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EXHIBIT 10.15
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
One Embarcadero Center, 30th Floor
San Francisco, California 94111
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
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SUBORDINATION, NONDISTURBANCE AND
ATTORNMENT AGREEMENT
THIS AGREEMENT made this 18th day of December, 1997 between Guaranty
Federal Bank, F.S.B., a federal savings bank (hereinafter called "Lender"),
Networks Associates, Inc., a Delaware corporation, formerly known as McAfee
Associates, Inc., a Delaware corporation (hereinafter called "Assignee"), and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, LLC, a California limited liability company (hereinafter
called "Landlord").
WITNESSETH THAT:
WHEREAS, ▇▇▇▇▇▇ is the owner and holder of a Construction Deed of Trust
(with Security Agreement, Fixture Filing and Assignment of Leases and Rents)
(hereinafter called the "Deed of Trust") dated December 18, 1996, covering the
real property described in Exhibit A and the buildings and improvements thereon
(hereinafter collectively called the "Mortgaged Premises") securing the payment
of a promissory note in the stated principal amount of $35,486,690.00, payable
to the order of Lender;
WHEREAS, Assignee is the tenant under a lease (hereinafter called the
"Lease") dated November 22, 1996, executed by and between Landlord and Informix
Corporation, a Delaware corporation and assigned to assignee pursuant to that
certain Lease assignment dated November 17, 1997, covering certain property
(hereinafter called the "Demised Premises") consisting of all or a part of the
Mortgaged Premises; and
WHEREAS, Assignee and ▇▇▇▇▇▇ desire to confirm their understanding with
respect to the Lease and the Deed of Trust;
NOW, THEREFORE in consideration of the mutual covenants and agreements
herein contained, Lender and assignee hereby agree and covenant as follows:
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1. Subordination. The Lease now is, and shall at all times and for all
purposes continue to be, subject and subordinate, in each and every respect, to
the Deed of Trust, with the provisions of the Deed of Trust controlling in all
respects over the provisions of the Lease, it being understood and agreed that
the foregoing subordination shall apply to any and all increases, renewals,
modifications, extensions, substitutions, replacements and/or consolidations of
the Deed of Trust, provided that any and all such increases, renewals,
modifications, extensions, substitutions, replacements and/or consolidations
shall nevertheless be subject to the terms of this Agreement. Notwithstanding
the foregoing, the provisions of the Lease concerning construction of shell
improvements and tenant improvements, repair of damage caused by fire or other
peril, disposition of insurance proceeds, alteration of the premises, and
assignment and subletting shall prevail over any inconsistent or conflicting
provisions in the Deed of Trust, but without limiting Lender's security
interest therein or ▇▇▇▇▇▇'s rights under the Deed of Trust to approve such
matters. ▇▇▇▇▇▇ agrees that to the extent any action Assignee desires to take
cannot be taken without the prior written consent or approval of Lender, such
consent or approval shall not be unreasonably withheld.
2. Non-Disturbance. So long as (i) Assignee is not in default (beyond
any period given Assignee to cure such default) in the payment of rent or
additional rent or has not committed a material default in the performance of
any of the other terms, covenants or conditions of the Lease on Assignee's part
to be performed, (ii) the Lease is in full force and effect according to its
original terms, or with such amendments or modifications as Lender shall have
approved, or, if the Lease has terminated due to the bankruptcy of Informix
corporation. Assignee has entered into a new lease with Landlord on the terms
and conditions of the Lease (as specified in paragraph 3 below), and such new
lease is in full force and effect and (iii) Assignee attorns to Lender or a
purchaser of the Mortgaged Premises as provided in Paragraph 3, then (a)
Assignee's possession, occupancy, use and quiet enjoyment of the Demised
Premises under the Lease, or any extensions or renewals thereof or acquisition
of additional space which may be effected in accordance with any option
therefor in the Lease, shall not be terminated, disturbed, diminished or
interfered with by Lender in the exercise of any of its rights under the Deed
of Trust, and (b) Lender will not join Assignee as a party defendant in any
action or proceeding for the purpose of terminating Assignee's interest and
estate under the Lease because of any default under the Deed of Trust.
