SUBORDINATION, NONDISTURBANCE
AND ATTORNMENT AGREEMENT
Dated: September 23, 1997
between
Silicon Valley Internet Partners
Tenant,
and
Lincoln Plaza Limited Partnership
Landlord,
and
BHF-BANK Aktiengesellschaft,
Grand Cayman Branch,
as Agent for certain Lendors,
Mortgagee.
LOCATION OF PREMISES
Street Address: 000 Xxxxx Xxxxxx & 00-00 Xxxxxxx Xxxxxx
Xxxx or Town of: Boston
County of: Suffolk
State of: Massachusetts
After recording, please return to:
Patterson, Belknap, Xxxx & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
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SUBORDINATION, NON-DISTURBANCE AND
----------------------------------
ATTORNMENT AGREEMENT
--------------------
THIS AGREEMENT, made as of this _____ day of September, 1997 among Silicon
Valley Internet Partners, a California corporation having its principal place of
business at 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000 ("TENANT"), LINCOLN PLAZA LIMITED
PARTNERSHIP. a Massachusetts limited partnership, having an office at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 ("LANDLORD"), and BHF-BANK
Aktiengesellschaft, a German bank acting through its Grand
Cayman Branch, having an address in care of New York Branch, 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000-0000 ("MORTGAGEE").
RECITALS:
---------
Mortgagee, as agent for certain lenders, is the mortgagee under a certain
instrument entitled Mortgage and Security Agreement (the "MORTGAGE"), dated
September ___, 1997, executed and delivered by Landlord to Mortgagee and
intended to be recorded with the Suffolk County Registry of Deeds, which
Mortgage secures a certain promissory note of even date with the Mortgage made
by Landlord to Mortgagee (the "NOTE"). The Mortgage conveys and constitutes a
lien on certain real property described on EXHIBIT A attached hereto and made a
part hereof and the improvements thereon (the "REAL PROPERTY").
Tenant has entered into a certain lease dated May 2, 1997 (the "LEASE")
with Landlord or its predecessor in title to the Real Property demising space in
the Real Property known as Suite No. 201, the Permanent Premises and prior to
that, Suite 600, the Initial Premises. (the "PREMISES").
Tenant and Landlord have requested that Mortgagee enter into an agreement
on the terms and conditions herein set forth, and Mortgagee has agreed to enter
into this Agreement.
AGREEMENTS:
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ACCORDINGLY, in consideration of the mutual convenants hereinafter
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto mutually
covenant and agree as follows:
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1. The Lease and any extensions, renewals, replacements or modifications
thereof, and all of the right, title and interest of Tenant in and to the Real
Property are and shall be subject and subordinate to the lien of the Mortgage
and to all the terms, covenants and conditions contained therein, and to any
renewals, modifications, replacements, consolidations and extensions thereof.
2. In the event of foreclosure of the Mortgage, or in the event Mortgagee
comes into possession or acquires title to the Real Property as a result of the
enforcement or foreclosure of the Mortgage, or as a result of any other means,
Mortgagee agrees that Tenant shall not be disturbed in its possession of the
Premises for any reason other than one which, under the terms of the Lease,
would entitle Landlord to terminate the Lease or would, without any further
action by Landlord, cause the termination of the lease, or would entitle
Landlord to dispossess Tenant from the Premises; PROVIDED, that at the time
Mortgagee acquires possession of or title to the Real Property there is
then no default that continues beyond the expiration of grace and cure periods,
if any under the Lease.
3. Tenant agrees with Mortgagee that if the interests of Landlord in the
Real Property shall be transferred to and owned by Mortgagee by reason of
foreclosure of the Mortgage, a deed in lieu of foreclosure, any proceedings
brought by Mortgagee, or by any other manner, Tenant shall be bound to Mortgagee
under all the terms, covenants and conditions of the Lease (provided however
that the terms of the Mortgage shall govern the disposition of insurance
proceeds and condemnation awards) for the balance of the term thereof remaining
and any extensions or renewals thereof which may be effected in accordance with
any option therefor in the lease with the same force and effect as if Mortgagee
were the landlord under the Lease, and Tenant does hereby attorn to Mortgagee as
its landlord, said attornment to be effective and self-operative without the
execution of any further instrument on the part of any of the parties hereto
immediately upon Mortgagee succeeding to the interest of Landlord in the
Premises. Tenant agrees, however, upon the election of and written demand by
Mortgagee, within ten (10) days after demand of Mortgagee to execute an
instrument in confirmation of the foregoing provisions, reasonably satisfactory
to Mortgagee, in which Tenant shall acknowledge such attornment and shall set
forth the terms and conditions of its tenancy.
