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EXHIBIT 10.14
CONSENT TO ASSIGNMENT AGREEMENT
This Consent to Assignment Agreement ("Consent") is dated December 19, 1997
for reference purposes only, and entered into by and among XXXX X. XxXXXXXXXX,
LLC, a California limited liability company ("Landlord"), GUARANTY FEDERAL
BANK, F.S.B., a federal savings bank ("Lender"), INFORMIX CORPORATION, a
Delaware corporation ("Assignor"), and NETWORKS ASSOCIATES, INC., A Delaware
corporation, formerly known as McAFEE ASSOCIATES, INC., a Delaware corporation
("Assignees").
R E C I T A L S
This consent is made with regard to the following facts:
A. All terms spelled with initial capital letter(s) in this Consent that
are not expressly defined in this Consent will have the respective meanings
given such terms in that certain Lease Assignment between Assignor and
Assignee dated November 17, 1997 (the "Assignment").
B. Landlord leased to Assignor the Premises on certain terms and
conditions, all of which are set forth in the Lease Transaction Documents.
C. Assignor desires to assign its right, title and interest in the Lease
and the other Lease Transaction Documents to Assignee, and Assignee desires to
accept the assignment thereof, and to assume and agree to perform all of the
obligations of Tenant under the Lease Transaction Documents arising from and
after the Consent Data as specified in the Assignment.
D. Assignor and Assignee desire to obtain Landlord's and Lender's
consent to the Assignment. Landlord and Lender are willing to consent to the
Assignment on the following terms and conditions.
E. Concurrently herewith, Landlord, Lender and Assignee have executed
that certain Subordination, Nondisturbance and Attornment Agreement in the form
attached to this Consent as Exhibit A ("Networks SNDA").
NOW THEREFORE, in consideration of the mutual covenants contained in this
Consent, and for valuable consideration, the receipt and sufficiency of which
are acknowledged by the parties, the parties agree as follows:
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1. Consent to Assignment. Subject to the terms and conditions specified
in this Consent and the execution and delivery of the Networks SNDA, the
documents referred to in items 2, 3 and 4 of Exhibit C hereof, the Xxxxxxx
Agreement (defined in Section 18 hereof), the Security Deposit Documents
(defined in Subsection 19.10 below) and the Section 12 Security Documents
(defined in Subsection 12.D hereof), Landlord and Lender hereby consent to the
assignment of Assignor's right, title and interest in the Lease Transaction
Documents as more particularly described in the Assignment.
2. Terms of Consent are Controlling. With respect to the rights and
obligations between Landlord, on the one hand, and Assignor and/or Assignee on
the other, it is understood and agreed that in the event of any conflict
between this Consent and the Assignment, this Consent shall control and the
terms hereof shall be deemed to supercede the provisions of the Assignment to
that extent, but shall not affect the allocation of rights and obligations
between Assignor and Assignee themselves, which shall be as specified in the
Assignment.
3. Assumption and No Release. Effective as of the Consent Date,
Assignee expressly assumes and agrees, for the benefit of and as a direct
obligation to Landlord, to be bound by, and to perform and comply with, from
and after the Consent Date, every obligation of Assignor under the Lease
Transaction Documents. From and after the Consent Date, Assignee shall solely
be entitled to exercise all rights, powers, privileges, options and elections
and to make and give all approvals, consents, determinations, selections,
designations, judgments and decisions of "Tenant" under and with respect to the
Lease Transaction Documents, subject to the limitations and reservations
contained in Sections 7 and 9 of the Assignment. Any effort by Assignor or
any other party to exercise, give or make any of the foregoing shall be of no
effect. Notwithstanding the Assignment or Landlord's consent to the Assignment
or any of the foregoing acts by Assignee, Assignor and Assignee will be and
remain jointly and severally liable for the payment of rent and for the
performance of all other obligations of "Tenant" under the Lease Transaction
Documents from and after the Consent Date. From and after the Consent Date,
Assignee shall be entitled to and shall, (i) pay all rent and perform all other
payment obligations pursuant to the Assignment that are due pursuant to the
Lease Transaction Documents directly to Landlord, and (ii) render performance
of all other obligations which have been assumed pursuant to the Assignment
that are due pursuant to the Lease Transaction Documents directly to Landlord.
