SUBORDINATION, NON-DISTURBANCE,
AND
ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE, AND ATTORNMENT AGREEMENT
("Agreement"), is made and entered into this 21st day of January, 1997, by
and between The Bank of Nova Scotia, a Canadian chartered bank acting through
its San Francisco Agency ("Lender"), and Active Voice Corporation, a
Washington State business corporation ("Lessee").
RECITALS
Lessee has entered into a certain lease dated January 31, 1991, which has
been amended by amendments, agreements, or letter agreements dated March 4,
1992, June 22, 1992, July 3, 1992, September 17, 1993, October 8, 1993, April
27, 1994, August 11, 1994, and December 19, 1996, (together, the "Lease")
with Xxxxxx Xxxxx ("Lessor"), covering certain space (the "Premises") located
in the real property commonly known as the Third and Broad Building and
legally described in Exhibit "A" to this Agreement (the "Property").
Lender has made a first mortgage loan (the "Loan") to Lessor which is
secured by a Deed of Trust, Security Agreement and Assignment of Leases and
Rents, and by an Assignment of Leases and Cash Collateral (together, the
"Deed of Trust") covering the Property.
Lessee has subordinated the Lease to the lien of the Deed of Trust under
and according to the terms of the Lease.
Lessee has also made or proposed to make certain advances or expend
certain funds for or on behalf of Lessor.
As a condition of Lessee making certain advances or expending certain
funds for or on behalf of Lessor and agreeing to an amendment to the Lease
attached to this Agreement as Exhibit "B" (the "Lease Amendment"), Lessee
desires to be assured of continued occupancy of the Premises under the terms
of the Lease and any amendments (including the Lease Amendment) and of the
continuation of its other rights under the Lease and any amendments
(including the Lease Amendment). Lessee has requested that Lender agree not
to disturb Lessee's possessory rights in the Premises and to recognize the
other terms and conditions of the Lease and any amendments (including the
Lease Amendment) in the event Lender should foreclose the Deed of Trust,
provided that Lessee is
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not in default under the Lease or any amendments (including the Lease
Amendment).
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
AGREEMENT
1. PAYMENTS. Lessee acknowledges receipt of the Lease Payment
Instructions to make all payments of rent and other amounts due under the Lease
by sending the same to X.X. Xxx 00000, Xxxxxxx, Xxxxxxxxxx 00000-000000. Any
payment delivered or directed to any other location shall not be applied to
amounts due under the Lease. These Instructions may not be changed or revoked
except in writing signed by Lender.
2. ACKNOWLEDGMENT OF LEASE. Lender acknowledges that the Lease is in
full force and effect and that Lessee is not in default of any of Lessee's
material obligations under the Lease.
3. CONSENT TO LEASE AMENDMENT. Lender acknowledges that Lessor and
Lessee have entered into or intend to enter into the Lease Amendment. Lender
hereby consents to the execution by Lessor and Lessee of the Lease Amendment and
all other prior amendments and/or letter agreements.
4. ACKNOWLEDGMENT OF SUBORDINATION. Lessee acknowledges that the Lease
is subordinated to the Deed of Trust pursuant to and in accordance with the
terms of the Lease.
5. NON-DISTURBANCE. Lender agrees that so long as conditions do not
exist entitling Lessor to declare the Lease and any amendments (including the
Lease Amendment) terminated, Lessee's possession and enjoyment of the Premises
shall not be interfered with by Lender in a foreclosure action, sale, or other
action or proceeding instituted under or in connection with the Deed of Trust.
In the event of foreclosure of the Deed of Trust, whether by action
pursuant to the power of sale therein contained or otherwise, or delivery of
a deed to the Property or any portion thereof in lieu of foreclosure of the
Deed of Trust, whereby the purchaser upon foreclosure of the Deed of Trust or
the grantee under a deed in lieu of foreclosure of the Deed of Trust has
notified Lessee that it has succeeded to the ownership of all interest in the
Property and the rights of Lessor under the Lease, then the Lease and any
amendments (including the Lease Amendment) shall continue in full force and
effect as a direct lease between such purchaser or grantee of the Property
and Lessee, upon and subject to the terms, covenants, and conditions of the
Lease and any
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amendments (including the Lease Amendment), including the power of such
purchaser or grantee as landlord thereunder to terminate the interests of
Lessee under and in accordance with the terms of the Lease and any amendments
(including the Lease Amendment). Such purchaser or grantee will not disturb
the possession of Lessee and will be bound by all of Lessor's obligations
under the Lease and any amendments (including the Lease Amendment).
