THEREIN) TO SECURE ALL OBLIGATIONS OF ALL CREDIT PARTIES UNDER THE OPERATIVE
AGREEMENTS. LESSEE ACKNOWLEDGES AND AGREES THAT, UPON THE OCCURRENCE OF AN EVENT
OF DEFAULT, THE AGENT SHALL HAVE THE RIGHT TO EXERCISE ANY OR ALL OF ITS
REMEDIES HEREUNDER AS AGAINST ANY SUCH RIGHT, TITLE, ESTATE OR INTEREST OF
LESSEE IN OR TO THE TRUST PROPERTY.
[signature page follows]
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IN WITNESS WHEREOF, each of the undersigned have caused the Security
Agreement to be duly executed and delivered as of the date first above written.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, but solely as the Owner Trustee
under the VS Trust 2000-2
By: /s/ XXX X. XXXXX
-----------------------------------
Name: Xxx X. Xxxxx
-----------------------------------
Title: Vice President
-----------------------------------
ABN AMRO BANK N.V.,
as the Agent for the Lenders and the Holders
By: /s/ XXXXXXXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxxxxxxx X. XxXxxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
Accepted and Agreed to:
VERITAS SOFTWARE GLOBAL
CORPORATION
By: /s/ XXXXX XXXXX
-------------------------
Name: Xxxxx Xxxxx
-------------------------
Title: Treasurer
-------------------------
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