SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE AGREEMENT
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This SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE AGREEMENT (this "Agreement"),
made and entered into this 15h day of March, 2004, by and among HOOPESTON FOODS
DENVER CORP., having a mailing address of Xxx Xxxxx Xxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxxx, Xxxxxxxxx 00000 (hereinafter referred to as "Tenant"), XXXXXX
CANNING COMPANY, having an office at 000 00xx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000 (hereinafter referred to as "Landlord") and HEARTLAND BANK, a
federal savings bank, having offices at 000 X. Xxxxxxx xxxxxx, Xx. Xxxxx,
Xxxxxxxx 00000 (hereinafter referred to as "Lender").
W I T N E S S E T H:
WHEREAS, the Landlord and Tenant are parties to a certain lease dated January
26, 2001 (the "Lease"), demising the real estate described in Exhibit A attached
hereto and incorporated herein by reference (the "Real Estate");
WHEREAS, Landlord has executed a Mortgage and an Assignment of Rents encumbering
the Real Estate (the "Mortgage"), dated as of the 15 day of March, 2004,
recorded as Daily No. _________, on March, 2004 in the real estate records of
Xxxxx County, Colorado, in favor of Lender and securing the payment of certain
debt described therein; and
WHEREAS, the parties hereto desire to enter into this Agreement;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereof, the parties hereto stipulate, covenant and agree as follows:
1. The Lease (including without limitation the option to purchase the Real
Estate provided in the Lease) is hereby made subject, junior and subordinate to
the Mortgage and to all renewals, modifications, consolidations, replacements
and extensions of the Mortgage, so that all rights of Tenant under the Lease
shall be subject, junior and subordinate to the rights of Lender under the
Mortgage and to all renewals, modifications, consolidations, replacements and
extensions of the Mortgage, as fully as if all such instruments had been
executed, delivered and recorded prior to the Lease.
2. Tenant agrees to recognize Lender or any purchaser at a foreclosure sale
involving the Mortgage or any transferee of the Real Estate pursuant to deed in
lieu of foreclosure as its landlord under the Lease without the necessity of any
other or further attornment other than contained in this paragraph (and this
paragraph shall be considered an attornment), provided that Lender or any such
purchaser expressly agrees in writing to be bound by the terms of the Lease.
3. Lender agrees that so long as Tenant shall not be in default under the Lease,
the Tenant's right of possession and enjoyment of the premises demised by the
Lease shall be and remain undisturbed and unaffected by any foreclosure or other
proceedings involving the Mortgage.
4. Tenant hereby acknowledges that all of Landlord's right, title and interest
as lessor under the Lease is being duly assigned to Lender pursuant to the terms
of an Assignment of Rents (the "Assignment of Leases") executed in conjunction
with the Mortgage, and that pursuant to the terms thereof all rental payments
under the Lease shall continue to be paid to Landlord in accordance with the
terms of the Lease unless and until Tenant is otherwise notified in writing by
Lender. Upon receipt of any such written notice from Lender, Tenant covenants
and agrees to make payment of all rental payments then due or to become due
under the Lease directly to Lender or to Lender's agent designated in such
notice and to continue to do so until otherwise notified in writing by Lender.
Landlord hereby irrevocably directs and authorizes Tenant to make rental
payments directly to Lender following receipt of such notice, and covenants and
agrees that Tenant shall have the right to rely on such notice without any
obligation to inquire as to whether any default exists under the Mortgage or the
Assignment of Leases or the indebtedness secured thereby, and notwithstanding
any notice or claim of Landlord to the contrary, and that Landlord shall have no
right or claim against Tenant for or by reason of any rental payments made by
Tenant to Lender following receipt of such notice. Tenant further acknowledges
and agrees: (a) that under the provisions of the Assignment of Leases, the Lease
cannot be terminated by Landlord (nor can Landlord accept any surrender of the
Lease other than as set forth in the Lease) or be modified in any of its terms,
or consent be given to the waiver or release of Tenant from the performance or
observance of any obligation under the Lease, without the prior written consent
of Lender, and without such consent no rent may be collected or accepted by
Landlord more than one month in advance; and (b) that the interest of Landlord
as lessor under the Lease has been assigned to Lender for the purposes specified
in the Assignment of Leases.
4. The terms and provisions hereof shall be binding upon and shall inure to the
benefit of the heirs, executors, administrators, successors and permitted
assigns, respectively, of Lender, Tenant and Landlord. The reference contained
to successors and assigns of Tenant is not intended to constitute and does not
constitute a consent by Landlord or Lender to an assignment by Tenant, but has
reference only to those instances in which the lessor under the Lease and Lender
shall have given written consent to a particular assignment by Tenant
thereunder.
5. Tenant has contemporaneously herewith executed and delivered to the Lender a
"Tenant's Estoppel Certificate" with respect to the Lease.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Subordination, Attornment and Non-Disturbance Agreement as of the day and year
first above written.
"TENANT"
HOOPESTON FOODS DENVER CORP.
By: ______________________________
Name:
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Title:
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"LANDLORD"
XXXXXX CANNING COMPANY
By:
--------------------------------
Name:
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Title:
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"LENDER"
HEARTLAND BANK
By:
--------------------------------
Name:
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Title:
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STATE OF _______________ )
) SS:
C________ OF ______________ )
On this _____ day of __________________, 2004, before me appeared
____________________________, to me personally known, who, being by me duly
sworn, did say that [she/he] is the ______________________ of Hoopeston Foods
Denver Corp., a corporation, and that said instrument was signed in behalf of
said corporation, by authority of its board of directors; and said
______________________ acknowledged said instrument to be the free act and deed
of said corporation and that said corporation has no corporate seal.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal
in the County and State aforesaid on the day and year first above written.
Name(print):
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Notary Public
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My Commission Expires:
Please affix seal firmly and clearly
in this box
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STATE OF COLORADO )
) SS:
COUNTY OF )
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On this _____ day of January, 2004, before me appeared
__________________________, to me personally known, who, being by me duly sworn,
did say that [she/he] is the ______________________ of Xxxxxx Canning Company, a
corporation, and that said instrument was signed in behalf of said corporation,
by authority of its board of directors; and said ___________________________
acknowledged said instrument to be the free act and deed of said corporation and
that said corporation has no corporate seal.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal
in the County and State aforesaid on the day and year first above written.
Name(print):
------------------------------------
Notary Public
---------------------------------------------
My Commission Expires:
Please affix seal firmly and clearly
in this box
---------------------------------------------
STATE OF MISSOURI )
) SS:
COUNTY OF ST. LOUIS )
On this _____ day of ___________________, 2004, before me appeared
_________________________, to me personally known, who, being by me duly sworn,
did say that [she/he] is the ______________________ of Heartland Bank, a federal
savings bank, and that said instrument was signed in behalf of said savings
bank, by authority of its board of directors; and said
____________________________ acknowledged said instrument to be the free act and
deed of said savings bank, and that said savings bank has no corporate seal.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal
in the County and State aforesaid on the day and year first above written.
Name(print):
------------------------------------
Notary Public
---------------------------------------------
My Commission Expires:
Please affix seal firmly and clearly
in this box
---------------------------------------------
EXHIBIT A
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LEGAL DESCRIPTION
