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EXHIBIT
10.54
Subordination, Nondisturbance and Attornment Agreement, dated January
12, 1998, by and among the Company, Angeles Acquisition Corp., Danat
Investment Company and Aid Association for Lutherans.
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Aid Association for Lutherans
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
SUBORDINATION, NONDISTURBANCE
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT ("Agreement") is
entered into as of the 12th day of January, 1998, by and among CONSOLIDATED
CAPITAL OF NORTH AMERICA, INC., a Colorado corporation, ANGELES ACQUISITION
CORP., a Colorado corporation ("Lessee"), DANAT INVESTMENT COMPANY, a California
general partnership (hereinafter "Borrower" and "Lessor") and AID ASSOCIATION
FOR LUTHERANS, a Wisconsin corporation ("Lender").
RECITALS
A. Lessee is the lessee and Borrower is one of the lessors under that
Certain Lease Agreement dated January __, 1998 (the "Lease").
B. Lender has made a loan to Borrower which is secured by a Deed of
Trust, Financing Statement, Security Agreement and Fixture Filing (With
Assignment of Rents) from Borrower to Lender dated July 16, 1990 (the "Deed of
Trust") and an Assignment of Rents and Leases from Borrower to Lender dated July
16, 1990 (the "Assignment"), covering the property described in Exhibit A
attached hereto wherein the premises (the "Premises") covered by the Lease are
located (the "Property").
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and to induce Lender to make the
requested loan, Lessee, Borrower, Lessor, and Lender hereby agree and covenant
as follows:
1. Subordination. Borrower, Lessor, Lessee and Lender hereby agree that the
Lease and all of its terms and provisions (including, without limitation,
any option or options to purchase or rights of first refusal, including
the right of first refusal as set forth in paragraph 51 of the addendum
attached to the Lease and the option to purchase premises as set forth in
the Option to Purchase Premises Lease Rider attached to the Lease,
affecting the Property, or any portion thereof, contained therein) is and
shall at all times be subject and subordinate in all respects to the Deed
of Trust and to all supplements, amendments and modifications thereto,
and to all extensions, substitutions, rearrangements and/or replacements
thereof and
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such Lessee's right of first refusal and option to purchase
premises shall be unenforceable against Lender, its successors and
assigns. If the lien of the Deed of Trust is foreclosed, the options to
purchase the underlying real property the right of first refusal and the
option to renew the lease shall be extinguished.
2. Nondisturbance and Attornment. If Lessee is nor in default under any of
the terms, covenants or conditions contained in the Lease or this
Agreement, Lender agrees that in the event of foreclosure of the
Mortgage, trustee's sale, deed in lieu of foreclosure, or other
enforcement of the terms and conditions of the Mortgage, or the exercise
by Lender of its rights under the Assignment, or in the event Lender
comes into possession or acquires title to the Property as a result of
foreclosure or the threat thereof, or as a result of 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 Lessee in the
Lease, except for the right of first refusal as set forth in paragraph 51
of the addendum attached to the Lease and the option to purchase premises
as set forth in the Option to Purchase Premises Lease Rider attached to
the Lease, as indicated in paragraph 1 above, and except as hereinafter
provided.
If the interests of Borrower and/or the Lessor in the Property shall be
transferred to Lender or any transferee of Lender (such transferee, its
successors and assigns, including, but not limited to, Lender, shall
hereinafter be referred to as "Purchaser") by reason of foreclosure,
trustee's sale, deed in lieu of foreclosure or other proceeding for the
enforcement of the Mortgage or rights of Lender under the Assignment, and
Lessee is not in default of its obligations under the Lease, Purchaser
shall not name or join Lessee in any foreclosure, trustee's sale or other
proceeding to enforce the Mortgage or Assignment, and Purchaser shall be
bound to Lessee, except as provided in Section 3, below, and except
Lessee's right of first refusal as set forth in paragraph 51 of the
addendum attached to the Lease and the option to purchase premises as set
forth in the Option to Purchase Premises Lease Rider attached to the
Lease, as indicated in paragraph 1 above, and Lessee shall be bound to
any Purchaser, under all of the terms, covenants and conditions of the
Lease for the balance of the term thereof, and any extensions thereof
with the same force and effect as if such Purchaser were the original
landlord under the Lease. Lessee does hereby attorn to such Purchaser,
including Lender if Lender is such Purchaser, as the landlord under the
Lease, said attornment to be effective and self-operative without the
execution of any further instruments upon Purchaser's succeeding to the
interest of the Borrower under the Lease.
