Exhibit 10.29
CONFIRMATION, AMENDMENT AND NOTICE OF SECURITY AGREEMENT
This Confirmation, Amendment and Notice of Security Agreement ("Agreement")
is given this 20th day of March, 1998 by and among INFORMIX CORPORATION, a
Delaware corporation ("Debtor"), XXXX X. XxXXXXXXXX, LLC a California limited
liability company ("Secured Party") and NETWORKS ASSOCIATES, INC., a Delaware
corporation ("Networks").
R E C I T A L S
A. Secured Party and Debtor entered into that certain Lease dated November
22, 1996 (the "Lease"). Debtor assigned its interest in the lease as tenant to
Networks pursuant to that certain Lease Assignment dated November 17, 1997
("Lease Assignment"), but remains liable to Secured Party under the Lease.
Secured Party consented to the foregoing assignment as provided in that certain
Consent to Assignment Agreement dated December 18, 1997 (the "Consent").
Pursuant to Section 12 of the Consent, Debtor granted to Secured Party a
security interest in any and all claims and/or rights of recovery Debtor may
have against Networks arising out of any liability or indebtedness of Networks
held by or owed to Debtor relating to the Lease Transaction Documents (as
defined in the Lease Assignment), the Assignment or the Consent and any proceeds
arising therefrom.
B. Secured Party, Debtor and Networks desire to confirm that the provisions
in paragraph 12 of the Consent constitute a security agreement and to amend the
Security Agreement as follows:
NOW, THEREFORE, the parties hereto agree as follows:
1. CONFIRMATION OF SECURITY AGREEMENT. The parties hereto hereby confirm,
acknowledge and agree that (i) Debtor has granted to Secured Party a security
interest in any and all claims and/or rights of recovery Debtor may have against
Networks arising out of any liability or indebtedness of Networks held by or
owed to Debtor relating to the Lease Transaction Documents (as defined in the
Lease Assignment), the Assignment or the Consent and any proceeds arising
therefrom (the "Collateral") as specifically provided in Section 12 of the
Consent, (ii) the Consent constitutes a security agreement (the "Security
Agreement"), and (iii) the Security Agreement is hereby amended as provided in
this Agreement. Debtor shall notify Security Party of any claims and/or rights
of recovery
constituting Collateral if and when same arise and provide Secured Party with
reasonable documentation substantiating the nature and extent thereof.
2. NOTICE OF SECURITY INTEREST. This Agreement constitutes notice to
Networks of Secured Party's security interest in the Collateral, including
any proceeds arising therefrom and the parties hereto agree that any proceeds
of any kind, cash or otherwise, which become payable to Debtor by Networks in
connection with or arising from the Collateral, whether by court judgment,
arbitration, settlement, or agreement between Debtor and Networks shall be
deposited directly into a security account (the "Section 12 Security Account")
as specified in Section 12.D. of the Consent, to be held and disbursed in
accordance with Section 12.D. of the Consent. No proceeds arising out of or
related to the Collateral shall be paid directly to Debtor without Secured
Party's written consent.
3. SECTION 12.D DISBURSEMENTS TO DEBTOR. Disbursements to be made to
Debtor under Section 12.D of the Consent shall be made from the Section 12
Security Account to Debtor only with Secured Party's written consent. Debtor
shall submit to Security Party documentation reasonably satisfactory to Secured
Party substantiating Debtor's incurring of costs subject to reimbursement
under Section 12.D of the Consent.
4. FURTHER DOCUMENTS. The term "substantially the same agreement" as
used in the second sentence of Section 12.D. of the Consent shall include
without limitation the Security Agreement, Notice of Security Interest in
Deposit Account and UCC-1 Financing Statements in substantially the forms
attached to the Lease as Exhibit D-3, modified to reflect the terms and
conditions of the Consent and this Agreement, which shall be completed and
implemented when it is determined by Secured Party that such account is
necessary.
5. EVENT OF DEFAULT. A default in payment or performance of any
obligation to Secured Party that remains uncured after any applicable cure
period under the Lease Transaction Documents, the Assignment, the Consent or
this Agreement in accordance with the terms thereof shall constitute an Event
of Default for purposes of this Agreement.
6. RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs and is
continuing under this Agreement, Secured Party shall have the following rights
and remedies with respect to the Section 12 Security Account and the Collateral
(without limiting any of Landlord's rights and remedies under the Lease
Transaction Documents, the Consent and this Agreement):
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(a) Secured Party shall have the right to participate jointly with
Debtor in the initiation and prosecution of all claims and/or rights of
recovery constituting Collateral, including the selection and direction of
counsel, and Debtor shall reimburse Secured Party its reasonable costs actually
incurred in connection therewith.
