Exhibit 10.31
Recording requested by
and when recorded mail to:
Piper, Marbury, Xxxxxxx & Xxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
XX, XX 00000-0000
Attn: Xxxxx Xxxxx
APN # 000-00-000
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT made this 21st day of June, 2000, among COLUMN FINANCIAL,
INC., a Delaware corporation (hereinafter referred to as "Lender"), INFORMIX
CORPORATION, a Delaware corporation (hereinafter referred to as "Informix"),
NETWORKS ASSOCIATION, INC., a Delaware corporation, formerly known as McAfee
Associates, Inc. ("Assignee") and XXXX X. XxXXXXXXXX, LLC, a California limited
liability company (hereinafter referred to as "Landlord").
STATEMENT OF BACKGROUND
A. Landlord and Tenant entered into that certain lease dated November 22,
1996. Informix assigned its interest as tenant under the Lease to McAfee
Associates, Inc., a Delaware corporation, (now known as Networks Associates,
Inc., doing business as Network Associates, Inc. for interstate business and
doing business as Delaware Network Associates, Inc. for California intrastate
business) pursuant to that certain Lease Assignment between Informix and
Assignee dated November 17, 1997, that certain Consent to Assignment Agreement
dated December 18, 1997 by and among Landlord, Informix and Assignee. The Lease
was thereafter amended by that certain First Amendment dated March 20, 1998 and
by that certain Second Amendment dated September 1, 1998. The foregoing
documents are collectively referred to herein as the "Lease").
B. The Premises described in the Lease consist of approximately 201,948
square feet on Floors 1 through 11 and approximately 6,420 square feet on the
Lower Level (the "Premises") in the multi-story building located at 0000
Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx (the "Property").
C. Lender has made or has committed to make a loan (the "Loan") to
Landlord in the approximate principal amount of $37,000,000 secured by a
mortgage, deed of trust or security deed
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(hereinafter referred to as the "Mortgage") and an assignment of leases and
rents from Landlord to Lender covering the Property including the Premises.
Informix and Assignee have agreed that the Lease shall be subject and
subordinate to the Mortgage held by Lender, provided Assignee and Informix (as
may be applicable) are assured of continued occupancy of the Premises under the
terms of the Lease;
STATEMENT OF AGREEMENT
For and in consideration of the mutual covenants herein contained, the sum
of Ten Dollars ($10.00) and other good and valuable considerations, and receipt
and sufficiency of which are hereby acknowledged, and notwithstanding anything
in the Lease to the contrary, it is hereby agreed as follows:
1. Lender, Informix, Assignee and Landlord do hereby covenant and agree
that the Lease with all rights, options (including options to acquire or lease
all or any part of the Premises), liens and charges created thereby, is and
shall continue to be subject and subordinate in all respects to the Mortgage
and to any renewals, modifications, consolidations, replacements and extensions
thereof and to all advancements made thereunder.
2. Lender does hereby agree with Assignee that, in the event Lender,
other purchaser at the foreclosure sale or the grantee of any conveyance in
lieu of foreclosure (the "Succeeding Owner") becomes the owner of the Premises
by foreclosure, conveyance in lieu of foreclosure or otherwise, so long as
Assignee complies with and performs its obligations under the Lease, (a) the
Lease shall continue in full force and effect as a direct Lease between the
Succeeding Owner of the Property and Assignee, upon and subject to all of the
terms, covenants and conditions of the Lease, for the balance of the term of
the Lease, and the Succeeding Owner will not disturb the possession of
Assignee, and (b) the Premises shall be subject to the Lease and the Succeeding
Owner shall recognize Assignee as the tenant of the Premises for the remainder
of the term of the Lease in accordance with the provisions thereof; provided,
however, that Succeeding Owner shall not be subject to any claims, offsets or
defenses which Assignee might have against any prior landlord (including
Landlord) nor shall Succeeding Owner be liable for any act or omission of any
prior landlord (including Landlord), nor shall Succeeding Owner be bound by any
rent or additional rent which Assignee might have paid for more than the current
month or any security deposit or other prepaid charge paid to any prior landlord
(including Landlord), nor shall Succeeding Owner be bound by any amendment or
modification of the Lease made without written consent of the Lender. Nothing
contained herein shall prevent Lender from naming Assignee in any foreclosure or
other action or proceeding initiated by Lender pursuant to the Mortgage to the
extent necessary under applicable Law in order for Lender to avail itself of and
complete the foreclosure or other remedy.
