PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this "Agreement") is made as of January 6,
1997, by INFORMIX CORPORATION, a Delaware corporation ("Informix"); BNP
LEASING CORPORATION, a Delaware corporation ("BNPLC"); BANQUE NATIONALE
DE PARIS as a "Participant"; and BANQUE NATIONALE DE PARIS, acting in
its capacity as agent for BNPLC and the Participants (in such capacity,
"Agent").
RECITALS
A. Informix and BNPLC are parties to: (i) a Lease Agreement
dated the date hereof (the "Lease"), pursuant to which BNPLC has agreed
to lease certain property to Informix; and (ii) a Purchase Agreement
dated the date hereof (the "Purchase Agreement") pursuant to which
Informix has agreed to purchase BNPLC's interest in such property or to
cause such property to be purchased from BNPLC by a third party.
B. Pursuant to a Participation Agreement dated the date hereof
(the "Participation Agreement"), BNP has agreed with BNPLC to
participate in the risks and rewards to BNPLC of the Lease and the
Purchase Agreement, and the parties to this Agreement anticipate that
other financial institutions may become parties to the Participation
Agreement as Participants, agreeing to participate in the risks and
rewards to BNPLC of the Lease and the Purchase
Agreement.
C. To reduce the Base Rent required by the Lease as therein
provided, Informix may from time to time deliver cash collateral for its
obligations to BNPLC under the Purchase
Agreement and for BNPLC's corresponding obligations to Participants
under the Participation Agreement. This Agreement sets forth the terms
and conditions governing such cash collateral.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for
other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
1 Definitions and Interpretation.
Section 1.1 Definitions. When used in this Agreement, the
following terms shall have the following respective meanings:
"Account" shall mean any deposit account maintained by a
Deposit Taker into which Cash Collateral may be deposited at any time,
excluding the Transition Account.
"Account Office" shall mean, with respect to any Account
maintained by any Deposit Taker, the office of such Deposit Taker at
which such Account is maintained.
"Agent" shall have the meaning given to that term in the
introductory paragraph hereof.
"BNPLC" shall have the meaning given to that term in the
introductory paragraph hereof.
"BNPLC's Corresponding Obligations to Participants" shall mean
BNPLC's obligations under the Participation Agreement to pay
Participants their respective Percentages of (or amounts equal to their
respective Percentages of) sums "actually received by BNPLC" (as defined
in the Participation Agreement) in satisfaction of Informix's Purchase
Agreement Obligations; provided, however, any modification of the
Participation Agreement executed after the date hereof without
Informix's consent shall not be considered for purposes of determining
BNPLC's Corresponding Obligations to Participants under this Agreement.
"Cash Collateral" shall mean (i) all funds of Informix which
Informix has delivered to Agent for deposit with a Deposit Taker
pursuant to this Agreement, and (ii) any additional funds delivered to
Agent as Collateral pursuant to Section 0.
"Certificate of Deposit" shall mean a certificate of deposit
issued by a Deposit Taker as required by Section 0 below to evidence an
Account into which Cash Collateral has been deposited pursuant to this
Agreement. Each Certificate of Deposit shall be issued in an amount
equal to the Value of the Account which it evidences and shall otherwise
be in the form set forth as Attachment 1.
"Collateral" shall have the meaning given to that term in
Section 0 hereof.
"Collateral Adjustment Fee" means the amount of $7,500,
payable to BNPLC as additional Rent under the Lease, if and to the
extent required from time to time by this Agreement.
"Collateral Imbalance" shall mean on any date prior to the
Designated Sale Date that the Value (without duplication) of Accounts
maintained by and Certificates of Deposit issued by the Deposit Taker
for any Participant (other than a Disqualified Deposit Taker) does not
equal such Participant's Percentage, multiplied by the lesser of (1) the
Minimum Collateral Value in effect on such date, or (2) the aggregate
Value of all Collateral subject to this Agreement on such date. For
purposes of determining whether a Collateral Imbalance exists, the Value
of any Accounts maintained by a bank that is acting as Deposit Taker for
two or more Participants will be deemed to be held for them in
proportion to their respective Percentages, and the Value of any
Accounts maintained by a bank as Deposit Taker for both a Participant
and BNPLC (as in the case of BNP acting as Deposit Taker for itself, as
a Participant, and for BNPLC) will be deemed to be held for the
Participant only to the extent necessary to prevent or mitigate a
Collateral Imbalance and otherwise for BNPLC.
"Collateral Percentage" shall mean the percentage designated
by Informix pursuant to Section 0.
"Default" means any Event of Default and any default, event or
condition which would, with the giving of any requisite notices and the
passage of any requisite periods of time, constitute an Event of
Default.
"Deposit Taker" for BNPLC shall mean BNP and for each
Participant shall mean the Participant itself; provided, that each of
BNPLC and the Participants, for itself only, may from time to time
designate another Deposit Taker as provided in Sections 0 and 0 below.
"Deposit Taker Losses" shall mean the Value of any Cash
Collateral delivered to a Deposit Taker that will not be returned to
Informix and will not be disposed of or applied by the Agent as provided
herein or as required by applicable law.
"Deposit Taker's Acknowledgment and Agreement" shall have the
meaning given to that term in subsection 0 hereof.
"Disqualified Deposit Taker" shall mean any Deposit Taker with
whom Agent may decline to deposit Collateral pursuant to Section 0.
"Event of Default" shall mean the occurrence of any of the
following:
(a) the failure by Informix to pay all or any part of
Informix's Purchase Agreement Obligations when due, after giving effect
to any applicable notice and grace periods expressly provided for in the
Purchase Agreement;
(b) the failure by Informix to provide funds as and
when required by Section 0 of this Agreement, if within three (3)
Business Days after such failure commences Informix does not (1) cure
such failure by delivering the funds required by Section 0, and (2) pay
to BNPLC as additional Rent under the Lease an amount equal to interest
at the Default Rate (as defined in the Lease) on such funds for the
period from which they were first due to the date of receipt by Agent,
and (3) pay to BNPLC a Collateral Adjustment Fee;
(c) the failure by Informix timely and properly to
observe, keep or perform any covenant, agreement, warranty or condition
herein required to be observed, kept or performed (other than a failure
described in another clause of this definition of Event of Default), if
such failure is not cured within thirty (30) days after Agent gives
Informix written notice thereof;
(d) the failure of any representation made by
Informix in subsection 0 to be true, if within fifteen (15) days after
Informix becomes aware of such failure, Informix does not (1) notify
Agent, BNPLC and the Participants of such failure, and (2) cure such
failure, and (3) pay to BNPLC any additional Base Rent that has accrued
under the Lease because of (or that would have accrued if BNPLC had been
aware of) such failure, and (4) pay to BNPLC interest at the Default
Rate on any such additional Base Rent, and (5) pay to BNPLC a Collateral
Adjustment Fee;
(e) the failure of any representation herein by
Informix to be true (other than a failure described in another clause of
this definition of Event of Default), if such failure is not cured
within thirty (30) days after Agent gives Informix written notice
thereof;
(f) the failure of the pledge or security interest
contemplated herein in the Transition Account or any Account,
Certificate of Deposit or Cash Collateral to be a valid, perfected,
first priority pledge or security interest (regardless of the
characterization of the Transition Account or any Accounts, Certificates
of Deposit or Cash Collateral as deposit accounts, instruments or
general intangibles under the UCC), if within fifteen (15) days after
Informix becomes aware of such failure, Informix does not (1) notify
Agent, BNPLC and the Participants of such failure, and (2) cure such
failure, and (3) pay to BNPLC any additional Base Rent that has accrued
under the Lease because of (or that would have accrued if BNPLC had been
aware of) such failure, and (4) pay to BNPLC interest at the Default
Rate on any such additional Base Rent, and (5) pay to BNPLC a Collateral
Adjustment Fee; and
(g) the failure by BNPLC to pay when due any of
BNPLC's Corresponding Obligations to Participants, after giving effect
to any applicable notice and grace periods expressly provided for in the
Participation Agreement.
Notwithstanding the foregoing, if ever the aggregate Value of Cash
Collateral held by Agent and the Deposit Takers exceeds the Minimum
Collateral Value then in effect, a failure of the pledge or security
interest contemplated herein in such excess Cash Collateral to be a
valid, perfected, first priority pledge or security interest shall not
constitute an Event of Default under this Agreement.
"Informix" shall have the meaning given to that term in the
introductory paragraph hereof.
"Informix's Purchase Agreement Obligations" shall mean all of
Informix's obligations under the Purchase Agreement, including (i)
Informix's obligation to pay the entire Purchase Price and Shortage
Amount, if any, as the case may be, as required under Paragraph 2(a) of
the Purchase Agreement if BNPLC elects to enforce specific performance
of the Purchase Agreement, and (ii) any damages incurred by BNPLC
because of (A) Informix's breach of the Purchase Agreement or (B) the
rejection by Informix of the Purchase Agreement in any bankruptcy or
insolvency proceeding.
"Lien" shall mean, with respect to any property or assets, any
right or interest therein of a creditor to secure indebtedness of any
kind which is owed to him or any other arrangement with such creditor
which provides for the payment of such indebtedness out of such property
or assets or which allows him to have such indebtedness satisfied out of
such property or assets prior to the general creditors of any owner
thereof, including any lien, mortgage, security interest, pledge,
deposit, production payment, rights of a vendor under any title
retention or conditional sale agreement or lease substantially
equivalent thereto, tax lien, mechanic's or materialman's lien, or any
other charge or encumbrance for security purposes, whether arising by
law or agreement or otherwise, but excluding any right of offset which
arises without agreement in the ordinary course of business. "Lien"
also means any filed financing statement, any registration with an
issuer of uncertificated securities, or any other arrangement which
would serve to perfect a Lien described in the preceding sentence,
regardless of whether such financing statement is filed, such
registration is made, or such arrangement is undertaken before or after
such Lien exists.
"Minimum Collateral Value" shall mean (1) as of the Designated
Sale Date or any prior date, an amount equal to the Collateral
Percentage multiplied by the Stipulated Loss Value determined as of that
date in accordance with the Lease; and (2) as of any date after the
Designated Sale Date, an amount equal to the Purchase Price plus any
unpaid interest on past due amounts that has accrued pursuant to
Paragraph 2(a) of the Purchase Agreement.
"Notice of Security Interest" shall have the meaning given to
that term in Subsection 0 hereof.
"Other Liable Party" shall mean any Person, other than
Informix, who may now or may at any time hereafter be primarily or
secondarily liable for any of the Secured Obligations or who may now or
may at any time hereafter have granted to Agent a Lien upon any of the
Collateral.
"Participants" shall mean BNP and any other financial
institutions which may hereafter become parties to (i) this Agreement by
completing, executing and delivering to Informix and Agent a Supplement,
and (ii) the Participation Agreement.
"Participation Agreement" shall have the meaning given to such
term in Recital B hereof.
"Percentage" shall mean with respect to each Participant and
the Deposit Taker for such Participant, such Participant's "Percentage"
as defined in the Participation Agreement.
"Qualified Deposit Taker" means one of the fifty largest
(measured by total assets) U.S. banks, or one of the one hundred largest
(measured by total assets) banks in the world, with debt ratings of at
least (i) A- (in the case of long term debt) and A-1 (in the case of
short term debt) or the equivalent thereof by Standard and Poor's
Corporation, and (ii) A (in the case of long term debt) and P-1 (in the
case of short term debt) or the equivalent thereof by Xxxxx'x Investor
Service, Inc. The parties believe it improbable that the ratings
systems used by Standard and Poor's Corporation and by Xxxxx'x Investor
Service, Inc. will be discontinued or changed, but if such ratings
systems are discontinued or changed, Informix shall be entitled to
select and use a comparable ratings systems as a substitute for the S&P
Rating or the Xxxxx Rating, as the case may be, for purposes of
determining the status of any bank as a Qualified Deposit Taker.
