Loading...
HomeMy WebLinkAbout934412 -.) " 6010715579 WHEN RECORDED, RETURN TO: Zions First National Bank 2460 South 3270 West West Valley City, Utah 84119 ATTN: LOAN SERVICING GROUP UT-RDWG-0187 RECEIVED 10/29/2007 at 3:18 PM RECEIVING # 934412 BOOK: 671 PAGE: 11 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY '-I. ~ ". -:\ ~ .. -~~ ,~. ~ :: ,) 00001.1. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT AND ESTOPPEL CERTIFICATE This Subordination, Non-Disturbance and Attornment Agreement (the "Agreement") is made and executed as of the 25th day of October, 2007 by and between ZIONS FIRST NATIONAL BANK, a national banking association ("Lender"), PPS COMPANY, INe. ("Tenant"), and KEVIN J. KELLER and NANCY B. KELLER ("Landlord"). RECITALS A. Tenant has executed and entered into a Lease Agreement dated October 22, 2007, in which Landlord appears as "Lessor", and Tenant appears as I'Lessee" (the "Lease"), whereby Tenant has agreed to lease the real property described in the Lease as the leased or demised premises, which leased or demised premises are located in Lincoln County, State of Wyoming, together with the improvements now or hereafter located thereon, and are more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the "Property"). B. On the condition that the Lease and all of Tenant1s rights in the Property (the 1 LI "Lease Rights") be subordinated as provided below, Lender has agreed to rp.ake a 10an(s) (the '/ (,1 "Loan") to Landlord, in the principal amount of $150,000.00 to provide loan financing for Landlord. In connection with the Loan, Landlord has or will be executing a Promissory Note, Mortgage (the "Mortgage"), general Assignment of Rents (the "Assignment of Rents"), Loan Agreement (the "Loan Agreement"), and other documents required by Lender to evidence and/or secure Landlord's obligations under the Loan. AGREEMENT In exchange for good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, Lender, Landlord, and Tenant agree as follows: 1. Estoppel Certificate. Tenant hereby certifies to and agrees with Lender that as of the date of this Agreement, Lender is relying on all of the following certifications and agreements' 000012 of Tenant as consideration for Lender executing this Agreement, and in the making of the Loan evidenced by the Note and secured by the Trust Deed, Assignment, and other collateral identified in the Loan Documents: ~ ','. a. The Lease is in full force and effect and is the valid and binding obligation of Ten ant, enforceable in accordance with its terms. b. All requirements for the commencement and validity ofthe Lease have been satisfied. c. Neither Tenant nor Landlord is in default under the Lease and no event has occurred and no condition exists, which with the giving of notice, the passage of time, or both, would constitute a default by Tenant or Landlord under the Lease. d. There are no defenses, counterclaims or setoffs against rents or charges due or which may become due under the Lease and no claim by Tenant of any nature exists against Landlord under the Lease. All obligations of Landlord have been fully performed. e. None of the rent which Tenant is required to pay under the Lease has been prepaid, or will in the future be prepaid, more than one month in advance. f. Tenant has no right or option contained in the Lease or in any other document to purchase all or any portion of the Property. g. The Lease has not been modified, terminated, or amended, by "side letter" or otherwise, and shall not after the date ofthis Agreement be modified, terminated, or amended, by "side letter" or otherwise, without the prior written consent of Lender for any termination and each such amendment or modification. Any attempted modification, termination, or amendment without the prior written consent of Lender shall be void. h. Tenant has not assigned, mortgaged, sublet, encumbered or otherwise transferred any or all of its interest under the Lease and, during the term of the Loan, agrees to not assign, mortgage, sublet, encumber, or otherwise transfer any or all of its interest under the Lease without the prior written consent of Lender. 