1
EXHIBIT 10.13
LEASE ASSIGNMENT
THIS LEASE ASSIGNMENT (this "Assignment") is dated November 17, 1997
for reference purposes only and is made by and between Informix Corporation, a
Delaware corporation ("Assignor") and McAfee Associates, Inc., a Delaware
corporation ("Assignee"), who agree as follows:
1. Definitions: Except as otherwise specifically indicated in this
Assignment, a term which is capitalized shall have the meaning ascribed to it by
the Lease, and the following terms shall have the following meanings:
Landlord shall mean Xxxx X. XxXxxxxxxx, LLC, a California limited
liability company.
Lease shall mean that Lease by and between Landlord and Assignor
dated November 22, 1996, affecting certain real property commonly known as
XxXxxxxxxx Towers Two, 0000 Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx.
Lender shall mean Guaranty Federal Bank, F.S.B., a federal savings
bank.
Memorandum of Lease shall mean that Memorandum of Lease by and
between Landlord and Assignor dated November 22, 1996, recorded in the Official
Records of Santa Xxxxx County on December 18, 1996 as Instrument No. 13555660.
SNDA shall mean that Subordination, Nondisturbance and Attornment
Agreement by and between Lender, Landlord and Assignor dated December 18, 1996
recorded in the Official Records of Santa Xxxxx County on December 18, 1996 as
Instrument No. 13555662.
Security Agreement shall mean that Security Agreement by and between
Landlord, as secured party, and Assignor, as debtor dated December 18, 1996.
Financing Statement shall mean that UCC-1 Financing Statement made
by Assignor, as debtor, for the benefit of Landlord, as secured party, dated
December 18, 1996, filed with the California Secretary of State.
Notice of Security Interest shall mean that Notice of Security
Interest in Deposit Account, by and among Landlord, Assignor and Lender dated
December 18, 1996.
Time Deposit Agreement shall mean that Time Deposit Agreement made
by Assignor for the benefit of Union Bank of California, N.A., dated December
12, 1996.
2
Addendum shall mean that Addendum made by and between Union
Bank, Tenant, Landlord and Lender dated December 18, 1996.
Lease Transaction Documents shall refer to the Lease,
Memorandum of Lease, SNDA, Security Agreement, Financing Statement, Notice of
Security Interest, Time Deposit Agreement and Addendum.
Execution Date shall mean the date upon which both Assignee
and Assignor have caused this Assignment to be executed and delivered to each
other (subject to the provisions regarding satisfaction of certain conditions
set forth in Section 11 hereof).
Consent Date shall mean the later to occur of (i) twenty-two
(22) days after the Assignor has delivered to Landlord a written request for
consent to this Assignment or (ii) the date upon which the conditions set forth
in Section 11 have been waived or satisfied.
Security Deposit shall mean the security interest in the
Account described by Section 6(e) of Exhibit "D" to the Lease in the amount of
$5,191,250, and evidenced and documented by the Security Agreement, Financing
Statement, Notice of Security Interest, Time Deposit Agreement, and Addendum.
2. Recitals: Assignee and Assignor have entered into this Assignment
with reference to the following facts and objectives:
A. Landlord leased to Assignor the Premises on certain terms
and conditions, all of which are set forth in the Lease Transaction Documents.
B. 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 Date.
C. Assignor and Assignee acknowledge that the assignment
represented by this Assignment is subject to the consent of Landlord and Lender,
as more particularly addressed in Section 11.
3. Assignment of Lease. Effective as of the Consent Date, Assignor
hereby assigns to Assignee, and Assignee hereby accepts from Assignor, all of
Assignor's right, title and interest in, under and to the Lease Transaction
Documents, subject to the limitations and reservations and satisfaction of
conditions contained in Sections 7 and 11 hereof.
4. Assumption of Obligations: Effective as of the Consent Date,
Assignee accepts the assignment and assumes and agrees to perform, as a direct
obligation to Landlord and for the benefit of Assignor, all of the terms,
conditions and obligations of the Lease Transaction
-2-
3
Documents to be performed by or otherwise applicable to Assignor, subject to the
limitations and reservations and satisfaction of conditions contained in
Sections 7 and 11 hereof.