"Secured Obligations" shall mean and include both Informix's
Purchase Agreement Obligations and BNPLC's Corresponding Obligations to
Participants.
"Supplement" shall mean a supplement to this Agreement in the
form of Attachment 2.
"Transaction Documents" shall mean, collectively, this
Agreement, the Lease, the Purchase Agreement and the Participation
Agreement.
"Transition Account" shall have the meaning given it in
Section 5.2.
"UCC" shall mean the Uniform Commercial Code as in effect in
the State of California from time to time, and the Uniform Commercial
Code as in effect in any other jurisdiction which governs the perfection
or non-perfection of the pledge of and security interests in the
Collateral created by this Agreement.
"Value" shall mean with respect to any Account, Certificate of
Deposit or Cash Collateral on any date, a dollar value determined as
follows (without duplication):
(a) cash shall be valued at its face amount on such
date;
(b) an Account shall be valued at the principal
balance thereof on such date; and
(c) a Certificate of Deposit shall be valued at the face
amount thereof.
Section 1.2 Other Definitions. Reference is hereby made to the
Lease, the Purchase Agreement and the Participation Agreement for a
statement of the terms thereof. All capitalized terms used in this
Agreement which are defined in the Lease or the Purchase Agreement and
not otherwise defined herein shall have the same meanings herein as set
forth therein. All terms used in this Agreement which are defined in
the UCC and not otherwise defined herein shall have the same meanings
herein as set forth therein, except where the context otherwise
requires.
Section 1.3 Attachments. All attachments to this Agreement are a
part hereof for all purposes.
Section 1.4 Amendment of Defined Instruments. Unless the context
otherwise requires or unless otherwise provided herein, references in
this Agreement to a particular agreement, instrument or document
(including references to the Lease, Purchase Agreement and Participation
Agreement) also refer to and include all valid renewals, extensions,
amendments, modifications, supplements or restatements of any such
agreement, instrument or document; provided that nothing contained in
this Section shall be construed to authorize any Person to execute or
enter into any such renewal, extension, amendment, modification,
supplement or restatement.
Section 1.5 References and Titles. All references in this
Agreement to Attachments, Articles, Sections, subsections, and other
subdivisions refer to the Attachments, Articles, Sections, subsections
and other subdivisions of this Agreement unless expressly provided
otherwise. Titles appearing at the beginning of any subdivision are for
convenience only and do not constitute any part of any such subdivision
and shall be disregarded in construing the language contained in this
Agreement. The words "this Agreement", "herein", "hereof", "hereby",
"hereunder" and words of similar import refer to this Agreement as a
whole and not to any particular subdivision unless expressly so limited.
The phrases "this Article," "this Section" and "this subsection" and
similar phrases refer only to the Articles, Sections or subsections
hereof in which the phrase occurs. The word "or" is not exclusive, and
the word "including" (in all of its forms) means "including without
limitation". Pronouns in masculine, feminine and neuter gender shall be
construed to include any other gender, and words in the singular form
shall be construed to include the plural and vice versa unless the
context otherwise requires.
2 Pledge and Grant of Security Interest. As security for the
Secured Obligations, Informix hereby pledges and assigns to Agent (for
the ratable benefit of BNPLC and the Participants) and grants to Agent
(for the ratable benefit of BNPLC and the Participants) a continuing
security interest in all right, title and interest of Informix in and to
the following property, whether now owned or hereafter acquired by
Informix (collectively and severally, the "Collateral"):
(a) All Cash Collateral, all Accounts, the Transition
Account and all Certificates of Deposit issued from time to time and
general intangibles arising therefrom or relating thereto (provided,
however, in no event shall such general intangibles be deemed to include
any general intangibles not related to the foregoing, including, without
limitation, any intellectual property of Informix); and all documents,
instruments and agreements evidencing the same; all extensions,
renewals, modifications and replacements of the foregoing; and any
interest or other amounts payable in connection therewith; and
(b) All proceeds of the foregoing (including whatever is
receivable or received when Collateral or proceeds is invested, sold,
collected, exchanged, returned, substituted or otherwise disposed of,
whether such disposition is voluntary or involuntary, including rights
to payment and return premiums and insurance proceeds under insurance
with respect to any Collateral, and all rights to payment with respect
to any cause of action affecting or relating to the Collateral).
The pledge, assignment and grant of a security interest made by Informix
hereunder is for security of the Secured Obligations only; the parties
to this Agreement do not intend that Informix's delivery of the
Collateral to Agent as herein provided will constitute an advance
payment of any Secured Obligations or liquidated damages, nor do the
parties intend that the Collateral increase the dollar amount of the
Secured Obligations.
3 Setting the Collateral Percentage. Effective as of the date of
this Agreement, and so long as any portion of the Secured Obligations
remain outstanding, the Collateral Percentage is one hundred percent
(100%).
4 Provisions Concerning Deposit Takers.
Section 4.1 Qualification of Deposit Takers Generally. Agent may
decline to deposit or maintain Collateral hereunder with any Person
designated as a Deposit Taker, if such Person has failed to satisfy or
no longer satisfies the following requirements:
4.1.1 Such Person must have received from Agent and Informix
a completed, executed Notice of Security Interest in the form of
Attachment 3 (a "Notice of Security Interest") which specifically
identifies any and all Accounts in which such Person shall hold Cash
Collateral delivered to it pursuant to this Agreement and which
designates Account Offices with respect to all such Accounts in
California, New York, Illinois or another location approved by Agent and
Informix.
4.1.2 Such Person must have executed the Acknowledgement and
Agreement at the end of such Notice of Security Interest (the "Deposit
Taker's Acknowledgement and Agreement") and returned the same to Agent.
Further, such Person must have complied with the Deposit Taker's
Acknowledgement and Agreement, and the representations set forth therein
with respect to such Person must continue to be true and correct.
4.1.3 Such Person must be a commercial bank, organized under
the laws of the United States of America or a state thereof or under the
laws of another country which is doing business in the United States of
America; must be authorized to maintain deposit accounts for others
through Account Offices in California or New York (as specified in the
Deposit Taker's Acknowledgement and Agreement); must be an Affiliate of
BNPLC or the Participant for whom such Person will act as Deposit Taker
or must have a combined capital, surplus and undivided profits of at
least $500,000,000.
4.1.4 Such Person must have complied with the provisions in
this Agreement applicable to Deposit Takers, including the provisions of
Section 0 concerning the issuance and redemption of Certificates of
Deposit.
Section 4.2 Existing Deposit Takers. As of the date of this
Agreement, BNP (as Deposit Taker for itself and for BNPLC) has satisfied
the requirements set forth in the preceding Section for Deposit Takers.
Section 4.3 Replacement of Participants Proposed by Informix. So
long as no Event of Default has occurred and is continuing, BNPLC shall
not unreasonably withhold its approval for a substitution under the
Participation Agreement of a new Participant proposed by Informix for
any Participant, the Deposit Taker for whom has ceased to be a Qualified
Deposit Taker; provided, however, that (A) the proposed substitution can
be accomplished without a release or breach by BNPLC of its rights and
obligations under the Participation Agreement; (B) the new Participant
will agree (by executing Supplements to this Agreement and to the
Participation Agreement as contemplated herein and therein and by other
agreements as may be reasonably required by BNPLC and Informix) to
become a party to the Participation Agreement and to this Agreement, to
designate a Qualified Deposit Taker as the Deposit Taker for it under
this Agreement and to accept a Percentage under the Participation
Agreement equal to the Percentage of the Participant to be replaced; (C)
the new Participant (or Informix) will provide the funds required to pay
the termination fee by Section 6.4 of the Participation Agreement to
accomplish the substitution; (D) Informix (or the new Participant)
agrees in writing to indemnify and defend BNPLC for any and all Losses
incurred by BNPLC in connection with or because of the substitution,
including the cost of preparing supplements to the Participation
Agreement and this Agreement and including any cost of defending and
paying any claim asserted by the Participant to be replaced because of
the substitution (but not including any liability of BNPLC to such
Participant for damages caused by BNPLC's bad faith or gross negligence
in the performance of BNPLC's obligations under the Participation
Agreement prior to the substitution); (E) the new Participant shall be a
reputable financial institution having a net worth of no less than seven
and one half percent (7.5%) of total assets and total assets of no less
than $10,000,000,000.00 (all according to then recent audited financial
statements); and (F) in no event will BNPLC be required to approve a
substitution pursuant to this Section 0 which will replace a Participant
that is an Affiliate of BNPLC. BNPLC shall attempt in good faith to
assist (and cause its Affiliate, Banque Nationale de Paris, to attempt
in good faith to assist) Informix in identifying a new Participant that
Informix may propose to substitute for an existing Participant pursuant
to this Paragraph, as Informix may reasonably request from time to time.
However, in no event shall BNPLC itself, or any of its Affiliates, be
required to take the Percentage of any Participant to be replaced.
Section 4.4 Mandatory Substitution for Disqualified Deposit
Takers. If any Deposit Taker shall cease to satisfy the requirements
set forth in Section 0, the party for whom such Disqualified Deposit
Taker has been designated as Deposit Taker (i.e., BNPLC or the
applicable Participant) shall promptly (1) provide notice thereof to
Agent and Informix, and (2) designate a substitute Deposit Taker and
cause the substitute to satisfy the requirements set forth in Section 0.
Pending the designation of the substitute and the satisfaction by it of
the requirements set forth in Section 0, Agent may withdraw Collateral
held by the Disqualified Deposit Taker and deposit such Collateral with
other Deposit Takers, subject to Section 0 below.
Section 4.5 Voluntary Substitution of Deposit Takers. With the
written approval of Agent, which approval will not be unreasonably
withheld, the Deposit Taker for BNPLC or any Participant shall be
replaced by any Person designated by BNPLC or the applicable
Participant, as the case may be; provided, such Person has satisfied the
requirements set forth in Section 0; and, provided further, unless the
replacement is required by Section 0, at the time of the replacement
such Person must be a Qualified Deposit Taker.
Section 4.6 Delivery of Notice of Security Interest by Informix
and Agent. To the extent required to permit the substitution or
replacement of a Deposit Taker for BNPLC or any Participant as provided
in Sections 0 and 0, Informix and Agent shall promptly execute and
deliver any properly completed Notice of Security Interest requested by
BNPLC or the applicable Participant.
Section 4.7 Constructive Possession of Collateral. The possession
by a Deposit Taker of any deposit accounts, money, instruments, chattel
paper or other property constituting Collateral or evidencing Collateral
shall be deemed to be possession by Agent or a person designated by
Agent, for purposes of perfecting the security interest granted to Agent
hereunder pursuant to the UCC, to the extent applicable; and
notifications to a Deposit Taker by other Persons holding any such
property, and acknowledgements, receipts or confirmations from any such
Persons delivered to a Deposit Taker, shall be deemed notifications to,
or acknowledgements, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of such Deposit Taker
for the benefit of Agent for the purposes of perfecting such security
interests under Applicable Law.
Section 4.8 Attempted Offset by Deposit Takers. By delivery of a
Deposit Taker's Acknowledgement and Agreement, each Deposit Taker shall
be required to agree not to setoff or attempt a setoff, without in each
case first obtaining the prior written authorization of Agent, amounts
owed to it, including any Secured Obligations, against any Collateral
held by it from time to time. Any Deposit Taker for BNPLC or a
Participant shall not be permitted by BNPLC or the applicable
Participant, as the case may be, to violate such agreement. However,
Informix acknowledges and agrees that Agent shall not be responsible
for, or be deemed to have taken any action against Informix because of,
any Deposit Taker's violation of such agreement; and, neither BNPLC nor
any Participant shall be responsible for, or be deemed to have taken any
action against Informix because of, any violation of such agreement by a
Deposit Taker for another party.
Section 4.9 Deposit Taker Losses. Agent shall not be responsible
for any Deposit Taker Losses. If for any reason, however, Deposit Taker
Losses with respect to a Deposit Taker for a particular Participant will
exceed the amount of payments in satisfaction of Secured Obligations
that such Participant would have been entitled to receive under the
Participation Agreement absent such Deposit Takers Losses, then such
Participant shall promptly pay the excess to Agent as additional
Collateral hereunder.