3. New Lease: Attornment. If the Lease between Landlord and Informix
Corporation is terminated as the result of the bankruptcy of Informix
Corporation, Assignee and Landlord agree to enter into a new lease on the terms
and conditions of the Lease (excluding Section 57 of the Lease entitled "First
Right to Purchase" and Section 56 of the Lease entitled "Option to Extend Term"
and as otherwise modified by the Consent to Assignment Agreement entered into
by the parties and Informix Corporation concurrently herewith) and if such new
lease is entered into, the term "Lease" as used herein shall refer to such new
lease. If Lender shall become the owner of the Mortgaged Premises or the
Mortgaged Premises shall be sold by reason of nonjudicial or judicial
foreclosure or other proceedings brought to enforce the Deed of Trust or the
Mortgaged Premises shall be
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conveyed by dead-in-lieu of foreclosure, the Lease shall continue
in full force and effect as a direct Lease between Lender or other purchaser of
the Mortgaged Premises, who shall succeed to the rights and duties of Landlord,
and Assignee, and Assignee shall attorn to Lender or such purchaser, as the case
may be, upon any such occurrence and shall recognize Lender or such purchaser,
as the case may be, as the Landlord under the Lease. Such attornment shall be
effective and self-operative without the execution of any further instrument on
the part of any of the parties hereto. Assignee agrees, however, to execute and
deliver at any time and from time to time, upon the request of Landlord or of
any holder(s) of any of the indebtedness or other obligations secured by Deed
of Trust or any such purchaser, any instrument or certificate which, in the
sole reasonable judgment of the requesting party, is necessary or appropriate,
in connection with any such foreclosure or dead-in-lieu of foreclosure or
otherwise, to evidence such attornment. Assignee hereby waives the provisions
of any statute or rule of law, now or hereafter in effect, which may give or
purport to give assignee any right or election to terminate or otherwise
adversely affect the Lease and the obligations of Assignee thereunder as a
result of any such foreclosure or deed-in-lieu of foreclosure.
4. Obligations and Remedies. If Lender shall become the owner
of the Mortgaged Premises or the Mortgaged Premises shall be sold by reason of
nonjudicial or judicial foreclosure or other proceedings brought to enforce the
Deed of Trust or the Mortgaged Premises shall be conveyed by deed-in-lieu of
foreclosure, Lender or other purchaser of the Mortgaged Premises, as the case
may be, shall have the same remedies by entry, action or otherwise in the event
of any default by Assignee (beyond the period given Assignee to cure such
default) in the payment of rent or additional rent or in the performance of any
of the other terms, covenants and conditions of the Lease on Assignee's part to
be performed that Landlord had or would have had if Lender or such purchaser
had not succeeded to the interest of Landlord. Upon attornment by Assignee as
provided herein, Lender or such purchaser shall be bound to Assignee under all
the terms, covenants and conditions of the Lease (including, without
limitation, the obligation to construct the shell improvements and the tenant
improvements as provided therein) and Assignee shall have the same remedies
against Lender or such purchaser for the breach of an agreement contained in
the Lease that Assignee might have had under the Lease against Landlord if
Lender or such purchaser had not succeeded to the interest of Landlord:
provided, however, that Lender or such purchaser shall not be liable or bound
to Assignee:
(a) for any act or omission of any prior landlord
(including Landlord); or
(b) for any offsets or defenses which Assignee might have
against any prior landlord (including Landlord); or
(c) for or by any rent or additional rent which Assignee
might have paid for more than the current month to any prior
landlord (including Landlord); or
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(d) by any amendment, modification or consensual
termination of the Lease made without ▇▇▇▇▇▇'s consent; or
(e) for any security deposit, rental deposit or similar
deposit given by Assignee to a prior landlord (including
Landlord) unless such deposit is actually paid over to Lender or
such purchaser by the prior landlord (such deposits do not
include the Account for Assignee Improvements which Lender
acknowledges will be disbursed pursuant to Exhibit D of the Lease
for such item; or
(f) for any moving, relocation or refurbishment allowance
or any construction of or payment or allowance for tenant
improvements to the Demised Premises or any part thereof or to
the Mortgaged Premises or any part thereof for the benefit of
Assignee except as provided in Exhibit D to the Lease so long as
Assignee pays all costs associated therewith by disbursements
from the Account and otherwise; or
(g) for the payment of any leasing commissions or other
expenses for which any prior landlord (including Landlord)
incurred the obligation to pay; or
(h) by any notice given by Assignee to a prior landlord
(including Landlord) unless a copy thereof was also then given to
Lender.