(b) Secured Party shall have the right to draw such sums from the
Section 12 Security Account as may be necessary to pay monthly basic rent,
common area charges, and repair and maintenance costs then due and payable but
unpaid by the "Tenant" under the Lease and to compensate Secured Party for all
damages caused by such default (including attorneys fees and costs) to the
extent then due and payable under the Lease Transaction Documents.
(c) Secured Party shall have the right to pursue all remedies of a
secured party under the California Uniform Commercial Code with respect to the
Section 12 Security Account, subject to the limitations on withdrawals
therefrom as specified in Section 6(b) above.
All of Secured Party's rights and remedies, whether evidenced by this
Agreement, the Consent, or any related documents or by any other writing,
shall be cumulative and may be exercised singularly or concurrently. Election
by Secured Party to pursue any remedy shall not exclude pursuit of any other
remedy, and an election to make expenditures or to take action to perform an
obligation of Debtor under this Agreement, after Debtor's failure to perform,
shall not affect Secured Party's right to declare a default and to exercise its
remedies.
7. NOTICES. Except for legal process which may also be served as
provided by law or as provided herein, all notices, demands, requests,
consents and other communications ("Notices") which may be given or are
required to be given by either party under this Agreement to the other shall be
in writing and shall be deemed given to and received by the party intended to
receive such Notice (i) when hand delivered, (ii) on the date on which the
United States Post Office certifies delivery or refusal to accept delivery of
such Notice shall have been deposited, postage prepaid, to the United States
mail, certified return receipt requested, properly addressed to the address
specified herein, or (iii) on the date of delivery sent to the address
specified herein by reputable overnight courier e.g., Federal Express or other
comparable service), as evidenced by such courier's records. All such Notices
to Assignor shall be served or addressed to Assignor at care of Informix
Software, Inc., 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, Attention:
Xx. Xxxxx Xxxxxxxx. All such Notices to Assignee shall be sent to Networks
Associates, Inc. at its offices at 0000 Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx
00000, Attention: Xx. Xxxx Xxxxxxx, Controller. All such Notices to
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Landlord shall be sent to Xxxx X. XxXxxxxxxx, LLC, at 0000 Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx 00000, Attention: Xx. Xxxx X. XxXxxxxxxx,
Manager. All such Notices to Lender shall be sent to Guaranty Federal Bank,
F.S.B., 0000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxx 00000, Attention: Mr. Xxx Xxxxxxx.
Any party may change its address by notifying the others of such change.
8. ATTORNEYS FEES. If there is any legal action or proceeding between
the parties arising from or based upon this Agreement, the unsuccessful party
or parties to such action or proceedings shall pay to the prevailing party all
costs and expenses, including reasonable attorneys' fees and disbursements
incurred by the prevailing party in such action or proceeding and in any appeal
in connection therewith, and such costs, expenses, attorneys' fees and
disbursements shall be included in and as part of such judgment.
9. AUTHORITY. Each party hereto represents and warrants to the other
parties that (i) the person or persons executing this Agreement on behalf of
such party is duly authorized to execute this Agreement on behalf of such
party, and (ii) such party has the right, power and authority to execute and
deliver this document to the other parties and to perform its obligations as
set forth herein. Each corporation shall deliver to the other parties herein a
copy of the resolution of its Board of Directors authorizing the execution of
this Agreement and naming the officers that are authorized to execute this
Agreement on its behalf, which copy shall be certified by the corporation's
Secretary as correct and in full force and effect.
10. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of
which together shall constitute one original. This Agreement shall not be
effective until all parties' signatures have been so obtained. The parties
agree that this Agreement, documents ancillary to this Agreement, and related
documents to be entered into in connection with this Agreement will be
considered signed when the signature of a party is delivered by facsimile
transmission. Such facsimile signature shall be treated in all respects as
having the same effect as an original signature.
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IN WITNESS WHEREOF, Debtor, Secured Party and Networks have executed this
Agreement on the dates set forth with their respective signatures.
Debtor: Networks:
INFORMIX CORPORATION, NETWORKS ASSOCIATES, INC.,
a Delaware corporation a Delaware corporation
By: /s/ XXXX XXXXX By: /s/ XXXXXXX X. XXXXX
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Name: Xxxx Xxxxx Name: Xxxxxxx X. Xxxxx
----------------------------- ----------------------------
Titles: Vice President, Legal Title: CFO
and General Counsel ---------------------------
---------------------------
Date: 3/14/98
Date: March 13, 1998 ----------------------------
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Secured Party:
XXXX X. XxXXXXXXXX, LLC,
a California limited liability
company
By: /s/ XXXX X. XxXXXXXXXX
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Name: Xxxx X. XxXxxxxxxx
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Title: Manager
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Date:
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