5. Continuing Liability: Assignor acknowledges that notwithstanding the
assignment set forth in this Assignment, Assignor shall not be released of its
liability to perform its obligations under the Lease Transaction Documents
unless and until Landlord agrees in writing to so release Assignor.
6. Responsibilities Under Lease; Indemnification:
A. Assignor shall be responsible for payment of all rents and
other payments and the performance of all obligations required under the Lease
Transaction Documents to be paid or performed for any period prior to the
Consent Date, including, without limitation, (i) any and all indemnity
obligations of Assignor accrued with respect to facts or circumstances first
occurring prior to the Consent Date; (ii) any charges due to Landlord and any
amounts that Landlord may claim are due with respect to change orders approved
by Landlord and Assignor prior to the Execution Date; and (iii) any amounts owed
to or claimed by Landlord which relate to actions by Assignor occurring prior to
the Consent Date.
B. Assignee shall be responsible for payment of all rents and
other payments and the performance of all obligations required under the Lease
Transaction Documents to be paid or performed for any period on or after the
Consent Date, including, without limitation, any and all indemnity obligations
of the Tenant under the Lease Transaction Documents accrued with respect to
facts or circumstances first occurring on or after the Consent Date.
C. Assignor shall indemnify, defend, protect and hold harmless
Assignee from and against any and all losses, costs, claims, liabilities and
damages, including reasonable attorneys' fees (collectively, "Claims") arising
from or related to (i) the Premises and/or the Lease Transaction Documents which
Claims shall have accrued prior to the Consent Date, (ii) any event or condition
that shall have occurred or existed on or with respect to the Lease Transaction
Documents and/or the Premises prior to the Consent Date, and (iii) Assignor's
breach of any of its obligations under the Lease Transaction Documents (to the
extent such obligations have not been assumed by Assignee) or this Assignment
(and in this regard, Assignor shall have no obligation to cure a default by
Assignee of any obligation Assignee has assumed under this Assignment).
Notwithstanding anything contained in this Section 6C or elsewhere in this
Assignment, in the event the Lease is terminated as a result of any act,
omission or other default by Assignor relating to actions, events, or
circumstances first occurring prior to the Consent Date, then Assignee shall not
have, and hereby waives and releases any right to claim, the right to recover
from Assignor (i) damages resulting from the loss of the benefit of its bargain
represented by this Assignment, and (ii) consequential and exemplary damages
resulting from the termination of the Lease; provided, however, that Assignee
shall retain the right to recover any out-of-pocket expenses incurred by it in
connection with the transaction described by this Assignment to the extent the
loss thereof is proximately caused by such termination of the Lease.
-3-
4
D. Assignee shall indemnify, defend, protect and hold harmless
Assignor from and against any and all Claims arising from or related to (i) the
Premises and/or the Lease Transaction Documents that accrue on or after the
Consent Date, (ii) any event or condition that occurs or comes into existence
with respect to the Lease Transaction Documents and/or the Premises on or after
the Consent Date, and (iii) Assignee's breach of its obligations under the Lease
Transaction Documents or this Assignment.
E. The consent of Landlord to this Assignment shall not be
deemed a waiver of any rights and remedies of Landlord with respect to
Assignor's continuing liability for the obligations of the tenant under the
Lease Transaction Documents and shall not be deemed a waiver of any rights and
remedies of Landlord with respect to Assignor's liability for all outstanding
obligations of the tenant under the Lease Transaction Documents. The allocation
of responsibility for tenant obligations under the Lease Transaction Documents
as between Assignor or Assignee set forth in Sections 6A and 6B above shall not
be deemed to release or limit the obligations of either such party to Landlord
pursuant to the Lease Transaction Documents.