5 Delivery and Maintenance of Cash Collateral.
Section 5.1 Delivery of Funds by Informix. On the date hereof and
on each Base Rent Date, Informix must deliver to Agent, subject to the
pledge and security interest created hereby, funds as Cash Collateral
then needed (if any) to cause the Value of the Collateral to be no less
than the Minimum Collateral Value. Each delivery of funds required by
the preceding sentence must be received by Agent no later than 12:00
noon (San Francisco time) on the Base Rent Date it is required; if
received after 12:00 noon it will be considered for purposes of the
Lease as received on the next following Business Day. At least ten (10)
Business Days prior to any Base Rent Date upon which it is expected that
Informix will be required to deliver additional funds pursuant to this
Section, Informix shall notify BNPLC, Agent and each of the Participants
thereof and of the amount Informix expects to deliver to Agent as Cash
Collateral on the applicable Base Rent Date. In addition to required
deliveries of Cash Collateral as provided in the foregoing provisions,
Informix may on any date (whether or not a Base Rent Date) deliver
additional Cash Collateral to Agent as necessary to prevent any Default
from becoming an Event of Default. Upon receipt of any funds delivered
to it by Informix as Cash Collateral, Agent shall immediately deposit
the same with the Deposit Takers in accordance with the requirements of
Sections 0 and 0 below.
Section 5.2 Transition Account. Pending deposit in the Accounts
or other application as provided herein, all Cash Collateral received by
Agent shall be credited to and held by Agent in an account (the
"Transition Account") styled "Informix Collateral Account, held for the
benefit of BNPLC and the Participants," separate and apart from all
other property and funds of Informix or other Persons, and no other
property or funds shall be deposited in the Transition Account. The
books and records of Agent shall reflect that the Transition Account and
all Cash Collateral on deposit therein are owned by Informix, subject to
a pledge and security interest in favor of Agent for the benefit of
BNPLC and Participants.
Section 5.3 Allocation of Cash Collateral Among Deposit Takers.
Funds received by Agent from Informix as Cash Collateral will be
allocated for deposit among the Deposit Takers as follows:
first, to the extent possible the funds will be allocated as
required to rectify and prevent any Collateral Imbalance; and
second, the funds will be allocated to the Deposit Taker for BNPLC,
unless the Deposit Taker for BNPLC has become a Disqualified Deposit
Taker, in which case the funds will be allocated to other Deposit Takers
who are not Disqualified Deposit Takers as Agent deems appropriate.
Further, if for any reason a Collateral Imbalance is determined by Agent
to exist, Agent shall, as required to rectify or mitigate the Collateral
Imbalance, promptly reallocate Collateral among Deposit Takers by
withdrawing Cash Collateral from some Accounts and redepositing it in
other Accounts. (If any party to this Agreement believes that the Value
of the Accounts held by a particular Deposit Taker causes a Collateral
Imbalance to exist, that party will promptly notify BNPLC, Informix and
Agent.) Subject to the foregoing, and provided that Agent does not
thereby create or exacerbate a Collateral Imbalance, Agent may withdraw
and redeposit Cash Collateral in order to reallocate the same among
Deposit Takers from time to time as Agent deems appropriate. For
purposes of illustration only, examples of the allocations required by
this Section are set forth in Attachment 4.
Section 5.4 Issuance and Redemption of Certificates of Deposit.
Upon the receipt of any deposit of Cash Collateral from Agent, each
Deposit Taker shall issue a Certificate of Deposit evidencing the
Account into which such deposit is made and deliver such Certificate of
Deposit to Agent for the benefit of BNPLC and the Participants. Upon
depositing any Cash Collateral into an Account that is already evidenced
by an outstanding Certificate of Deposit, Agent will surrender the
outstanding Certificate of Deposit, and in exchange the Deposit Taker
receiving the deposit will issue a new Certificate of Deposit,
evidencing the total amount of Cash Collateral in the Account after the
deposit. A Deposit Taker that has issued a Certificate of Deposit may
require the surrender of the Certificate of Deposit as a condition to a
withdrawal from the Account evidenced thereby, including any withdrawal
required or permitted by this Agreement. Upon surrender of a
Certificate of Deposit in connection with a withdrawal of less than all
of the Cash Collateral in the Account evidenced thereby, the applicable
Deposit Taker will concurrently issue a new Certificate of Deposit to
Agent, evidencing the balance of the Cash Collateral remaining on
deposit in the Account after the withdrawal. Notwithstanding the
foregoing, if any Certificate of Deposit held by Agent shall be
destroyed, lost or stolen, the Deposit Taker that issued the
Certificate, upon the written request of Agent, shall issue a new
Certificate of Deposit to Agent in lieu of and in substitution for the
Certificate of Deposit so destroyed, lost or stolen. However, as
applicant for the substituted Certificate of Deposit, Agent must
indemnify the applicable Deposit Taker against any liability on the
Certificate of Deposit destroyed, lost or stolen, and Agent shall
furnish to the Deposit Taker an affidavit of an officer of Agent setting
forth the fact of destruction, loss or theft and confirming the status
of Agent as holder of the Certificate of Deposit immediately prior to
the destruction, loss or theft. If any Certificate of Deposit held by
Agent shall become mutilated, the Deposit Taker that issued the
Certificate, upon the written request of Agent, shall issue a new
Certificate of Deposit to Agent in exchange and substitution for the
mutilated Certificate of Deposit. Agent shall hold all Certificates of
Deposit for the benefit of BNPLC and the Participants, subject to the
pledge and security interest created hereby.
Section 5.5 Status of the Accounts Under the Reserve Requirement
Regulations. Deposit Takers shall be permitted to structure the
Accounts as nonpersonal time deposits under 12 C.F.R., Part II, Chapter
204 (commonly known as "Regulation D"). Accordingly, each Deposit Taker
may require at least seven days advance notice of any withdrawal or
transfer of funds from Accounts it maintains and may limit the number of
withdrawals or transfers from such Accounts to no more than six in any
calendar month, notwithstanding anything to the contrary herein or in
any deposit agreement that Informix and any Deposit Taker may enter into
with respect to any Account. As necessary to satisfy the seven days
notice requirement with respect to withdrawals by Agent when required by
Informix pursuant to the provisions below, Agent shall notify Deposit
Takers promptly after receipt of any notice from Informix described in
subsection 0 or 0 or in Section 0.
Section 5.6 Acknowledgment by Informix that Requirements of this
Pledge Agreement are Commercially Reasonable. Informix acknowledges and
agrees that the requirements set forth herein concerning receipt,
deposit, withdrawal, allocation, application and distribution of Cash
Collateral by Agent, including the requirements and time periods set
forth in the next Article, are commercially reasonable.
6 Withdrawal of Cash Collateral. Informix may not withdraw Cash
Collateral, except as follows:
Section 6.1 Withdrawal of Collateral Prior to the Designated Sale
Date. Informix may require Agent to present Certificates of Deposit for
payment and withdraw Cash Collateral from Accounts on any date prior to
the Designated Sale Date and to deliver such Cash Collateral to
Informix, free and clear of all liens and security interests hereunder;
provided, however, that in each case:
6.1.1 Such withdrawal and delivery of the Cash Collateral to
Informix will not cause the Value of the remaining Collateral to be less
than the Minimum Collateral Value.
6.1.2 by a notice in the form of Attachment 5, Informix must
give Agent, BNPLC and the Participants notice of the required withdrawal
at least ten (10) Business Days prior to the date upon which the
withdrawal is to occur.
6.1.3 No Default or Event of Default shall have occurred and
be continuing at the time Informix gives the notice required by the
preceding subsection or on the date upon which the withdrawal is
required.
6.1.4 Informix must pay to Agent any and all costs incurred
by Agent in connection with the withdrawal, including (if applicable)
any early withdrawal penalties and other breakage charges specified at
or prior to the time any Account was initially established.
6.1.5 Agent shall determine the Accounts from which to make
any withdrawal required by Informix pursuant to this Section as
necessary to prevent or mitigate any Collateral Imbalance.
Section 6.2 Withdrawal and Application of Cash Collateral to
Reduce or Satisfy the Secured Obligations to the Participants. To
reduce the Purchase Price under and as defined in the Purchase Agreement
(and, thus, the Secured Obligations), Informix may require Agent to
withdraw a percentage (equal to the aggregate of all Participants'
Percentages) of the total Cash Collateral then held by or for Agent
pursuant to this Agreement on the Designated Sale Date (regardless of
whether an Event of Default shall have occurred and be continuing on the
Designated Sale Date) and to deliver the same, free and clear of all
liens and security interests hereunder, directly to the Participants in
proportion to their respective Percentages; provided, that:
6.2.1 by a notice in the form of Attachment 6, Informix must
have notified Agent, BNPLC and each of the Participants of the required
withdrawal and payment to Participants at least ten (10) Business Days
prior to the Designated Sale Date upon which it is to occur; and
6.2.2 the required withdrawal shall be made as determined by
Agent, first, from the Accounts maintained by the Deposit Takers for the
Participants, and then (to the extent necessary) from other Accounts.
Section 6.3 Withdrawal and Application of Cash Collateral to
Reduce or Satisfy the Secured Obligations to BNPLC. To satisfy
Informix's Purchase Agreement Obligations, Informix may require Agent to
withdraw any Cash Collateral held by the Deposit Taker for BNPLC
pursuant to this Agreement on the Designated Sale Date (regardless of
whether an Event of Default shall have occurred and be continuing on the
Designated Sale Date) and to deliver the same, free and clear of all
liens and security interests hereunder, directly to BNPLC as a payment
on behalf of Informix of amounts due under the Purchase Agreement;
provided, that by a notice in the form of Attachment 7, Informix must
have notified Agent and BNPLC of the required withdrawal and payment to
BNPLC at least ten (10) Business Days prior to the Designated Sale Date.
Section 6.4 Withdrawal of Cash Collateral From Accounts Maintained
by Disqualified Deposit Takers. Informix may from time to time require
Agent to withdraw any or all Cash Collateral from any Account maintained
by a Disqualified Deposit Taker and deposit it, still subject to the
pledge and grant of security interest hereunder, with other Deposit
Takers who are not Disqualified Deposit Takers (in accordance with the
requirements of Section 0 and 0) on any date prior to the Designated
Sale Date; provided, that by a notice in the form of Attachment 8,
Informix must have notified Agent, BNPLC and each of the Participants of
the required withdrawal at least ten (10) Business Days prior to the
date upon which it is to occur.
Section 6.5 Withdrawal and Application of Cash Collateral to Pay
the Release Price Required by Paragraph 9(b) of the Lease. To pay the
Release Price under and as defined in the Lease (and to thereby reduce
Stipulated Loss Value under and as defined in the Lease, which will in
turn reduce the Secured Obligations), Informix may require Agent to
present Certificates of Deposit for payment and withdraw Cash Collateral
from Accounts on any date the Release Price must be paid and to deliver
such Cash Collateral to BNPLC for application against the Release Price
then due, free and clear of all liens and security interests hereunder;
provided, however, that in each case:
6.5.1 Such withdrawal and delivery of the Cash Collateral to
BNPLC will not cause the Value of the remaining Collateral to be less
than the Minimum Collateral Value (computed after any payment of the
Release Price in connection therewith).
6.5.2 by a notice in the form of Attachment 9, Informix must
give Agent, BNPLC and the Participants notice of the required withdrawal
at least ten (10) Business Days prior to the date upon which the
withdrawal is to occur.
6.5.3 No Default or Event of Default shall have occurred and
be continuing at the time Informix gives the notice required by the
preceding subsection or on the date upon which the withdrawal is
required.
6.5.4 Informix must pay to Agent any and all costs incurred
by Agent in connection with the withdrawal, including (if applicable)
any early withdrawal penalties and other breakage charges specified at
or prior to the time any Account was initially established.
