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HomeMy WebLinkAbout2019-353 AMS - PNC Bank Hillsborough Commons SNDAA BK 6621 PG 2235-2245(11) DOC#30005136 This Document eRecorded: 08/02/2019 01:39:22 PM o� 04k4OASOP��Y, �-Diys.turp ilariee qqS L��l-�t7- �7�]`iT�I(�'� M`i "4 A-"t�A"tn V st 4mer Col rn �l a n�wmne@ CamPunl 1 I V L National O mm=lial Servic'n 1201 Walnut,So%]DD Konsas Ciry,MO 64106q W 1_., _.Loan No.940961407 File Na:NCS �1� THIS SUBORDINATION,NON-MIST ANCE AND ATTORNMENT AGREEMENT (this"Agreement")dated as oFthis I J�day of 20ZJ by and among PNC BANK, NATIONAL ASSOCIATION(together with its succe ors and assigns,the"Mortgagee"),with an address at 10851 Mastin,6th Floor,Overland Park,KS 66210, Hillsborough NC I SGF,LLC who is,or will become,the landlord(the"Landlord")under the Lease(defined below),with an address at One North Wacker,Suite_4025,Chicago,IL 60606 ,and_Orange County.North Carolina dlbla Government of Orange County_(the"Tenant"),with an address at P.O.Box 9181,Hillsborough,NC 27278 . W TTNE ETH THAT: WHEREAS,under the terms of a certain lease agreement dated_July 25.2008,and as amended by Lease Modification dated January 12, 2015, delivery of Possession dated January 13,2015, Lease Modification dated November 12, 2015, Lease Modification dated September 20, 2018, Lease Modification dated March 17,2019 (the"Lease")entered into by Tenant(or Tenant's predecessor-in- interest), the demised real property described in the Lease (the "Demised Preaaiise ') was leased to Tenant pursuant to the terns and conditions more particularly described therein, constituting all or a portion of that certain real property located in Hillsborou h ommons 113 Mao Street Hillsborough NC) Orange County, North Carolina , and more particularly described in Exhibit "A" attached hereto(the"Property");and WHEREAS,pursuant to a loan agreement(the"Loan Agreement")and a promissory note(the "Note"), the Mortgagee made or will make a loan to the Landlord. The obligations under the Loan Agreement and Nate are or will be secured by a mortgage instrument covering the Property (the "Mortgage") from the Landtord to the Mortgagee, and retarded or to be recorded in the real estate records of the aforesaid County and State, and are or will be also secured by an assignment of the Landlord's interest in all leases of the Property(the"Assignment"),recorded or to be recorded in the real estate records of the aforesaid County and State(the Loan Agreement,Note,Mortgage,Assignment and any and all other documents executed in connection with the Loan, as the same may be amended, renewed,replaced or supplemented from time to time,collectively the"Loan Documents");and WHEREAS,the Mortgage provides or shall provide that the Lease shall be subordinate to the Mortgage and the Loan Documents and the parties hereto desire to confirm such subordination and to establish rights of quiet and peaceful possession for the benefit of the Tenant under the Lease and to define the terms,covenants and conditions precedent for such rights. NOW,THEREFORE,in consideration of the mutual promises and covenants herein contained and intending to be legally bound,the parties hereto agree as follows: 1. Subordination of Lease. The Lease and the entire right, title and interest of the Tenant thereunder(including without limitation, any purchase options, rights of first refusal or similar rights possessed by the Tenant with respect to the Property)are and shall be subject and subordinate in all respects to the lien,right,title and terms of the Loan Documents and,in particular,the Mortgage and all advances made or to be made thereunder. The Tenant acknowledges and agrees that this Agreement submitted electronicall by "First American Title NCS Kansas City" in Compliance with worts Carolina statutes governing recordable documents and the terms of the submitter agreement with the orange County Register of Deeds. submitted electronically by "First American Title NCS Kansas city" in compliance with North Carolina statutes governing recordable documents and the terms of the submitter agreement with the orange county Register of Deeds. BK 6621 PG 2236 DOC# 30005136 supersedes(but only to the extent inconsistent with)any provisions of the Lease relating to the priority or subordination of the Lease and the interests or estates created thereby to the Mortgage. 