7. Effect of the Assignment: The parties agree as follows:
A. Notwithstanding anything contained herein, the rights of
Assignor which exist pursuant to Section 56 entitled "Option to Extend Term" of
the Lease shall not be assigned or otherwise transferred to Assignee, and
Assignee shall have no power to exercise such options set forth in said Section
56, unless and until Landlord enters into a written agreement with Assignor in
form reasonably satisfactory to Assignor by which Landlord releases Assignor of
any and all liability arising under the Lease Transaction Documents.
B. The parties acknowledge that the rights existing pursuant
to Section 57 entitled "First Right to Purchase" of the Lease are personal to
Assignor and cannot be assigned by Assignor and such rights are accordingly
excluded from the scope of this Assignment.
C. The parties acknowledge that Landlord has exercised its
option to reduce the size of the Premises pursuant to Section 58 entitled
"Landlord's Restaurant Option" of the Lease, and accordingly Assignor can
transfer no rights to Assignee with respect to the space so covered by such
Section 58. In addition, the rights granted to Assignor pursuant to said Section
58 are personal to Assignor, and may not be transferred by Assignor to Assignee
and accordingly are excluded from the scope of this Assignment.
D. As more particularly set forth on Exhibit B to this
Assignment, Assignor has caused a certain amount of "Tenant Caused Delay" as
that term is used in Section 7 of Exhibit C and Section 8 of Exhibit D to the
Lease. Notwithstanding the provisions of Section 6, Assignee agrees to bear all
consequences (i) relating to the timing of the commencement of the obligation to
pay rent resulting from the existence of any Tenant Caused Delay existing as of
the Consent Date and the fact that Assignor has not delivered final plans for
the Tenant Improvements by the required delivery date as disclosed on Exhibit B
hereto, and (ii) resulting from all actions taken by
-4-
5
Assignee with respect to the Shell Improvements and the development of plans for
the Tenant Improvements. Assignor shall have no obligation to indemnify or
compensate Assignee for the consequences described in the preceding sentence for
which Assignee has agreed to be responsible.
E. Assignor agrees to request of Landlord a change order to
direct the general contractor constructing the Shell Improvements to take such
action as is necessary (including the payment of overtime charges) to achieve
substantial completion of the Shell Improvements by April 1, 1997. Assignor
shall use reasonable efforts to cause such change order to be approved and
implemented in accordance with the procedures set forth in the Lease. Assignee
agrees to pay all costs incurred by Assignor in requesting, processing, and
implementing such change order (which costs are currently estimated to be
approximately $114,000) in all cases, whether or not all of the conditions set
forth in Section 11 hereof are satisfied or waived. Assignee shall make payment
of the amount of such charges at the time Assignor is required to make payment
therefor by the Lease.
F. Subject to the foregoing and Section 9 hereof, 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 the "Tenant" under and with respect to the Lease Transaction
Documents. Any effort by Assignor or any other party to exercise, give or make
any of the foregoing shall be of no effect.
G. 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 this 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 this Assignment that are due
pursuant to the Lease Transaction Document directly to Landlord.
H. Assignee agrees to provide the insurance and insurance
certificates required of the Tenant under the Lease from and after the Consent
Date, and to cause Assignor to be named as an additional insured on any policy
of insurance carried by Assignee pursuant to the Lease (or which is carried by
Assignee and relates to the Premises) upon which Assignee is a named insured.
Assignee shall deliver to Assignor certificates of insurance, copies of policies
and evidence of renewal at the same times and in the same manner that such items
are required to be provided to Landlord by the Lease.
8. Assignor Rights Upon Assignee Default:
A. Default: No party to this Assignment shall be in default
hereunder, unless said party, and all other parties, have received written
notice of such default from another party hereto, and the said default is not
cured within ten (10) days following such notice; provided, however, that if the
default cannot be cured within such ten (10) day period, no default shall exist,
if cure of the default is commenced within said ten (10) day period and
thereafter diligently
-5-
6
prosecuted to completion. The foregoing shall apply only to a default under this
Assignment; a default under the Lease Transaction Documents shall be determined
under the terms of the Lease Transaction Documents, and Assignee shall be in
default under this Assignment if and when it is in default under any of the
Lease Transaction Documents.