2. Subordination to Loan Documents. Notwithstanding anything in the Lease to the contrary, the Lease and Lease Rights are hereby made subject, subordinate, inferior, and junior to the Loan Documents and the liens created by the Loan Documents, and to all sums advanced on the security for the Loan Documents, including all sums advanced or costs incurred in connection with the Loan Documents or the Loan, and including all renewals, modifications, consolidations, replacements, and extensions of the Loan and any of the Loan Documents, and any future lien or - 2 - 000013 .¡';" . liens affecting the Property held by or made for the benefit of Lender. The Lease and Lease Rights are hereby subordinated to the Loan Documents and the liens created by the Loan Documents, the same and as fully as if the Loan Documents had been executed and delivered, and recorded, where applicable, prior to execution, delivery, and recording of the Lease. If there is any inconsistency between the provisions of the Loan Docume"nts and the provisions of the Lease, the provisions of the Loan Documents shall prevail and govern the Lease. Tenant will not cause the Lease to be subordinated to any interests other than those held by or made for the benefit of Lender, and its successors and assigns, without the prior written consent of Lender. 3. Acknowledgement of Assignment of Rents. Tenant agrees and acknowledges that it has notice, and notwithstanding anything to the contrary in the Lease hereby consents, that the Lease, the Lease Rights, the rents, and all other sums due under the Lease have been assigned or are to be assigned to Lender. Specifically, but without limitation, Tenant consents to the Assignment of Leases and Rents and Security Agreement executed by Borrower to Lender. In the event that Lender notifies Tenant of a default under any of the Loan Documents and demands that Tenant pay its rent and all other sums due under the Lease to Lender, Tenant shall honor such demand and pay its rent and all other sums due under the Lease directly to Lender or as otherwise required pursuant to such notice. 4. Notice and Opportunity to Cure. Tenant agrees to deliver to Lender, within five (5) days of delivery to Landlord, a copy of all notices and other documents delivered to Landlord in connection with the Lease, specifically including, but without limitation, any notices of default or termination. If any default occurs under the Lease, Lender shall have the right for a period of sixty (60) days after receipt of notice of the default to cure such default. If the nature of the default is such that it cannot reasonably be cured within such sixty (60) day period, then Lender shall have such longer period as is reasonably necessary to cure such default. No default shall be deemed to exist under the Lease so long as Lender is seeking, in good faith, to cure the default. 5. Requirement of Non-Disturbance. Tenant agrees and acknowledges that this Agreement satisfies any condition or requirement in the Lease relating to the granting of a non- disturbance agreement. 6. Non-Disturbance. In the event the foreclosure of the Trust Deed, or upon a sale of the Property pursuant to the trustee's power of sale contained in the Trust Deed, or upon a transfer of the Property by conveyance in lieu offoreclosure (collectively, a "Transfer"), then so long as Tenant complies with this Agreement and is not in default under any of the terms, covenants, or conditions of the Lease, Lender shall not name or join Tenant in any foreclosure proceeding, unless such joinder is necessary, in Lender's discretion, to complete the foreclosure, nor shall Lender disturb the possession of Tenant, its successors and assigns. In the event of a Transfer, - 3 - ': ", \ 't" . " 000014 Lender will perform and be bound by all of the obligations imposed on Landlord by the Lease for the balance of the term of the Lease, and any extension or renewals of the Lease, as long as no event of default has occurred under the Lease, which has continued to exist for such period of time, after notice and opportunity to cure, if any, required by the Lease, as would entitle Landlord under the Lease to terminate the Lease, or would cause, without any further action of Landlord, the termination of the Lease or would entitle Landlord to dispossess Tenant under the Lease. 7. Attornment. Tenant hereby agrees to attorn to, adhere to and accept any such successor owner as landlord under the Lease, and to be bound by and perform all of the obligations imposed by the Lease, such attornment to be self-operative without the execution of any further instruments, upon a Transfer of the Property. 