3. Limitation on Purchaser Obligations. Notwithstanding anything to the
contrary contained in Section 2 hereof, a Purchaser shall not be:
3.1 liable for any damages or other relief attributable to any act or
omission of any prior lessor under the Lease (including without
limitation, Borrower);
3.2 subject to any offsets or defenses that Lessee may have against a
prior lessor under the lease (including, without limitation,
Borrower);
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3.3 liable for any damages or other relief attributable to any latent
or patent defects in construction with respect to the Property;
3.4 liable for the return of any security deposit under the Lease
unless such security deposit shall have been actually deposited
with Purchaser;
3.5 bound by any rent or additional rent that Lessee might have paid
in advance to any prior lessor under the Lease (including,
without limitation, Borrower), for any period beyond the month in
which Purchaser succeeds to the interest of Borrower under the
Lease;
3.6 bound by any waiver or forbearance by any prior lessor under the
Lease (including, without limitation, Borrower) or bound by any
agreement or modification of the Lease made without prior written
consent of Lender; or
3.7 bound by any covenant made by any prior lessor under the Lease
(including, without limitation, Borrower) to complete any
construction on the Property covered by the lease or to pay any
sums to Lessee in connection therewith, unless Purchaser shall
have expressly consented thereto in writing.
4. Further Actions. Lessee covenants and agrees from time to time to do all
acts and execute such instruments as it shall be requested by Lender to
do or execute for the purposes of carrying out and effectuating this
Agreement and the intent hereof, and evidencing this Agreement, whether
by filing with any public office, or agency or otherwise.
5. Covenants of Lessee. Lessee agrees that during the term of the Lease,
Lessee will not:
5.1 pay any rent or additional rent more than one (1) month in
advance to any lessor (including, but not limited to, Borrower);
or
5.2 cancel, surrender, amend or modify the Lease without Lender's
prior written consent nor terminate the Lease because of a
default thereunder by Borrower unless Lessee shall have first
given Lender written notice thereof and a reasonable opportunity
to cure such default. In the event the Lease is rejected or
deemed rejected in any bankruptcy proceeding with respect to
landlord, Lessee shall not exercise any right it may have to
treat the Lease as terminated under 11 U.S.C. Sec. 365(h), as
amended.
6. Merger. Borrower, Lessor, Lessee and Lender agree that unless Lender
shall otherwise consent in writing, the fee title to the Property and the
leasehold estate created by the Lease shall not merge but shall remain
separate and distinct, notwithstanding the union of said estates either
in Borrower or Lessor or Lessee or any third-party by purchase,
assignment or otherwise.
7. Limitation on Liability. Notwithstanding anything to the contrary
contained herein or in the Lease, in the event that any Lender shall
acquire title to the Property, such Lender shall
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have no obligation, nor incur any liability, beyond the then interest if
any, of such Lender in the Property, and Lessee shall look exclusively to
such interest of such Lender if any, in the Property for the payment and
discharge of any obligations imposed upon such Lender hereunder or under
the Lease, and such Lender is hereby released and relieved of any other
liability hereunder and under the Lease. As regards to such Lender,
Lessee shall look solely to the estate or interest owned by such Lender
in the Property and Lessee will not collect or attempt to collect any
such ligation or liabilities or any judgment therefor, out of any other
assets of Lender. By executing this Agreement, Borrower specifically
acknowledges and agrees that nothing contained in this paragraph shall
impair, limit, offset, lessen, abrogate or otherwise modify the
obligations of Lessor to lessee under the Lease.
8. Modification of Agreement. This agreement may not be modified orally or
in any other manner except by an agreement in writing signed by the
parties hereto or their respective successors in interest.
9. Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective heirs, successors
and assigns.
10. Governing Law. This Agreement shall be governed by and construed under
the laws of the State of California.