B. Assignor's Rights Upon Default: Should Assignee be in
default under the terms of the Lease Transaction Document or this Assignment and
should Assignee fail to cure such default within any applicable cure period
(including any extension thereof granted by Landlord), or should Assignee fail
to cure such default under this Assignment, within the cure period provided in
this Agreement, Assignor shall have the following rights and remedies, in
addition to all other rights and remedies it may have at law or in equity, to
which it may resort cumulatively or alternatively:
(1) Right to Cure: If Assignee fails to pay any sum or
perform any obligation on its part to be performed under the terms of the Lease
Transaction Documents or this Assignment, Assignor may make such payment or
perform such obligation without waiving or releasing Assignee from its
obligations. Assignor shall be entitled (but not required) to take such action
at such time as is necessary to avoid the occurrence of an event of Tenant's
default under the Lease Transaction Documents. All sums paid by Assignor and all
costs of such performance by Assignor, together with interest as provided in
Section 15 hereof from the date the sum is paid until repaid, shall be
reimbursed by Assignee to Assignor within five (5) days following Assignor's
written demand.
(2) Right to Terminate: Assignor may terminate this
Assignment by written notice of the termination, in which event the Assignment
shall terminate on the date specified in the notice. Unless the default is fully
cured by Assignee, Assignor's right to terminate upon Assignee's default shall
not be affected by (i) Assignee's prior exercise of any other right or remedy
under this Assignment, at law, or in equity; (ii) Assignor's acceptance of any
sum from Assignee, whether or not it had knowledge of Assignee's default at the
time it accepted the same; and (iii) the discharge of Assignee or the further
assignment of the Lease in a bankruptcy proceeding. Termination of this
Assignment shall not relieve Assignee of its obligation to pay any sums then due
under the terms of the Lease Transaction Documents or this Assignment or from
any claim or damages resulting from Assignee's default. Upon termination of this
Assignment, and without prejudice to any other remedies Assignor may have,
Assignor shall have all remedies for default set forth in Article 20 of the
Lease, including without limitation, the right to (i) peaceably re-enter the
Premises upon voluntary surrender by Assignee; (ii) expel or remove Assignee and
any other occupants from the Premises using any legal proceedings then
available, including those proceedings contemplated by California Code of Civil
Procedure Section 1161 et seq.; (iii) enter, repossess, use, or subject to the
terms of the Lease, relet the Premises or any part thereof, for such term, at
such rent, and upon such other terms and conditions as Assignor may accept; and
(iv) remove all property of Assignee from the Premises at Assignee's expense in
accordance with the provisions of California Civil Code Sections 1980-1991. If
and to the extent this Assignment is characterized as a sublease for purposes of
determining Assignor's rights and
-6-
7
remedies against Assignee, (i) Assignor shall have the remedy described in
California Civil Code Section 1951.4 (which provides that a lessor may continue
a lease in effect after the lessee's breach and abandonment and recover rent as
it becomes due, if the lessee has the right to sublet or assign, subject only to
reasonable limitations), and (ii) Assignor shall have the right to recover
damages in accordance with the provisions of California Civil Code Section
1951.2, including the right to recover the worth at the time of the award of the
amount by which the unpaid rent which would have been earned after termination
until the time of the award exceeds the amount of rental loss that Assignee
proves could have been recently avoided.
(3) Damages on Termination: If Assignor terminates this
Assignment pursuant to Section 8B(2), Assignor shall be entitled to damages for
all detriment proximately caused by Assignee's failure to perform its
obligations under the Lease Transaction Documents and this Assignment, or which
in the ordinary course of things would be likely to result therefrom; including
without limitation, all amounts paid or payable to Landlord by Assignee under
the terms of the Lease Transaction Documents or on account of Assignee's default
in performance thereof, and all other damages recoverable by Assignor under
California law.