Without limiting any of Landlord's rights and remedies under the Lease and in
addition thereto, Landlord may specifically enforce the covenants and
agreements of Assignee contained in the Assignment and this Consent which exist
for Landlord's benefit. Assignee shall be directly obligated to Landlord and
Landlord shall recognize
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Assignee as Tenant under the Lease (subject to the limitations and reservations
contained in Sections 7 and 9 of the Assignment).
4. Satisfaction or Waiver of Conditions Precedent. Assignee and Assignor
hereby acknowledge and agree that all of the conditions specified in Section 11
of the Assignment have been satisfied or have been waived by each of them,
respectively.
5. Subsequent Assignments: Recapture. This Consent does not constitute a
consent to any subsequent subletting or assignment and does not relieve Assignee
or any person claiming under or through Assignee of the obligation to obtain the
consent of Landlord under Section 19 of the Lease to any future assignment or
sublease. In the event that the Assignment is deemed to be a sublease, the
parties acknowledge and agree that Assignee (as a subtenant) shall have the
right to assign its leasehold interest or to sublet the Premises subject to
Landlord's consent (not to be unreasonably withheld) and otherwise in accordance
with the terms of Section 19 of the Lease, such that in the event of a default
by Assignee under the Lease, Landlord shall have all the rights and remedies
against Assignee in the event of a default which are available to Landlord at
law, in equity or otherwise specified in the Lease, including without limitation
the rights under California Civil Code Section 1951.4. Landlord may consent to
future assignments or subleases by Assignee without notifying Assignor and
without obtaining Assignor's consent, and that action by Landlord will not
relieve Assignor of liability under the Lease Transaction Documents; provided,
however, as between Assignee and Assignor the provisions of Section 21 of the
Assignment shall prevail. Assignee's failure to obtain Assignor's consent to any
future assignment or sublease, or failure to perform any obligation it may have
to Assignor under the Assignment, shall not limit or affect in any way the
obligations of Assignor to Landlord under the Lease Transaction Documents and
this Consent. Landlord waives the right to recapture with respect to the
Assignment. This Consent will not be construed to limit Landlord's right to
recapture the Premises as stated in Section 19 of the Lease, in the event of a
future proposal by Assignee to sublease or assign any part or parts of the
Premises which, in the aggregate, total more than seventy-five percent (75%) of
the Premises, provided that the assignments to Assignee pursuant to the
Assignment shall not be included in the calculation of aggregate square footage
of subleases and assignments in determining Landlord's rights hereunder.
6. Default Under the Lease. In the event of any default of Assignee under
the Lease Transaction Documents, Landlord may proceed directly against Assignee,
Assignor, or anyone else liable under the Lease without first exhausting
Landlord's remedies against any other person or entity liable under the Lease
Transaction Documents to Landlord. Notwithstanding the foregoing, any act or
omission of Assignee or anyone claiming under or through
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Assignee that violates any of the provisions of the Lease Transaction Documents
will be deemed a default under the Lease Transaction Documents by Assignor.
7. Security Deposit. Assignor acknowledges the transfer and assignment to
Assignee of all right, title and interest of Assignor in, to or under the
Security Deposit (as defined in the Assignment) and held by Landlord pursuant to
Section 6(c) of Exhibit D to the Lease. Assignor waives all claims against
Landlord as to the Security Deposit. Assignee will protect, defend, indemnify
and hold Landlord harmless from and against any claims Assignor may have arising
from Assignee's application of disbursements from the Security Deposit. The
foregoing shall not affect Assignee's obligation to Assignor pursuant to Section
10.C of the Assignment.
8. Prepaid Rent. Assignor acknowledges the transfer and assignment to
Assignee of all right, title and interest of Assignor in, to or under the First
Months' Rent (as defined in the Assignment) and held by Landlord pursuant to
Section 4(d) of the Lease. Assignor waives all claims against Landlord pursuant
to Section 4(d) of the Lease. Assignor waives all claims against Landlord as to
the First Month's Rent. Assignee will protect, defend, indemnify and hold
Landlord harmless from and against any claims Assignor may have arising from
Assignee's application and use of the First Month's Rent.
9. Cancellation of Option to Extend Term. The option to extend the term
of the Lease granted to Assignor pursuant to Section 56 of the Lease is hereby
deleted in its entirety.
