HomeMy WebLinkAboutSubordination, Non Disturbance and Attornment Agreement - Catalyst Two LLCFirst Financial Bank
Borrower: Catalyst One, LLC and Catalyst Two, LLC
Loan Number: 820110454
Subordination, Non -Disturbance And Attornment Agreement
THIS AGREEMENT, made and entered into as of January 22, 2019, by and among FIRST
FINANCIAL BANK, an Ohio state chartered bank ("Lender"), CITY OF SOUTH BEND, INDIANA,
ACTING BY AND THROUGH ITS BOARD OF PUBLIC WORKS, FOR THE BENEFIT OF ITS
DEPARTMENT OF INNOVATION AND TECHNOLOGY, an Indiana municipal corporation
(hereinafter referred to together as "Lessee"), and CATALYST TWO, LLC, an Indiana limited liability
company (hereinafter referred to as "Lessor").
RECITALS
A. Lessee has entered into a certain Lease Agreement dated January 1, 2019, (the "Lease"),
with Lessor covering premises located in Ignition Park, South Bend, Indiana more accurately described
on Exhibit A attached hereto, made a part hereof and incorporated herein by reference (the " eniised.
B. Lessor is the owner of the landlord's interest under the Lease, and Lessee is now the
owner of the tenant's interest under the Lease; and
C. Lender has made a loan or other financial accommodations (the "Loan") to Lessor
secured by an Mortgage and Security Agreement, Assignment of Leases and Rents and Fixture Filing
dated August 12, 2015, as amended by that certain Modification of Security Documents dated December
2018, and effective as of November 12, 2018 (collectively, the "MpAg ggp") granted by Lessor to
Lender, granting a first lien encumbering the Demised Premises (collectively the Demised Premises and
remainder of the real estate is hereafter the "Mortgaged Premises") said Mortgage to be filed and recorded
in the land records of St. Joseph County, Indiana and further secured by an assignment of the Lessor's
interest in all leases of the Mortgaged Premises dated August 12, 2015, as amended by that certain
Modification of Security Documents dated December _, 2018, and effective as of November 12, 2018
(collectively, the "svrarc C) granted by Lessor to Lender to be filed and recorded in the land records
of St. Joseph County, Indiana (the 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 "j...oan 1 cttl°acrlt , 5); and
KD_SNDA (City of South Bend) (Building Two) (First Financial - Cata.._
D. The loan and financial accommodations of Lender to Lessor are made upon the condition
that the Lease and the rights and estate of Lessee thereunder be junior to and subordinate to the lien and
operation of, and subject to the terms of, the Loan Documents in every respect; and
E. The parties hereto desire that the Lease and the rights and estate of Lessee thereunder be
junior to and subordinate to the lien and operation of and subject to the terms of the Loan Documents in
every respect; and
F. The parties hereto desire that Lessee be assured of continued occupancy of the Demised
Premises under the terms of the Lease and subject to the lien, operation, and terms of the Loan
Documents in every respect.
NOW, THEREFORE, the parties agree as follows:
l . Lessee acknowledges that the Lease and the rights and the estate of Lessee thereunder are
and shall be subject and junior to and subordinate to the Mortgage and the rights and estate of Lender
thereunder and to the lien, operation, and effect of the Mortgage as it affects the Mortgaged Premises and
the Demised Premises in every respect, and to all renewals, modifications, consolidations, replacements
and extensions of the Mortgage.
2. In the event of foreclosure of the Mortgage, Lender will make no claim or demand for the
termination of the Lease in the foreclosure proceedings so long as Lessee is not in default after notice and
beyond applicable cure periods set forth under the Lease under any of the terms, covenants, or conditions
of the Lease and has committed no act or omission which would constitute and there exists no state of
facts which would constitute a default under the terms of the Lease.
3. Lessee acknowledges notice of the Mortgage and the Assignment, and consents to the
terms and conditions thereof as the same are described in this Agreement. Lessee agrees to continue
making payments of rent and other amounts owed under the Lease to Lessor, and to otherwise recognize
the rights of Lessor under the Lease, until notified otherwise in writing by Lender, as herein provided.
Lessor and Lessee agree that, if Lender delivers to Lessee a notice stating that a default has occurred
under the Loan Documents and requesting that all payments due under the Lease be thereafter paid
directly to Lender, Lessee shall thereafter make, and is hereby authorized and directed by Lessor to make,
all such payments directly to Lender, as provided in the Mortgage and the Assignment, without any duty
of further inquiry on the part of Lessee.
