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HomeMy WebLinkAbout972657RECEIVING 972657 BOOK: 817 PAGE: 822 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY SUBORDINATION, NON DISTURBANCE AND ATTORNMENT AGREEMENT 0822 THIS AGREEMENT made as of this 17 day of J 2013, between 1sT BANK, DIVISION OF GLACIER BANK "Mortgagee and SHOPKO STORES OPERATING CO., LLC "Tenant A. Tenant has entered into a lease "Lease dated March 15, 2013 for that certain premises "Premises located in City of Afton, Lincoln County, State of Wyoming, all as more particularly described in the Lease. B. Mortgagee is the holder of a Mortgage and Security Agreement "Mortgage between FIDC XXX LLC "Landlord and Mortgagee, dated MaY 31 2013 and recorded with the Lincoln County Register of Deeds as Document No. 971268 encumbering certain property more particularly described in EXHIBIT A annexed hereto "Property and a specific Assignment of Leases and Rents dated May 31 2013 and recorded with the Lincoln County Register of Deeds as Document No. 971269 "Assignment assigning the Lease. Both the Mortgage and the Assignment secure a loan or loans from Mortgagee to Landlord. RECITALS: AGREEMENTS: 1 V L. V a..a rte. vv C. Each party hereto has requested the other party to enter into this Agreement. NOW, THEREFORE, in consideration of the above Recitals and the agreements of the parties set forth below, and for One Dollar ($1.00) and other good and valuable consideration, the parties hereto agree as follows: 1. The Lease and each and every term and condition thereof, and any extensions, renewals, replacements or modifications thereof, and all of the right, title and interest of Tenant in and to the Premises are and shall be subject and subordinate to the Mortgage and to all of the terms and conditions contained therein, all advances made or to be made thereunder, and to any renewals, modifications, supplements, replacements, consolidations, increases and extensions thereof. 2. Mortgagee agrees that in the event of foreclosure of the Mortgage, or other enforcement of the terms and conditions of the Mortgage or the exercise by Mortgagee of its rights under the Mortgage, or if Mortgagee comes into possession or acquires title to the Premises as a result of foreclosure or the threat thereof, or as a result of any other means, such action shall not result in either a termination of the Lease or a diminution or impairment of any of the rights granted to Tenant in the Lease or in an increase in any of Tenant's obligations under the Lease, including but not limited to provisions in the Lease dealing with condemnation, fire and other casualties. 3. Tenant agrees with Mortgagee that if the interest of Landlord in the Premises shall be transferred to Mortgagee by reason of foreclosure or other proceedings, or by any other 0823 manner, or in the event of a foreclosure sale of the Premises to any other person, firm, or corporation, then in any of said events, Tenant shall be bound to Mortgagee or such purchaser, grantee or other successor to Landlord's interest "Successor Landlord under all of the terms, covenants and conditions of the Lease for the balance of the term 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 the Successor Landlord were the landlord under the Lease. Tenant does hereby agree to attorn to the Successor Landlord. 4. At such time that Successor Landlord succeeds to the interest of Landlord under the Lease, Successor Landlord shall be bound to Tenant under all of the terms, covenants and conditions of the Lease for the balance of the Term remaining and any extensions or renewals thereof which may be effected in accordance with any option therefor in the Lease; provided, however, Tenant agrees that a Successor Landlord shall not be: under the Lease; (a) personally liable for any act or omission of any prior landlord (b) bound by any base rent or additional rent which Tenant may have paid for more than the current or next succeeding month to any prior landlord; or (c) obligated to perform any work in the Premises or any part thereof, other than such work which is required to be performed by Landlord under the Lease. 5. Tenant will notify Mortgagee of any default of Landlord under the Lease which Tenant believes would entitle it to cancel the Lease or abate the base rent or additional rent payable thereunder, and agrees that no notice of cancellation thereof nor any such rent abatement shall be effective against Mortgagee unless Mortgagee has received the notice aforesaid and has failed to cure the default within the longer of thirty (30) days after such notice or such period of time following such notice as Landlord has to cure the default which gives rise to such alleged right of cancellation or abatement "Mortgagee Cure Period All such notices shall be in writing and shall be deemed to have been given when delivered personally or when deposited in the United States mail, certified or registered, postage prepaid, addressed as follows: 1 s Bank, Division of Glacier Bank W PO Box 1620 Afton, WY 83110 ATTN: Branch President 6. Provided Landlord has irrevocably and unconditionally directed Tenant to comply with such demand, Tenant shall, upon Mortgagee's demand therefor, thereafter pay directly to Mortgagee all amounts thereafter payable by Tenant to Landlord under the Lease. 7. This Agreement shall bind and inure to the benefit of the parties hereto, their successors and assigns. As used herein, the term "Tenant" shall include Tenant, its successors and assigns as permitted under the Lease; the words "foreclosure" and "foreclosure sale" as used herein shall be deemed to include the acquisition of Landlord's estate in the Premises by 0824 voluntary deed (or assignment) in lieu of foreclosure, and the word "Mortgagee" shall include the Mortgagee specifically named herein and any of its successors and assigns, including any Successor Landlord. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the month, day and year first above written. MORTGAGEE: 1 BANK, DIVISION OF GLACIER BANK By: Name: Title: Attest: Name: Title: c l S S Persorlally came before me this and Loc ,v\ 1 t C D r and Bank, and to me known to be the persons acknowledged the same. TENANT: SHOP 4' A;— Name: l'e__ 1 tin 0%5, ICA Title: V P—G i Q. Q0A-s- Q By: Attest: Name: Title: day 2013, the above -named me known to be the of 1 Bank, Division of Glacier who executed the fe egoing instrument and TERESA BRUCE NOTARY PUBLIC County of State of Lincoln Wyoming My Commission Expires May 7, 2017 >i� J' /`I otary 'ublic, State o f My C.mmission: RES OPERATING CO., LLC SS 1 S S -ec..r t L STATE OF WISCONSIN SS COUNTY OF BROWN Personally came before me this ��day of J 2013, the above -named p�`� ckvor AV. A-e., and i Q 4'r t6 y to me known to be the C ACc s and &s s c}— eire-a" of ShopKo Stores Operating Co., LLC, and to me known to be the persons who executed the foregoing instrument and acknowledged the same. This instrument was drafted by and after recording should be returned to: Jennifer S. McGinnity, Senior Corporate Counsel ShopKo Stores Operating Co., LLC 700 Pilgrim Way Green Bay, WI 54304 Nofajy Public, State i nsin ..i 0875 EXHIBIT A Lot 13 of Old Fairgrounds Addition to the Town of Afton, Lincoln County, Wyoming as described on the official plat filed with Instrument No. 929843 of the records of the Lincoln County Clerk.