6. ATTORNMENT. So long as Lessee has quiet enjoyment of the Premises,
Lessee agrees: (a) to attorn to and recognize as landlord under the Lease
and any amendments (including the Lease Amendment): (i) Lender, when in
possession of the Property following foreclosure of the Deed of Trust or
conveyance of the Property to Lender by deed in lieu of foreclosure of the
Deed of Trust, (ii) a receiver appointed in an action or proceeding to
foreclose the Deed of Trust, (iii) a purchaser upon foreclosure of the Deed
of Trust, (iv), a grantee under a deed in lieu of foreclosure of the Deed of
Trust, and (v) any subsequent purchaser of the Property; (b) upon request, to
execute and deliver to said person or entity any instrument or instruments in
recordable form which may be necessary or appropriate to effect the
performance of the agreements contained in this Agreement, provided that such
instruments do not create or risk the creation of, increased risk of
liabilities or obligations of Lessee; and (c) to be bound to perform all of
the obligations imposed by the Lease and any amendments (including the Lease
Amendment) upon the Lessee.
7. NOTICE OF DEFAULTS. In the event of any act or omission by Lessor
which would give Lessee the right, either immediately or after the lapse of
time, to terminate the Lease or to claim a partial or total eviction, Lessee
will not exercise any such rights: (i) until it has given written notice of
such default to Lender; and (ii) unless and until Lender shall have failed to
cure such default for the same period of time as is given to Lessor under the
Lease to cure such default.
8. ASSIGNMENT. Lessee acknowledges that it has notice that the Lease
and the rent and all other sums due under the Lease have been assigned or are
to be assigned to Lender as security for the obligations secured by the Deed
of Trust. In the event that Lender notifies Lessee of a default under the
Deed of Trust and demands that Lessee pay its rent and all other sums due
under the Lease to Lender, Lessee agrees that it will honor such demand and
pay its rent and all other sums due under the Lease directly to the Lender or
as otherwise required pursuant to such notice.
9. NOTICES. All notices under this Agreement shall be deemed to have
been duly given if mailed by United States registered or certified mail, with
return receipt requested, postage prepaid, at the following addresses (or at
such other addresses as shall be given by one party to the other) and shall
be deemed complete upon any such mailing:
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If to Lender:
The Bank of Nova Scotia
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
If to Lessee:
Active Voice Corporation
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxxxx
Director of Administration
10. BINDING EFFECT. This Agreement shall inure to the benefit of the
parties hereto, their successors and permitted assigns.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
"LENDER"
THE BANK OF NOVA SCOTIA, a
Canadian chartered bank acting through
its San Francisco agency
By /s/ B. Xxxxx Xxxxxxxxx
------------------------------------------
Its Office Head, Real Estate Banking
-------------------------------------
"LESSEE"
ACTIVE VOICE CORPORATION, a
Washington State business corporation
By /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Its CEO
----------------------------------
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STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN FRANCISCO )
On this 21st day of January, 1997, before me, the undersigned, a Notary
Public in and for the State of California, duly commissioned and sworn,
personally appeared B. Xxxxx Xxxxxxxxx, to me known to be the Xxxxxx Xxxx,
Xxxx Xxxxxx Xxxxxxx xx XXX XXXX XX XXXX XXXXXX, the corporation that executed
the foregoing instrument, and acknowledged the said instrument to be the free
and voluntary act and deed of said corporation, for the uses and purposes
therein mentioned, and an oath stated that he is authorized to execute the
said instrument and that the seal affixed is the corporate seal of said
corporation.
WITNESS my hand and official seal hereto affixed the day and year in this
certificate above written.
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
NOTARY PUBLIC, in and for the
[SEAL] State of California, residing
at San Mateo, California
My commission expires: Mar. 6, 0000
XXXXX XX XXXXXXXXXX )
) ss.
COUNTY OF KING )
On this 31st day of January, 1997, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn,
personally appeared Xxxxxx X. Xxxxxxxx, to me known to be the CEO of ACTIVE
VOICE CORPORATION, the corporation that executed the foregoing instrument,
and acknowledged the said instrument to be the free and voluntary act and
deed of said corporation, for the uses and purposes therein mention, and on
oath stated that he/she is authorized to execute the said instrument and that
the seal affixed is the corporate seal of said corporation.
WITNESS my hand and official seal hereto affixed the day and year in this
certificate above written.
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------
NOTARY PUBLIC, in and for the
State of Washington, residing
at Seattle, WA
My commission expires: 10-1-00
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THIRD AND BROAD BUILDING
0000 XXXXX XXXXXX
XXXXXXX, XXXXXXXXXX 00000
Xxxx 0, 0, 0, 0, 0, 0, 0, 00, 11, 12, Block X, Xxxxxxx X. Xxxx'x
Fourth Addition to the City of Seattle, according to the Plat recorded
in Volume 1 of Plats, Page 167, records of King County, Washington;
together with the vacated alley lying between lots 9, 10, 11, and 12
and Lots 1, 2, 3, 4, 5, and 6.
EXHIBIT "A"
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