6.5.5 Agent shall determine the Accounts from which to make
any withdrawal required by Informix pursuant to this Section as
necessary to prevent or mitigate any Collateral Imbalance.
7 Representations and Covenants of Informix.
Section 7.1 Representations of Informix. Informix represents to
BNPLC, Agent and the Participants as follows:
7.1.1 Informix is the legal and beneficial owner of the
Collateral (or, in the case of after-acquired Collateral, at the time
Informix acquires rights in the Collateral, will be the legal and
beneficial owner thereof). No other Person has (or, in the case of
after-acquired Collateral, at the time Informix acquires rights therein,
will have) any right, title, claim or interest (by way of Lien, purchase
option or otherwise) in, against or to the Collateral.
7.1.2 Agent has (or in the case of after-acquired Collateral,
at the time Informix acquires rights therein, will have) a valid, first
priority, perfected pledge of and security interest in the Collateral,
regardless of the characterization of the Collateral as deposit
accounts, instruments or general intangibles under the UCC, but assuming
that the representations of each Deposit Taker in its Deposit Taker's
Acknowledgment and Agreement are true.
7.1.3 Informix has delivered to Agent, together with all
necessary stock powers, endorsements, assignments and other necessary
instruments of transfer, the originals of all documents, instruments and
agreements evidencing Accounts, Certificates of Deposit or Cash
Collateral.
7.1.4 Informix's chief executive office is located at the
address of Informix set forth in Section 12.1(b) hereof.
7.1.5 To the knowledge of Informix, neither the ownership or
the intended use of the Collateral by Informix, nor the pledge of
Accounts or the grant of the security interest by Informix to Agent
herein, nor the exercise by Agent of its rights or remedies hereunder,
will (i) violate any provision of (a) Applicable Law, (b) the articles
or certificate of incorporation, charter or bylaws of Informix, or (c)
any agreement, judgment, license, order or permit applicable to or
binding upon Informix, or (ii) result in or require the creation of any
Lien, charge or encumbrance upon any assets or properties of Informix
except as expressly contemplated in this Agreement. Except as expressly
contemplated in this Agreement, to the knowledge of Informix no consent,
approval, authorization or order of, and no notice to or filing with any
court, governmental authority or third party is required in connection
with the pledge or grant by Informix of the security interest
contemplated herein or the exercise by Agent of its rights and remedies
hereunder.
Section 7.2 Covenants of Informix. Informix hereby agrees as
follows:
7.2.1 Informix, at Informix's expense, shall promptly
procure, execute and deliver to Agent all documents, instruments and
agreements and perform all acts which are necessary or desirable, or
which Agent may request, to establish, maintain, preserve, protect and
perfect the Collateral, the pledge thereof to Agent or the security
interest granted to Agent therein and the first priority of such pledge
or security interest or to enable Agent to exercise and enforce its
rights and remedies hereunder with respect to any Collateral. Without
limiting the generality of the preceding sentence, Informix shall (A)
procure, execute and deliver to Agent all stock powers, endorsements,
assignments, financing statements and other instruments of transfer
requested by Agent, (B) deliver to Agent promptly upon receipt all
originals of Collateral consisting of instruments, documents and chattel
paper and (C) cause the security interest of Agent in any Collateral
consisting of securities to be recorded or registered in the books of
any financial intermediary or clearing corporation requested by Agent.
7.2.2 Informix shall not use or permit any Collateral to be
used in violation of any provision of the this Agreement or any other
Transaction Document or any Applicable Law.
7.2.3 Informix shall pay promptly when due all taxes and
other governmental charges, all Liens and all other charges now or
hereafter imposed upon, relating to or affecting any Collateral (but
this provision shall not be construed to make Informix for taxes on net
income earned by any Deposit Taker).
7.2.4 Without thirty (30) days' prior written notice to
Agent, Informix shall not change Informix's name or place of business
(or, if Informix has more than one place of business, its chief
executive office).
7.2.5 Informix shall appear in and defend, on behalf of
Agent, any action or proceeding which may affect Informix's title to or
Agent's interest in the Collateral.
7.2.6 Subject to the express rights of Informix under Article
0, Informix shall not surrender or lose possession of (other than to
Agent or a Deposit Taker pursuant hereto), sell, encumber, lease, rent,
option, or otherwise dispose of or transfer any Collateral or right or
interest therein, and Informix shall keep the Collateral free of all
Liens.
7.2.7 Informix will not take any action which would in any
manner impair the value or enforceability of Agent's pledge of or
security interest in any Collateral, nor will Informix fail to take any
action which is required to prevent (and which Informix knows is
required to prevent) an impairment of the value or enforceability of
Agent's pledge of or security interest in any Collateral.
7.2.8 Informix shall pay (and shall indemnify and hold
harmless Agent from and against) all Losses incurred by Agent in
connection with or because of (A) the interest acquired by Agent in any
Collateral pursuant to this Agreement, or (B) the negotiation or
administration of this Agreement, whether such Losses are incurred at
the time of execution of this Agreement or at any time in the future.
Costs and expenses included in such Losses may include, without
limitation, all filing and recording fees, taxes, Uniform Commercial
Code search fees and Attorneys' Fees incurred by Agent with respect to
the Collateral. As used in this subsection the term "Agent" shall refer
not only to the Person designated as such in the introductory paragraph
of this Agreement, but also to each director, officer, agent, attorney,
employee, representative and Affiliate of such Person.
8 Authorized Action by Agent. Informix hereby irrevocably appoints
Agent as its attorney-in-fact for the purpose of authorizing Agent to
perform (but Agent shall not be obligated to and shall incur no
liability to Informix or any third party for failure to perform) any act
which Informix is obligated by this Agreement to perform, and to
exercise, consistent with the other provisions of this Agreement, such
rights and powers as Informix might exercise with respect to the
Collateral during any period in which a Default or Event of Default has
occurred and is continuing, including the right to (a) collect by legal
proceedings or otherwise and endorse, receive and receipt for all
dividends, interest, payments, proceeds and other sums and property now
or hereafter payable on or on account of the Collateral; (b) enter into
any extension, reorganization, deposit, merger, consolidation or other
agreement pertaining to, or deposit, surrender, accept, hold or apply
other property in exchange for the Collateral; (c) insure, process,
preserve and enforce the Collateral; (d) make any compromise or
settlement, and take any action it deems advisable, with respect to the
Collateral; (e) pay any indebtedness of Informix relating to the
Collateral; and (f) execute UCC financing statements and other
documents, instruments and agreements required hereunder. Informix
agrees that such care as Agent gives to the safekeeping of its own
property of like kind shall constitute reasonable care of the Collateral
when in Agent's possession; provided, however, that Agent shall not be
obligated to Informix to give any notice or take any action to preserve
rights against any other Person in connection with the Secured
Obligations or with respect to the Collateral.
9 Default and Remedies. In addition to all other rights and
remedies granted to Agent, BNPLC or the Participants by this Agreement,
the Lease, the Purchase Agreement, the Participation Agreement, the UCC
and other Applicable Laws, Agent may, upon the occurrence and during the
continuance of any Event of Default, exercise any one or more of the
following rights and remedies, all of which will be in furtherance of
its rights as a secured party under the UCC:
(a) Agent may collect, receive, appropriate or realize
upon the Collateral or otherwise foreclose or enforce the pledge of or
security interests in any or all Collateral in any manner permitted by
Applicable Law or in this Agreement; and
(b) Agent may notify any or all Deposit Takers to pay all
or any portion of the Collateral held by such Deposit Taker(s) directly
to Agent.
Agent shall distribute the proceeds of all Collateral received by Agent
after the occurrence of an Event of Default to BNPLC and the
Participants for application to the Secured Obligations. If any
proceeds of Collateral remain after all Secured Obligations have been
paid in full, Agent will deliver or direct the Deposit Takers to deliver
such proceeds to Informix or other Persons entitled thereto. In any
case where notice of any sale or disposition of any Collateral is
required, Informix hereby agrees that seven (7) Business Days notice of
such sale or disposition is reasonable.
10 Other Recourse. To the fullest extent permitted by applicable
law, Informix waives any right to require that Agent, BNPLC or the
Participants proceed against any other Person, exhaust any Collateral or
other security for the Secured Obligations, or to have any Other Liable
Party joined with Informix in any suit arising out of the Secured
Obligations or this Agreement, or pursue any other remedy in their
power. Informix waives any and all notice of acceptance of this
Agreement. Informix further waives notice of the creation,
modification, rearrangement, renewal or extension for any period of any
of the Secured Obligations of any Other Liable Party from time to time
and any defense arising by reason of any disability or other defense of
any Other Liable Party or by reason of the cessation from any cause
whatsoever of the liability of any Other Liable Party. Until all of the
Secured Obligations shall have been paid in full, Informix shall have no
right to subrogation, reimbursement, contribution or indemnity against
any Other Liable Party and Informix waives the right to enforce any
remedy which Agent, BNPLC or any Participant has or may hereafter have
against any Other Liable Party, and waives any benefit of and any right
to participate in any other security whatsoever now or hereafter held by
Agent, BNPLC or any Participant. Informix authorizes Agent, BNPLC and
the Participants, without notice or demand and without any reservation
of rights against Informix and without affecting Informix's liability
hereunder or on the Secured Obligations, from time to time to (a) take
or hold any other property of any type from any other Person as security
for the Secured Obligations, and exchange, enforce, waive and release
any or all of such other property, (b) after any Event of Default, apply
or require the application of the Collateral (in accordance with this
Agreement) or such other property in any order they may determine and to
direct the order or manner of sale thereof as they may determine, (c)
renew, extend for any period, accelerate, modify, compromise, settle or
release any of the obligations of any Other Liable Party with respect to
any or all of the Secured Obligations or other security for the Secured
Obligations, and (d) release or substitute any Other Liable Party.
11 Provisions Concerning Agent. In the event of any conflict
between the following and other provisions in this Agreement, the
following will control:
Section 11.1 Appointment and Authority. BNPLC and each
Participant hereby irrevocably authorizes Agent, and Agent hereby
undertakes, to take all actions and to exercise such powers under this
Agreement as are specifically delegated to Agent by the terms hereof,
together with all other powers reasonably incidental thereto. The
relationship of Agent to the Participants is only that of one commercial
bank acting as collateral agent for others, and nothing herein shall be
construed to constitute Agent a trustee or other fiduciary for any
Participant or anyone claiming through or under a Participant nor to
impose on Agent duties and obligations other than those expressly
provided for in this Agreement. With respect to any matters not
expressly provided for in this Agreement and any matters which this
Agreement places within the discretion of Agent, Agent shall not be
required to exercise any discretion or take any action, and it may
request instructions from BNPLC and Participants with respect to any
such matter, in which case it shall be required to act or to refrain
from acting (and shall be fully protected and free from liability to all
Participants in so acting or refraining from acting) upon the
instructions of the Majority, as defined in the Participation Agreement,
including itself as a Participant and BNPLC; provided, however, that
Agent shall not be required to take any action which exposes it to a
risk of personal liability that it considers unreasonable or which is
contrary to this Agreement or the other documents referenced herein or
to Applicable Law.