2. Consent of Tenant. The Tenant acknowledges notice of and consents to the Mortgage, the Assignment and the terms and conditions thereof. The Tenant agrees to recognize the rights of the Landlord under the Lease, until notified otherwise in writing by the Mortgagee, as herein provided. The Landlord and Tenant agree that if the Mortgagee, the Landlord or the Landlord's property manager delivers to the Tenant a notice requesting that all payments due under the Lease be thereafter paid directly to the Mortgagee,the Tenant shall thereafter make,and is hereby authorized and directed by the Landlord to make, all such payments directly to the Mortgagee, as provided in the Mortgage and the Assignment, without any duty of further inquiry on the part of the Tenant, such payments to be made regardless of any right of set-off,counterclaim or other defense which the Tenant may have against the Landlord, whether as tenant under the Lease or otherwise. Mortgagee and Landlord hereby agree that Tenant's compliance with such direction shall satisfy Tenant's corresponding payment obligation under the Lease. Except as provided herein if Mortgagee,prior to its acquisition of Landlord's title to the Property, shall at any time exercise a right to receive rent and other sums due under the Lease, Mortgagee shall not thereby become obligated to Tenant for the performance of any of the terms, covenants, conditions or agreements of Landlord under the Lease. 3. Tenant's Duty to Notify Mortgagee of any Default Under the Lease. Any notice of default, notice of exercise of lease option,or other notice required or permitted to be given by the Tenant to the Landlord shall be simultaneously given also to the Mortgagee, and any right of the Tenant dependent upon notice shall take effect only after such notice to the Mortgagee is so given. Performance by the Mortgagee shall satisfy any conditions of the Lease requiring performance by the Landlord. Without limiting the generality of the foregoing, the Tenant shall provide the Mortgagee with prompt notice of any asserted default against the Landlord under the Lease. In the event of any act or omission of the Landlord which would give the Tenant the right, immediately or after lapse of time, to cancel or terminate the Lease,or to claim a partial or total eviction or to exercise any other remedy,the Tenant shall not exercise such right or remedy until Mortgagee has received notice and has failed within a period of thirty (30)days to cure said default, said cure period commencing after the end of Landlord's cure period and after Mortgagee is entitled under the Mortgage and the Assignment to remedy same,or, if the same is not reasonably capable of being remedied by Mortgagee within such period, until a reasonable period for remedying such default has elapsed following the giving of such notice and following the time when the Mortgagee shall have become entitled under the Mortgage and the Assignment to remedy the same (which reasonable period shall in no event be less than the period to which Landlord would be entitled under the Lease or otherwise, after similar notice, to effect such remedy); provided that the Mortgagee shall give the Tenant written notice of its intention to, and shall commence and continue with due diligence to,remedy such act or omission. If the Mortgagee cannot reasonably remedy a said default until after the Mortgagee obtains possession of the Property, the Tenant may not terminate or cancel the Lease or claim a partial or total eviction by reason of such default until the expiration of a reasonable period necessary for the remedy after the Mortgagee institutes proceedings to obtain possession of the Property through a foreclosure or otherwise,or for the appointment of a receiver for the Property,provided that the Mortgagee institutes and prosecutes such proceedings with due diligence. Under no circumstances shall Mortgagee's cure period extend more than ninety (90) days beyond the date Tenant provides the notice contemplated in this paragraph. Notwithstanding the foregoing,the Mortgagee shall have no obligation to remedy or to continue to remedy any such act or omission. 