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SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (“ Agreement ”) is entered into as of October 6, 2006 (the “ Effective Date ”) by and between GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. , a Delaware corporation (together with its successors and assigns, the “ Mortgagee ”), and TIVO INC., a Delaware corporation (hereinafter, collectively the “ Tenant ”), with reference to the following facts:
A. BIXBY TECHNOLOGY CENTER, LLC , a Delaware limited liability company, whose address is 1200 Newport Center Drive, Suite 120, Newport Beach, CA 92660 (the “ Landlord ”) owns fee simple title or a leasehold interest in the real property described in Exhibit “A” attached hereto (the “ Property ”).
B. Mortgagee has made or intends to make a loan to Landlord (the “ Loan ”).
C. To secure the Loan, Landlord has or will encumber the Property by entering into a mortgage or deed of trust in favor of Mortgagee (as amended, increased, renewed, extended, spread, consolidated, severed, restated, or otherwise changed from time to time, the “ Mortgage ”) to be recorded in the Office of the Clerk-Recorder for the County of Santa Clara, State of California.
D. Pursuant to the Lease effective October 6, 1999 and as amended, February 1, 2006, (the “ Lease ”), Landlord demised to Tenant a portion of the Property consisting of the following (the “ Leased Premises ”): Building D & E, consisting of 127,124 rentable square feet.
E. Tenant and Mortgagee desire to agree upon the relative priorities of their interests in the Property and their rights and obligations if certain events occur.
NOW, THEREFORE, for good and sufficient consideration, Tenant and Mortgagee agree:
1. Definitions . The following terms shall have the following meanings for purposes of this Agreement.
a. Foreclosure Event . A “ Foreclosure Event ” means: (i) foreclosure under the Mortgage; (ii) any other exercise by Mortgagee of rights and remedies (whether under the Mortgage or under applicable law, including bankruptcy law) as holder of the Loan and/or the Mortgage, as a result of which a Mortgagee becomes owner of the Property; or (iii) delivery by Landlord to Mortgagee (or its designee or nominee) of a deed or other conveyance of Landlord’s interest in the Property in lieu of any of the foregoing.
b. Former Landlord . A “ Former Landlord ” means Landlord and any other party that was landlord under the Lease at any time before the occurrence of any attornment under this Agreement.
c. Offset Right . An “ Offset Right ” means any right or alleged right of Tenant to any offset, defense (other than one arising from actual payment and performance, which payment and performance would bind a Successor Landlord pursuant to this Agreement), claim, counterclaim, reduction, deduction, or abatement against Tenant’s payment of Rent or performance of Tenant’s other obligations under the Lease,