Section 11.2 Exculpation, Agent's Reliance, Etc. Neither Agent
nor any of its directors, officers, agents, attorneys, or employees
shall be liable for any action taken or omitted to be taken by any of
them under or in connection with this Agreement, INCLUDING THEIR
NEGLIGENCE OF ANY KIND, except that this sentence shall not excuse any
such Person from liability for its own Misconduct. Without limiting the
generality of the foregoing, Agent (1) may treat the rights of any
Participant under its Participation Agreement as continuing until Agent
receives written notice of the assignment or transfer of those rights in
accordance with such Participation Agreement, signed by such Participant
and in form satisfactory to Agent; (2) may consult with legal counsel
(including counsel for Informix), independent public accountants and
other experts selected by it and shall not be liable for any action
taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts, unless the action taken
or omitted constitutes Misconduct; (3) makes no warranty or
representation and shall not be responsible for any statements,
warranties or representations made in or in connection with this
Agreement or the other documents referenced herein; (4) shall not have
any duty to ascertain or to inquire as to the performance or observance
of any of the terms, covenants or conditions of the Transaction
Documents on the part of any party thereto, or to inspect the property
(including the books and records) of any party thereto; (5) shall not be
responsible to any Participant for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of any
Transaction Document or any instrument or document furnished in
connection therewith; (6) may rely upon the representations and
warranties of Informix, Participants and Deposit Takers in exercising
its powers hereunder; and (6) shall incur no liability under or in
respect of the Transaction Documents by acting upon any notice, consent,
certificate or other instrument or writing (including any telecopy,
telegram, cable or telex) believed by it to be genuine and signed or
sent by the proper Person or Persons.
Section 11.3 Participant's Credit Decisions. Each Participant
acknowledges that it has, independently and without reliance upon Agent
or any other Participant, made its own analysis of Informix and the
transactions contemplated hereby and its own independent decision to
enter into the Transaction Documents to which it is a party. Each
Participant also acknowledges that it will, independently and without
reliance upon Agent or any other Participant and based on such documents
and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the
Transaction Documents.
Section 11.4 Indemnity. Each Participant agrees to indemnify
Agent (to the extent not reimbursed by Informix within ten (10) days
after demand) from and against such Participant's Percentage of any and
all Losses of any kind or nature whatsoever which to any extent (in
whole or in part) may be imposed on, incurred by, or asserted against
Agent growing out of, resulting from or in any other way associated with
any of the Collateral, the Transaction Documents and the transactions
and events (including the enforcement thereof) at any time associated
therewith or contemplated therein. THE FOREGOING INDEMNIFICATION SHALL
APPLY WHETHER OR NOT SUCH LOSSES ARE IN ANY WAY OR TO ANY EXTENT OWED,
IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY, OR
ARE CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY
KIND BY AGENT, PROVIDED ONLY THAT NO PARTICIPANT SHALL BE OBLIGATED
UNDER THIS SECTION TO INDEMNIFY AGENT FOR THAT PORTION, IF ANY, OF ANY
LOSS WHICH IS PROXIMATELY CAUSED BY AGENT'S OWN INDIVIDUAL MISCONDUCT,
AS DETERMINED IN A FINAL JUDGMENT RENDERED AGAINST AGENT. Cumulative of
the foregoing, each Participant agrees to reimburse Agent promptly upon
demand for such Participant's Percentage Share of any costs and expenses
to be paid to Agent by Informix hereunder to the extent that Agent is
not timely reimbursed by Informix as provided in the subsection 0. As
used in this Section the term "Agent" shall refer not only to the Person
designated as such in the introductory paragraph of this Agreement, but
also to each director, officer, agent, attorney, employee,
representative and Affiliate of such Person.
Section 11.5 Rights as Participant and Deposit Taker. In its
capacity as a Participant, Agent shall have the same rights and
obligations as any Participant and may exercise such rights as though it
were not Agent. In its capacity as a Deposit Taker, Agent shall have
the same rights and obligations as any Deposit Taker and may exercise
such rights as though it were not Agent. Agent and any of its
Affiliates may accept deposits from, lend money to, act as Trustee under
indentures of, and generally engage in any kind of business with
Informix or its Affiliates, all as if Agent were not designated as the
Agent hereunder and without any duty to account therefor to any other
Participant.
Section 11.6 Investments. Whenever Agent in good faith determines
that it is uncertain about how to distribute any funds which it has
received hereunder, or whenever Agent in good faith determines that
there is any dispute among BNPLC and Participants about how such funds
should be distributed, Agent may choose to defer distribution of the
funds which are the subject of such uncertainty or dispute. If Agent in
good faith believes that the uncertainty or dispute will not be promptly
resolved, or if Agent is otherwise required to invest funds pending
distribution, Agent shall invest such funds pending distribution, all
interest on any such investment shall be distributed upon the
distribution of such investment and in the same proportion and to the
same Persons as such investment. All moneys received by Agent for
distribution to BNPLC or Participants shall be held by Agent pending
such distribution solely as Agent hereunder, and Agent shall have no
equitable title to any portion thereof.
Section 11.7 Benefit of Section 0. The provisions of this Article
0 (other than the following Section 0) are intended solely for the
benefit of Agent, BNPLC and Participants, and Informix shall not be
entitled to rely on any such provision or assert any such provision in a
claim or defense against Agent, BNPLC or any Participant. Agent, BNPLC
and Participants may waive or amend such provisions as they desire
without any notice to or consent of Informix.
Section 11.8 Resignation. Agent may resign at any time by giving
written notice thereof to BNPLC, Participants and Informix. Upon any
such resignation the Majority (as defined in the Participation
Agreement) shall have the right to appoint a successor Agent, subject to
Informix's consent, such consent not to be unreasonably withheld. A
successor must be appointed for any retiring Agent, and such Agent's
resignation shall become effective when such successor accepts such
appointment. If, within thirty days after the date of the retiring
Agent's resignation, no successor Agent has been appointed and has
accepted such appointment, then the retiring Agent may appoint a
successor Agent, which shall be a commercial bank organized or licensed
to conduct a banking or trust business under the laws of the United
States of America or of any state thereof. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, the retiring Agent
shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation hereunder, the
provisions of this Article 0 shall continue to inure to its benefit as
to any actions taken or omitted to be taken by it while it was Agent.
12 Miscellaneous.
Section 12.1 Payments. All payments and deliveries of funds
required to be made by Informix to Agent hereunder shall be paid or
delivered to Agent in immediately available funds by wire transfer to:
Federal Reserve Bank of San Francisco
Account: Banque Nationale de Paris (for further
credit to Informix Collateral Account
held for the benefit of BNPLC and
Participants)
ABA #: 000000000
Reference: Informix (Receipts of Collateral).
or at such other place and in such other manner as Agent may designate
in a notice sent to Informix in accordance herewith (provided BNPLC will
not unreasonably designate a method of payment other than wire
transfer). Time is of the essence as to all payments and deliveries of
funds by Informix to Agent under this Agreement. Any payments or return
of funds required to be made by Agent to Informix pursuant to this
Agreement shall be paid to Informix in immediately available funds by
wire transfer to: Informix Software, Inc., Account No.: 00000-00000,
Bank of America, 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000,
ABA#: 000000000; or as Informix may otherwise direct by written notice
sent to Agent in accordance herewith (provided Informix will not
unreasonably designate a method of payment other than wire transfer).
Section 12.2 Notices. All notices, demands and other
communications to be made hereunder to the parties hereto shall be in
writing (at the addresses set forth below) and shall be given by any of
the following means: (A) personal service, with proof of delivery or
attempted delivery retained; (B) electronic communication, whether by
telex, telegram or telecopying (if confirmed in writing sent by United
States first class mail, return receipt requested); or (C) registered or
certified first class mail, return receipt requested. Such addresses
may be changed by notice to the other parties given in the same manner
as provided above. Any notice or other communication sent pursuant to
clause (A) or (C) hereof shall be deemed received (whether or not
actually received) upon first attempted delivery at the proper notice
address on any Business Day between 9:00 A.M. and 5:00 P.M., and any
notice or other communication sent pursuant to clause (B) hereof shall
be deemed received upon dispatch by electronic means.
Address of Informix:
Informix Corporation
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Treasurer
Telecopy: (000) 000-0000
With a copy to:
Wilson, Sonsini, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Real Estate Department/XXX
Telecopy: (000) 000-0000
Address of BNPLC:
BNP Leasing Corporation
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxx
Telecopy: (000) 000-0000
With a copy to:
Banque Nationale de Paris, San Francisco
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxx or
Xxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
And with a copy to:
Xxxxx Xxxxxx
Xxxxxxxx & Knight, P.C.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Address of Agent:
Banque Nationale de Paris, San Francisco
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxx or
Xxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
With a copy to:
Xxxxx Xxxxxx
Xxxxxxxx & Knight, P.C.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Address of Participants:
As set forth in Schedule 1
to the Participation Agreement
Section 12.3 Waivers; Amendments. Any term, covenant, agreement
or condition of this Agreement may be amended or waived only in writing
and signed by the parties hereto. No failure or delay by Agent, BNPLC
or any Participant in exercising any right hereunder shall operate as a
waiver thereof or of any other right nor shall any single or partial
exercise of any such right preclude any other further exercise thereof
or of any other right. Unless otherwise specified in any such waiver or
consent, a waiver or consent given hereunder shall be effective only in
the specific instance and for the specific purpose for which given.
Section 12.4 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of Informix, Agent, BNPLC and the
Participants which become parties hereto and their respective permitted
successors and assigns pursuant to a Permitted Transfer; provided,
however, that Participants may sell, assign and delegate their
respective rights and obligations hereunder only as permitted by the
Participation Agreement and the Lease.
Section 12.5 Partial Invalidity. If at any time any provision of
this Agreement is or becomes illegal, invalid or unenforceable in any
respect under the law or any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions of this Agreement
nor the legality, validity or enforceability of such provision under the
law of any other jurisdiction shall in any way be affected or impaired
thereby.
Section 12.6 Cumulative Rights, etc. Except as herein expressly
provided to the contrary, the rights, powers and remedies of Agent,
BNPLC and the Participants under this Agreement shall be in addition to
all rights, powers and remedies given to them by virtue of any
Applicable Law, any other Transaction Document or any other agreement,
all of which rights, powers, and remedies shall be cumulative and may be
exercised successively or concurrently without impairing their
respective rights hereunder. Informix waives any right to require
Agent, BNPLC or any Participant to proceed against any Person or to
exhaust any Collateral or to pursue any remedy in Agent's, BNPLC's or
such Participant's power.
Section 12.7 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of California
without reference to conflicts of law rules (except to the extent
otherwise provided in the UCC).
Section 12.8 Survival of Agreements. All representations and
warranties of Informix herein, and all covenants and agreements herein
shall survive the execution and delivery of this Agreement, the
execution and delivery of any other Transaction Documents and the
creation of the Secured Obligations and continue until terminated or
released as provided herein.
Section 12.9 Other Liable Party. Neither this Agreement nor the
exercise by Agent or the failure of Agent to exercise any right, power
or remedy conferred herein or by law shall be construed as relieving any
Other Liable Party from liability on the Secured Obligations or any
deficiency thereon. This Agreement shall continue irrespective of the
fact that the liability of any Other Liable Party may have ceased or
irrespective of the validity or enforceability of any other agreement
evidencing or securing the Secured Obligations to which Informix or any
Other Liable Party may be a party, and notwithstanding the
reorganization, death, incapacity or bankruptcy of any Other Liable
Party, or any other event or proceeding affecting any Other Liable
Party.
Section 12.10 Termination. Following the Designated Sale Date,
upon satisfaction in full of all Secured Obligations and upon written
request for the termination hereof delivered by Informix to Agent, (i)
this Agreement and the pledge and security interest created hereby shall
terminate and all rights to the Collateral shall revert to Informix and
(ii) Agent will, upon Informix's request and at Informix's expense
execute and deliver to Informix such documents as Informix shall
reasonably request to evidence such termination and release.
Section 12.11 Counterparts. This Agreement may be separately
executed in any number of counterparts, all of which when so executed
shall be deemed to constitute one and the same Pledge Agreement.
[The signature pages follow.]
IN WITNESS WHEREOF, Informix, BNPLC, Agent and the Participants
whose signatures appear below have caused this Agreement to be executed
as of the day and year first above written.