4. Nondisturhance of Tenant. Provided (i) the Lease shall at all times be in full force and effect, (ii) the term of the Lease has commenced,(iii) the Tenant is in actual possession of the Demised Premises, and (iv) the Tenant shall not be in default thereunder (beyond any cure period given to the Tenant to cure such default),then: A-2 Form 12F—Rev.4/34118 BK 6621 PG 2237 DOC# 30005136 (a) The right of possession by the Tenant to the Demised Premises and any or all of the Tenant's rights under the Lease(other than any Purchase Right)(hereinafter defined)shall not be interfered with, diminished, impaired, or terminated by, and Tenant's occupancy of the Premises shall not be disturbed by, the Mortgagee (or by anyone claiming by, through or under the Mortgagee)in the exercise of any of the Mortgagee's rights under the Loan Documents. (b) The Tenant shall not be named as a party defendant to any foreclosure of the lien of the Mortgage and any such foreclosure shall not have the effect of terminating, or be interpreted as terminating,the Lease. However, Tenant may be named as a party defendant if Mortgagee is required by any applicable law, order, regulation, rule of court or judicial decision to name the Tenant as a party defendant. Notwithstanding the foregoing, if it would be procedurally disadvantageous for the Mortgagee not to name or join the Tenant as a party in a foreclosure proceeding with respect to the Mortgage,the Mortgagee may so name or join the Tenant without in any way impacting the Lease or diminishing or otherwise affecting the rights and privileges granted to,or inuring to the benefit of,the Tenant under this Agreement. (c) If the Mortgagee or any Foreclosure Purchaser (defined below) comes into possession of the Property (through receivership, as a mortgagee in possession, or otherwise) or acquires the leasehold interest of the Landlord by foreclosure of the Mortgage, or by proceedings under the Loan Documents, deed in lieu or otherwise, the Lease shall not be terminated by any such foreclosure or proceedings; and the Lease shall continue in full force and effect upon the Tenant's attornment, as hereinafter provided, as a direct lease between the Tenant and the Mortgagee or any Foreclosure Purchaser upon all the terms, covenants, conditions and agreements set forth in the Lease and this Agreement. Notwithstanding the foregoing, Tenant agrees that any option to purchase the Property, right of first refusal to purchase the Property or right of first offer to purchase the Property or any portion thereof(each a"Purchase Right'),as may be provided in the Lease shall not apply to any action to appoint a receiver or to obtain title to the Property by foreclosure, deed in lieu of foreclosure, or otherwise, and shall not apply to any transfer of the Property by the Mortgagee or Foreclosure Purchaser,and shall be terminated after any foreclosure,or deed in lieu thereof. 5. Attornment of Tenant_to Mortzaaee or Foreclosure Purchaser. If the Mortgagee or any Foreclosure Purchaser shall succeed to the rights of the Landlord under the Lease, then such Mortgagee, Foreclosure Purchaser,or other successor in interest shall be deemed to have also succeeded to the duties, obligations, and responsibilities of the Landlord under the Least and the Tenant shall attom to and recognize the Mortgagee or such Foreclosure Purchaser as the Tenant's landlord under the Lease and the Mortgagee or such Foreclosure Purchaser shall be conclusively deemed to have accepted such attornment. Such attornment shall be self-operative and effective without execution and delivery of any further instrument, immediately upon the Mortgagee's or any Foreclosure Purchaser's succession to the interest of the Landlord under the Lease. Upon such attornment, the Lease shall continue in full force and effect as a direct lease between the Mortgagee or such Foreclosure Purchaser and the Tenant except that the Mortgagee or such Foreclosure Purchaser shall not be bound by any amendment or modification of the Lease made without the Mortgagee's written consent and except that the Mortgagee or such Foreclosure Purchaser shall not: (a) Be liable to the Tenant for any past act, default or omission on the part of the Landlord except as provided herein, and the Tenant shall have no right to assert the same or any damages arising therefrom as an offset, counterclaim or defense against the Mortgagee or such Foreclosure Purchaser; A-3 Form 12F—Rev.4/30/18 BK 6621 PG 2238 DOC# 30005136 (b) Be liable to the Tenant for the commencement or completion of any construction or any contribution toward construction or installation of any improvements upon the Demised Premises, except as required by the Lease or as provided herein, or any expansion or rehabilitation of existing improvements thereon,or for restoration of improvements following any casualty not required