10. Cancellation of First Right to Purchase. The first right to purchase
the Project (as defined in the Lease) granted to Assignor pursuant to Section
57 of the Lease is hereby cancelled and Section 57 of the Lease is hereby
deleted in its entirety.
11. Schedule of Critical Dates. Exhibit D-1 and Exhibit A to Exhibit D-2
to the Lease are herby amended and restated in their entirety as shown on
Exhibit C attached to this Consent.
12. Subordination of, and Grant of Security Interest in, Claims. Until all
of Assignee's obligations under the Lease Transaction Documents have been fully
performed, Assignor subordinates any liability or indebtedness of Assignee held
by or owed to Assignor relating to the Lease Transaction Documents, the
Assignment or this Consent to the obligations of Assignee to Landlord under the
Lease Transaction Documents, the Assignment or this Consent and hereby grants to
Landlord a security interest in such claims, such security interest to be
hereinafter further documented and perfected as provided in Subsections 12.D and
19.10 hereof. Notwithstanding the foregoing, the following shall apply:
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A. Assignor shall have the right to cure any default by Assignee under
the Lease Transaction Documents by rendering performance directly to Landlord.
Any amounts properly paid by Assignor to cure a default by Assignee shall be
repaid by Assignee to Assignor with interest at the rate specified in Section 15
of the Assignment.
B. If Assignor makes a payment to Landlord on account of an obligation
owed by Assignee to Landlord, then to the extent of such payment Assignor shall
have the right to pursue its claim for reimbursement from Assignee and to
collect and retain all amounts owed to it by Assignee on account of such
reimbursement claim. The foregoing shall apply even if there are remaining
obligations on the part of Assignee under the Lease so long as the due date for
performance of such obligations has not occurred.
C. Assignor may pursue all claims against Assignee, enforce any remedies
against Assignee permitted by the Assignment, and collect all amounts owed to it
by Assignee, even if there are remaining obligations on the part of Assignee
under the Lease Transaction Documents and the Assignment, so long as each of the
following conditions is satisfied: (i) no default exists on the part of Assignee
or Assignor under the Lease Transaction Documents with regard to obligations
owed to Landlord; (ii) all amounts then due and payable to Landlord by either
Assignor or Assignee pursuant to the Assignment have been paid; and (iii) the
security interest granted hereby and described in Subsection 12.D hereof remains
fully perfected and in full force and effect, and no uncured default by Assignor
exists thereunder.
D. Assignor hereby grants to and creates in favor of Landlord a first
priority security interest in all rights of recovery Assignor has against
Assignee relating to the Lease Transaction Documents, the Assignment or this
Consent, and in the proceeds thereof, all in form and substance reasonably
satisfactory to Landlord and Lender, as security for the performance by Assignor
of all obligations owed by it to Landlord pursuant to the Lease Transaction
Documents and the Assignment. The proceeds of any such recovery shall be
deposited in a security account created and maintained in substantially the same
manner, and pursuant to substantially the same agreements, as the Account
maintained pursuant to the Lease as security for the payment of Tenant
Improvement costs. Funds held in such security account shall be disbursed to
Assignor to reimburse Assignor for (i) each payment of rent (less any sublet
income payable directly to Assignor) made by Assignor to Landlord due pursuant
to the Lease Transaction Documents and (ii) tenant improvement costs and
commissions paid by Assignor with respect to subleases approved by Landlord to
the extent Assignor has actually collected from Assignee money damages
specifically on account of such items (amounts collected from Assignee shall be
first allocated to elements of damage awarded to
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Assignor relative to Assignee's obligation to pay rent under the Lease
Transaction Documents and only the balance of any amounts so collected allocated
to the other elements of damage specifically awarded). Upon satisfaction of all
obligations owed to Landlord by Assignor pursuant to the lease Transaction
Documents, any remaining amounts held in such security account shall be
disbursed to Assignor. Landlord shall deliver to Assignor a security agreement,
financing statement and such other documents necessary to reasonably document
and perfect such security interest (and Landlord hereby grants a security
interest in such security interest to Lender) (collectively, all such documents
herein referred to as "Section 12 Security Documents") and the parties hereto
shall reasonably cooperate as provided in Subsection 19.10 in executing such
documents.