9. Amendment of Lease Transaction Documents: Assignee shall not enter
into any agreement that amends, modifies or changes any of the Lease Transaction
Documents without Assignor's consent; provided, however, that (i) Assignor shall
not unreasonably withhold its consent to any such agreement which is directly
related and limited to the construction of the Shell Improvement and the Tenant
Improvements pursuant to Exhibits C and D of the Lease; and (ii) Assignor shall
not unreasonably withhold its consent to any other such agreement so long as it
is not an agreement (a "Material Change") which affects the term of the Lease,
increases the obligation of the Tenant under the Lease to pay rent or any other
monetary obligation, materially increases any liability of the Tenant under the
Lease, or materially and adversely changes any of the rights of the Tenant under
the Lease Transaction Documents. Assignee shall have no obligation to consent to
a Material Change. If Assignor requests the consent of Assignor in writing to
any such agreement Assignor shall respond by granting or withholding consent in
writing within fifteen (15) days after receipt of such request; provided,
however, that if such agreement is not a Material Change, and if Assignor does
not respond by either granting or withholding such consent in writing within
said fifteen (15) day period, Assignor shall be deemed to have given its consent
to such agreement that is not a Material Change. Assignee agrees to pay all
reasonable attorneys' fees incurred by Assignor to review any request for
approval of an agreement made by Assignee pursuant to this Section 9. Any
amendment, modification or change of the Lease Transaction Documents in
violation of the provisions of this Section 9 shall have no force or effect on
Assignor.
10. Prepaid Rent and Security Deposit:
A. The parties acknowledge that Landlord now holds the
Security Deposit as security, to be applied pursuant to the provisions of the
Lease Transaction Documents. Assignor releases all claims to that sum, and such
sum shall be held by Landlord for the benefit of Assignee,
-7-
8
subject to provisions of the Lease Transaction Documents. Assignor agrees to
execute such documents as are reasonably requested by Assignee to implement the
provisions of this Section 10A. Notwithstanding anything contained herein, if
Landlord exercises its right to terminate the Lease as a result of this
Assignment pursuant to Section 19 of the Lease, then to the extent the Landlord
is obligated to return any part of the Security Deposit to the Tenant under the
Lease, Assignor shall be entitled thereto.
B. The parties acknowledge that Landlord now holds the sum of
$363,387.50 as prepaid rent, for application against the Basic Rent for the
first lease month of the term, as provided in Section 4(d) entitled "First
Month's Rent" of the Lease. Assignor releases all claims to such prepaid rent,
and such sum shall be held by Landlord for the benefit of Assignee, subject to
the provisions of the Lease Transaction Documents. The release of such amount by
Assignor for the benefit of Assignee is in consideration of the agreement of
Assignee to enter into this Assignment, particularly with regard to the
agreement of Assignee to assume all issues related to the status of the
development of plans for the Shell Improvements and the Tenant Improvements and
the consequences of all existing Tenant Caused Delay resulting from the actions
of Assignor.
C. At such time as the Security Deposit is fully disbursed to
pay for Tenant Improvement Costs or to satisfy obligations of the Tenant under
the Lease or is returned to Assignee pursuant to the provisions of the Lease,
Assignee shall pay to Assignor an amount equal to the product of (i) $25 per
square foot, times (ii) the area that the Premises is reduced by the exercise of
Landlord's restaurant option pursuant to Section 58 of the Lease (expressed in
square feet).
11. Conditions: This Assignment shall not become effective unless and
until each of the following conditions has been satisfied or waived, and the
obligations of Assignor and Assignee under this Assignment shall be conditioned
upon the satisfaction or waiver of each of the conditions stated in this
paragraph. If either of the conditions stated in Section 11A or 11C is not
satisfied within thirty (30) days after the Execution Date, this Assignment
shall become void and neither Assignor nor Assignee shall have any further
rights or obligations under this Assignment (except for the payment for change
orders to the Shell Improvements described by Section 7E). If the condition
stated in Section 11B is not satisfied or waived by both Assignor and Assignee
within fifteen (15) days after the Execution Date, or if the condition stated in
Section 11D is not satisfied or waived by both Assignor and Assignee within five
(5) days after the Execution Date, then Assignor and Assignee shall each
independently have the right to terminate this Assignment, in which event
neither Assignee nor Assignor shall have any further rights or obligations under
this Assignment (except for the payment for change orders to the Shell
Improvements described by Section 7E). The conditions are as follows:
A. Landlord shall have given its unconditional written consent
to this Assignment to the extent and in the form required by Section 19 of the
Lease.