8. No Liability for Lender. Lender, or any successor owner of the Property resulting from a Transfer, shall not be (a) liable for any obligations under the Lease which arise or accrue prior to a Transfer or which arise or accrue at any time after Lender ceases to be the owner of the Property; (b) liable for any damages or other relief attributable to any act or omission of a prior landlord, including Landlord; ( c) liable for any damages or other relief attributable to any latent or patent defect in the Property; (d) liable for any damages or other relief attributable to any breach by any prior landlord, including Landlord, under the Lease or any representation or warranty made in connection with the Lease; (e) subject to any offsets or defenses which Tenant might have against any prior landlord, including Landlord; (f) bound by any rent or additional rent which Tenant might have paid in advance to any prior landlord, including Landlord, for a period in excess of one month or by any security deposit, cleaning deposit or other prepaid charge which Tenant might have paid in advance to any prior landlord, including Landlord; (g) bound by any assignment, subletting, renewal, extension or any other agreement or modification of the Lease made without the prior written consent of Lender; or (h) liable for any indirect or consequential damages, including loss of sublet rentals, loss of profits, or damage to goodwill or reputation. Nothing in this Agreement is intended to constitute an agreement by Lender to perform any obligation of Landlord as landlord under the Lease prior to the time Lender obtains title to the Property by Transfer or otherwise obtains possession of the Property pursuant to the terms of the Loan Documents. Specifically, but without limitation, Lender shall have no obligations with respect to the erection or completion of any improvements on the Property, either at the commencement of the term of the Lease or upon any renewal or extension of the term of the Lease, or upon the addition of additional space, pursuant to any expansion rights contained in the Lease. In the event that Lender shall acquire title to the Property, Lender shall have no obligation, nor incur any liability, beyond Lender's then equity interest, if any, in the Property, and Tenant shall look exclusively to such equity interest of Lender, if any, in the Property for the payment and discharge of any obligations imposed upon Lender under this Agreement or under the Lease, and - 4 - ... . 000015 Lender is hereby released and relieved of any other obligations under this Agreement and the Lease. 9. No Assignment or Subletting. Tenant agrees not to assign, transfer, mortgage, or otherwise encumber the Lease or Lease Rights or any interest in the Lease or the Lease Rights. Tenant further agrees not to sublet the Property or any part of the Property,. without the prior written consent of Lender and any attempt to do so without such consent shall be void as to Lender. Lender shall not be obligated to give its consent until, at least, Tenant has assigned the sublease to Lender, granted a lien on Tenant's interest in the Property to Lender as collateral for the Loan, and subtenant has executed and delivered to Lender a Subordination, Non-Disturbance Attornment Agreement and Estoppel Certificate acceptable to Lender. 10. New Lease. Upon the written request of Lender to Tenant after a Transfer, Tenant shall execute and deliver to Lender a lease of the Property upon the same terms and conditions as the Lease between Landlord and Tenant, which lease shall cover any unexpired term of the Lease existing prior to such Transfer. 11. Acknowledgment and Agreement by Landlord. Landlord, as landlord under the Lease and trustor under the Trust Deed, acknowledges and agrees for itself and its heirs, successors, and assigns agrees to each of the following: a. This Agreement does not constitute a waiver by Lender of any of its rights under the Trust Deed, Assignment, or any of the other Loan Documents, and/or in any way release Landlord from its obligations to comply with the terms, provisions, conditions, covenants, agreements and clauses ofthe Trust Deed. b. The provisions of the Trust Deed, Assignment, and all other Loan Documents remain in full force and effect and must be complied with by Landlord. c. In the event of a default under the Trust Deed, Assignment, or any of the other Loan Documents, Tenant shall pay all rent and all other sums due under the Lease to Lender as provided in the Loan Documents. 