{"id":42167,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/construction-agency-agreement-veritas-operating-corp-and-first.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"construction-agency-agreement-veritas-operating-corp-and-first","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/construction-agency-agreement-veritas-operating-corp-and-first.html","title":{"rendered":"Construction Agency Agreement &#8211; VERITAS Operating Corp. and First Security Bank NA"},"content":{"rendered":"<pre>\n================================================================================\n\n\n\n\n\n\n\n\n\n                          CONSTRUCTION AGENCY AGREEMENT\n\n\n\n                            Dated as of March 9, 2000\n\n\n\n                                     between\n\n\n\n                         VERITAS OPERATING CORPORATION,\n                            as the Construction Agent\n\n\n\n                                       and\n\n\n                   FIRST SECURITY BANK, NATIONAL ASSOCIATION,\n                       not individually, but solely as the\n                     Owner Trustee under the VS Trust 2000-1\n                                  as the Lessor\n\n\n\n\n\n\n\n\n\n\n================================================================================\n\n\n\n\n\n\n\n                                TABLE OF CONTENTS\n\n\n\n\n\n                                                                                          Page\n                                                                                       \nARTICLE I  DEFINITIONS; RULES OF USAGE.......................................................1\n        1.1 Definitions......................................................................1\n        1.2 Interpretation...................................................................2\n\nARTICLE II  APPOINTMENT OF THE CONSTRUCTION AGENT............................................2\n        2.1 Appointment and Acceptance.......................................................2\n        2.2 [Intentionally Omitted]..........................................................4\n        2.3 Term.............................................................................4\n        2.4 Scope of Authority...............................................................5\n        2.5 Delegation of Duties.............................................................6\n        2.6 Covenants of the Construction Agent..............................................6\n\nARTICLE III  THE PROPERTIES..................................................................8\n        3.1 Construction.....................................................................8\n        3.2 Amendments; Modifications........................................................8\n        3.3 Failure to Complete Construction Period Properties...............................9\n\nARTICLE IV  PAYMENT OF FUNDS.................................................................9\n        4.1 Right to Receive Construction Cost...............................................9\n\nARTICLE V  EVENTS OF DEFAULT................................................................10\n        5.1 Events of Default...............................................................10\n        5.2 Damages.........................................................................11\n        5.3 Remedies; Remedies Cumulative...................................................11\n\nARTICLE VI  THE LESSOR'S RIGHTS.............................................................13\n        6.1 Exercise of the Lessor's Rights.................................................13\n        6.2 The Lessor's Right to Cure the Construction Agent's Defaults....................13\n\nARTICLE VII  MISCELLANEOUS..................................................................13\n        7.1 Notices.........................................................................13\n        7.2 Successors and Assigns..........................................................13\n        7.3 GOVERNING LAW...................................................................13\n        7.4 SUBMISSION TO JURISDICTION; VENUE; WAIVERS......................................14\n        7.5 Amendments and Waivers..........................................................14\n        7.6 Counterparts....................................................................14\n        7.7 Severability....................................................................14\n        7.8 Headings and Table of Contents..................................................14\n        7.9 WAIVER OF JURY TRIAL............................................................14\n\n\n\n\n                                       i\n\n\n\n                          CONSTRUCTION AGENCY AGREEMENT\n\n\n        THIS CONSTRUCTION AGENCY AGREEMENT, dated as of March 9, 2000 (as\namended, modified, extended, supplemented, restated and\/or replaced from time to\ntime, the 'Agreement'), between FIRST SECURITY BANK, NATIONAL ASSOCIATION, a\nnational banking association ('FSB'), not individually, but solely as Owner\nTrustee under the VS Trust 2000-1 (the 'Lessor'), and VERITAS OPERATING\nCORPORATION, a Delaware corporation (the 'Construction Agent').\n\n\n                              PRELIMINARY STATEMENT\n\n        A. The Lessor and the Construction Agent are parties to that certain\nLease Agreement dated as of even date herewith (as amended, modified, extended,\nsupplemented, restated and\/or replaced from time to time, the 'Lease'), pursuant\nto which the Construction Agent, as lessee (in such capacity, the 'Lessee') has\nagreed to lease certain Land, Improvements and Equipment from the Lessor.\n\n        B. In connection with the execution and delivery of the Participation\nAgreement, the Lease and the other Operative Agreements, and subject to the\nterms and conditions hereof, (i) the Lessor desires to appoint the Construction\nAgent as its sole and exclusive agent in connection with the identification and\nacquisition of the Properties (provided, title to the Properties shall be held\nin the name of the Lessor) and the development, acquisition, installation,\nconstruction and testing of the Improvements and the Equipment in accordance\nwith the Plans and Specifications and pursuant to the applicable construction\ncontract and (ii) the Construction Agent desires, for the benefit of the Lessor,\nto identify and acquire the Properties and to cause the development,\nacquisition, installation, construction and testing of the Improvements, the\nEquipment and the other components of the Properties in accordance with the\nPlans and Specifications and to undertake such other liabilities and obligations\nas are herein set forth.