11. Certification Relating to Lease. Lessee, Lessor and Borrower hereby
certify that, as of the date hereof, there are no defaults (or events
that with the giving of notice and/or the passage of time could become a
default) on the part of the other party under the Lease, that the Lease
is a complete statement of the agreement of the parties under the Lease
with respect to the leasing of the Premises, that the Lease is in full
force and effect, and that all conditions to the effectiveness or
continuing effectiveness thereof required to be satisfied as of the date
hereof have been satisfied. Lessee, Lessor and Borrower further certify:
11.1 All conditions under the Lease have been satisfied, the term of
the Lease commenced on September 8, 1997, expires on December 31,
2000, and Lessee is now in possession of the Premises (19.140
square foot two story office building and 310,000 square foot
industrial building) in accordance with the terms of the Lease.
11.2 The Lease provides for the following:
Lessee has two (2) additional thirty-six (36) month periods to
extend the Lease in accordance with the terms as set forth in
paragraph 50 of the Option to Extend Addendum attached to the
Lease.
11.3 Lessee has neither assigned, transferred, nor encumbered the
Lease, or any interest therein, nor sublet the Premises, or any
portion thereof.
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11.4 All required common areas have been competed and all required
parking spaces have been furnished.
11.5 The total annual minimum rent under the Lease is $780,000, no
rent or other sum payable by Lessee under the Lease has been
prepaid, and Lessee shall not prepay any such rent or other sum
more than one (1) month in advance, except with your prior
written consent.
12. Integration. This Agreement shall be the whole and only agreement with
regard to the subjection and subordination of the Lease and the leasehold
estate created thereby, together with all rights and privileges of Lessee
thereunder, to the lien or charge of the Deed of Trust and shall
supersede and cancel, but only insofar as would affect the priority
between the Lease and the Deed of Trust any prior agreements as to such
subjection or subordination, including, but not limited to, those
provisions contained in the Lease that provide for the subjection or
subordination of the Lease and the leasehold estate created thereby to a
deed or deeds of trust or to a mortgage or mortgages.
13. Notices. All notices and demands that may or are required to be given by
any party to any other party hereunder shall be given in writing and
shall be deemed to have been fully given within three (3) business days
after being deposited in the United States mail, certified or registered,
postage prepaid, and addressed to such party at the address set forth
below beside its signature. The parties may change their addresses by
giving notice to the other parties in the same manner as above provided.
Lessee agrees that it shall send a copy of any notice of default or
similar statement under the Lease to Lender at the same time such notice
or statement is sent to the lessor under the Lease.
14. Captions. The captions and headings of the paragraphs of this Agreement
are for convenience only and are not to be used in construing this
Agreement.
15. Counterparts. This Agreement may be executed in counterparts, and all
counterparts together shall be construed as one document.
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In WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
Address: LESSEE:
000 00xx Xxxxxx, Xxxxx 000 CONSOLIDATED CAPITAL OF NORTH
Xxxxxx, XX 00000 AMERICA, INC.
By:
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Name:
Title:
ANGELES ACQUISITION CORP.
a Colorado corporation
By:
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Name:
Title:
(SIGNATURE OF LENDER, BORROWER AND LESSOR ON NEXT PAGE)
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LENDER:
Address:
0000 Xxxxx Xxxxxxx Xxxx AID ASSOCIATION FOR XXXXXXXXX,
Xxxxxxxx, Xxxxxxxxx 00000 a Wisconsin corporation
Attn: Investment Department
Loan No. 65360
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Vice President-
Mortgages and Real Estate
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Assistant Secretary
BORROWER AND LESSOR:
Address:
2850 Benedict Canyon DANAT INVESTMENT COMPANY
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 a California general partnership
By:
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Xxxxxx X. Eget
General Partner
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STATE OF Wisconsin )
) ss.
COUNTY OF Outagamie )
On January 12, 1998, before me, Xxxxx X. Xxxxxxx , personally appeared
Xxxxxxx X. Xxxx and Xxxxx X. Xxxxxx , personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her
signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxx X. Xxxxxxx
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Notary Public in and for the State of California
My commission expires 09/13/98.