12. Right to Sublease and Mortgage. Notwithstanding anything to the contrary in the Lease, upon the occurrence of a Transfer, Tenant agrees that Lender, its successor or assign, or any purchaser at a foreclosure sale, may mortgage, lien, encumber, or otherwise transfer its interest in the Property or assign all of its or Landlord's rights in the Lease without the consent of Tenant. 13. Insurance Proceeds and Condemnation Awards. Notwithstanding anything to the contrary in the Lease, unless otherwise agreed by Lender in writing in advance, all insurance - 5 - iF 00001.6 proceeds and condemnation awards paid in connection with the Property and/or the Building shall be paid to Lender as payments on the Loan pursuant to the terms and conditions of the Loan Documents and for any and all other obligations of Borrower to Lender in connection with the Loan under the Loan Documents. 14. Memorandum of Lease. Tenant agrees to execute and cause to be recorded in the county recorder's office of the county in which the Property is located, a memorandum oflease for the Lease in a form reasonably acceptable to Lender. 15. Future Estoppel Certificates. Tenant agrees to execute and deliver to Lender, within five (5) days of request by Lender, estoppel certificates in a form similar to this Certificate regarding such matters as Lender requests. Tenant shall not be obligated to deliver an estoppel certificate more often than one (1) time per calendar year, unless Lender determines, in its . reasonable discretion, that an estoppel certificate is required more often. 16. No Merger. If any lien granted on the Property or assignment of any lease of the Property made to Lender and the fee title to the Property shall at any time become vested in one owner, the lien created under any trust deed granted or assignment made to Lender shall not be destroyed or terminated by application of the doctrine of merger and, in such event, Lender shall continue to have and enjoy all of the rights and privileges of Lender, beneficiary, and assignee and, if applicable, fee title owner, as to the separate estates. In addition, upon the foreclosure of any such lien or assignment, any leases or subleases then existing and created by Tenant shall not be destroyed or terminated by application ofthe law of merger or as a matter oflaw or as a result of such foreclosure unless Lender, its successor or assign, or any purchaser at any such foreclosure sale shall so elect. No act by or on behalf of Lender, its successor or assign, or any such purchaser shall constitute a termination of any lease or sublease unless Lender, its successor or assign, or such purchaser shall give written notice of such termination to such tenant or subtenant. 17. Notices. All notices shall be in writing and shall be deemed to have been sufficiently given or served when personally delivered or when deposited in the United States mail, by registered or certified mail, addressed as follows: - 6 - 000017 Lender: ZIONS FIRST NATIONAL BANK Bear Lake Valley Office P.O. Box 220 902 Washington Street Montpelier, lD 83254 Tenant: PPS Company, Inc. 375 East 2nd South Soda Springs, lD 83276 Landlord: Kevin J. Keller and Nancy B. Keller 375 East 2nd South . Soda Springs, lD 83276 Such addresses may be changed by notice to the other paIiy given in the SaIne maImer provided in tIns Section. 18. Attomeys' Fees. Upon the OCCUlTence of a default under this Agreement, Lender may emploYaI1 attomey or attomeys to protect Lender's lights under this Agreement, and TenaI1t shall pay Lender reasonable attomeys' Ü~es and costs actually incurred by Lender, whether or not action is actually cOlmnenced against Tenant by reason of such breach. TenaI1t shall also pay to Lender aI1Y attomeys fees aI1d costs incuned by Lender witI1 respect to any insolvency or baI1kruptcy proceeding or other action involving Tenant or any guarantor as a debtor. 