"Informix"
INFORMIX CORPORATION
By: /s/Xxxxxxxx X. Xxxxxx
Xxxxxxxx Xxxxxx, Vice President and Treasurer
[Continuation of signature pages to Pledge Agreement dated to be
effective January 6, 1997]
"BNPLC"
BNP LEASING CORPORATION
By: /s/Xxxxx X. Xxx
Xxxxx X. Xxx, Vice President
[Continuation of signature pages to Pledge Agreement dated to be
effective January 6, 1997]
"AGENT"
BANQUE NATIONALE DE PARIS
By: /s/Xxxxxxxx Xxx
Xxxxxxxx Xxx, Vice President
By: /s/Xxxxxxx Xxx
Xxxxxxx Xxx, Assistant Vice President
"PARTICIPANT"
BANQUE NATIONALE DE PARIS
By: /s/Xxxxxxxx Xxx
Xxxxxxxx Xxx, Vice President
By: /s/Xxxxxxx Xxx
Xxxxxxx Xxx, Assistant Vice President
ATTACHMENT 1
TO PLEDGE AGREEMENT
CERTIFICATE OF DEPOSIT
(No. _________)
[_________, _____]
[NAME OF THE ISSUING
DEPOSIT TAKER AND THE
ADDRESS OF ITS APPLICABLE
ACCOUNT OFFICE]
Payable to
the order of: BANQUE NATIONALE DE PARIS, as Agent under the Pledge
Agreement dated January 6, 1997 between it, BNP
Leasing Corporation, Informix Corporation and others
Dollars
in current funds, without interest, seven days after presentment of this
certificate properly endorsed.
The bank issuing this certificate certifies that on the date
indicated above the payee deposited the dollar amount indicated above,
and that such amount shall be payable as provided above.
Authorized Signature
ATTACHMENT 2
TO PLEDGE AGREEMENT
SUPPLEMENT TO PLEDGE AGREEMENT
[__________, ____]
Banque Nationale de Paris
____________________
____________________
____________________
Informix Corporation
____________________
____________________
____________________
1. Reference is made to the Pledge Agreement dated as of
January 6, 1997 (the "Pledge Agreement") among Informix Corporation
("Informix"), BNP Leasing Corporation ("BNPLC"), the financial
institutions which are from time to time participants under and as
defined in such Pledge Agreement (collectively, the "Participants") and
Banque Nationale de Paris, acting in its capacity as agent for BNPLC and
the Participants (in such capacity, "Agent"). Unless otherwise defined
herein, all capitalized terms used in this Supplement have the
respective meanings given to those terms in the Pledge Agreement.
2. The undersigned hereby certifies to Agent and Informix that
the undersigned has become a party to the Participation Agreement by
executing a supplement as provided therein and that its Percentage
thereunder is ______%.
3. The undersigned, by executing and delivering this Supplement
to Informix and Agent, hereby agrees to become a party to the Pledge
Agreement and agrees to be bound by all of the terms thereof applicable
to Participants. The Deposit Taker for the undersigned shall be
_________________, until such time as another Deposit Taker for the
undersigned shall be designated in accordance with Sections 0 or 0 of
the Pledge Agreement. The undersigned certifies to Agent and Informix
that such Deposit Taker is a Qualified Deposit Taker and satisfies the
requirements for a Deposit Taker set forth in Section 0 of the Pledge
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Supplement as
of the day and year indicated above.
[ ]
By:
Name:
Title:
ATTACHMENT 3
TO PLEDGE AGREEMENT
NOTICE OF SECURITY INTEREST
[_________, _____]
[Name of Deposit Taker]
[Address of Deposit Taker]
1. Reference is made to the Pledge Agreement dated as of
January 6, 1997 (the "Pledge Agreement") among Informix Corporation
("Informix"), BNP Leasing Corporation ("BNPLC"), the financial
institutions which are from time to time Participants under and as
defined in such Pledge Agreement (collectively, the "Participants") and
Banque Nationale de Paris, acting in its capacity as agent for BNPLC and
the Participants (in such capacity, "Agent"). Unless otherwise defined
herein, all capitalized terms used in this Supplement have the
respective meanings given to those terms in the Pledge Agreement.
2. Informix has informed Agent that Informix has established
with the addressee of this Notice (the "Deposit Taker") the following
non-interest bearing Account(s) to be maintained at the following
Account Office(s):
Account Account Account
Type Office Number
Time Deposit
Time Deposit
Time Deposit
Informix has further informed Agent that Informix intends to maintain
Cash Collateral in such Account(s), and that to evidence such Account(s)
and the amount of Cash Collateral held therein from time to time,
Informix has authorized the Deposit Taker to issue Certificates of
Deposit payable to the order of Agent as provided in the Pledge
Agreement.
3. Informix and Agent hereby notify Deposit Taker that,
pursuant to the Pledge Agreement, Informix has granted to Agent, for the
ratable benefit of BNPLC and the Participants as security for the
Secured Obligations, a pledge of and security interest in all Accounts
and other Collateral maintained by Informix with Deposit Taker,
including the Account(s) described in paragraph 2 above.
4. In furtherance of such grant, Informix and Agent hereby
authorize and direct Deposit Taker to:
(a) hold all Collateral for Agent and as Agent's bailee,
separate and apart from all other property and funds of Informix and all
other Persons and to permit no other funds to be deposited or credited
to the Account(s);
(b) make a notation in its books and records of the
interest of Agent in the Collateral and that the Account(s) and all
deposits therein or sums credited thereto are subject to a pledge and
security interest in favor of Agent;
(c) issue and redeem Certificates of Deposit evidencing the
Account(s), as directed by Agent pursuant to the Pledge Agreement;
(d) take such other steps as Agent may reasonably request
to record, maintain, validate and perfect its pledge of and security
interest in the Collateral; and
(e) upon receipt of notice from Agent that an Event of
Default has occurred, transfer and deliver to Agent or its nominee,
together with all necessary endorsements, all or such portion of the
Collateral held by Deposit Taker as Agent shall direct; provided,
however, that in connection therewith the Deposit Taker may require
compliance by Agent with the provisions in Section 0 of the Pledge
Agreement for redemption of any outstanding Certificates of Deposit
which evidence the Account(s).
5. Informix and Agent agree that (a) the possession by Deposit
Taker of all money, instruments, chattel paper and other property
constituting Collateral shall be deemed to be possession by Agent or a
person designated by Agent, for purposes of perfecting the security
interest granted to Agent hereunder pursuant to Section 9305, 8313 or
8321 of the UCC, as the case may be, and (b) notifications by Deposit
Taker to other Persons holding any such property, and acknowledgements,
receipts or confirmations from such Persons delivered to Deposit Taker,
shall be deemed notifications to, or acknowledgements, receipts or
confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Deposit Taker for the benefit of Agent for the
purposes of perfecting such security interests under applicable law.
6. As contemplated by the Pledge Agreement, please acknowledge
Deposit Taker's receipt of, and consent to, this notice and confirm the
representations and agreements set forth in the Acknowledgement and
Agreement attached hereto by executing the same and returning this
letter to Agent. For your files, a copy of this letter is enclosed
which you may retain. The authorizations and directions set forth
herein may not be revoked or modified without the written consent of
Agent.
"AGENT"
BANQUE NATIONALE DE PARIS
By:
Name:
Title:
By:
Name:
Title:
"Informix"
INFORMIX CORPORATION
By:
Name:
Title:
ACKNOWLEDGEMENT AND AGREEMENT
OF DEPOSIT TAKER
Deposit Taker hereby acknowledges receipt of, and consents to, the
above notice, acknowledges that it will hold the Collateral for Agent
and as Agent's bailee, agrees to comply with the authorizations and
directions set forth above and represents to and agrees with Informix
and Agent as follows:
(a) Deposit Taker is a commercial bank, organized under
the laws of the United States of America or a state thereof or under the
laws of another country which is doing business in the United States of
America. Deposit Taker is authorized to maintain deposit accounts for
others through the Account Offices specified in the above notice, and
Deposit Taker will not move the accounts described in the above notice
to other offices without the prior written authorization of Agent and
Informix.
(b) Deposit Taker has a combined capital, surplus and
undivided profits of at least $500,000,000.
(c) The information set forth above regarding the
Account(s) is accurate. Such Account(s) is (are) currently open and
Deposit Taker has no prior notice of any other pledge, security
interest, Lien, adverse claim or interest in such Account(s).
(d) To the knowledge of the undersigned representative of
Deposit Taker, all actions necessary to perfect the pledge to Agent of
and security interest of Agent in such Account(s) have been taken under
the laws of the jurisdiction in which the applicable Account Office(s)
is (are) located.
(e) Deposit Taker shall promptly notify Informix and Agent
if the representations made by Deposit Taker above cease to be true and
correct.
(f) Deposit Taker shall not (i) allow the withdrawal of
funds from any Account by any Person other than Agent or (ii) without in
each case first obtaining the prior written authorization of Agent,
setoff or attempt to setoff any amounts owed to Deposit Taker, including
any Secured Obligations, against any Collateral held from time to time
by Deposit Taker.
[ ]
By:
Name:
Title:
[Date]
ATTACHMENT 4
TO PLEDGE AGREEMENT
EXAMPLES OF CALCULATIONS REQUIRED
TO AVOID A COLLATERAL IMBALANCE
The examples below are provided to illustrate the calculations
required for allocations of Cash Collateral in a manner that will avoid
a Collateral Imbalance. The examples are not intended to reflect actual
numbers under this Pledge Agreement or actual Percentages of BNPLC or
any of the Participants; nor are the examples intended to provide a
formula for the allocations that would be appropriate in every case.
The examples also reflect adjustments that would be appropriate if the
Collateral Percentage were adjusted from time to time, although this
Agreement provides that such percentage is to remain at 100% so long as
this Agreement remains in force.
EXAMPLE NO. 1
Assumptions:
1. Two Participants ("Participant A" and "Participant B") are
parties to the Participation Agreement with BNPLC. Participant A's
Percentage is 50% and Participant B's Percentage is 45%, leaving BNPLC
with a Percentage of 5%.
2. On the date of this Pledge Agreement, the Initial Funding Advance
under the Lease was provided as follows, resulting in a Stipulated Loss
Value of $50,000,000:
A. Landlord's Parent (providing BNPLC's share) (5%) $2,500,000
B. Participant A (50%) 22,500,000
C. Participant B (45%) 25,000,000
TOTAL $50,000,000
3. The Minimum Collateral Value on the date of this Pledge Agreement
was $30,000,000 (reflecting a Collateral Percentage of 60% times
Stipulated Loss Value).
4. On the date of this Pledge Agreement, Informix delivered to Agent
Cash Collateral of $30,000,000, equal to the Minimum Collateral Value,
as required by Section 0 of this Pledge Agreement.
Allocation of Cash Collateral Required: To avoid a Collateral Imbalance
under these assumptions, Agent would be required to allocate the
$30,000,000 to the Deposit Takers for BNPLC and the Participants as
follows:
A. BNPLC's Deposit Taker (5% of Minimum Collateral Value) $1,500,000
B. Participant A's Deposit Taker 15,000,000
(50% of Minimum Collateral Value)
C. Participant B's Deposit Taker 13,500,000
(45% of Minimum Collateral Value)
TOTAL $30,000,000
EXAMPLE NO. 2
Assumptions: Assume the same facts as in Example No. 1, and in addition
assume that:
1. Effective as of the first Base Rent Date, Informix increased its
Collateral Percentage from 60% to 80%, raising the Minimum Collateral
Value to $40,000,000. Because of such increase, Informix also delivered
an additional $10,000,000 as Cash Collateral to Agent on the first Base
Rent Date, bringing the total of all Cash Collateral delivered by
Informix to $40,000,000 as required by Section 0 of this Pledge
Agreement.
2. Also effective as of the first Base Rent Date, a new Participant
approved by Informix ("Participant C") became a party to the Pledge
Agreement and the Participation Agreement, taking a Percentage of 20%.
Simultaneously, Participant A and Participant B entered into supplements
to the Participation Agreement which reduced their Percentages to 40%
and 35%, respectively.
