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HomeMy WebLinkAbout2015 - Deed of Trust - Bancorp Bank / Bartell Drug Company - 20150410001015 Electronically Recorded 20150 SIMPLIFILE SUB Page 001 of 015 04/10/2015 04:06 King County, WA AFTER. RECORDING MAIL TO: Name First Amerman Title Address 818 stewart St Ste 800 City/State Seattle WA 98101 20150410001015.001 86.00 Document Titie(s): 1. Deed of Trust Reference Number(s) of Documents Assigned or released: Grantor(s): 1. The Bancorp Bank Grantoe(s): 1. The Bartell Drug Co. 2. [ ] Additional information on page of document Abbreviated Legal Description: Ptn Sec 15 Twp 23N Rge 4E, SE Qtr SW Qtr Tax Parcel Number(s): 152304901100. [ ] Complete legal description is on page of document I am requesting an emergency nonstandard recording for an additional fee as provided in RCW 36.18.010. I understand that the recording processing requirements may cover up or otherwise obscure some part of the text of the original document, 20150410001015.002 SUBORDINATION, NON -DISTURBANCE AND ATTORNMENT AGREEMENT THIS SUBORDINATION, NON -DISTURBANCE AND ATTORNMENT AGREEMENT ("Agreement") is entered into as of 3 , 2015 (the "Effective Date"), by and between THE BANCORP BANK, a DamDameare state -chartered bank (together with any other holder of the Loan (defined below) and their respective successors and assigns, the "Mortgagee") and THE BARTELL DRUG COMPANY, a Washington corporation (hereinafter, collectively the "Tenant'), with reference to the following facts: A. SEG 56th, LLC a Washington Limited Liability Company ("Landlord"), whose address is 845 NE 106th Ave. #100, Bellevue, WA 98004 owns fee simple title to 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 land records. D. Pursuant to the Lease effective June 30, 1993, (the "Lease"), Landlord demised to Tenant a portion of the Property consisting of approximately 16,063 square feet (the "Leased Premises"). E. Mortgagee has requested that Tenant subordinate its Lease to the lien of the Mortgage, and Tenant is willing to do so in consideration of Mortgagee's agreement not to disturb Tenant's possession of the Premises under the Lease. 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 lights and remedies (whether under the Mortgage or under applicable law, including bankruptdy 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 attonunent 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 A t) claim, counterclaim, /1Pac� A.A) t$-- atec•f i- 'AO' $40324100033 NY:1522303.1 20150410001015.003 reduction, deduction, or abatement against Tenant's payment of Rent or performance of Tenant's other obligations under the Lease, arising (whether under the Lease or under applicable law) from Landlord's breach or default under the Lease. d. Rent. The "Rent' means any fixed rent, base rent or additional rent under the Lease. e. Successor Landlord. A "Successor Landlord" means any party that becomes owner of the Property as the result of a Foreclosure Event. f. Termination Right. A "Termination Right' means any right of Tenant to cancel or terminate the Lease or to claim a partial or total eviction arising (whether under the Lease or under applicable law) from Landlord's breach or default under the Lease. g. Other Capitalized Terms. If any capitalized term is used in this Agreement and no separate definition is contained in this Agreement, then such term shall have the same respective definition as set forth in the Lease. 2. Subordination. The Lease, as the same may hereafter be modified, amended or extended, shall be, and shall at all tunes remain, subject and subordinate to the lien imposed by the Mortgage and all advances made under the Mortgage. 3. Nondisturbance. Recognition and Attornment. a. No Exercise of Mortgage Remedies Against Tenant. So long as the Tenant is not in default under this Agreement or under the Lease beyond any applicable grace or cure periods (an "Event of Default'), Mortgagee (i) shall not terminate or disturb Tenant's possession of the Leased Premises under the Lease, except in accordance with the terms of the Lease and this Agreement and (ii) shall not name or join Tenant as a defendant in any exercise of Mortgagee's rights and remedies arising upon a default under the Mortgage unless applicable law requires Tenant to be made a party thereto as a condition to proceeding against Landlord or prosecuting such rights and remedies. In the latter case, Mortgagee may join Tenant as a defendant in such action only for such purpose and not to terminate the Lease or otherwise adversely affect Tenant's rights under the Lease or this Agreement in such action. b. Recognition and Attornment. Upon Successor Landlord taking title to the Property (i) Successor Landlord shall be bound to Tenant under all the terms and conditions of the. Lease (except as provided in this Agreement); (ii) Tenant shall recognize and attorn to Successor Landlord as Tenant's direct landlord under the Lease as affected by this Agreement; and (iii) the Lease shall continue in full force and effect as a direct lease, in accordance with its teens (except as provided in this Agreement), between Successor Landlord and Tenant. Tenant hereby acknowledges notice that pursuant to the Mortgage and assignment of rents, Ieases and profits, Landlord has granted to the Mortgagee an absolute, present assignment of the Lease and Rents which provides that Tenant continue making payments of Rents and other