The person or entity to whom Assignee attorns shall be liable to Assignee under
the Lease only for matters arising during such person's or entity's period of
ownership, and such liability shall terminate upon the transfer by such person
or entity of its interest in the Lease and the Mortgaged Premises as to events
occurring after the date of transfer.
5. No Abridgment. Nothing herein contained is intended, nor
shall it be construed, to abridge or adversely affect any right or remedy of
Landlord under the Lease in the event of any default by Assignee (beyond any
period given Assignee to cure such default) in the payment of rent or additional
rent or in the performance of any of the other terms, covenants or conditions of
the Lease on Assignee's part to be performed.
6. Notices of Default to Lender. Assignee agrees to give ▇▇▇▇▇▇
a copy of any default notice sent by Assignee to Landlord under the Lease.
7. Representations by Assignee. Assignee represents and warrants
to Lender that Assignee has validly executed the Lease Assignment; the Lease is
valid, binding and enforceable and is in full force and effect in accordance
with its terms; the Lease has not been amended except as stated herein; no rent
under the Lease has been paid more than thirty (30) days in advance of its due
date; there are no defaults existing under the Lease; and Assignee, as of this
date, has no charge, lien, counterclaim or claim of offset under the
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Lease, or otherwise, against the rents or other charges due or to become due
under the Lease.
8. Rent Payment. If Lender shall become the owner of the
Mortgaged Premises or the Mortgaged Premises shall be sold by reason of
nonjudicial or judicial foreclosure or other proceedings brought to enforce the
Deed of Trust or the Mortgaged Premises shall be conveyed by deed-in-lieu of
foreclosure, Assignee agrees to pay all rents directly to lender or other
purchaser of the Mortgaged Premises, as the case may be, in accordance with the
Lease immediately upon notice of Lender or such purchaser, as the case may be,
succeeding to Landlord's interest under the Lease. Assignee further agrees to
pay all rents directly to Lender immediately upon notice that lender is
exercising its rights to such rents under the Deed of Trust or any other loan
documents (including but not limited to any Assignment of Leases and Rents)
following a default by Landlord or other applicable party.
9. Notice of Deed of Trust. To the extent that the Lease shall
entitle Assignee to notice of any deed of trust or security agreement, this
Agreement shall constitute such notice to the Assignee with respect to the Deed
of Trust and to any and all other deeds of trust and security agreements which
may hereafter be subject to the terms of this Agreement.
10. Landlord Defaults. Assignee agrees with Lender that effective
as of the date of this Agreement: (i) Assignee shall not take any steps to
terminate the Lease for any default by Landlord or any succeeding owner of the
Mortgaged Premises until after giving ▇▇▇▇▇▇ written notice of such default,
stating the nature of the default and giving Lender thirty (30) days from
receipt of such notice to effect cure for the same, or if cure cannot be
effected within said thirty (30) days due to the nature of the default, Lender
shall have a reasonable time to cure provided that it commences cure within said
thirty (30) day period of time and diligently carries such cure to completion;
and (ii) notice to Landlord under the Lease (oral or written) shall not
constitute notice to Lender.
11. No Amendment, Termination, Assignment or Subletting of Lease.
Assignee agrees that ▇▇▇▇▇▇▇▇'s interest in and obligations under the Lease
shall not be altered, modified or terminated without the prior written consent
of Lender. Assignee further agrees that Assignee shall not assign the Lease or
allow it to be assigned in any manner or sublet the Demised Premises or any part
thereof without the prior written consent of Lender in any situation where
▇▇▇▇▇▇▇▇'s consent to any such action is required under the Lease. With respect
to consents to be given by Lender pursuant to this paragraph, such consent shall
not be unreasonably withheld.
