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HomeMy WebLinkAbout964016STATE OF WYOMING SUBORDINATION, NON DISTURBANCE AND ATTORNMENT AGREEMENT COUNTY OF LINCOLN THIS AGREEMENT made and entered into this r r day of March, 2012, by and among OVERLAND PROPERTIES ALPINE, LLC, a Utah limited liability company, whose address is: 421 South 400 East, Salt Lake City, Utah 841 1 1, "Landlord MEADOWS BANK, whose address is: 8912 Spanish Ridge Avenue #100, Las Vegas, Nevada 89148, "Lender and FAMILY DOLLAR, INC., a North Carolina corporation, whose address is: Post Office Box 1017, Charlotte, North Carolina 28201 -1017, "Tenant WITNESSETH: A. Tenant entered into Lease Agreement dated May 19, 2010, (the "Lease with Landlord for premises located at 109 Grey's River Road, in the City of Alpine, County of Lincoln, State of Wyoming, demised to Tenant (the "Demised Premises as shown on the site plan attached as Exhibit B to the Lease which is incorporated herein by reference. B. Lender intends to make a loan to Landlord to be secured by a mortgage or deed of trust (the "Mortgage on the demised premises. 1 )1 1 33`? C. Tenant and Lender desire to confirm their agreement with respect to the Lease and the Mortgage. NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth below and other good and valuable consideration, the parties hereto agree as follows: 1. The Lease is and shall be subordinate to the lien of the Mortgage and to all renewals, modifications and extensions thereof subject to the terms of this Agreement. rY 2. So long as Tenant is not in default (beyond any period given Tenant to cure such default) in the payment of rent or in the performance of any of the terms, covenants or conditions a N of the Lease on Tenant's part to be performed, the nonperformance of which would entitle eo Landlord to terminate the Lease, (i) Tenant's possession of the demised premises and Tenant's N w rights and privileges under the Lease, and any extensions or renewals thereof or acquisition of 7 0 o additional space which may be effected in accordance with any option therefore in the Lease, N to Q Q shall not be diminished or interfered with by Lender in the exercise of any of its rights under the o a w Mortgage, (ii) Tenant's occupancy of the demised premises shall not be disturbed by Lender in Z U the exercise of any of its rights under the Mortgage during the term of the Lease or any such v z extensions or renewals thereof, and (iii) Lender will not join Tenant as a party defendant in any 0 o action or proceeding for the purpose of terminating Tenant's interest and estate under the Lease w Y VO because of any default under the Mortgage. W [IV Z 3. If the interest of Landlord shall be acquired by Lender or by anyone claiming an m 0 interest in the Demised Premises by or through Lender including any purchaser at a foreclosure sale "Successor Landlord by reason of foreclosure of the Mortgage or other proceedings brought to enforce the rights of Lender or by deed in lieu of foreclosure, then Tenant and Lender or such Successor Landlord shall be bound to each other under all of the terms of the Lease for the balance of the term thereof remaining including any extensions or renewals thereof elected by Tenant, with the same force and effect as if Lender or such Successor Landlord were the Landlord under the Lease and Tenant hereby attorns to Lender or such Successor Landlord as the Landlord under the Lease, such attornment to be automatically effective without the execution of any further instrument. Notwithstanding the foregoing, Tenant shall be under no obligation to pay rent to Lender or to such Successor Landlord until Tenant has received written notice from Lender or such Successor Landlord that it has acquired the interest of the Landlord in the Demised Premises, which notice shall be accompanied by reasonable documentation evidencing such acquisition. The respective rights and obligations of Tenant and Lender or such Successor Landlord upon such attornment shall be as set forth in the Lease, including Tenant's right to such rent credits, if any, for leasehold improvements as are described in the Lease, it being the intention of the parties for this purpose to incorporate the Lease in this agreement by reference with the same force and effect as if set forth at length herein. 