\n\n        NOW, THEREFORE, in consideration of the foregoing, and for other good\nand valuable consideration, the receipt and sufficiency of which are hereby\nacknowledged, the parties hereto covenant and agree as follows:\n\n\n                                    ARTICLE I\n\n                           DEFINITIONS; RULES OF USAGE\n\n        1.1 DEFINITIONS.\n\n            For purposes of this Agreement, capitalized terms used in this\nAgreement and not otherwise defined herein shall have the meanings assigned to\nthem in Appendix A to that certain Participation Agreement dated as of March 9,\n2000 (as amended, modified, extended,\n\n\n\n\nsupplemented, restated and\/or replaced from time to time in accordance with the\napplicable provisions thereof, the 'Participation Agreement') among the\nConstruction Agent, the various parties thereto from time to time, as\nGuarantors, the Lessor, the various banks and lending institutions parties\nthereto from time to time, as Holders, the various banks and lending\ninstitutions parties thereto from time to time, as Lenders, and Bank of America,\nN.A., as the agent for the Lenders and respecting the Security Documents, as the\nagent for the Lenders and the Holders, to the extent of their interests. Unless\notherwise indicated, references in this Agreement to articles, sections,\nparagraphs, clauses, appendices, schedules and exhibits are to the same\ncontained in this Agreement.\n\n        1.2 INTERPRETATION.\n\n            The rules of usage set forth in Appendix A to the Participation\nAgreement shall apply to this Agreement.\n\n\n                                   ARTICLE II\n\n                      APPOINTMENT OF THE CONSTRUCTION AGENT\n\n        2.1 APPOINTMENT AND ACCEPTANCE.\n\n        Subject to the terms and conditions hereof, the Lessor hereby\nirrevocably designates and appoints the Construction Agent as its exclusive\nagent and as general contractor, and the Construction Agent accepts such\nappointment, in connection with the identification and acquisition from time to\ntime of the Properties (provided, title to the Properties shall be held in the\nname of the Lessor) and the development, acquisition, installation, construction\nand testing of the Improvements, the Equipment and the other components of the\nProperties in accordance with the Plans and Specifications on the Land, and\npursuant to the terms of the Operative Agreements. Notwithstanding any\nprovisions hereof or in any other Operative Agreement to the contrary, the\nConstruction Agent acknowledges and agrees that the Lessor shall advance no more\nthan the sum of the aggregate Commitment of the Lenders plus the aggregate\namount of the Holder Commitments of the Holders in regard to the Properties\n(including without limitation for any and all Advances in the aggregate from the\nLenders under the Credit Agreement and from the Holders under the Trust\nAgreement). After the Construction Agent gains knowledge or a reasonable\nexpectation that the costs for any Property shall exceed the original\nConstruction Budget (or exceed the Construction Budget as modified in accordance\nwith the Operative Agreements) for such Property or that Completion for any\nProperty shall not occur on or prior to the Construction Period Termination\nDate, the Construction Agent shall promptly (and in any event within five (5)\nBusiness Days of gaining such knowledge or expectation) notify the Agent in\nwriting of the same. If at any time prior to the Construction Period Termination\nDate, the Lessor or the Agent shall have (x) determined in its respective\nreasonable good faith judgment that (i) the sum of the Available Commitments and\nthe Available Holder Commitments shall be less than the amounts necessary for\nCompletion of all Properties or (ii) Completion of one or more Properties shall\nnot occur on or prior to the Construction Period Termination Date or (y)\n\n\n\n                                       2\n\n\nreceived any notice from the Construction Agent as referenced in the preceding\nprovisions of this paragraph, then in any such case Lessor shall have the option\n(at the direction of the Agent) to replace the Construction Agent with a new\nconstruction agent selected by the Lessor (at the direction of the Agent) to\nfinalize the Completion of the Properties. The cost and expense incurred to\nfinalize the Completion of the Properties as referenced in the preceding\nsentence shall be the responsibility of the Construction Agent and shall be\npayable by the Construction Agent on demand; provided, in no event shall the\nobligations of the Construction Agent for such costs and expenses exceed the\nMaximum Amount; provided, further, amounts expended by the Lessor to finalize\nthe Completion of the Properties as referenced in the preceding sentence shall\nbe added to the Property Cost.\n\n        Costs in excess of each original Construction Budget (or the\nConstruction Budget as modified in accordance with the Operative Agreements) in\neach case as previously delivered to the Agent for each Property shall not be\nthe responsibility of the Construction Agent but instead shall be paid by the\nLenders and the Holders to the extent, but only to the extent, that (after\ntaking into account such excess costs and any other items of excess cost which\nare then known to the Construction Agent or are reasonable for the Construction\nAgent to expect) the conditions precedent set forth in Section 5.4 of the\nParticipation Agreement are satisfied.