Allocation of Cash Collateral Required: To avoid a Collateral Imbalance
under these assumptions, Agent would be required to allocate the Cash
Collateral as required to leave the Deposit Takers for BNPLC and the
Participants with the following amounts:
A. BNPLC's Deposit Taker $2,000,000
(5% of Minimum Collateral Value)
B. Participant A's Deposit Taker 16,000,000
(40% of Minimum Collateral Value)
C. Participant B's Deposit Taker 14,000,000
(35% of Minimum Collateral Value)
D. Participant C's Deposit Taker 8,000,000
(20% of Minimum Collateral Value)
TOTAL $40,000,000
Thus, to prevent a Collateral Imbalance, Agent would have to allocate
the $10,000,000 of additional Cash Collateral it received on the first
Base Rent Date as follows:
A. BNPLC's Deposit Taker $500,000
($2,000,000 less $1,500,000 already on deposit)
B. Participant A's Deposit Taker 1,000,000
($16,000,000 less $15,000,000 already on deposit)
C. Participant B's Deposit Taker 500,000
($14,000,000 less $13,500,000 already on deposit)
D. Participant C's Deposit Taker 8,000,000
($8,000,000 less $0 already on deposit)
TOTAL $10,000,000
EXAMPLE NO. 3
Assumptions: Assume the same facts as in Example No. 2, except that:
1. Instead of increasing its Collateral Percentage from 60% to 80%,
Informix increased its Collateral Percentage to 70% on the first Base
Rent Date, raising the Minimum Collateral Value to $35,000,000. Because
of such increase, Informix delivered an additional $5,000,000 as
additional Cash Collateral to Agent on the first Base Rent Date,
bringing the total of all Cash Collateral delivered by Informix to
$35,000,000 as required by Section 0 of this Pledge Agreement.
Allocation of Cash Collateral Required: To avoid a Collateral Imbalance
under these assumptions, Agent would be required to allocate the Cash
Collateral as required to leave the Deposit Takers for BNPLC and the
Participants with the following amounts:
A. BNPLC's Deposit Taker $1,750,000
(5% of Minimum Collateral Value)
B. Participant A's Deposit Taker 14,000,000
(40% of Minimum Collateral Value)
C. Participant B's Deposit Taker 12,250,000
(35% of Minimum Collateral Value)
D. Participant C's Deposit Taker 7,000,000
(20% of Minimum Collateral Value)
TOTAL $35,000,000
Thus, to prevent a Collateral Imbalance, Agent would have to allocate
the $5,000,000 of additional Cash Collateral it received on the first
Base Rent Date as follows:
A. BNPLC's Deposit Taker $250,000
($1,750,000 less $1,500,000 already on deposit)
B. Participant A's Deposit Taker (1,000,000)
($14,000,000 less $15,000,000 already on deposit)
C. Participant B's Deposit Taker (1,250,000)
($12,250,000 less $13,500,000 already on deposit)
D. Participant C's Deposit Taker 7,000,000
($7,000,000 less $0 already on deposit)
TOTAL $5,000,000
NOTE: THE NEGATIVE AMOUNTS (IN PARENTHESIS) ABOVE REPRESENT REQUIRED
WITHDRAWALS RATHER THAN DEPOSITS. AS EXAMPLE NO. 3 ILLUSTRATES, TO
AVOID A COLLATERAL IMBALANCE AGENT MAY FROM TIME TO TIME HAVE TO
WITHDRAW CASH COLLATERAL HELD BY THE DEPOSIT TAKER FOR ONE PARTICIPANT
AND DEPOSIT IT IN AN ACCOUNT MAINTAINED BY A DEPOSIT TAKER FOR ANOTHER
PARTICIPANT.
ATTACHMENT 5
TO PLEDGE AGREEMENT
NOTICE OF INFORMIX'S REQUIREMENT TO
WITHDRAW EXCESS CASH COLLATERAL
[_________, _____]
Banque Nationale de Paris
[address of BNP]
Re: Pledge Agreement dated January 6, 1997, between Informix
Corporation, BNP Leasing Corporation, Banque Nationale de Paris and any
other financial institutions that have become Participants as described
therein
Gentlemen:
Capitalized terms used in this letter are intended to have the
meanings assigned to them in the Pledge Agreement referenced above.
This letter constitutes notice to you, as Agent under the Pledge
Agreement, that pursuant to Section 0 of the Pledge Agreement, Informix
requires you to withdraw from the Accounts and return to Informix the
following amount:
____________________________ Dollars ($__________)
on the following date:
__________, ____
To assure you that Informix has satisfied the conditions to its
right to require such withdrawal, and to induce you to comply with this
notice, Informix certifies to you that:
1. Your withdrawal and delivery of the amount specified above
to Informix will not cause the Value of the remaining Collateral to be
less than the Minimum Collateral Value. After giving effect to such
withdrawal, the Collateral remaining in the Accounts maintained by the
Deposit Takers will be:
____________________________ Dollars ($__________),
and the Minimum Collateral Value on the date specified above will
equal:
____________________________ Dollars ($__________).
Such Minimum Collateral Value equals the Collateral Percentage of:
__________ percent (___%),
times the Stipulated Loss Value of:
____________________________ Dollars ($__________).
2. Informix is giving this notice to you, BNPLC and the
Participants at least ten (10) Business Days prior to the Base Rent Date
specified above.
3. No Default or Event of Default has occurred and is
continuing as of the date of this notice, and Informix does not
anticipate that any Default or Event of Default will have occurred and
be continuing on the date upon which the withdrawal is required.
4. Informix shall pay to you any and all costs incurred by
you in connection with the withdrawal, including (if applicable) any
early withdrawal penalties and other breakage charges specified at or
prior to the time any Account was initially established.
5. Informix agrees that you may determine the Accounts from
which to make any withdrawal required by Informix pursuant to this
Section as necessary to prevent or mitigate any Collateral Imbalance.
NOTE: YOU SHALL BE ENTITLED TO DISREGARD THIS NOTICE IF THE
STATEMENTS ABOVE ARE NOT CORRECT OR IF THE DATE FOR WITHDRAWAL SPECIFIED
ABOVE IS LESS THAN TEN BUSINESS DAYS AFTER YOUR RECEIPT OF THIS NOTICE.
HOWEVER, WE ASK THAT YOU NOTIFY INFORMIX IMMEDIATELY IF FOR ANY REASON
YOU BELIEVE THIS NOTICE IS DEFECTIVE.
Please remember that the express terms of Certificates of Deposit
issued pursuant to the Pledge Agreement require presentment of the
Certificates of Deposit seven days before Cash Collateral is to be
withdrawn from the Accounts they evidence. Accordingly, you must
present Certificates of Deposit to Deposit Takers seven days prior to
the withdrawal of Cash Collateral required by this notice. For your
convenience, we have attached a letter as Annex 1 to this notice that
you might execute and send to Deposit Takers to advise them of your
intent to withdraw and of your presentment of Certificates of Deposit as
required in connection therewith. The attached letter also sets forth
the amounts Informix believes you must withdraw from each Account to
avoid a Collateral Imbalance.
INFORMIX CORPORATION
Name:_________________________
Title:________________________
[cc BNPLC and all Participants]
Annex 1
TO INFORMIX'S NOTICE OF REQUIREMENT TO
WITHDRAW CASH EXCESS COLLATERAL
[_________, _____]
Deposit Takers on the
Attached Distribution List
Re: Pledge Agreement dated January 6, 1997, between Informix
Corporation, BNP Leasing Corporation, Banque Nationale de Paris and any
other financial institutions that have become Participants as described
therein
Gentlemen:
Capitalized terms used in this letter are intended to have the
meanings assigned to them in the Pledge Agreement referenced above.
This letter constitutes notice from the undersigned, as Agent under the
Pledge Agreement, that pursuant to Section 0 of the Pledge Agreement,
Informix requires Agent to withdraw from the Accounts and return to
Informix the amounts listed below on the following date:
__________, ____
Accordingly, on such date, the undersigned intends to withdraw the
following amounts from the following Accounts, and with this letter the
undersigned is presenting Certificates of Deposit as required in
connection with such withdrawal:
Deposit Taker Account No. Amount
1. $
2. $
3. $
4. $
TOTAL WITHDRAWALS: $
BANQUE NATIONALE DE PARIS, AS AGENT
Name:_________________________
Title:________________________
[cc BNPLC and Informix]
ATTACHMENT 6
TO PLEDGE AGREEMENT
NOTICE OF INFORMIX'S REQUIREMENT OF
DIRECT PAYMENTS TO PARTICIPANTS
[_________, _____]
Banque Nationale de Paris
[address of BNP]
Re: Pledge Agreement dated January 6, 1997, between Informix
Corporation, BNP Leasing Corporation, Banque Nationale de Paris and any
other financial institutions that have become Participants as described
therein
Gentlemen:
Capitalized terms used in this letter are intended to have the
meanings assigned to them in the Pledge Agreement referenced above.
This letter constitutes notice to you, as Agent under the Pledge
Agreement, that pursuant to Section 0 of the Pledge Agreement, Informix
requires you to withdraw from the Accounts and pay directly to the
Participants (in proportion to their respective Percentages) the
following amount:
____________________________ Dollars ($__________)
on the following date (i.e., the Designated Sale Date):
__________, ____
The amount specified above equals the following percentage (equal
to the aggregate of all Participant's Percentages):
__________ percent (___%),
times the total of all Cash Collateral presently pledged under the
Pledge Agreement:
____________________________ Dollars ($__________).
To assure you that Informix has satisfied the conditions to its
right to require such withdrawal, and to induce you to comply with this
notice, Informix certifies to you that Informix is giving this notice to
you, BNPLC and the Participants at least ten (10) Business Days prior to
the Designated Sale Date specified above.
Please remember that the express terms of Certificates of Deposit
issued pursuant to the Pledge Agreement require presentment of the
Certificates of Deposit seven days before Cash Collateral is to be
withdrawn from the Accounts they evidence. Accordingly, you must
present Certificates of Deposit to Deposit Takers seven days prior to
the withdrawal of Cash Collateral required by this notice. For your
convenience, we have attached a letter as Annex 1 to this notice that
you might execute and send to Deposit Takers to advise them of your
intent to withdraw and of your presentment of Certificates of Deposit as
required in connection therewith. The attached letter also sets forth
the amounts Informix believes you must withdraw from each Account to
comply with subsection 0 of the Pledge Agreement.
INFORMIX CORPORATION
Name:_________________________
Title:________________________
[cc BNPLC and all Participants]
Annex 1
TO INFORMIX'S NOTICE OF REQUIREMENT TO
WITHDRAW CASH COLLATERAL FOR
DIRECT PAYMENTS TO PARTICIPANTS
[_________, _____]
Deposit Takers on the
Attached Distribution List
Re: Pledge Agreement dated January 6, 1997, between Informix
Corporation, BNP Leasing Corporation, Banque Nationale de Paris and any
other financial institutions that have become Participants as described
therein
Gentlemen:
Capitalized terms used in this letter are intended to have the
meanings assigned to them in the Pledge Agreement referenced above.
This letter constitutes notice from the undersigned, as Agent under the
Pledge Agreement, that pursuant to Section 6.2 of the Pledge Agreement,
Informix requires Agent to withdraw from the Accounts and pay to the
Participants (in proportion to their respective Percentages) the amounts
listed below on the following date (i.e., the Designated Sale Date):
__________, ____
Accordingly, on such date, the undersigned intends to withdraw the
following amounts from the following Accounts, and with this letter the
undersigned is presenting Certificates of Deposit as required in
connection with such withdrawal:
Deposit Taker Account No. Amount
1. $
2. $
3. $
4. $
TOTAL WITHDRAWALS: $
BANQUE NATIONALE DE PARIS, AS AGENT
Name:_________________________
Title:________________________
[cc BNPLC and Informix]
ATTACHMENT 7
TO PLEDGE AGREEMENT
NOTICE OF INFORMIX'S REQUIREMENT OF
DIRECT PAYMENT TO BNPLC
[_________, _____]
Banque Nationale de Paris
[address of BNP]
Re: Pledge Agreement dated January 6, 1997, between Informix
Corporation, BNP Leasing Corporation, Banque Nationale de Paris and any
other financial institutions that have become Participants as described
therein
Gentlemen:
Capitalized terms used in this letter are intended to have the
meanings assigned to them in the Pledge Agreement referenced above.