13. Assignor's Bankruptcy. In the event that bankruptcy proceedings
involving Assignor are commenced (whether voluntary or involuntary) and the
Assignment is recharacterized as a sublease, or otherwise, such that the Lease
between Assignor and Landlord is treated as an asset of the bankruptcy estate
and if the Lease is deemed rejected in such bankruptcy proceeding and thereby
terminated, or the Lease is otherwise terminated in connection with any such
bankruptcy proceeding for any reason, such termination shall not affect the
rights and obligations of Assignee and Landlord under the Assignment and it is
expressly agreed that in such event, (i) Assignee shall attorn to Landlord and
Landlord shall recognize Assignee under the terms and provisions of the Lease
(as assigned to Assignee pursuant to the Assignment) and (ii) Landlord and
Assignee shall enter into a new lease (with Assignee as the tenant thereunder)
on the terms and conditions of the Lease (as otherwise modified by this Consent)
and if such new lease is entered into, the term "Lease" as used herein shall
refer to such new lease and all Lease Transaction Documents related thereto. The
attornment and recognition obligations and the obligations to enter into a new
lease as specified herein are separate from the original Lease with Assignor and
shall survive termination of the original Lease with Assignor due to rejection
(or for any other reason) in any bankruptcy proceeding involving Assignor.
14. Assignee's Bankruptcy. In the event that bankruptcy proceedings
involving Assignee are commenced (whether voluntary or involuntary) and if the
Lease is rejected or otherwise terminated (as to Assignee), then Assignor,
immediately upon such rejection and/or termination shall be reinstated as the
Tenant under the Lease and Assignor shall continue to be obligated to fully
perform and comply with every obligation of the Tenant under the Lease, without
limitation or reservation, and shall thereafter have the right to again exercise
all rights, powers, privileges, options and elections and to make and give all
approvals, consents, determinations, selections, designations, judgments, and
decisions
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of the Tenant under and with respect to the Lease Transaction Documents.
15. Waive Past Defaults. Effective on the Consent Date, Landlord and
Assignor represent that, to the best of their knowledge for their mutual benefit
and the benefit of the other parties hereto, that there are no uncured defaults
under the Lease Transaction Documents. To the extent that this representation by
Landlord is inconsistent with the estoppel letter dated November 26, 1997 from
Landlord to Assignor and Assignee, the representations set forth in this Section
15 by Landlord shall control. The representations by Landlord and Assignor
pursuant to this Section 15 shall not be deemed to constitute a waiver of any
claims for default under, or breach of, any of the provisions of the Lease
Transaction Documents occurring on or after the Consent Date or with respect to
acts occurring prior to the Consent Date of which a claiming party had no
knowledge; provided, however, with respect to any such acts of Assignor
occurring prior to the Consent Date, Landlord waives its right to terminate the
Lease. Such waiver shall not limit any of the other rights at law or in equity
which Landlord may have against Assignor in such event.
16. Lease Commencement Date. Section 2(b)(2) of the Lease is hereby
amended and restated in its entirety as follows:
(2) The later of (x) April 1, 1998 or (y) Substantial Completion (as
defined in Exhibit C) of all work to be done by Landlord pursuant to
Exhibit C, or, if Landlord is prevented from or delayed in completing
its work under Exhibit C to this lease due to Tenant Caused Delays as
specified in Exhibit C, then upon the date by which such work would
have been substantially completed but for such Tenant Caused Delays
(but not earlier than April 1, 1998).
17. Signage. The sign plans attached to the Lease as Exhibit E thereto are
hereby modified to acknowledge that the name on the signs shall be Assignee's
name (Networks Associates), but all other requirements and parameters specified
in said Exhibit E shall remain in full force and effect except that the height
and width of the letters may be reduced to fit the name in the space permitted.
18. Reimbursement of Landlord's and Lender's Costs; Payment for Change
Order. Fees and costs incurred by Landlord, and to be reimbursed by Assignor
pursuant to Section 19 of the Lease, for reviewing, processing and documenting
the Assignment and any other assignment or sublease, through the date of this
Consent, are $77,720. Fees and costs incurred by Lender in connection with
reviewing this Assignment, and which Assignor is obligated to reimburse, are
$4,402. These fees are all of the fees and costs owed to Landlord pursuant to
Section 19 of the Lease up to the
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Consent Date. Concurrent herewith, Assignor has delivered to Lender's counsel
its check in the amount of $4.402 to reimburse Lender for its fees and costs
incurred. Concurrent herewith, Assignor shall deliver to Landlord its check in
the amount of $57,720 to be applied against Assignor's obligation to landlord
for Landlord's costs and fees incurred through the date hereof and Assignor
agrees to cause the remaining portion ($20,000) to be paid by Xxxxxxx &
Xxxxxxxxx of California, Inc. ("Xxxxxxx") to landlord prior to December 31,
1997 pursuant to that certain Amendment dated concurrently herewith between
landlord and Xxxxxxx ("Xxxxxxx Agreement"). In addition, concurrent herewith,
Assignor shall deliver to Landlord a separate check in the amount of $23,199
for Assignor's T-6 Change Order.