-8-
9
B. Landlord shall have delivered to Assignor and Assignee an
estoppel certificate in the form attached hereto as Exhibit "A" that is in form,
content, and substance (i) reasonably satisfactory to Assignor, and (ii)
reasonably satisfactory to Assignee.
C. Lender shall have given its unconditional written consent
to this Assignment to the extent and in the form required by Section 11 of the
SNDA.
D. The Board of Directors of Assignee and the Board of
Directors of Assignor shall have each approved this Lease Assignment.
12. Representations by Assignor: Except as otherwise set forth on
Exhibit "B" to this Assignment or disclosed in writing by Assignor to Assignee
prior to the Execution Date, the following representations are true and correct
as of the Execution Date:
A. The Lease Transaction Documents constitute the only
agreements between Landlord and Assignor with respect to the Premises and the
Lease.
B. The Lease Transaction Documents are in full force and
effect, and neither Landlord nor Assignor has any set-off, claim, or defense to
the enforcement of the Lease Transaction Documents.
C. A true, correct and complete copy of the Lease Transaction
Documents is attached to this Assignment as Exhibit "C".
D. Neither Landlord nor Assignor is in default in the
performance of its respective obligations under the Lease Transaction Documents;
and no notice of default has been given to either Landlord or Assignor by the
other party with respect to any claimed default under the Lease Transaction
Documents.
13. Tenant Improvement Design Documents: Assignor has entered into an
agreement with Interior Architects, Inc. to design the tenant improvements to be
constructed pursuant to Exhibit "D" of the Lease. Effective as of the Consent
Date, and subject to the consent of Interior Architects, Inc. to the extent such
consent is required in order for the following to be effective, Assignor hereby
assigns to Assignee all of Assignor's right, title and interest in its agreement
with said architect and in all plans and specifications developed by such
architect for the design of such tenant improvements, and Assignee agrees to
assume and perform all of the obligations of Assignor with respect to any
remaining obligations due such architect under its agreement to compensate such
architect for its services; provided, however, that Assignor shall be
responsible for the payment of all compensation owed such architect on account
of services rendered by such architect prior to the Execution Date.
14. Delivery of Documents: On the Consent Date, Assignor shall deliver
to Assignee copies of all reports, plans and specifications, drawings,
correspondence and other documents in
-9-
10
Assignor's possession which relate to the development of the Premises or the
Lease Transaction Documents; provided, however, that Assignor shall have no
obligation to deliver any documents that (i) are subject to the attorney-client
privilege or the work-product privilege, or (ii) relate to offers made or
received by Assignor relating to proposed assignments or subleasings of the
Premises, including any correspondence or communications which relate thereto.
15. Default Interest: If any amount becomes due by Assignee to Assignor
or by Assignor to Assignee, pursuant to the terms of this Assignment and such
amount is not paid when due, then the party who owes such amount shall also pay
interest at the rate of seven percent (7%) in excess of the discount rate
established by the Federal Reserve Bank of San Francisco as it may be adjusted
from time to time, not to exceed the maximum interest rate (if any) for such
obligation that is permitted by applicable law.
16. Estoppel Certificates and Financial Statements: At any time during
the term of the Lease, Assignee shall, following any request by Assignor,
promptly execute and deliver to Assignor within fifteen (15) days following
delivery of a request therefore an estoppel certificate: (i) certifying that the
Lease Transaction Documents are unmodified and in full force and effect or, if
modified, stating the nature of such modification and certifying that the Lease
Transaction Documents, as so modified, are in full force and effect; (ii)
stating the date to which the rent and other charges are paid in advance, if
any; (iii) acknowledging that there are not, to Assignee's knowledge, any
uncured defaults on the part of Assignee or Landlord under the Lease Transaction
Documents or, if there are uncured defaults, specifying the nature of such
defaults; and (iv) certifying such other information about the Lease Transaction
Documents as may be reasonably required by Assignor. At any time during the term
of the Lease, Assignee shall, upon 15 days prior written notice from Assignor,
provide Assignee's most recent financial statement and financial statements
covering the 24-month period prior to the date of such most recent financial
statement, which statement shall be prepared in accordance with generally
accepted accounting principals and, if such is the normal practice of Assignee,
shall be audited by an independent certified public accountant.