to be insured under the Lease or for the costs of any restoration in excess of the proceeds recovered under any insurance required to be carried under the Lease; (c) Be liable to the Tenant for any prepayment of rent,rental security or any other sums deposited with the Landlord under the Lease and not actually delivered to the Mortgagee or such Foreclosure Purchaser; (d) Be bound by any Purchase Rights or similar rights possessed by the Tenant with respect to the Property. Except as specifically provided in this Agreement,the Mortgagee shall not, by virtue of this Agreement, the Mortgage or any other instrument to which the Mortgagee may be a party, be or become subject to any liability or obligation to the Tenant under the Lease or otherwise. The Mortgagee or such Foreclosure Purchaser shall be liable to the Tenant under the Lease only during the Mortgagee's or such Foreclosure Purchaser's period of ownership,and such liability shall not continue or survive as to the transferor after a transfer by the Mortgagee or such Foreclosure Purchaser of its interest in the Lease and the Demised Premises. Notwithstanding anything to the contrary contained herein, none of the Mortgagee or any Foreclosure Purchaser or any of either of their affiliates, officers, directors, shareholders, agents,servants and employees shall have personal liability to Tenant and the liability of any of the foregoing shall be limited to such party's interest in the Property; provided that in no event shall the Mortgagee's rights and interests under the Loan Documents be deemed to be an interest in the Property. 6. Modification of Lease. Without the Mortgagee's prior written consent, which consent shall not be unreasonably withheld, the Tenant shall not (a) amend, terminate, cancel or tender a surrender of the Lease or any extensions or renewals thereof,(b)prepay any rent or other sums due under the Lease for more than one month in advance of the due dates thereof,(c)voluntarily surrender the Demised Premises, (d) assign the Lease or sublet the Demised Premises or any part thereof other than pursuant to the provisions of the Lease; or (e) subordinate or permit the subordination of the Lease to any lien subordinate to the Mortgage. Any such purported action without such consent shall be void as against the holder of the Mortgage. 7. Representations of Tenant. Except as provided herein the Tenant represents and warrants to the Mortgagee that(a)the Tenant occupies and is the leasehold owner of the Demised Premises pursuant to the terms of the Lease, (b) the Lease is in full force and effect, and the Tenant has no offsets or defenses to the payment of rent or other sums due thereunder, (c) no default exists under the Lease, and (d) all rent and other sums due under the Lease have been paid in full, but have not been paid for more than one month in advance of the due dates thereof. Subject to reasonable terms and conditions agreed to by the Tenant the Tenant agrees to enter into a subordination, non-disturbance and attornment agreement with any entity which shall succeed the Mortgagee as the holder of a first priority mortgage with respect to the Property, or any portion thereof, provided such agreement is substantially similar to this Agreement. S. Application of Casualty Insurance Proceeds and Condemnation Awards. The Tenant hereby agrees that, notwithstanding anything to the contrary contained in the Lease, the terms and provisions of the Mortgage with respect to the application of casualty insurance proceeds and condemnation awards shall control. A-4 Form 12F—Rev.4/30/18 BK 6621 PG 2239 DOC# 30005136 4. Remedies. Upon and after the occurrence of a default under the Mortgage, the Mortgagee shall be entitled, but not obligated, to exercise the claims, rights, powers, privileges and remedies of the Landlord under the Lease and shall be further entitled to the benefits of, and to receive and enforce performance of, all of the covenants to be performed by the Tenant under the Lease as though the Mortgagee were named therein as Landlord and the Tenant shall be entitled,but not obligated,to exercise its claims, rights, powers, privileges and remedies under the Lease and shall be further entitled to the benefits of, and to receive and enforce performance of, all of the covenants to be performed by the Landlord under the Lease as though the Mortgagee were named therein as Landlord. 