\n\n        Subject to the Lenders and the Holders not agreeing to continue making\nAdvances in accordance with the provisions of the next paragraph and in the\nevent from time to time (a) the Construction Agent gains knowledge or a\nreasonable expectation that the costs for any Property shall exceed the original\nConstruction Budget (or exceed the Construction Budget as modified in accordance\nwith the Operative Agreements) or that Completion for any Property shall not\noccur on or prior to the Construction Period Termination Date or (b) the Lessor\nor the Agent shall have determined in its respective reasonable good faith\njudgment that the sum of the Available Commitments and the Available Holder\nCommitments shall be less than the amounts necessary for Completion of all\nProperties or that Completion of one or more Properties shall not occur on prior\nto the Construction Period Termination Date, the Construction Agent shall elect\nand comply (within ten (10) days of the Construction Agent gaining such\nknowledge or expectation or within ten (10) days of the Lessor or the Agent\nmaking such determination and giving written notice of the same to the\nConstruction Agent, as referenced in subsections (a) and (b) above of this\nparagraph) with one of the options set forth in the following subsections (i) or\n(ii) (collectively, the 'Construction Agent Options'): (i) the Construction\nAgent shall pay to the Lessor, on a date designated by the Lessor, an aggregate\namount equal to (A) the Termination Value for all, but not less than all, the\nProperties plus (B) any and all fees and expenses incurred by or on behalf of\nthe Lessor or the Agent in connection with the Properties (including without\nlimitation the transfer thereof) and on such date the Lessor shall transfer and\nconvey to the Construction Agent all right, title and interest of the Lessor in\nand to the Properties or (ii) the Construction Agent shall pay to the Lessor, on\na date designated by the Lessor, an aggregate amount equal to the Maximum Amount\nand on and after such date, the Construction Agent shall be irrevocably deemed,\nwithout any further action, to have relinquished all right, title and interest\nin and to all, but not less than all, the Properties and to have transferred and\nconveyed all such right, title and interest to the Lessor. In connection with\nany transfer of the Properties as referenced above in this Section 2.1 by the\nLessor to the Construction Agent, the Lessor shall\n\n\n\n                                       3\n\n\nexecute and deliver to the Construction Agent, at the cost and expense of the\nConstruction Agent (subject to the limitations described in the next sentence),\neach of the following: (w) special or limited warranty Deeds conveying each\nProperty to the Construction Agent free and clear of the Lien of the Lease, the\nLien of the Credit Documents and any Lessor Liens; (x) a Bill of Sale conveying\neach Property (to the extent it is personal property) to the Construction Agent\nfree and clear of the Lien of the Lease, the Lien of the Credit Documents and\nany Lessor Liens; (y) any real estate tax affidavit or other document required\nby law to be executed and filed in order to record the applicable Deed; and (z)\nFIRPTA affidavits. The Lessor (at the discretion of the Agent) shall elect\nwhether the out-of-pocket fees and expenses associated with the transfer of the\nProperties shall be paid by either (i) sales proceeds from the Properties, (ii)\nthe Lessor (but only to the extent amounts are available therefor with respect\nto the Available Commitments and the Available Holder Commitments or each Lender\nand each Holder approves the necessary increases in the Available Commitments\nand the Available Holder Commitments to fund such fees and expenses) or (iii)\nthe Construction Agent; provided, if the Construction Agent funds such fees and\nexpenses (as referenced in subsection (iii)) then the Maximum Amount will be\nreduced accordingly, as more specifically described in the definition of\n'Maximum Amount'. Amounts funded by the Lenders and the Holders with respect to\nthe foregoing shall be added to the Property Cost. All of the foregoing\ndocumentation must be in form and substance reasonably satisfactory to the\nLessor. Subject to the foregoing, all, but not less than all, the Properties\nshall be conveyed to the Construction Agent 'AS-IS', 'WHERE-IS' and in then\npresent physical condition.\n\n        In the event the costs in excess of any original Construction Budget\npreviously delivered to the Agent for any Property are not funded by the Lenders\nand the Holders because (after taking into account such excess costs and any\nother items of excess cost which are then known to the Construction Agent or are\nreasonable for the Construction Agent to expect) the conditions precedent set\nforth in Section 5.4 of the Participation Agreement are not satisfied, then if,\nbut only if, all the Holders and all the Lenders agree at such time, (a) such\nexcess costs shall be funded and (b) the Holder Commitments and the Lender\nCommitments shall be increased accordingly.\n\n        2.2 [INTENTIONALLY OMITTED].\n\n        2.3 TERM.\n\n        This Agreement shall commence on the date hereof and, unless the Lessor\n(in its sole discretion) elects otherwise, this Agreement shall terminate on the\nConstruction Period Termination Date. If this Agreement expires prior to the\nCompletion of all, but not less than all, the Properties, then the Lessor may\neither (i) hire a new construction agent (at the direction of the Agent) to\nfinalize the Completion of all Properties or (ii) require the Construction Agent\nto continue to perform hereunder and to achieve Completion of all Properties.\nThe cost and expense incurred to finalize the Completion of the Properties as\nreferenced in the preceding sentence shall be the responsibility of the\nConstruction Agent and shall be payable by the Construction Agent on demand;\nprovided, in no event shall the obligations of the Construction Agent for such\ncosts and expenses exceed the Maximum Amount; provided, further, amounts\n\n\n\n                                       4\n\n\nexpended by the Lessor to finalize the Completion of the Properties as\nreferenced in the preceding sentence shall be added to the Property Cost.\n\n        2.4 SCOPE OF AUTHORITY.