12. Liability of Lender. If Lender shall become the owner of the
Mortgaged Premises or the Mortgaged Premises shall be sold by reason of
foreclosure or other proceedings brought to enforce the Mortgage or the
Mortgaged Premises shall be conveyed by deed-in-lieu of foreclosure, Assignee
agrees that, notwithstanding anything to
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the contrary contained in the Lease, after such foreclosure sale or conveyance
by deed-in-lieu of foreclosure, Lender shall have no personal liability to
tenant under the Lease and Assignee shall look solely to the estate and property
of Landlord in the Mortgaged Premises, to the net proceeds of sale thereof or
the rentals received therefrom, to the Account and proceeds therefrom held by
Lender for the satisfaction of Assignee's remedies for the collection of a
judgment or other judicial process requiring the payment of money by landlord in
the event of any default or breach by Landlord with respect to any of the terms,
covenants, and conditions of the Lease to be observed or performed by Landlord
and any other obligation of Landlord created by or under this Lease, and no
other property or assets of Landlord or of its partners, officers,
beneficiaries, co-tenants, shareholders, or principals (as the case may be)
shall be subject to levy, execution or other enforcement procedures for the
satisfaction of Assignee's remedies. The term "Landlord" as used herein shall be
limited to mean and include only the owner or owners at the time in question of
Landlord's interest in the Lease, which term shall include Lender in the event
Lender acquires title to the Mortgaged Premises. Further, in the event of any
transfer by Landlord of Landlord's interest in this Lease, Landlord (and in the
case of any subsequent transfers or conveyances, the then assignor), including
each of its partners, officers, beneficiaries, co-tenants, shareholders or
principals (as the case may be) shall be automatically freed and released, from
and after the date of such transfer or conveyance, of all liability for the
performance of any covenants and agreements which accrue subsequent to the date
of such transfer of Landlord's interest.
13. Notice. Any notice or communication required or permitted
hereunder shall be given in writing, sent by (a) personal delivery, or (b)
expedited delivery service with proof of delivery, or (c) United States mail,
postage prepaid, registered or certified mail, or (d) telegram, telex or
telecopy, addressed as follows:
To Lender: Guaranty Federal Bank, F.S.B.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
To Assignee: Networks Associates, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Controller
or to such other address or to the attention of such other person as hereafter
shall be designated in writing by the applicable party sent in accordance
herewith. Any such notice or communication shall be deemed to have been given
and received either at the time of personal delivery or, in the case of
delivery service or mail, as of the date of first attempted delivery at the
address and in the manner provided herein, or in the case of telegraph, telex
or telecopy, upon receipt.
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14. Modification. This Agreement may not be modified orally or in any
manner other than by an agreement in writing signed by the parties hereto or
their respective successors in interest.
15. Successor Lender. The term "Lender" as used throughout this
Agreement includes any successor or assign of Lender and any holder(s) of any
interest in the indebtedness secured by the Deed of Trust.
16. Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the parties hereto, their successors and assigns, and
any purchaser or purchasers at foreclosure of the Mortgaged Premises, and their
respective heirs, personal representatives, successors and assigns.
17. Paragraph Headings. The paragraph headings contained in this
Agreement are for convenience only and shall in no way enlarge or limit the
scope or meaning of the various and several paragraphs hereof.
18. Gender and Number. Within this Agreement, words of any gender shall
be held and construed to include any other gender, and words in the singular
number shall be held and construed to include the plural and words in the
plural number shall be held and construed to include the singular, unless the
context otherwise requires.
19. Applicable Law. This Agreement and the rights and duties of the
parties hereunder shall be governed for all purposes by the law of the State of
California and the law of the United States applicable to transactions within
such state.
20. Counterparts. This Agreement may be executed in multiple
counterparts, and by the different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be one and the
same instrument with the same signature as if all parties to this Agreement had
signed the same signature page.
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed as of the day and year first above written.