10. Confirmation of Lease Status. The Landlord and the Tenant hereby agree that, upon the Mortgagee's request, they shall from time to time execute and deliver to the Mortgagee, and without charge to the Mortgagee, an estoppel certificate setting forth whatever information the Mortgagee may reasonably require to confirm the current status of the Lease including,without limitation, a confirmation that the Lease is and remains in full force and effect. 11. Notices. All notices, demands, requests, consents, approvals and other communications required or permitted hereunder must be in writing and will be effective upon receipt. Such notices and other communications may be hand-delivered, sent by facsimile transmission with confirmation of delivery and a copy sent by first-class mail, or sent by nationally recognized overnight courier service, to a party's address set forth above with confirmation of delivery or to such other address as any party may give to the other in writing for such purpose. 12. Changes in Writing. No modification,amendment or waiver of,or consent to any departure from,any provision of this Agreement nor consent to any departure by the Landlord or Tenant therefrom will be effective unless made in a writing signed by the Mortgagee, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on the Landlord or Tenant in any case will entitle the Landlord or Tenant to any other or further notice or demand in the same,similar or other circumstance. 13. Termination of Agreement. This Agreement shall automatically terminate upon the release or termination of the lien of the Loan Documents (and all renewals, modifications, extensions, consolidations and replacements thereof)upon the Property. 14. Entire_Agreement. This Agreement constitutes the entire agreement and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. 15. Counterparts. This Agreement may be signed in any number of counterpart copies and by the parties hereto on separate counterparts, but all such copies shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile transmission shall be effective as delivery of a manually executed counterpart. Any party so executing this Agreement by facsimile transmission shall promptly deliver a manually executed counterpart, provided that any failure to do so shall not affect the validity of the counterpart executed by facsimile transmission. 16. Definitions. As used in this Agreement, the word "Tenant" shall mean the Tenant and/or the subsequent holder of an interest under the Lease, provided the interest of such holder is acquired in accordance with the terms and provisions of the Lease;the word"Mortgagee"shall mean the Mortgagee or any subsequent holder or holders of the Mortgage and the Assignment, and any nominees and designees thereof;and the word"Foreclosure Purchaser"shall mean any party other than the Mortgagee A-5 Form 12F---Rev.4/30/18 BK 6621 PG 2240 DOC# 36665136 acquiring title to the Property by purchase at a foreclosure sale, by deed or otherwise. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Landlord, the Tenant and the Mortgagee,their heirs,legal representatives,successors and assigns. 17. Outstanding Improvements. The roof of the Demised Premises is at the end of its useful life and as such shall be replaced by the Landlord. As of the date of execution of this Agreement Landlord has not commenced the required roof replacement. Should Mortgagee or any Foreclosure Purchaser, or other successor in interest, succeed to the rights, duties, and obligations of the Landlord such Mortgagee,Foreclosure Purchaser,or other successor in interest shall complete the roof replacement and any other unfinished construction or repair initiated by Landlord as a condition precedent to the collection of rent. 18. Representations of Landlord. Landlord represents and warrants there are no outstanding liens, other than those contemplated herein, on the Demised Premises and that it will defend and indemnify Tenant from and against all claims by any such lienors and will ensure any existing or future lienors agree to the non-disturbance of Tenant as provided herein. 