\n\n               (a) The Lessor hereby expressly authorizes the Construction\n        Agent, or any agent or contractor of the Construction Agent, and the\n        Construction Agent unconditionally agrees for the benefit of the Lessor,\n        subject to Section 2.4(b), to take all action necessary or desirable for\n        the performance and satisfaction of any and all of the Lessor's\n        obligations under any construction agreement and to fulfill all of the\n        obligations of the Construction Agent including without limitation:\n\n                      (i) the identification and assistance with the acquisition\n               of Properties in accordance with the terms and conditions of the\n               Participation Agreement;\n\n                      (ii) all design and supervisory functions relating to the\n               development, acquisition, installation, construction and testing\n               of the related Improvements, Equipment and other components of\n               the applicable Property and performing all engineering work\n               related thereto;\n\n                      (iii) (A) negotiating, entering into, performing and\n               enforcing all contracts and arrangements to acquire the\n               Properties and to procure the equipment necessary to construct\n               the Properties and (B) negotiating, executing, performing and\n               enforcing all contracts and arrangements to develop, acquire,\n               install, construct and test the Improvements, the Equipment and\n               the other components of the Properties on such terms and\n               conditions as are customary and reasonable in light of local and\n               national standards and practices and the businesses in which the\n               Lessee is engaged;\n\n                      (iv) obtaining all necessary permits, licenses, consents,\n               approvals, entitlements and other authorizations, including\n               without limitation all of the foregoing required for the\n               Properties and the use and occupancy thereof and those required\n               under applicable Law (including without limitation Environmental\n               Laws), from all Governmental Authorities in connection with the\n               development, acquisition, installation, construction and testing\n               of the Improvements, the Equipment and the other components of\n               the Properties substantially in accordance with the Plans and\n               Specifications;\n\n                      (v) maintaining all books and records with respect to the\n               Properties and the construction, operation and management\n               thereof;\n\n                      (vi) performing any other acts necessary in connection\n               with the identification and acquisition of the Properties and the\n               development, acquisition, installation, construction and testing\n               of the related Improvements, Equipment and\n\n\n\n                                       5\n\n\n               all other additional components of the Properties in accordance\n               with the Plans and Specifications;\n\n                      (vii) the right to submit notices pursuant to Section 2.3\n               of the Credit Agreement and to receive the proceeds of Advances\n               directly from the Agent;\n\n                      (viii) the right to contest all mechanics' and\n               materialmens' liens in accordance with the requirements for\n               Permitted Liens; and\n\n                      (ix) the right to bring or defend any claims or seek\n               resolution of disputes arising from Construction Agent's\n               performance of any of the foregoing actions.\n\n               (b) Neither the Construction Agent nor any of its Affiliates or\n        agents shall enter into any contract or consent to any contract in the\n        name of the Lessor without the Lessor's prior written consent, such\n        consent to be given or withheld in the exercise of the Lessor's\n        reasonable discretion; provided, however, that (i) no such contract will\n        increase the obligations of the Lessor beyond the obligations of the\n        Lessor as are expressly set forth in the Operative Agreements and (ii)\n        each such contract shall expressly limit recourse against the Lessor to\n        the assets of the VS Trust 2000-1 and shall otherwise be non-recourse to\n        the Lessor on terms and conditions that are reasonably acceptable to the\n        Lessor.\n\n               (c) Subject to the terms and conditions of this Agreement and the\n        other Operative Agreements, the Construction Agent shall have sole\n        management and control over the installation, construction and testing\n        means, methods, sequences and procedures with respect to the Properties.\n\n        2.5 DELEGATION OF DUTIES\n\n        The Construction Agent may execute any of its duties under this\nAgreement by or through agents, contractors, employees or attorneys-in-fact;\nprovided, however, that no such delegation shall limit or reduce in any way the\nConstruction Agent's duties and obligations under this Agreement.\n\n        2.6 COVENANTS OF THE CONSTRUCTION AGENT.\n\n        The Construction Agent hereby covenants and agrees that it will:\n\n               (a) following the Construction Commencement Date for each\n        Property, cause the development, acquisition, installation, construction\n        and testing of such Property to be prosecuted in a good and workmanlike\n        manner, and respecting each Property in accordance with the applicable\n        Plans and Specifications, the Construction Budget, the applicable\n        contracts relating to the Improvements, the Equipment, other components\n        of such Property and procurement of construction materials, the\n        applicable construction\n\n\n\n                                       6\n\n\n        contracts, the applicable construction schedule, prevalent industry\n        practices and otherwise in accordance with Section 3.1 hereof;\n\n               (b) [Intentionally Omitted];\n\n               (c) cause the Completion Date for any Improvements to occur on or\n        before the earlier of (i) the date that is eighteen (18) months after\n        the Initial Closing Date or (ii) the Construction Period Termination\n        Date, in each case free and clear (by