17. Miscellaneous: Should any provision of this Assignment prove to be
invalid or illegal, such invalidity or illegality shall in no way effect, impair
or invalidate any other provision hereof, and such remaining provisions shall
remain in full force and effect. Time is of the essence with respect to every
performance of the provision of this Assignment in which time of performance is
a factor. The captions used in this Assignment are for convenience only, and
shall not be considered in the construction or interpretation of any provision
hereof. The language in all parts of this Assignment shall in all cases be
construed as a whole according to its fair meaning, and not strictly for or
against either Assignor or Assignee, both of whom were represented by counsel in
connection with the negotiation and preparation of this Assignment. The terms
"shall", "will", and "agree" are mandatory. The term "may" is permissive. When a
party is required to do something by this Assignment, it shall do so at its sole
cost and expense without right of reimbursement from the other party unless a
provision of this Assignment expressly requires reimbursement.
-10-
11
18. Brokerage Commissions: Each party hereto (i) represents to the
other that it has not had any dealings with any real estate brokers, leasing
agents or salesmen, or incurred any obligations for the payment of real estate
brokerage commissions or finders' fees which would be earned or due and payable
by reason of the execution of this Assignment except to Xxxxxx/Xxxxx
(representing Assignee) and Xxxxxxx & Wakefield of California, Inc.
(representing Assignor), and (ii) agrees to indemnify, defend and hold harmless
the other party from any claim for any such commission or fees which result from
the actions of the indemnifying party. Assignor shall be responsible for the
payment of any the commission owed to Xxxxxxx & Xxxxxxxxx of California, Inc.,
pursuant to the separate written commission agreement between Assignor and such
broker for the payment of a commission as a result of the execution of this
Assignment, and then only to the extent of the obligations set forth in such
written agreement.
19. Notices:
A. Assignor agrees that Assignor shall promptly deliver to
Assignee copies of all notices, demands and other written communications from
Assignor to Landlord with respect to the Lease. Assignee agrees that Assignee
shall promptly deliver to Assignor copies of all notices of default and any
other formal notice regarding a material matter sent or received by Assignee
with respect to the Lease Transaction Documents, and Assignor shall have the
right to review at Assignee's offices located at the Premises (or at another
location selected by Assignee in Santa Xxxxx County) copies of all notices,
demands and other written communications from Assignee to Landlord or from
Landlord to Assignee or which in any way relate to the Lease Transaction
Documents during the term of the Lease, excluding written documents covered by
the attorney-client privilege or the work-product privilege.
B. Throughout the term of the Lease, to the extent it has the
power to do so, Assignee shall cause notices that are to be sent to the Tenant
under the Lease Transaction Documents to be sent to both Assignor and Assignee
at the same time by the same means of delivery, to the addresses set forth in
Section 19B below (as it may be changed from time to time), including, without
limitation, notices to be sent pursuant to Section 38 entitled "Notices" of the
Lease and notices to be sent pursuant to Section 13 entitled "Notice" of the
SNDA.
C. 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 Assignment 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 delivery 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 from Assignee to Assignor
shall be served or addressed to Assignor at care of Informix Software, Inc.,
0000 Xxxxxxxx Xxxxx, Xxxxx Xxxx, XX 00000,
-11-
12
Attention: Xx. Xxxxx Xxxxxxxx. All such Notices by Assignor to Assignee shall be
sent to McAfee Associates, Inc. at its offices at 0000 Xxxxxx Xxxxxx, Xxxxx
Xxxxx, Xxxxxxxxxx 00000, Attention: Xxxx Xxxxxxx, Controller. Either party may
change its address by notifying the other of such change.