This letter constitutes notice to you, as Agent under the Pledge
Agreement, that pursuant to Section 0 of the Pledge Agreement, Informix
requires you to withdraw from the Account maintained by the Deposit
Taker for BNPLC and pay directly to BNPLC on behalf of Informix as a
payment required by the Purchase Agreement the following amount:
____________________________ Dollars ($__________)
on the following date (i.e., the Designated Sale Date):
__________, ____
To assure you that Informix has satisfied the conditions to its
right to require such withdrawal, and to induce you to comply with this
notice, Informix certifies to you that Informix is giving this notice to
you and BNPLC at least ten (10) Business Days prior to the Designated
Sale Date specified above and that the amount specified above.
Please remember that the express terms of Certificates of Deposit
issued pursuant to the Pledge Agreement require presentment of the
Certificates of Deposit seven days before Cash Collateral is to be
withdrawn from the Accounts they evidence. Accordingly, you must
present Certificates of Deposit to the Deposit Taker for BNPLC seven
days prior to the withdrawal of Cash Collateral required by this notice.
For your convenience, we have attached a letter as Annex 1 to this
notice that you might execute and send to the Deposit Taker for BNPLC to
advise it of your intent to withdraw and of your presentment of
Certificates of Deposit as required in connection therewith. The
attached letter also sets forth the amount Informix believes you must
withdraw to comply with Section 0 of the Pledge Agreement.
INFORMIX CORPORATION
Name:_________________________
Title:________________________
[cc BNPLC]
Annex 1
TO INFORMIX'S NOTICE OF REQUIREMENT OF
DIRECT PAYMENT TO BNPLC
[_________, _____]
[Name of the Deposit Taker for BNPLC]
[Address of such Deposit Taker]
Re: Pledge Agreement dated January 6, 1997, between Informix
Corporation, BNP Leasing Corporation, Banque Nationale de Paris and any
other financial institutions that have become Participants as described
therein
Gentlemen:
Capitalized terms used in this letter are intended to have the
meanings assigned to them in the Pledge Agreement referenced above.
This letter constitutes notice from the undersigned, as Agent under the
Pledge Agreement, that pursuant to Section 0 of the Pledge Agreement,
Informix requires Agent to withdraw from the Account maintained by you,
as Deposit Taker for BNPLC, the sum of:
____________________________ Dollars ($__________)
and pay the same to BNPLC as a payment required by the Purchase
Agreement on the following date:
__________, ____
Accordingly, on such date, the undersigned intends to withdraw such
amount from the following Account maintained by you as Deposit Taker for
BNPLC, and with this letter the undersigned is presenting Certificate(s)
of Deposit as required in connection with such withdrawal.
BANQUE NATIONALE DE PARIS, AS AGENT
Name:_________________________
Title:________________________
[cc BNPLC and Informix]
ATTACHMENT 8
TO PLEDGE AGREEMENT
NOTICE OF INFORMIX'S REQUIREMENT OF A WITHDRAWAL
OF CASH COLLATERAL FROM
A DISQUALIFIED DEPOSIT TAKER
[_________, _____]
Banque Nationale de Paris
[address of BNP]
Re: Pledge Agreement dated January 6, 1997, between Informix
Corporation, BNP Leasing Corporation, Banque Nationale de Paris and any
other financial institutions that have become Participants as described
therein
Gentlemen:
Capitalized terms used in this letter are intended to have the
meanings assigned to them in the Pledge Agreement referenced above.
This letter constitutes notice to you, as Agent under the Pledge
Agreement, that pursuant to Section 0 of the Pledge Agreement, Informix
requires you to withdraw from the following Account maintained by the
following Deposit Taker:
Deposit Taker Account No.
Cash Collateral in the following amount:
____________________________ Dollars ($__________)
and to deposit such Cash Collateral with other Deposit Takers who are
not Disqualified Deposit Takers no later than ten (10) Business Days
after the date upon which you receive this notice.
To assure you that Informix has the right to require such
withdrawal, and to induce you to comply with this notice, Informix
certifies to you that the Deposit Taker specified above has become a
Disqualified Deposit Taker because it no longer satisfies the
requirements listed in Section 0 of the Pledge Agreement. Specifically,
such Deposit Taker no longer satisfies the following requirements:
[Informix MUST INSERT HERE A DESCRIPTION OF WHICH REQUIREMENTS THE
DEPOSIT TAKER NO LONGER SATISFIES AND HOW Informix HAS DETERMINED THAT
THE REQUIREMENTS ARE NO LONGER SATISFIED, ALL IN SUFFICIENT DETAIL TO
PERMIT THE PARTICIPANT FOR WHOM SUCH DEPOSIT TAKER HAS BEEN MAINTAINING
AN ACCOUNT TO RESPOND IF IT BELIEVES THAT Informix IS IN ERROR.]
Please remember that the express terms of Certificates of Deposit
issued pursuant to the Pledge Agreement require presentment of the
Certificates of Deposit seven days before Cash Collateral is to be
withdrawn from the Accounts they evidence. Accordingly, you must
present Certificates of Deposit to the Deposit Taker specified above
seven days prior to the withdrawal of Cash Collateral required by this
notice. For your convenience, we have attached a letter as Annex 1 to
this notice that you might execute and send to such Deposit Taker to
advise it of your intent to withdraw and of your presentment of
Certificates of Deposit as required in connection therewith. The
attached letter also sets forth the amount Informix believes you must
withdraw to comply with Section 0 of the Pledge Agreement.
INFORMIX CORPORATION
Name:_________________________
Title:________________________
[cc BNPLC]
Annex 1
TO INFORMIX'S NOTICE OF REQUIREMENT OF A WITHDRAWAL
OF CASH COLLATERAL FROM
A DISQUALIFIED DEPOSIT TAKER
[_________, _____]
[Name of the Deposit Taker for BNPLC]
[Address of such Deposit Taker]
Re: Pledge Agreement dated January 6, 1997, between Informix
Corporation, BNP Leasing Corporation, Banque Nationale de Paris and any
other financial institutions that have become Participants as described
therein
Gentlemen:
Capitalized terms used in this letter are intended to have the
meanings assigned to them in the Pledge Agreement referenced above.
This letter constitutes notice from the undersigned, as Agent under the
Pledge Agreement, that pursuant to Section 0 of the Pledge Agreement,
Informix has advised Agent that you are a Disqualified Deposit Taker,
and Informix requires Agent to withdraw from the Account maintained by
you, as a Deposit Taker under the Pledge Agreement, the sum of:
____________________________ Dollars ($__________)
no later than the following date:
__________, ____
Accordingly, on such date, the undersigned intends to withdraw such
amount from the Account maintained by you as Deposit Taker (Account No.
__________), and with this letter the undersigned is presenting
Certificate(s) of Deposit as required in connection with such
withdrawal.
BANQUE NATIONALE DE PARIS, AS AGENT
Name:_________________________
Title:________________________
[cc BNPLC and Informix]
ATTACHMENT 9
TO PLEDGE AGREEMENT
NOTICE OF INFORMIX'S REQUIREMENT TO
WITHDRAW CASH COLLATERAL FOR PAYMENT OF THE RELEASE PRICE
[_________, _____]
Banque Nationale de Paris
[address of BNP]
Re: Pledge Agreement dated January 6, 1997, between Informix
Corporation, BNP Leasing Corporation, Banque Nationale de Paris and any
other financial institutions that have become Participants as described
therein
Gentlemen:
Capitalized terms used in this letter are intended to have the
meanings assigned to them in the Pledge Agreement referenced above.
This letter constitutes notice to you, as Agent under the Pledge
Agreement, that pursuant to Section 0 of the Pledge Agreement, Informix
requires you to withdraw from the Accounts and pay to BNPLC for
application against the Release Price required by Lease the following
amount:
____________________________ Dollars ($__________)
on the following date:
__________, ____
To assure you that Informix has satisfied the conditions to its
right to require such withdrawal, and to induce you to comply with this
notice, Informix certifies to you that:
1. Your withdrawal and delivery of the amount specified above
to Informix will not cause the Value of the remaining Collateral to be
less than the Minimum Collateral Value (computed after payment of the
Release Price in connection therewith). After giving effect to such
withdrawal, the Collateral remaining in the Accounts maintained by the
Deposit Takers will be:
____________________________ Dollars ($__________),
and the Minimum Collateral Value on the date specified above will
equal:
____________________________ Dollars ($__________).
Such Minimum Collateral Value equals the Collateral Percentage of:
__________ percent (___%),
times the projected Stipulated Loss Value of:
____________________________ Dollars ($__________).
2. Informix is giving this notice to you, BNPLC and the
Participants at least ten (10) Business Days prior to the date for
payment of the Release Price specified above.
3. No Default or Event of Default has occurred and is
continuing as of the date of this notice, and Informix does not
anticipate that any Default or Event of Default will have occurred and
be continuing on the date upon which the withdrawal is required.
4. Informix shall pay to you any and all costs incurred by
you in connection with the withdrawal, including (if applicable) any
early withdrawal penalties and other breakage charges specified at or
prior to the time any Account was initially established.
5. Informix agrees that you may determine the Accounts from
which to make any withdrawal required by Informix pursuant to this
Section as necessary to prevent or mitigate any Collateral Imbalance.
NOTE: YOU SHALL BE ENTITLED TO DISREGARD THIS NOTICE IF THE
STATEMENTS ABOVE ARE NOT CORRECT OR IF THE DATE FOR WITHDRAWAL SPECIFIED
ABOVE IS LESS THAN TEN BUSINESS DAYS AFTER YOUR RECEIPT OF THIS NOTICE.
HOWEVER, WE ASK THAT YOU NOTIFY INFORMIX IMMEDIATELY IF FOR ANY REASON
YOU BELIEVE THIS NOTICE IS DEFECTIVE.
Please remember that the express terms of Certificates of Deposit
issued pursuant to the Pledge Agreement require presentment of the
Certificates of Deposit seven days before Cash Collateral is to be
withdrawn from the Accounts they evidence. Accordingly, you must
present Certificates of Deposit to Deposit Takers seven days prior to
the withdrawal of Cash Collateral required by this notice. For your
convenience, we have attached a letter as Annex 1 to this notice that
you might execute and send to Deposit Takers to advise them of your
intent to withdraw and of your presentment of Certificates of Deposit as
required in connection therewith. The attached letter also sets forth
the amounts Informix believes you must withdraw from each Account to
avoid a Collateral Imbalance.
INFORMIX CORPORATION
Name:_________________________
Title:________________________
[cc BNPLC and all Participants]
Annex 1
TO INFORMIX'S NOTICE OF REQUIREMENT TO
WITHDRAW CASH EXCESS COLLATERAL
[_________, _____]
Deposit Takers on the
Attached Distribution List
Re: Pledge Agreement dated January 6, 1997, between Informix
Corporation, BNP Leasing Corporation, Banque Nationale de Paris and any
other financial institutions that have become Participants as described
therein
Gentlemen:
Capitalized terms used in this letter are intended to have the
meanings assigned to them in the Pledge Agreement referenced above.
This letter constitutes notice from the undersigned, as Agent under the
Pledge Agreement, that pursuant to Section 0 of the Pledge Agreement,
Informix requires Agent to withdraw from the Accounts and pay to BNPLC
the amounts listed below on the following date:
__________, ____
Accordingly, on such date, the undersigned intends to withdraw the
following amounts from the following Accounts, and with this letter the
undersigned is presenting Certificates of Deposit as required in
connection with such withdrawal:
Deposit Taker Account No. Amount
1. $
2. $
3. $
4. $
TOTAL WITHDRAWALS: $
BANQUE NATIONALE DE PARIS, AS AGENT
Name:_________________________
Title:________________________
[cc BNPLC and Informix]