removal or bonding) of Liens or\n        claims for materials supplied or labor or services performed in\n        connection with the development, acquisition, installation, construction\n        or testing thereof, except for Permitted Liens; provided, that the\n        failure to cause the Completion for any Property by such date shall not\n        be deemed a breach hereunder if such delay is caused by a Force Majeure\n        Event and Completion is accomplished within three (3) months of the date\n        otherwise applicable but for this proviso; provided, further, to the\n        extent such failure to complete is caused by a Force Majeure Event\n        extending beyond such three (3) month period, the Construction Agent\n        shall elect one of the Construction Agent Options set forth in Section\n        2.1 and, if such election is not made within ten (10) Business Days of\n        the end of such three (3) month period, the Construction Agent shall be\n        deemed to have elected to purchase all the Properties for the\n        Termination Value in accordance with the provisions of Section 2.1;\n\n               (d) use its good faith efforts to cause all outstanding punch\n        list items with respect to such Improvements to be completed promptly\n        following the Completion Date;\n\n               (e) at all times subsequent to the initial Advance respecting a\n        Property (i) cause good and marketable title to the applicable Property\n        to vest in the Owner Trustee (ii) cause a valid, perfected, first\n        priority Lien on the applicable Property to be in place in favor of the\n        Agent (for the benefit of the Lenders and the Holders), (iii) file all\n        necessary documents under the applicable real property law and Article 9\n        of the Uniform Commercial Code to perfect such title and Liens and (iv)\n        subject to the terms of Article XIII of the Lease relating to Permitted\n        Contests, not permit Liens (other than Permitted Liens and Lessor Liens)\n        to be filed or maintained respecting the applicable Property;\n\n               (f) no less than five (5) Business Days prior to the scheduled\n        date for the initial Construction Advance to be made in connection with\n        any Property, the Construction Agent shall deliver to the Agent (for the\n        benefit of the Lessor) true, complete and correct copies of the\n        Construction Budget therefor. Thereafter, the Construction Agent, on a\n        monthly basis, shall deliver to the Lessor true, correct and complete\n        copies of any material modifications of the Construction Budget and\n        progress reports regarding the development, acquisition, installation,\n        construction and testing of the Properties;\n\n               (g) procure insurance for the Properties during the Construction\n        Period in accordance with the provisions of Article XIV of the Lease;\n        and\n\n\n\n                                       7\n\n\n               (h) on or before the Construction Period Termination Date (which\n        date shall be subject to extension pursuant to the provisions of Section\n        2.1 in the sole and absolute discretion of the Lenders and the Holders),\n        cause the Rent Commencement Date to occur with respect to all Properties\n        or purchase any such Properties for an amount equal to the sum\n        referenced in Section 5.3(b) hereof and otherwise in compliance with the\n        other terms and provisions of the Operative Agreements.\n\n\n                                   ARTICLE III\n\n                                 THE PROPERTIES\n\n        3.1 CONSTRUCTION.\n\n        The Construction Agent shall cause the Improvements, the Equipment and\nall other components of the Properties to be developed, acquired, installed,\nconstructed and tested in compliance with all Legal Requirements, all Insurance\nRequirements, all manufacturer's specifications and standards and the standards\nmaintained by the Construction Agent for similar properties owned or operated by\nthe Construction Agent, unless non-compliance, individually or in the aggregate,\nshall not have and could not be reasonably expected to have a Material Adverse\nEffect.\n\n        3.2 AMENDMENTS; MODIFICATIONS.\n\n               (a) The Construction Agent may at any time revise, amend or\n        modify (i) the Plans and Specifications without the consent of the\n        Lessor; provided, that any such amendment to the Plans and\n        Specifications does not (x) result in the Completion Date of the\n        Improvements occurring on or after the Construction Period Termination\n        Date or (y) result in the cost of all Improvements exceeding the amount\n        specified in the Construction Budget, as amended from time to time, or\n        an amount equal to the sum of the then Available Commitments plus the\n        then Available Holder Commitments (reduced by the amount, if any,\n        necessary to pay for the cost of construction and development of\n        Improvements on other Properties which are currently under construction\n        but have not yet been completed (such amount the 'Unfunded Amount')),\n        and (ii) the Construction Budget and enter into any related amendments,\n        modifications or supplements without the consent of the Lessor;\n        provided, that such revisions, amendments or modifications to the Plans\n        and Specifications or related amendments, modifications or supplements\n        to the Construction Budget do not result in any increase in total\n        Property Costs greater than the amount specified in the Construction\n        Budget, as amended from time to time, or the then Available Commitments\n        and Available Holder Commitment (reduced by the Unfunded Amount).\n\n               (b) The Construction Agent agrees that it will not implement any\n        revision, amendment or modification to the Plans and Specifications for\n        any Property if the aggregate effect of such revision, amendment or\n        modification, when taken together with\n\n\n\n                                       8\n\n\n        any previous or contemporaneous revision, amendment or modification to\n        the Plans and Specifications for any Property, would cause a reduction\n        in the fair market value of the Properties below the Termination Value\n        therefor when completed, unless such revision, amendment or modification\n        is required by Legal Requirements or Section 9.1 of the Lease.