4. Tenant agrees with Mortgagee that if Mortgagee shall succeed to the
interest of Landlord under the Lease, Mortgagee shall not be (a) liable for any
action or omission of any prior landlord under the Lease, or (b) subject to any
offsets or defenses which Tenant might have
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against any prior landlord, or (c) bound by any rent or additional rent which
Tenant might have paid for more than the current month to any prior landlord,
except for the first three months rent to be prepaid at the Permanent Premises
Commencement Date, as defined in the Lease or (d) bound by any security deposits
which Tenant may have paid to any prior landlord, unless such deposit is
transferred to Mortgagee, or (e) bound by any amendment or modification of the
Lease made on or after the date hereof without Mortgagee's prior written
consent, or (f) bound to effect or pay for any construction for Tenant's
occupancy or to pay any allowances Landlord is obligated to pay under the lease,
or (g) if the Lease provides that Tenant is entitled to expansion space,
obligated, or have any liability for failure, to provide such expansion space if
a prior landlord has precluded (by execution of lease(s) entered into with other
tenants or otherwise) the availability of such expansion space. Tenant further
agrees with Mortgagee that Tenant will not voluntarily subordinate the Lease to
any lien or encumbrance without Mortgagee's prior written consent. The term
"prior landlord" includes without limitation, Landlord. Notwithstanding anything
to the contrary in subparagraph (f) of this Article 4, if Mortgagee succeeds to
the interest of Landlord under the Lease and at the time of such succession
Landlord is or will at any time be obligated under the Lease to effect or pay
for any construction of the Premises (or any space to be added thereto) for
Tenant's occupancy or to pay any allowances in connection with such construction
(any such obligation an "Unperformed Work Obligation"), Mortgagee shall have no
obligation or liability therefor, but Tenant shall have the right to perform and
fund such Unperformed Work Obligations itself and offset the costs of the same
(the "Offset Amount") against the rent payable under the Lease, subject to the
following conditions: (i) Tenant shall give Mortgagee written notice of the
existence of any Unperformed Work Obligations; (ii) Mortgagee shall have the
right (but not the obligation) to perform any Unperformed Work Obligations, and
Tenant shall not commence to perform such Unperformed Work Obligations for a
period of thirty (30) days after receipt by Mortgagee of Tenant's written notice
with respect to such Unperformed Work Obligations, (iii) if Mortgagee elects not
to perform any Unperformed work Obligations, then Tenant shall, before
commencing to perform such Unperformed Work Obligations, seek competitive bids
from at least three contractors and shall select the contractor with the lowest
bid to perform the same; (iv) Tenant shall submit to Mortgagee, for Mortgagee's
reasonable approval, receipted bills with respect to the performance of the
Unperformed Work Obligations, together with such other information as Mortgagee
may reasonably request to verify such cost; and (v) the Offset Amount shall be
offset against the rent payable under the Lease in equal monthly installments
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to be spread evenly over the remaining term of the Lease, as calculated by
Mortgagee.
5. If Landlord shall default in the performance or observance of any of the
terms, covenants, conditions or agreements in the Lease to be performed on the
part of Landlord, Tenant shall give written notice thereof to Mortgagee and
Mortgagee shall have the right (but not the obligation) to cure such default.
Tenant shall not take any action with respect to any default by Landlord under
the Lease, including, without limitation, any action in order to terminate,
rescind or avoid the Lease or to withhold any rental thereunder, for a period of
thirty (30) days after receipt by Mortgagee of Tenant's written notice with
respect to such default; PROVIDED, HOWEVER, that in the case of any default
which cannot with reasonable diligence be cured by Landlord or Mortgagee within
such 30-day period, if Mortgagee shall proceed promptly to commence to cure such
default and, thereafter, shall prosecute the curing of same with reasonable
diligence, then the time within which such default may be cured shall be
extended for such period as may be necessary to complete the curing of same.
6. This Agreement constitutes full compliance with any provisions of the
Lease that provide for subordination of the Lease only upon delivery of a
non-disturbance agreement to Tenant.
7. (a) From and after Tenant's receipt of written notice from Mortgagee (a
"RENT PAYMENT NOTICE"), Tenant shall pay all rent and additional rent under the
Lease to Mortgagee or as Mortgagee shall direct in writing. Tenant shall comply
with any Rent Payment Notice notwithstanding any contrary instruction, direction
or assertion from Landlord. Mortgagee's delivery to Tenant of a Rent Payment
Notice, or Tenant's compliance therewith, shall not be deemed to: (i) cause
Mortgagee to succeed to or to assume any obligations or responsibilities of
Landlord under the Lease, all of which shall continue to be performed and
discharged solely by Landlord unless and until any non-disturbance and
attornment has occurred pursuant to this Agreement or (ii) relieve Landlord of
any obligations under the Lease.
(b) Landlord irrevocably directs Tenant to comply with any Rent Payment
Notice, notwithstanding any contrary direction, instruction, or assertion by
Landlord. Tenant shall be entitled to rely on any Rent Payment Notice. Landlord
hereby releases Tenant from, and shall indemnify and hold Tenant harmless from
and against any and all loss, claim, damage, liability, cost or expense
(including payment of reasonable attorney's fees and disbursements) arising from
any claim based upon
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Tenant's compliance with any Rent Payment Notice. Landlord shall look solely to
Mortgagee with respect to any claims Landlord may have on account of an
incorrect or wrongful Rent Payment Notice.