20. Entire Agreement: This Assignment constitutes the entire Agreement
between Assignor and Assignee, and there are no binding agreements or
representations between the parties except as expressed herein. Assignee
acknowledges that neither Assignor nor any party acting on behalf of Assignor
has made any legally binding representation as to any matter except those
expressly set forth herein, and Assignee agrees that it may not reasonably rely
on any representation made by, or purportedly made by, Assignor or any party
acting on behalf of Assignor unless such representation is expressly set forth
in this Assignment. There are no oral agreements between Assignor and Assignee
affecting this Assignment, and this Assignment supersedes and cancels any and
all previous negotiations, arrangements, agreements and understandings, if any,
between Assignor and Assignee with respect to the subject matter of this
Assignment. This Assignment shall not be legally binding until it is executed by
both Assignor and Assignee. No subsequent change or addition to this Assignment
shall be binding unless in writing and signed by Assignor and Assignee.
21. Successors and Assigns: This Assignment shall be binding on and
inure to the benefit of the parties hereto, their successors in interest and
assigns. Notwithstanding anything contained in this Assignment or in the Lease,
neither this Assignment, nor any interest in the Lease Transaction Documents may
be assigned, subleased, mortgaged, pledged, or encumbered by Assignee without
the prior written consent of Assignor, which consent shall not be unreasonably
withheld. In connection with any such assignment or other transfer, (i) Assignor
may condition its consent upon the requirement that the Assignee or Transferee
assume all of Assignee's obligations under this Assignment, and (ii) Assignee
shall not be released from its obligations under this Assignment. Assignor
acknowledges that Assignee is in the process of engaging in a merger with
Network General, that Assignee will be the surviving corporation upon
consummation of the merger, and that the name of Assignee will be changed to
Network Associates, Inc., a Delaware corporation, and that Assignor's consent to
such merger transaction is not required because Assignee will be the survivor in
such merger transaction.
22. Counterparts: For the convenience of the parties, this Assignment
may be executed in one or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
23. Governing Law: This Assignment shall be governed by and construed
in accordance with the laws of the State of California.
24. Further Assurances: Assignor shall from time to time execute and
deliver such additional documents and take such additional action as Assignee
may reasonably request to carry out the purposes of this Assignment, all at no
cost to Assignor.
-12-
13
25. Attorneys' Fees: If there is any legal action or proceeding between
the parties arising from or based upon this assignment, 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.
26. Authority: Each party hereto represents and warrants to the other
parties that (i) the person or persons executing this Assignment on behalf of
such party is duly authorized to execute this Assignment 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.
27. Amendment of Memorandum: At the request of either party hereto, at
any time after the Consent Date each party shall execute and cause to be
acknowledged an amendment to the Memorandum of Lease which amendment shall be
recorded in the Official Records of Santa Xxxxx County and shall evidence the
fact of the assignment implemented pursuant to this Assignment, which amendment
shall be in form and substance reasonably satisfactory to Assignee and Assignor.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
to be effective as of the Execution Date.
ASSIGNOR: INFORMIX CORPORATION,
a Delaware corporation
By /s/ Signature
------------------------------------------
Printed Name:
--------------------------------
Title:
--------------------------------------
ASSIGNEE: McAFEE ASSOCIATES, INC.,
a Delaware corporation
By /s/ Signature
------------------------------------------
Printed Name:
--------------------------------
Title:
--------------------------------------
-13-
14
CONSENT OF LANDLORD
Xxxx X. XxXxxxxxxx, LLC, a California limited liability company, the
Landlord under the Lease and a party to the Lease Transaction Documents to which
Landlord is a party for the benefit of both Assignee and Assignor, consents to
the above-described Assignment by Assignor to Assignee, and the acceptance and
assumption by Assignee, with respect to rights, duties and obligations under the
Lease Transaction Documents.
XXXX X. XxXXXXXXXX, LLC,
a California limited liability company
By /s/ Xxxx X. XxXxxxxxxx
-----------------------------------------
XXXX X. XxXXXXXXXX, its Managing Member
-14-