\n\n        3.3 FAILURE TO COMPLETE CONSTRUCTION PERIOD PROPERTIES.\n\n        Until termination of the Lease Agreement and the Construction Agency\nAgreement, the Construction Agent shall promptly and diligently complete the\ndevelopment, acquisition, refinancing, installation, construction and testing of\nsuch Construction Period Property substantially in accordance with the Plans and\nSpecifications and with the terms hereof and cause the Completion Date with\nrespect to such Construction Period Property to occur on or prior to the\nConstruction Period Termination Date.\n\n        If, prior to the Completion Date with respect to any particular\nProperty, the Construction Agent shall abandon or permanently discontinue the\nconstruction and development of one or more Construction Period Properties\n(which abandonment or permanent discontinuance shall be deemed to have occurred\nif no work at any such Construction Period Property site is undertaken or\ncompleted during a period of thirty (30) days or more after construction has\ncommenced for reasons other than a Force Majeure Event), then the Construction\nAgent shall pay to the Lessor, on a date designated by the Lessor, an aggregate\namount equal to the Termination Value of the Properties, and on such date Lessor\nshall transfer and convey to the Construction Agent all right, title and\ninterest of Lessor in and to the Properties, at the cost and expense of the\nConstruction Agent. The Lessor shall convey such property 'AS IS,' 'WHERE-IS'\nand in its then present physical condition to the Construction Agent or its\ndesignee free and clear of Lessor Liens. If Lessor does not require the\nConstruction Agent to pay such amount, the Construction Agent shall promptly and\ndiligently complete the development, acquisition, refinancing, installation,\nconstruction and testing of the Construction Period Properties in substantial\naccordance with the Plans and Specifications and with the terms hereof and cause\nthe Completion Date with respect to the Construction Period Properties to occur\non or before the Construction Period Termination Date.\n\n\n                                   ARTICLE IV\n\n                                PAYMENT OF FUNDS\n\n        4.1 RIGHT TO RECEIVE CONSTRUCTION COST.\n\n               (a) In connection with the development, acquisition,\n        installation, construction and testing of any Property and during the\n        course of the construction of the Improvements on any Property, the\n        Construction Agent may request that the Lessor advance funds for the\n        payment of Property Acquisition Costs or other Property Costs, and the\n        Lessor will comply with such request to the extent provided for under\n        the Participation Agreement.\n\n\n\n                                       9\n\n\n        The Construction Agent and the Lessor acknowledge and agree that the\n        Construction Agent's right to request such funds and the Lessor's\n        obligation to advance such funds for the payment of Property Acquisition\n        Costs or other Property Costs is subject in all respects to the terms\n        and conditions of the Participation Agreement and each of the other\n        Operative Agreements. Without limiting the generality of the foregoing\n        it is specifically understood and agreed that in no event shall the\n        aggregate amounts advanced by the Lenders and the Holders for Property\n        Acquisition Costs or other Property Costs and any other amounts due and\n        owing hereunder or under any of the other Operative Agreements exceed\n        the sum of the aggregate Commitment of the Lenders plus the aggregate\n        amount of the Holder Commitments, including without limitation such\n        amounts owing for (i) development, acquisition, installation,\n        construction and testing of the Properties or (ii) additional amounts\n        which accrue or become due and owing under the Credit Agreement or Trust\n        Agreement as obligations of the Lessor prior to any Completion Date.\n\n               (b) The proceeds of any funds made available to the Lessor to pay\n        Property Acquisition Costs or other Property Costs shall be made\n        available to the Construction Agent in accordance with the Requisition\n        relating thereto and the terms of the Participation Agreement. The\n        Construction Agent will use such proceeds only to pay the Property\n        Acquisition Costs or other Property Costs set forth in the Requisition\n        relating to such funds.\n\n\n                                    ARTICLE V\n\n                                EVENTS OF DEFAULT\n\n        5.1 EVENTS OF DEFAULT.\n\n        If any one (1) or more of the following events (each an 'Event of\nDefault') shall occur:\n\n               (a) the Construction Agent fails to apply any funds paid by the\n        Lessor to the Construction Agent in a manner consistent with the\n        requirements of the Operative Agreements and as specified in the\n        applicable Requisition for the development, acquisition, installation,\n        construction and testing of the Properties and related Improvements and\n        Equipment or otherwise respecting the Properties to the payment of\n        Property Acquisition Costs or other Property Costs;\n\n               (b) the Construction Agent shall fail to make any payment\n        required pursuant to the terms of this Agreement (including without\n        limitation pursuant to Sections 2.1 and 3.3) within three (3) Business\n        Days after the same has become due and payable;\n\n               (c) any Event of Default (as such term is defined in Appendix A\n        to the Participation Agreement) shall have occurred and not be cured\n        within any cure period expressly permitted under the terms of the\n        applicable Operative Agreement; and\n\n\n\n                                       10\n\n\n               (d) the Construction Agent shall fail