3. In the event that Informix is reinstated as Tenant under the Lease
pursuant to paragraph 14 of the Consent to Assignment Agreement, Lender does
hereby agree with Informix that,
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in the event Lender become the owner of the Premises by foreclosure, conveyance
in lieu of foreclosure or otherwise, so long as Informix complies with and
performs its obligations under the Lease, (a) the Lease shall continue in full
force and effect as a direct Lease between the succeeding owner of the Property
and Informix, upon and subject to all of the terms, covenants and conditions of
the Lease, for the balance of the term of the Lease, and Lender will not
disturb the possession of Informix, and (b) the Premises shall be subject to
the Lease and Lender shall recognize Informix as the tenant of the Premises for
the remainder of the term of the Lease in accordance with the provisions
thereof; provided, however, that Lender shall not be subject to any claims,
offsets or defenses which Informix might have against any prior landlord
(including Landlord) nor shall Lender be liable for any act or omission of any
prior landlord (including Landlord), nor shall Lender be bound by any rent or
additional rent which Informix might have paid for more than the current month
or any security deposit or other prepaid charge paid to any prior landlord
(including Landlord), nor shall Lender be bound by any amendment or
modification of the Lease made without its written consent. Nothing contained
herein shall prevent Lender from naming Informix in any foreclosure or other
action or proceeding initiated by Lender pursuant to the Mortgage to the extent
necessary under applicable Law in order for Lender to avail itself of and
complete the foreclosure or other remedy.
4. Informix and Assignee do hereby agree with Lender that, in the event
Lender or any other Succeeding Owner becomes the owner of the Premises by
foreclosure, conveyance in lieu of foreclosure or otherwise, then Informix and
Assignee shall attorn to and recognize Lender or any other Succeeding Owner as
the landlord under the Lease for the remainder of the term thereof, and
Informix and Assignee shall perform and observe their obligations thereunder,
subject only to the terms and conditions of the Lease. Informix and Assignee
further covenant and agree to execute and deliver upon request of Lender or any
other Succeeding Owner an appropriate agreement of attornment to Lender or any
other Succeeding Owner and any subsequent titleholder of the Premises; provided
the rights of Informix and Assignee under this Agreement and Lease are
preserved.
5. Informix and Assignee acknowledge that Landlord will execute and
deliver to Lender an assignment of the Lease as security for said loan, and
Informix and Assignee hereby expressly consent to such assignment.
6. Lender shall have no obligation or incur any liability with respect
to the construction or completion of the improvements in which the Premises are
located or for completion of the Premises or any improvements for the use and
occupancy thereof by Informix and/or Assignee arising prior to the time it
becomes a Succeeding Owner. Lender shall have no obligations nor incur any
liability with respect to any warranties of any nature whatsoever, including
any warranties respecting use, compliance with zoning, hazardous wastes or
environmental laws, Landlord's title, Landlord's authority, habitability,
fitness for purpose or possession arising prior to the time it becomes a
Succeeding Owner. In the event that Lender or any other Succeeding Owner shall
acquire title to the Premises or the Property, Lender or any other Succeeding
Owner shall have no obligation, nor incur any liability, beyond Lender's then
equity interest, if any, in the Property, and Informix and Assignee shall look
exclusively to such equity interest of Lender or any other Succeeding Owner, if
any, in the
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Property for the payment and discharge of any obligations or liability imposed
upon Lender or any other Succeeding Owner hereunder, under the Lease or under
any new lease of the Premises.
7. Informix and Assignee understand and acknowledge that Lender is about
to make a loan to Landlord and receive as part of the security for such loan
(i) the Mortgage, and (ii) an Assignment of Leases and Rents ("Assignment of
Leases") which affects the Lease, and that Lender (and persons or entities to
whom the Mortgage and/or Assignment of Leases may subsequently be assigned) are
relying upon the covenants, representations and warranties contained herein in
making such loan. Further, Informix and Assignee have notice that the Lease and
the rent and all other sums due thereunder have been assigned or are to be
assigned to lender as security for the Loan secured by the Mortgage. In the
event that Lender (or any person or entity to whom the Mortgage and/or
Assignment of Leases may subsequently be assigned) notify Informix and Assignee
of a default under the Mortgage and/or Assignment of Leases and demand that
Informix and Assignee pay their rent and all other sums due under the Lease to
Lender (or such future lender), Informix and Assignee shall honor such demand
and pay the rent and all other sums due under the Lease directly to Lender (or
such future lender) or as otherwise required pursuant to such notice. Informix
and Assignee agree to notify Lender of any default(s) by Landlord under the
Lease; Lender shall have the same right to cure such default(s) as is provided
to Landlord under the Lease.
8. If any portion or portions of this Agreement shall be held invalid or
inoperative, then all of the remaining portions shall remain in full force and
effect, and, so far as is reasonable and possible, effect shall be given to the
intent manifested by the portion or portions held to be invalid or inoperative.