LENDER:
GUARANTY FEDERAL BANK, F.S.B., a
federal savings bank
By: /s/ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
Its: Division Manager
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ASSIGNEE:
NETWORKS ASSOCIATES, INC., A Delaware
corporation
By: [SIG]
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Its: CFO
---------------------------
LANDLORD:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, LLC, a California
limited liability company
By: [SIG]
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------
Its: Manager
---------------------------
[Add acknowledgments]
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DESCRIPTION OF REAL PROPERTY:
All that certain real property in the City of Santa ▇▇▇▇▇, County of Santa
▇▇▇▇▇, State of California, described as follows:
Parcel One:
All of Parcel 2, as shown upon that certain Map entitled, "Lot Line Adjustment
Parcel Map, being a resubdivision of Parcels A and B as shown on that certain
Parcel Map recorded in Book 531 of Maps at Page 8, Santa ▇▇▇▇▇ County Records",
which Map was filed for record in the Office of the Recorder of the County of
Santa ▇▇▇▇▇, State of California, on February 26, 1988 in Book 584 of Maps, at
Pages 17 and 18.
Parcel Two
All those easement rights as disclosed by that certain "First Amended and
Restated Reciprocal Easement Agreement and other Agreements Respecting Real
Property", executed by ▇▇▇▇▇▇▇▇▇▇ Towers, Phase I, a California General
Partnership and ▇▇▇▇▇▇▇▇▇▇ Towers, Phase II, a California General Partnership,
dated April 15, 1988, recorded August 11, 1988 in Book K637 Page 1781, Official
Records of Santa ▇▇▇▇▇.
EXHIBIT A
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CALIFORNIA
ALL-PURPOSE
ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
COUNTY OF SANTA ▇▇▇▇▇ )
On 12/17/97 before me, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Notary Public,
------- ----------------------------------------------------
DATE NAME, TITLE OF OFFICER-E.G. "▇▇▇▇ ▇▇▇, NOTARY PUBLIC"
personally appeared, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ personally known to me 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(s) 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. [SEAL] ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Comm. #1106916
NOTARY PUBLIC - CALIFORNIA
SANTA ▇▇▇▇▇ COUNTY
Comm. Exp. July 25, 2000
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (SEAL)
-----------------------
NOTARY PUBLIC SIGNATURE
OPTIONAL INFORMATION
TITLE OR TYPE OF DOCUMENT_______________________________________________________
DATE OF DOCUMENT_____________________________________NUMBER OF PAGES____________
SIGNER(S) OTHER THAN NAMED ABOVE________________________________________________
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
--------------
County of Santa ▇▇▇▇▇
-------------
On December 18, 1997 before me, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------- -------------------------------
Date Name and Title of Officer
(e.g. "▇▇▇▇ ▇▇▇, Notary Public")
personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------
Name(s) of Signer(s)
[X] personally known to me - 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
[ SEAL ] same in his/her/their authorized capacity(ies),
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and that by his/her signature(s) 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.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Signature of Notary Public
------------------------------------OPTIONAL------------------------------------
Though the information below is not required by law, it may prove valuable to
persons relying on the document and could prevent fraudulent removal and
reattachment of this form to another document.
DESCRIPTION OF ATTACHED DOCUMENT
Title or Type of Document: Subordination Non disturbance Agreement
----------------------------------------------------
Document Date: December 18, 1997 Number of Pages: 8
---------------------
Signer(s) Other Than Named Above:
----------------------------------------------
CAPACITY(IES) CLAIMED BY SIGNER(S)
Singer's Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Signer's Name:
----------------------- -------------------------
[ ] Individual [ ] Individual
[X] Corporate Officer [ ] Corporate Officer
Title(s) CFO Title(s):
-------------------------- --------------------------
[ ] Partner -- [ ] Limited [ ] General [ ] Partner -- [ ] Limited [ ] General
[ ] Attorney-in-Fact [ ] Attorney-in-Fact
[ ] Trustee [ ] Trustee
[ ] Guardian or Conservator RIGHT [ ] Guardian or Conservator RIGHT
[ ] Other: THUMBPRINT [ ] Other: THUMBPRINT
----------------------- OF SIGNER ----------------------- OF SIGNER
Signer is Representing: TOP OF Signer is Representing: TOP OF
THUMB THUMB
----------------------- HERE ----------------------- HERE
----------------------- -----------------------
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STATE OF TEXAS
COUNTY OF DALLAS
This instrument was acknowledged before me on 19th day of December, 1997 by
▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President of Guaranty Federal Bank, F.S.B.
[SEAL] ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public
STATE OF TEXAS /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
My Comm. Exp. 03-13-2001 ----------------------------------
Notary Public, State of Texas
My Commission Expires: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Printed or Typed Name