to observe or perform any\n        term, covenant or condition of any Operative Agreement other than as set\n        forth in paragraphs (a), (b) or (c) of this Section 5.1 and such failure\n        to observe or perform any such term, covenant or condition shall\n        continue for more than thirty (30) days after the earlier of an officer\n        of the Construction Agent becoming aware of such default or notice\n        thereof by the Lessor; provided, however, that if such failure is of a\n        nature that is not capable of being cured within such thirty (30) day\n        period, and the Construction Agent promptly commences appropriate steps\n        to cure such failure within such thirty (30) day period and continues to\n        pursue such cure with diligence and good faith thereafter, unless Lessor\n        shall determine that such delay could reasonably be expected to have a\n        Material Adverse Effect, such thirty (30) day period shall be extended\n        for an additional sixty (60) days;\n\nthen, in any such event, the Lessor may, in addition to the other rights and\nremedies provided for in this Agreement, terminate this Agreement by giving the\nConstruction Agent three (3) days written notice of such termination and upon\nthe expiration of the time fixed in such notice and the payment of all amounts\nowing by the Construction Agent hereunder (including without limitation any\namounts specified under Section 5.3 hereof), this Agreement shall terminate. The\nConstruction Agent shall pay all costs and expenses incurred by or on behalf of\nthe Lessor, including without limitation fees and expenses of counsel, as a\nresult of any Event of Default hereunder.\n\n        5.2 DAMAGES.\n\n        The termination of this Agreement pursuant to Section 5.1 shall in no\nevent relieve the Construction Agent of its liability and obligations hereunder,\nall of which shall survive any such termination.\n\n        5.3 REMEDIES; REMEDIES CUMULATIVE.\n\n               (a) If an Event of Default hereunder shall have occurred and be\n        continuing, the Lessor shall have all rights available to the Lessor\n        under the Lease and the other Operative Agreements and all other rights\n        otherwise available at law, equity or otherwise.\n\n               (b) Upon the occurrence of an Event of Default, the Lessor shall\n        have (in addition to its rights otherwise described in this Agreement or\n        existing at law, equity or otherwise) the option (and shall be deemed\n        automatically, and without any further action, to have exercised such\n        option upon the occurrence of any Lease Event of Default arising under\n        Sections 17.1(g), (h) (i) or (j) of the Lease) to transfer and convey to\n        the Construction Agent upon a date designated by the Lessor all right,\n        title and interest of the Lessor in and to any Property or Properties\n        (including without limitation any Land and\/or any Improvements, any\n        interest in any Improvements, any Equipment and any Property then under\n        construction) for which the Rent Commencement Date has not yet occurred\n        (a 'Construction Period Property'). On any transfer and conveyance date\n        specified by the Lessor pursuant to this Section 5.3(b), (i) the Lessor\n        shall transfer and convey (at the cost\n\n\n\n                                       11\n\n\n        of the Construction Agent) all right, title and interest of the Lessor\n        in and to any or all such Construction Period Properties free and clear\n        of the Lien of the Lease and all Lessor Liens, (ii) the Construction\n        Agent hereby covenants and agrees that it will accept such transfer and\n        conveyance of right, title and interest in and to the respective\n        Construction Period Property or Construction Period Properties and (iii)\n        the Construction Agent hereby promises to pay to the Lessor, as\n        liquidated damages (it being agreed that it would be impossible\n        accurately to determine actual damages), an aggregate amount equal to\n        the Termination Value of such Construction Period Properties plus other\n        costs and expenses described in Section 2.1 hereof. The Construction\n        Agent specifically acknowledges and agrees that its obligations under\n        this Section 5.3(b), including without limitation its obligations to\n        accept the transfer and conveyance of Construction Period Properties and\n        its payment obligations described in subparagraph (iii) of this Section\n        5.3(b), shall be absolute and unconditional under any and all\n        circumstances and shall be performed and\/or paid, as the case may be,\n        without notice or demand and without any abatement, reduction,\n        diminution, setoff, defense, counterclaim or recoupment whatsoever.\n        Notwithstanding the foregoing provisions of this Section 5.3(b), the\n        Lessor shall have the right in its sole discretion to rescind any\n        exercise of its option under this Section 5.3(b) upon the giving of its\n        written confirmation of such rescission to the Construction Agent on or\n        prior to the earlier to occur of (a) the actual date of transfer and (b)\n        the date one hundred and twenty (120) days after the date the Lessor has\n        given notice of its intent to transfer and convey any Property to the\n        Construction Agent as referenced above in this Section 5.3(b).\n\n               (c) The Construction Agent shall have the right to cure an Event\n        of Default hereunder with respect to any given Property by purchasing\n        such Property from the Lessor (to the extent such Event of Default is no\n        longer continuing with respect to any other Property remaining subject\n        to this Agreement after such purchase) for an amount equal to the\n        liquidated damages amount set forth in Section 5.3(b) of this Agreement.