19. Governine Law and Jurisdiction. This Agreement has been delivered to and accepted by the Mortgagee and will be deemed to be made in the State where the Property is located that being Orange County, North Carolina. THIS AGREEMENT WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE PROPERTY IS LOCATED, EXCLUDING ITS CONFLICT OF LAWS RULES. The Landlord and the Tenant hereby irrevocably consent to the exclusive jurisdiction of any state or federal court in the county or judicial district where the Property is located; provided that nothing contained in this Agreement will prevent the Mortgagee from bringing any action, enforcing any award or judgment or exercising any rights against the Landlord individually,against any security or against any property of the Landlord within any other county, state or other foreign or domestic jurisdiction. The Mortgagee, the Landlord and the Tenant agree that the venue provided above is the most convenient forum for the Mortgagee,the Landlord and the Tenant. The Landlord waive any objection to venue and any objection based on a more convenient forum that either may have in any action instituted under this Agreement. 20. WAIVER OF JURY TRIAL. EACH OF THE LANDLORD, THE TENANT AND THE MORTGAGEE IRREVOCABLY WAIVE ANY AND ALL RIGHT THAT ANY MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS AGREEMENT, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE LANDLORD, THE TENANT AND THE MORTGAGEE ACKNOWLEDGE THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY. The Landlord and the Tenant acknowledge that each has read and understood all the provisions of this Agreement,including the waiver of jury trial,and has been advised by counsel as necessary or appropriate. A-6 Form 12F—Rev.4/30/18 BK 6621 PG 2241 ❑GC# 36065136 WITNESS the due execution hereof as a document under seal,as of the date first written above. WITNESS 1 ATTEST: MORTGAGEE: PNC BANK,NATIONAL ASSOCIATION I' By: (SEAL) Print Name: 1J ao, Print Name: � 61 (, �l Title: WITNESS 1 ATTEST: LANDLORD: Hills6 apzh NC I SGF LLC By: (SEAL) Print Name: Print Name: t Title: 'U '/'W S Title: A41) t1 U 7'Oa L (Include title only if an officer of entity signing to the right) A-7 Form 12F—Rev.4130118 BK 6621 PG 2242 DOC# 30005136 WITNESS 1 ATTEST: TENANT: Orange County,North Carolina get K&AT—;4== By: ¢� Print Name:_ Rt Print Name: )3vrf-,� 4 ►"M 17 x Title: "� xn Title: Cb� �y /���nc�4w ... . (Include title only if an officer oT entity signing to the right) �l � Card{r� OR (Individual) (SEAL) Print Name: Print Name: (Individual) (SEAL) Print Name: Print Name: A-8 Form 12F—Rev.4/30/18 BK 6621 PG 2243 DOC# 30005136 ACKNOWLEDGMENTS STATE OF KANSAS ) )ss. COUNTY OF JOHNSON } On this,the 1�day of �L5I ,20-6 before me,the undersigned officer,personally appeared who acl owledged him/herself to be the Vice President of PNC Bank National Associati ,a national banking association,and that(s)he as such Vice President being authorized to do so,executed the foregoing instrument for the purposed therein contained by signing the name of the corporation by him/herself as Vice President. IN WITNESS WHEREOF,I hereunder set hand and official seal. NOTARY Pmuc-stm of f SHAWNAM.000 a Notary Public '5naWn0. K) �ddard My Apt.Expires (add landlord and tenant acknowledgments] STATE OF � — } }ss. COUNTY OF ) �,,■+'A'""��''� •` 5 S: [c This instrument was acknowledged before me on 01,91)Iq by •# n� Notary Public M,&1 sSg '9• pill-Sor► �0= a�jBL\G # �3 �- {r�,,�,r�,rusSt�.ns�x{��.s,�s a 1 to� = -''• .. STATE OF ILW rJDlS } J Gr • }SS. COUNTY OF COI } This instrument was acknowledged before me on 7/ by '� tary public C Iq� w q TL!Yk.ho0 CYhTHIA TLJRNBI]W Official Seal Notary Public - State of Illinois My Commission Expires Jul 11, 2020 A-9 Form 12F—Rev.4/30/18 BK 6621 PG 2244 ❑GC# 36065136 EXHIBIT A Original lease July 25,2008 Lease Modification January 12,2015 Delivery of Possession January 13,2015 Lease Modification November 12,2015 Lease Modification September 20,2018 Lease Modification March 17,2019 A-10 Form 12F—Rev.4/30/18 BK 6621 PG 2245 ❑GC# 36065136 EXIMIT A (Description of Land) The Land referred to herein below is situated in the County of Orange, State of North Carolina,and is described as follows: PARCEL "B" ON THE SUBDIVISION PLAT FOR HILLSBOROUGH COMMONS, LLLP RECORDED IN BOOK 117, PAGE 85 ORANGE COUNTY, NORTH CAROLINA REGISTER OF DEEDS. TOGETHER WITH AND INCLUDING APPURTENANT EASEMENT RESERVED BY RIGHT OF WAY DEED RECORDED IN BOOK 794,PAGE 76 IN THE OFFICE OF THE REGISTER OF DEEDS FOR ORANGE COUNTY,NORTH CAROLINA. FURTHER TOGETHER WITH AND INCLUDING THE NON-EXCLUSIVE EASEMENTS FOR INGRESS, EGRESS, PARKING AND UTILITIES PURSUANT TO THE DECLARATION OF EASEMENTS AND RESTRICTIONS RECORDED IN BOOK 6610, PAGE 388402 IN THE OFFICE OF THE REGISTER OF DEEDS FOR ORANGE COUNTY,NORTH CAROLINA. For informational purposes only:PIN 9864807744