4. Landlord hereby agrees that if Lender notifies Tenant that Lender is entitled to receive the rent and /or any other payments including reimbursements, if any, due under the Lease pursuant to an Assignment of Rents or any other instrument or agreement signed by Landlord, then Tenant will be entitled to comply with said instrument upon being furnished a copy of it by Landlord or Lender, and Tenant may rely on any assertion by Lender that Lender is entitled to receive the rents (and if applicable, other payments due under the Lease), whether due to Landlord's default under the Mortgage, or otherwise, and Tenant will have no obligation to make any independent determination as to whether the assertions of Lender are true. Any rent or other sums paid to Lender upon Lender's demand shall be deemed to be payments to Landlord pursuant to the Lease. 5. This Agreement will automatically expire upon the occurrence of either of the following: (i) The term of the Lease will expire or the Lease shall be terminated, or (ii) the loan secured by the Mortgage will be paid in full by the Landlord such that neither Lender nor anyone claiming by or through Lender has an interest in the Demised Premises and the Mortgage will be released of record. 6. This Agreement may not be cancelled or modified except by an agreement in writing signed by Lender and Tenant or their respective successors. This Agreement is contingent upon full execution by all parties, with a fully executed copy returned to Tenant within thirty (30) days of the date hereinabove written. In the event a fully executed copy has not been returned to Tenant within said period, Tenant's execution hereon shall be considered revoked and this Agreement shall be null and void and of no further force or effect as to Tenant. 7. This Agreement and the rights and obligations hereunder of the Landlord, Tenant, and Lender will bind and inure to the benefit of their respective heirs, successors and assigns. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly signed and sealed. WITNESS: ATTEST: Secretary ATTEST: Heather B. Adams Assistant Secretary LANDLORD OVERLAND PROPERTIES ALPINE, LLC By: Name: )2 ice:* V Title: LENDER MEADOWS BANK By: Name: Title: r TENANT FAMILY DOLLAR, INC., a North Carolina corporation Keith M. Gehl, Senior Vice President Real Estate and Facilities 00333 STATE OF NOTARY I, 0 C '5\ 01 a Notar Public in and for the aforesaid State and County, do hereby certify that mA\A personally appeared before me this day and that by the authority duly given and on behalf of O\/O Rtput acknowledged the foregoing instrument was signed and executed by them for the purposes therein expressed. Notary Public State of Utoh My Commission Expires on: March 11, 2015 Comm. Number: 606997 My Commission Expires: 1116 v(i1 1 1 STATE OF NOM, COUNTY OF a 1, ►POCVA T►• MOM a Notary Public in and for the aforesaid State and County, do hereby certify that LISA personally appeared before me this day and that by the authority duly given and on behalf of ake. O I i acknowledged the foregoing instrument was signed and executed by then for the purposes therein expressed. WITNESS my hand and notarial seal this the day of A 2012. My onlm ssio i Expir s: Aft id <z04 MIMFRVA N. MOTE Notary Public We, of Nevado No. rf: 49445 -1 My %pit. exp. March 16, 2014 STATE OF NORTH CAROLINA COUNTY OF MECKLENBURG My Commission Expires: December 29, 2012 I seal this the ri day of `(Wch 2012. Notary Public NOTARY W A i'YIV Notary Public NOTARY I, Patricia E. Thibault, a Notary Public in and for the aforesaid State and County, do hereby certify that KEITH M. GEH-IL and HEATHER B. ADAMS, Senior Vice President Real Estate and Facilities and Assistant Secretary, respectively, of FAMILY DOLLAR, INC., a North Carolina corporation, personally appeared before me this day and that by the authority duly given and as the act of the corporation, the foregoing instrument was signed and executed by them for the purposes therein expressed. ti 0 13 4 WITNESS my hand and notarial seal this thedri day of March, 2012. 2 p y .M Ual+a am. q4 Patricia E. Thibault,N d i otary Public I p Y V 6% 0 6 460 pk) miboee' r 0 EXHIBIT "A" LEGAL DESCRIPTION THE LAND DESCRIBED HEREIN IS SITUATED IN THE STATE OF WYOMING, COUNTY OF LINCOLN, UNINCORPORATED AREA, AND IS DESCRIBED AS FOLLOWS: LOT 1 OF THE GREYS RIVER COVE ADDITION TO THE TOWN OF ALPINE, LINCOLN COUNTY, WYOMING, AS SHOWN ON THE OFFICIAL PLAT THEREOF FILED JUNE 10, 2010, AS RECEIVING NO. 953886, IN THE OFFICE OF THE CLERK OF LINCOLN COUNTY, WYOMING, AS PLAT NO. 953886. PIDN 3718- 29 -4 -09- 034.00 003.3.