19. No Derogation of Liens. Nothing contained in this Agreement shall be construed to derogate fì'om or in aI1Y way inipair or affect the lien and charge or provisions of the Trust Deed, Assignment, or aI1Y other lien created by the Loan Documents. 20. Goveming Law. This Agreement shall be govemed by aI1d construed in accordance with the laws ofthe State of Utah. 21. Successors and Assigns. TIns Agreement is aI1d shall be binding upon and shall inme to the benefit of Tenant, Lender and their respective successors and assigns. 22. Defined Tenns. Unless otherwise defined in this Agreement, capitalized tenns used in this Agreement shall have the meanings set fOl1h in the Loan Agreement. - 7 - / r 00001.8 EXECUTED as of the day and year first above written. LENDER ZIONS FIRST NATIONAL BANK, a national banking association By:C ~ !:(~jJ.~ Steven E. Allred Its: Vice President TENANT PPS Company, Inc. By:ï1~Þ ~ Nancy B. Kellt) Title: President Title: Landlords - 8 - ~:~ ;. 'j ¡ . 000019 INDIVIDUAL ACKNOWLEDGMENT(S) STATE OF Idaho ) COUNTY OF Bear Lake ) On the 25th day of October ,2007, personally appeared before me Kevin J. Keller and Nancy B. Keller . The signer(s) of the above illstrunleJlt, vvl:lQ.du./y acknowledged to me that he/she/they executed the same. ,,;0. - -. D ~) '"'CJ-. ( ~ '.Ii STEVEN E ALLRE ~. ~ ( ] NOTARY PUBLIC ~ .. ~I STATE OF IDAHO f, , My Commission Expires: 8/8/08 '''''''>:=-::::'~,,"r>,~'¡:,,",''-'-'''''~''7;':~'Bï'Jõtå;Y' Pub I i c Residing at: Montpelier, Idaho CORPORATE ACKNOWLEDGMENT STATE OF Idaho ) COUNTY OF Bear Lake ) On the 25th day of October ,2007, personally appeared before me Kevin J. Keller who being duly sworn, did say that he is the Vice President/Secretary I of the corporation that executed the above and foregoing instrument, and that said instrument was signed in behalf of said corporation by authority of a resolution of its Board of Directors, and said Kevin J. Keller acknowledged to me that said corporation executed the same. ~·t~. ~ t' My Commission Expires: 8/8/08 STEVEN E ALLRED NOTARY PUBLIC STATE OF IDAHO N o!~ry~v-Þ1.[S"'~"<'"""'T-':";"" ..., Residing at: Montpelier. Idaho ;( ì;) iI, II' CORPORATE ACKNOWLEDGMENT STATE OF COUNTY OF Idaho ) Bear Lake ) On the 25th day of October ,2007, personally appeared before me Nancy B. Keller who being duly sworn, did say that he is the President, of the corporation that executed the above and foregoing instrument, and that said instrument was signed in behalf of said corporation by authority of a resolution of its Board of Directors, and said Nancy B. Keller acknowledged to me that said corporation executed the same. ~5fct_~~-· My Commission Expires: 8/8/08 S-;-;::\I[N E Þ.LLBED \1 [\JOTAHY PUBliC Notary Public \! STATE OF IDAHO Residing at: Montpelier.}dí3hp_v.:_'c;,:_:__. - 9 - $rEVeN E ALLRED W~TI\PV PUBLIC "J :.,~ ~~ II i / OOÓ020 CORPORATE ACKNOWLEDGMENT . STATE OF ¿J f{()'YYU/Y>C}. ) COUNTY OF ~) On the -º2.Sday of rJbr.:t. 20.D1 personally appeared before me Steven E. Allred Who being duly sworn, did say that he/she is the Vice President of ZIONS FIRST NATIONAL BANK, the corporation that executed the above and foregoing instrument, and that said instrument was signed in behalf of said corporation by authority of a resolution of its Board of Directors, and said _Steven E. Allred_ Acknowledged to me that said corporation executed the same. My Commission Expires: 9 - /5 - j) Notary Public~ . _ _ /J _ . Residing at: ~ .~ NOTARY PUBLIC County of Lincoln State of Wyoming M Commission Expires September 15, 2011 EXHIBIT A Real Property Description A PORTION OF THE EAST HALF OF THE SOUTHWEST QUARTER OF SECTION 14, TOWNSHIP 34 NORTH RANGE 119 WEST OF THE 6TH P.M., IN THE TOWN OF THAYNE, LINCOLN COUNTY, WYOMING BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: THE TRUE POINT OF BEGINNING BEING AN IRON PIPE SET 302.67 FEET NORTH 4°41'30" EAST FROM THE STATE HIGHWAY MONUMENT FOUND MARKING SC1454+56.3, 50 FEET RIGHT, SAID POINT ALSO BEING 333.05 FEET, ALONG A 1859.86 FEET RADIUS CURVE TO THE RIGHT (CHORD BEARS NORTH 30°37'13" WEST, 332.61 FEET), THROUGH A CENTRAL ANGLE OF 10°15'36" AND 194.78 NORTH 85°27'23" EAST FROM SAID MONUMENT¡ THENCE NORTH 4°30'03" WEST, 266.94 FEET TO AN IRON PIPE SET¡ THENCE SOUTH 88°47'35" EAST, 314.12 FEET TO AN IRON PIPE SET¡ THENCE SOUTH, 236.21 FEET TO AN IRON PIPE SET¡ THENCE SOUTH 85°27'23" WEST, 294.02 FEET TO THE TRUE POINT OF BEGINNING. - 10 -