19. General Provisions.
19.1 Consideration for Assignment. Assignor and Assignee represent
and warrant that there are no additional payments of rent or any other
consideration of any type which has been paid or is payable by Assignee to
Assignor in connection with the Assignment or the Premises, other than as is
disclosed in the Assignment.
19.2 Brokerage Commission. Without limiting any claims for
brokerage commissions in connection with the original lease transaction between
Landlord and Assignor, Assignor and Assignee agree that Landlord will not be
liable for any brokerage commission or finder's fee in connection with the
consummation of the Assignment or this Consent. Assignor and Assignee will
protect, defend, indemnify and hold Landlord harmless from any brokerage
commission or finder's fee in connection with the consummation of the
Assignment or this Consent, and from any cost or expense (including attorney
fees) incurred by Landlord in resisting any claim for any such brokerage
commission or finder's fee. The provisions of this Section 19.2 shall survive
the expiration or earlier termination of both the Assignment and this Consent.
19.3 Controlling Law. The terms and provisions of this Consent will
be construed in accordance with and will be governed by the laws of the State
of California.
19.4 Captions. Captions to the sections in this Consent are
included for convenience only and do not modify any of the terms of this
Consent.
19.5 Entire Agreement; Waiver. This Consent constitutes the final,
complete and exclusive statement between the parties to this Consent pertaining
to the terms of Landlord's consent to the Assignment, supersedes all prior and
contemporaneous understandings or agreements of the parties regarding such
consent, and is binding on and inures to the benefit of their respective heirs,
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representatives, successors and assigns. No party has been induced to enter
into this Consent by, nor is any party relying on, any representation or
warranty regarding such consent outside those expressly set forth in this
Consent or otherwise specified in Exhibit C attached to this Consent. Any
agreement made after the date of this Consent is ineffective to modify, waive,
or terminate this Consent, in whole or in part, unless that agreement is in
writing, is signed by the parties to this Consent, and specifically states that
agreement modifies this Consent.
19.6 Attorney Fees. If there is any legal action or proceeding
between the parties arising from or based upon the Assignment or this Consent,
the unsuccessful party or parties to such action or proceedings shall pay to
the prevailing party all costs and expenses, including reasonable attorneys'
fees and disbursements incurred by the prevailing party in such action or
proceeding and in any appeal in connection therewith, and such costs, expenses,
attorneys' fees and disbursements shall be included in and as part of such
judgment.
19.7 Waiver. Except for the provisions regarding (i) cancellation of the
option to extend the term of the Lease (Section 9 herein), (ii) cancellation of
the first right to purchase (Section 10 herein), (iii) Assignee's right (as a
subtenant) to further assign or sublet the Premises (Section 5 herein), (iv)
modification of the Schedule of Critical Dates (Exhibit D-1 and Exhibit A to
Exhibit D-2 to the Lease) as provided in Section 11 herein, (v) Lease
Commencement Date (Section 16 herein), (vi) Signage (Section 17 herein), and
(vii) Notice (Subsection 19.8 herein), nothing contained in this Consent will
be deemed or construed to modify, waive, impair, or affect any of the
covenants, agreements, terms, provisions, or conditions contained in the Lease
Transaction Documents. In addition, the acceptance of rents by Landlord from
Assignee or anyone else liable under the Lease Transaction Documents will not
be deemed a waiver by Landlord of any provisions of the Lease Transaction
Documents.