amounts owed by Tenant under the Lease to the Landlord and to recognize the rights of Landlord under the Lease until notified otherwise in writing by the Mortgagee. After receipt of such notice from Mortgagee, the Tenant shall thereafter make all such payments directly to the Mortgagee or as 2 NY:1522303.1 • 20150410001015.004 the Mortgagee may otherwise direct, without any further inquiry on the part of the Tenant. Landlord consents to the foregoing and waives any right, claim or demand which Landlord may have against Tenant by reason of such payments to Mortgagee or as Mortgagee directs. c. No Further Documentation. The provisions of this Article 3 shall be effective and self -operative without any need for Successor Landlord or Tenant to execute any further documents. d. Insurance. Condemnation and Trade Fixtures. Mortgagee agrees that notwithstanding anything to the contrary in the Mortgage or this Agreement, all insurance proceeds and condemnation awards relating to the Leased Premises or the Property shall be applicable in accordance with and as otherwise provided in the Lease, and Tenant may remove Tenant's fixtures from the Premises in accordance with the provisions of the Lease. 4. Protection of Successor Landlord. Notwithstanding anything to the contrary in the Lease or the Mortgage, Successor Landlord shall not be liable for or bound by any of the following matters: a. Claims Against Former Landlord. Any Offset Right that Tenant may have against. any Former Landlord relating to any event or occurrence before the date of attornment, including any claim for damages of any kind whatsoever as the result of any breach by Former Landlord that occurred before the date of attomment, unless such Offset Right is specifically permitted in the Lease and Mortgagee had been given notice and opportunity to cure the event, circumstance or condition giving rise to such Offset Claim. The foregoing shall not limit either (i) Tenant's right to exercise against Successor Landlord any Offset Right otherwise available to Tenant because of events occurring after the date of attornment or (ii) Successor Landlord's obligation to correct any conditions that existed as of the date of attornment and violate Successor Landlord's obligations as landlord under the Lease. b. Prepayments. Any payment of Rent that Tenant may have made to Former Landlord more than thirty (30) days before the date such Rent was first due and payable under the Lease with respect to any period after the date of attomment other than, and only to the extent that, the Lease expressly required such a prepayment. c. Security Deposit. Any obligation to pay Tenant any security deposit that any Former Landlord owed to Tenant unless such security deposit was actually delivered to Mortgagee. d. Modification. Amendment or Waiver. Any material modification or amendment of the Lease, or any waiver of the terms of the Lease, made without Mortgagee's written consent. e. Surrender. Etc. Any consensual or negotiated surrender, cancellation, or termination of the Lease, in whole or in part, agreed upon between Landlord and Tenant, unless effected unilaterally by Tenant pursuant to the express teens of the Lease. 5. [Intentionally Deleted]. 3 NY:1522303.I 20150410001015.005 6. Mortgagee's Right to Cure. Notwithstanding anything to the contrary in the Lease or this Agreement, before exercising any Termination Right: a. Notice to Mortgagee. Tenant shall provide Mortgagee with notice of the breach or default by Landlord giving rise to same (the "Default Notice") and, thereafter, the opportunity to cure such breach or default as provided for below. b. Mortgagee's Cure Period. After Mortgagee receives a Default Notice, Mortgagee shall have a period of thirty (30) days beyond the time available to Landlord under the Lease in which to cure the breach or default by Landlord. Mortgagee shall have no obligation to cure (and shall have no liability or obligation for not curing) any breach or default by Landlord, except to the extent that Mortgagee agrees or undertakes otherwise in writing. 7. Miscellaneous. a. Notices. Any notice or request given or demand made under this Agreement by one party to the other shall be in writing, and may be given or be served by hand delivered personal service, or by depositing the same with a reliable overnight courier service or by deposit in the United States mail, postpaid, registered or certified mail, and addressed to the party to be notified, with return receipt requested or by telefax transmission, with the original machine - generated transmit confirmation report as evidence of transmission. Notice deposited in the mail in the manner hereinabove described shall be effective from and after the expiration of' three (3) days after it is so deposited; however, delivery by overnight courier service shall be deemed effective on the next succeeding business day after it is so deposited and notice by personal service or telefax transmission shall be deemed effective when delivered to its addressee or within two (2) hours after its transmission unless given after 3:00 p.m. on a business day, in which case it shall be deemed effective at 9:00 a.m. on the next business day. For purposes of notice, the addresses and telefax number of the parties shall, until changed as herein provided, be as follows: i. If to the Mortgagee, at: The Bancorp Bank 712 Fifth Ave, 8t fl New York, NY 10019 Attn: Ron Wechsler Email: rwechsler@thebancorp.com ii. If to the Tenant, at: The Bartell Drug Company 4025 Delridge Way SW, Suite 400 Seattle, WA 98106 Attn: Rob Jensen Email: robj®bartelldrugs.com 4 NY:1522303.1 20150410001015.006 b. Successors and Assigns. This Agreement shall bind and benefit the parties, their successors and assigns, any Successor Landlord, and its successors and assigns. If Mortgagee assigns the Mortgage, then upon delivery to Tenant of written notice thereof accompanied by the assignee's written assumption of all obligations under this Agreement, all liability of the assignor shall terminate. c. Entire Agreement. This Agreement constitutes the entire agreement between Mortgagee and Tenant regarding the subordination of the Lease to the Mortgage and the rights and obligations of Tenant and Mortgagee as to the subject matter of this Agreement. f. Interpretation: Governing Law. The interpretation, validity and enforcement of this Agreement shall be governed by and construed under the internal laws of the State in which the Leased Premises are located, excluding such State's principles of conflict of laws. g. Amendments. This Agreement may be amended, discharged or terminated, or any of its provisions waived, only by a written instrument executed by the party to be charged. h. Due Authorization. Tenant represents to Mortgagee that it has full authority to enter into this Agreement, which has been duly authorized by all necessary actions„ Mortgagee represents to Tenant that it has full authority to enter into this Agreement, which has been duly authorized by all necessary actions. i. Execution. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [THIS SPACE INTENTIONALLY LEFT BLANK] 5 NY:I522303.1 IN WITNESS WHEREOF; the.Mortgagee and Tenant have caused this Agreement to. be executed as of the date first above written. MORTGAGEE: THE BANCORP BANK By: me: As es Loot/ Title: go1. Vkt ?mii' TENANT: THE B :;+ L DRUG COMPANY NY:1522303.1 20150410001015.007 ' 2015041118151015.008 LANDLORD'S CONSENT Landlord consents and agrees to the foregoing Agreement, which was entered into at Landlord's request. The foregoing Agreement shall not alter, waive or diminish any of Landlord's obligations under the Mortgage or the Lease. The above Agreement discharges any obligations of Mortgagee under the Mortgage and related loan documents to enter into a nondisturbance agreement with Tenant. Landlord is not a party to the above Agreement. Dated: Y a , 20,Zr LANDLORD: SEG 56TH. LC itle: Slate of Hawes } d SS County }tU,Wq,bi Notary Adahmvledgemant On this 2114 deY of Pfri 1 , In the Year el /I i S oetsonaby appeared (StOil--. jtiU (Yea) (burnt name and Ude of person who proved to me an the basis of satisfactory evidence to be the person whose name Is subsc rbed to within Me forego .g executed the same In Ns/her authorized capacity( ), and that try Milder signature on the aforementioned Insbument person arced, notated the eforementtoned k�hrnah in free as and deed. 0.40 • witnessr Z/W In witness whereof, I i , (deY) (month) WIZ ant" have hereunto sat my hand and dfflaial ser Z►�' 1 alas) 14-456 • P gr. %tam moo` FOFN M:riper xc is being notarized) to me that he/she .stop behalf of which the DX ONO NOW/ wPS AI11 wrrrarr arAe.u, D uptio iin s causenF-- rwrraor.c Onic PIM aaarooa 20150410001015.009 1 . MORTGAGEE'S ACKNOWLEDGMENT STATE OF ) ss. COUNTY OF 'V •l ) On the 11. day of gra) in the year 2011 before me, the undersigned, a Notary Public in and for said state, personally appeared , ye t.e rW/ , proved to me on .the basis of satisfactory evidence to be the individual whose name is subscribed to the within • instrument and aclmowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the • upon behalf of yrjlich the individual acted, executed the instrument. Signature of Notary Public 4 DOROTHY M AARONSON t Notary Public • State of New York • NO. 01AA6158742 Ouallfied In New York un My Commisaioa Expires — NY:1522303.1 20150410001015.010 TENANT'S ACKNOWLEDGMENT STATE OF WASHINGTON ) COUNTY OF K z N r On this Z` day of February, 2015, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn personally appeared Rob Jensen, known to me to be the CFO of The Bartell Drug Company, the corporation that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument. )ss. I certify that I know or have satisfactory evidence that the person appearing before me and making this acknowledgment is the person whose true signature appears on this document. written. WITNESS my hand and official seal hereto affixed the day and year in the certificate above 40C;1. • --—--------- - Signature t Krogh AAdleu t Notary Pulse State of Washington 1 Print Name KAORU NUKUI I NOTARY PUBLIC in and or the State of ray Appointment Eapares star 14 2010 t Washington, residing at rt„. My commission expires 'NY:1522303.1 9 20150410001015.011 LIST OF EXHIBITS If any exhibit is not attached hereto at the time of execution of this Agreement, it may thereafter be attached by written agreement of the parties, evidenced by initialing said exhibit. Exhibit "A" - Legal Description of the Land 10 NY:1522303.1 Exhibit A Legal Description 11 NY:I 522303.I 20150410001015.0124~ EXHIBIT A PARCSL A, 1sA2 so223011 of 11.2 S001NMAS1 WARM OP TN! SOBS, COMM Of SECTION IS. T01222IP 23 NOATM, MNOS 4 SASTAMILLANSTTS MERIDIAN. IN E100 COUNT!, WASNINOTOA, DeS0AI11I0 AS f0L&Aws, 111.01NN2N0 AT A P0111T ON T11E $011TMRL. 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