\n\n               (d) No failure to exercise and no delay in exercising, on the\n        part of the Lessor, any right, remedy, power or privilege under this\n        Agreement or under the other Operative Agreements shall operate as a\n        waiver thereof; nor shall any single or partial exercise of any right\n        remedy, power or privilege under this Agreement preclude any other or\n        further exercise thereof or the exercise of any other right, remedy,\n        power or privilege. The rights, remedies, powers and privileges provided\n        in this Agreement are cumulative and not exclusive of any rights,\n        remedies, powers and privileges provided by law.\n\n\n\n                                       12\n\n\n                                   ARTICLE VI\n\n                               THE LESSOR'S RIGHTS\n\n        6.1 EXERCISE OF THE LESSOR'S RIGHTS.\n\n        Subject to the Excepted Payments, the Construction Agent and the Lessor\nhereby acknowledge and agree that, subject to and in accordance with the terms\nof the Security Agreement made by the Lessor in favor of the Agent, the rights\nand powers of the Lessor under this Agreement have been assigned to the Agent.\n\n        6.2 THE LESSOR'S RIGHT TO CURE THE CONSTRUCTION AGENT'S DEFAULTS.\n\n        The Lessor, without waiving or releasing any obligation or Event of\nDefault, may (but shall be under no obligation to) remedy any Event of Default\nfor the account of and at the sole cost and expense of the Construction Agent.\nAll out-of-pocket costs and expenses so incurred (including without limitation\nfees and expenses of counsel), together with interest thereon at the Overdue\nRate from the date on which such sums or expenses are paid by the Lessor, shall\nbe paid by the Construction Agent to the Lessor on demand.\n\n\n                                   ARTICLE VII\n\n                                  MISCELLANEOUS\n\n        7.1 NOTICES.\n\n        All notices required or permitted to be given under this Agreement shall\nbe in writing and delivered as provided in Section 12.2 of the Participation\nAgreement.\n\n        7.2 SUCCESSORS AND ASSIGNS.\n\n        This Agreement shall be binding upon and inure to the benefit of the\nLessor, the Construction Agent and their respective successors and the assigns\nof the Lessor. The Construction Agent may not assign this Agreement or any of\nits rights or obligations hereunder or with respect to any Property in whole or\nin part to any Person without the prior written consent of the Agent, the\nLenders, the Holders and the Lessor.\n\n        7.3 GOVERNING LAW.\n\n        THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS\nAGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED IN\nACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS\nOF LAWS PRINCIPLES.\n\n\n\n                                       13\n\n\n        7.4 SUBMISSION TO JURISDICTION; VENUE; WAIVERS.\n\n        The provisions of the Participation Agreement relating to submission to\njurisdiction AND venue are hereby incorporated by reference herein, mutatis\nmutandis.\n\n        7.5 AMENDMENTS AND WAIVERS.\n\n        This Agreement may not be terminated, amended, supplemented, waived or\nmodified except in accordance with the provisions of Section 12.4 of the\nParticipation Agreement.\n\n        7.6 COUNTERPARTS.\n\n        This Agreement may be executed in any number of separate counterparts\nand all of said counterparts taken together shall be deemed to constitute one\n(1) and the same instrument.\n\n        7.7 SEVERABILITY.\n\n        Any provision of this Agreement which is prohibited or unenforceable in\nany jurisdiction shall, as to such jurisdiction, be ineffective to the extent of\nsuch prohibition or unenforceability without invalidating the remaining\nprovisions hereof, and any such prohibition or unenforceability in any\njurisdiction shall not invalidate or render unenforceable such provision in any\nother jurisdiction.\n\n        7.8 HEADINGS AND TABLE OF CONTENTS.\n\n        The headings and table of contents contained in this Agreement are for\nconvenience of reference only and shall not limit or otherwise affect the\nmeaning hereof.\n\n        7.9 WAIVER OF JURY TRIAL.\n\n        TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE LESSOR AND THE\nCONSTRUCTION AGENT IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY\nLEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND ANY COUNTERCLAIM\nTHEREUNDER.\n\n\n\n                            [signature page follows]\n\n\n\n                                       14\n\n\n        IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be\nduly executed and delivered by their proper and duly authorized officers as of\nthe day and year first above written.\n\n\n                                        VERITAS OPERATING CORPORATION, as the\n                                        Construction Agent\n\n\n                                        By: \/s\/ KEN LONCHAR\n                                           ----------------------------------\n                                        Name: Ken Lonchar\n                                        Title: Senior Vice President and\n                                               Chief Financial Officer\n\n\n                                        FIRST SECURITY BANK, NATIONAL\n                                        ASSOCIATION, not individually, but\n                                        solely as Owner Trustee under the VS\n                                        Trust 2000-1, as the Lessor\n\n                                        By: \/s\/ VAL T. ORTON\n                                           ----------------------------------\n                                        Name: Val T. Orton\n                                        Title: Vice President\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9244,9312],"corporate_contracts_industries":[9415,9513],"corporate_contracts_types":[9613,9620],"class_list":["post-42167","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-veritas-software-corp","corporate_contracts_companies-wells-fargo---co","corporate_contracts_industries-financial__banks","corporate_contracts_industries-technology__software","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42167","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42167"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42167"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42167"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42167"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}