19.8 Notice. Except for legal process which may also be served as
provided by law or as provided herein, all notices, demands, requests, consents
and other communications ("Notices") which may be given or are required to be
given by either party under this Consent to the other shall be in writing and
shall be deemed given to and received by the party intended to receive such
Notice (i) when hand delivered, (ii) on the date on which the United States
Post Office certifies delivery or refusal to accept deliver of such Notice
shall have been deposited, postage prepaid, to the United States mail,
certified return receipt requested, properly addressed to the address specified
herein, or (iii) on the date of delivery sent to the address specified herein
by reputable overnight courier (e.g., Federal Express or other comparable
service), as evidenced by such courier's records. All such Notices
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to Assignor shall be served or addressed to Assignor at care of Informix
Software, Inc., 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, Attention:
Xx. Xxxxx Xxxxxxxx. All such Notices to Assignee shall be sent to Networks
Associates, Inc. at its offices at 0000 Xxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx
00000, Attention: Xx. Xxxx Xxxxxxx, Controller. All such Notices to Landlord
shall be sent to Xxxx X. XxXxxxxxxx, LLC, at 0000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxx Xxxxx, Xxxxxxxxxx 00000, Attention: Xx. Xxxx X. XxXxxxxxxx, Manager. All
such Notices to Lender shall be sent to Guaranty Federal Bank, F.S.B., 0000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxx 00000, Attention: Mr. Xxx Xxxxxxx. Any party may
change its address by notifying the others of such change.
19.9 AUTHORITY. Each party hereto represents and warrants to the other
parties that (i) the person or persons executing this Consent on behalf of such
party is duly authorized to execute this Consent on behalf of such party, and
(ii) such party has the right, power and authority to execute and deliver this
document to the other parties and to perform its obligations as set forth
herein.
19.10 FACILITATION. The parties agree to execute, acknowledge if
appropriate and deliver any document and cooperate in performing any acts which
are reasonably necessary to effect and/or implement the terms and conditions of
this Consent including, without limitation, (a) new documents substituting
Assignee for Assignor under the Security Agreement, the Financing Statement,
Notice of Security Interest, Time Deposit Agreement and Addendum, and any other
documents (collectively, such new documents are referred to as the "Security
Deposit Documents") as may be reasonably requested to ensure (i) assignment of
Assignor's rights to the Account to Assignee and (ii) the continuation of
Landlord's perfected security interest in the Account and Lender's perfected
security interest therein subject to and as provided in
the Lease Transaction Documents, and (b) the Section 12 Security Documents. The
parties agree to exercise best efforts to finalize and execute the Security
Deposit Documents and the Section 12 Security Documents by January 15, 1998 or
as soon thereafter as reasonably possible. Assignor and Assignee shall be
jointly and severally liable to reimburse Landlord for any attorneys' fees and
costs incurred by Landlord in such facilitation.
19.11 COUNTERPARTS; FACSIMILE SIGNATURES. This Consent may be executed in
any number of counterparts, each of which shall be an original, but all of
which together shall constitute one original. This Consent shall not be
effective until all parties' signatures have been so obtained. The parties
agree that this Consent, documents ancillary to this Consent, and related
documents to be entered into in connection with this Consent will be considered
signed when the signature of a party is delivered by
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facsimile transmission. Such facsimile signature shall be treated in all
respects as having the same effect as an original signature.
20. Agreement of Assignor and Assignee. This Consent shall not be
effective until receipt by Landlord and Lender of a counterpart or counterparts
of this Consent duly executed by Assignor and Assignee, each thereby
acknowledging its agreement to the terms and conditions specified in this
Consent.
Landlord, Lender, Assignor and Assignee have executed this Consent on the
date set forth below their respective signatures.
Assignee: Assignor:
Networks Associates, Inc., Informix Corporation
a Delaware corporation a Delaware corporation
By: /s/ Signature By: /s/ Signature
---------------------------- ----------------------------
Name: Name:
-------------------------- --------------------------
Title: Title:
------------------------- -------------------------
Date: Date:
-------------------------- --------------------------
Landlord: Lender:
Xxxx X. XxXxxxxxxx, LLC, Guaranty Federal Bank, F.S.B.,
a California limited liability a federal savings bank
company
By: /s/ XXXX X. XXXXXXXXXX By: /s/ R. XXXXX XXXXXXX
---------------------------- ----------------------------
Xxxx X. XxXxxxxxxx,
Manager Name: R. XXXXX XXXXXXX
--------------------------
Date: Title: Division Manager
-------------------------- -------------------------
Date: December 17, 1997
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