9. This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
10. Lender shall not, either by virtue of the Mortgage, the Assignment of
Leases or this Agreement, be or become a mortgagee in possession or be or
become subject to any liability or obligation under the Lease or otherwise
until Lender shall have acquired the interest of Landlord in the Premises, by
foreclosure or otherwise, and then such liability or obligation of Lender under
the Lease shall extend only to those liabilities or obligations accruing
subsequent to the date that Lender has acquired the interest of Landlord in the
Premises as modified by the terms of this Agreement.
11. Any and all notices, elections, approvals, consents, demands, requests
and responses thereto ("Communications") permitted or required to be given
under this Agreement shall be in writing and shall be deemed to have been
properly given and shall be effective upon the earlier of receipt thereof or
deposit thereof in the United States mail, postage prepaid, certified with
return receipt requested, to the other party at the address of such other party
set forth hereinbelow or at such other address within the continental United
States as such other party may designate by notice specifically designated as a
notice of change of address and given in accordance herewith; provided,
however, that the time period in which a response to any Communication must be
given shall commence on the date of receipt thereof, and provided further that
no notice of change of address
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shall be effective with respect to Communications sent prior to the time of
receipt thereof. Any notice, if given to Lender, must be addressed as follows,
subject to change as provided hereinabove:
Column Financial, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
and, if given to Informix, must be addressed as follows, subject to change as
provided hereinabove:
Informix Corporation
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn:
----------------------
and, if given to Assignee, must be addressed as follows, subject to change as
provided hereinabove:
Networks Associates, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxx
and, if given to Landlord, must be addressed as follows, subject to change as
provided hereinabove:
Xxxx X. XxXxxxxxxx, LLC
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. XxXxxxxxxx
12. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, legal representatives, successors,
successors-in-title and assigns. When used herein, the term "Landlord" refers to
Landlord and to any successor to the interest of Landlord under the Lease.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement [under
seal] as of the date first above written.
LENDER:
COLUMN FINANCIAL, INC,
a Delaware corporation
By: /s/ XXXXX XXXXXXX
------------------------------
Name: Xxxxx Xxxxxxx
----------------------------
Title: Assistant Vice President
---------------------------
INFORMIX:
INFORMIX CORPORATION,
a Delaware corporation
By: /s/ XXXXX X. XXXXXX
------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------
Title: Assistant Secretary
---------------------------
ASSIGNEE:
NETWORKS ASSOCIATES, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXX
------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------
Title: CFO
---------------------------
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LANDLORD:
XXXX X. XxXXXXXXXX, LLC,
a California limited liability company
By: /s/ XXXX X. XxXXXXXXXX
-----------------------------------
Name: Xxxx X. XxXxxxxxxx
---------------------------------
Title: Manager
--------------------------------
STATE OF CALIFORNIA )
)ss.
COUNTY OF SANTA XXXXX )
On June 8, 2000 before me Xxxxxx X. XxXxxx, notary public, personally
appeared Xxxx X. XxXxxxxxxx, personally known to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
[SEAL] /s/ XXXXXX X. XxXXXX
XXXXXX X. XxXXXX -------------------------------
Comm. #1106916 Notary Public
NOTARY PUBLIC - CALIFORNIA
SANTA XXXXX COUNTY
Comm. Exp. July 25, 2000
(official seal here)
7
STATE OF GEORGIA )
) ss.
COUNTY OF XXXXXX )
On June 15, 2000 before me, Xxxxxxx X. Xxxxx, personally appeared
[ILLEGIBLE], personally known to be (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature
on the instrument the person(s), or the entity upon behalf of which the
person(s), acted, executed the instrument.
WITNESS my hand and official seal.
/s/ XXXXXXX X. XXXXX
----------------------------------
Notary Public
(official seal here)
STATE OF CALIFORNIA )
) ss.
COUNTY OF SANTA XXXXX )
On May 22, 2000 before me, Xxxxxxxx X. Xxxxxxxx, personally appeared
Xxxxxxx Xxxxx, personally known to be (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person or
the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
/s/ XXXXXXXX X. XXXXXXXX
----------------------------------
Notary Public
====================================
XXXXXXXX X. XXXXXXXX
Commission # 1195491
[SEAL] [ILLEGIBLE]
Notary Public - California
Santa Xxxxx County
My Comm. Expires Sep 4, 0000
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
0
XXXXX XX XXXXX XXXXXXXX )
) ss.
COUNTY OF BEAUFORT )
On June 7, 2000 before me, Xxxxx X. Xxxxx, personally appeared
Xxxxx X. Xxxxxx, personally known to be (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature
on the instrument the person(s), or the entity upon behalf of which the
person(s), acted, executed the instrument.
WITNESS my hand and official seal.
/s/ XXXXX X. XXXXX
-----------------------------------
Notary Public
My Commission Expires March 6, 2005
(official seal here)
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