8. This Agreement shall bind and inure to the benefit of the parties
hereto, their successors and assigns. As used herein: (a) the term "Tenant"
shall include any subtenant, successors and/or assigns of Tenant named herein;
(b) the words "foreclosure" and "foreclosure sale" shall be deemed to include
the acquisition of Landlord's estate in the Premises by voluntary deed (or
assignment) in lieu of foreclosure; and (c) the word "Mortgagee" shall include
the Mortgagee herein specifically named and any of its successors and assigns,
including anyone who shall have succeeded to Landlord's interest in the Real
Property by, through or under foreclosure of the Mortgage.
9. Wherever used herein, the singular shall include both the singular and
the plural of the use of any gender shall apply to all genders.
10. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts applicable to similar agreements
made and to be performed entirely within said Commonwealth. This Agreement shall
be construed without regard to any presumption or rule requiring construction
against the party causing this Agreement to be drafted.
11. This Agreement shall not be modified or amended except in writing
signed by all parties hereto.
12. This Agreement may be executed in counterparts, each of which shall
constitute an original and all of which shall be one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal the day and year first above written.
TENANT:
------
Silicon Valley Internet Partners
By: /s/ Xxxxxx X. Xxxx
Name: XXXXXX X. XXXX
Title: PRESIDENT/CEO
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MORTGAGEE:
---------
BIIF-BANK Aktienggsellachaft
Grand Cayman Branch
/s/ Signature Illegible
By: ______________________________
Name: Xxxxxx Xxxxx
Title: Vice President
/s/ Signature Illegible
By: _______________________
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
LANDLORD:
--------
LINCOLN PLAZA LIMITED
PARTNERSHIP
By: L.P. PROPERTIES, INC.,
ITS GENERAL PARTNER
/s/ Signature Illegible
By: ______________________
Name: Xxxxxxx X. Xxxxx
Title: President
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THE COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss Sept. 22, 1997
Then personally appeared the above-named Xxxxxx Xxxx, as Silicon Valley
Internet Partners of 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000, a California
corporation, and acknowledged the foregoing instrument was signed and sealed on
behalf of said corporation by authority of its Board of Directors, and he
acknowledged said instrument to be his free act and deed and the free act and
deed of said corporation.
Before me,
/s/ Signature Illegible
Notary Public
My Commission Expires: 0/0/0000
XXXXX XX XXX XXXX
Xxx Xxxx, ss September 23, 1997
Then personally appeared the above-named Xxxxxx Xxxxx & Xxxxxxxxx Xxxxxx,
each as a Vice President of BHF-BANK Aktiengesellschaft, Grand Cayman Branch, a
Xxxxxx Dark, and acknowledged the foregoing instrument was signed and sealed on
behalf of said corporation by authority of its Board of Directors, and he
acknowledged said instrument to be their free act and deed and the free act and
deed of said corporation.
Before me,
/s/ Signature Illegible
Notary Public
My Commission Expires: 0/0/00
XXXXX XX XXX XXXX
Xxx Xxxx, ss September 23, 1997
Then personally appeared the above-named Xxxxxxx X. Xxxxx, President of
L.P. Properties, Inc., as the duly authorized general partner of Lincoln Plaza
Limited Partnership, a Massachusetts limited partnership, and acknowledged the
foregoing instrument to be his free act and deed as President of L.P.
Properties, Inc., and the free act and deed of L.P. Properties, Inc., as general
partner of Lincoln Plaza Limited Partnership before me.
/s/ Signature Illegible
Notary Public
My Commission Expires: 4/4/98
EXHIBIT A
PARCEL 1
A certain parcel of land, with the building thereon, as shown on a plan
entitled "Plan of Land in Boston, Mass. (Suffolk County)" dated March 29, 1979
by Boston Survey Consultants, recorded with the Suffolk County Registry of Deeds
in Book 9205, Page 75, and bounded and described according to said plan as
follows:
NORTHERLY by Essex Street, one hundred thirty-one and 35/100 (131.35)
feet;
EASTERLY by South Street, one hundred fifty-three and 86/100 (153.86)
feet;
SOUTHERLY by Tufts Street, one hundred forty-three and 37/100 (143.37)
feet;
WESTERLY by land now or formerly of Trustees of X.X. Xxxx & Company,
one hundred seventy-seven and 11/100 (177.11) feet by a line
in part through the middle of a brick partition wall.
The aforesaid parcel contains approximately 22,580 square feet of land,
according to said plan.
PARCEL 2
A certain parcel of land, with the building thereon, situated on Essex,
Lincoln and Tufts Streets, in Boston, Suffolk County, Massachusetts, bounded:
NORTHEASTERLY by Essex Street, sixty and 59/100 (60.59) feet;
SOUTHEASTERLY by land now or late of Xxxxxx X. Xxxxxxxx one
hundred and seventy-seven and 6/100 (177.06) feet;
SOUTHWESTERLY by Tufts Street, sixty-one and 52/100 (61.52)
feet; and
NORTHWESTERLY by Lincoln Street one hundred eighty-seven and
96/100 (187.96) feet.
Containing ten thousand nine hundred sixty-five and 7/10 (10965 7/10) square
feet of land, and being shown on a plan of Xxxxxxx X. Xxxxxxx, C.E. dated June
25, 1947, recorded with Suffolk Deeds in Book 6342, Page 282.