4. It is the express intent of the parties hereto that so long as the condition in Section 2 is
satisfied foreclosure of the Mortgage or the exercise of any other remedies provided therein, or provided
in any other instrument securing the indebtedness secured by the Mortgage, or the delivery of a deed to
the Mortgaged Premises in lieu of foreclosure, shall not, of itself, result in the termination of the Lease,
but that any purchaser or other grantee upon foreclosure of the Mortgage or a conveyance in lieu of
foreclosure shall thereby automatically succeed to the position of Lessor under the Lease, as it may be
amended, including provisions pertaining to renewals and options to purchase, if any.
5. If, by dispossession, foreclosure, or otherwise, Lender, its successors or assigns, or any
purchaser at a foreclosure sale or otherwise shall come into possession or become the owner of the
Mortgaged Premises, such person shall automatically and without any notice to Lessee succeed to the
interest of Lessor under the Lease, and the Lease shall take effect as a lease of the Demised Premises,
together with all of the rights and privileges therein contained, between such person and Lessee for the
balance of the term of the Lease; upon written notice of the same, Lessee agrees to attorn to and accept in
writing such person as lessor under the Lease, and to be bound by and to perform all of the obligations
KD_SNDA (City of South Bend) (Building Two) (First Financial - Cata.._
imposed by the Lease upon Lessee therein; and Lender, its successors and assigns, or any purchaser at a
foreclosure sale or otherwise will not disturb the possession of Lessee, so long as Lessee is not in default
under any of the terms, covenants, or conditions of the Lease, and so long as (i) Lessee has committed no
act or omission, (ii) the term of the Lease has commenced, (iii) Lessee is in possession of the Demised
Premises, and (iv) there exists no state of facts which would constitute a default under the terms of the
Lease, and will be bound by all of the obligations imposed by the Lease upon Lessor therein; provided,
however, that Lender, its successors or assigns, or any purchaser at a foreclosure sale or otherwise at the
time of acquiring its interest in the Mortgaged Premises shall not be:
(a) liable for any act or omission of a prior lessor (including without limitation
Lessor) or for any accrued obligation of Lessor under the Lease; or
(b) subject to any offsets or defenses which Lessee might have against any prior
lessor (including without limitation Lessor); or
(c) liable for the commencement or completion of any construction or any
contribution toward construction or installation of any improvements upon the Demised
Premises, 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.
Lender or any purchaser at a foreclosure sale shall be liable to Lessee under the Lease only during Lender
or any such purchaser at a foreclosure sale's period of ownership, and such liability shall not continue or
survive as to the transferor after a transfer by Lender or any purchaser at a foreclosure sale of its interest
in the Lease and the Demised Premises. Notwithstanding anything to the contrary contained herein,
officers, directors, shareholders, agents, servants, and employees of Lender shall have no personal
liability to Lessee and, unless the Lender assumes the Lease as Lessor, the liability of Lender shall be
limited to Lender's interest in the Mortgaged Premises.
6. Upon the written request of the owner of the fee simple title to the Mortgaged Premises
or Lessee to the other given at any time after foreclosure of the Mortgage, or any conveyance in lieu of
foreclosure, Lessee and such owner shall execute a lease of the Demised Premises upon the same terms
and conditions as are contained in the Lease, which Lease shall cover any unexpired term of the Lease.
7. Without Lender's prior written consent, Lessee shall not (a) amend or terminate the
Lease, (b) prepay any rent or other sums due under the Lease except as provided therein, (c) voluntarily
surrender the Demised Premises, or (d) assign the Lease or sublet the Demised Premises or any part
thereof other than pursuant to the provisions of the Lease.
8. Lessee represents and warrants to Lender that (a) the Lessee 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 Lessee,
to its knowledge, has no offsets or defenses to the payment of rent or other sums due thereunder, (c) to its
knowledge, no default exists under the Lease, and (d) all rent and other sums due under the Lease have
been paid in full in accordance with the Lease terms.
9. Lessor and Lessee hereby agree that, upon Lender's request, they shall from time to time
execute and deliver to Lender, and without charge to Lender, an estoppel certificate setting forth whatever
information Lender 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.
KD_SNDA (City of South Bend) (Building Two) (First Financial - Cata.._
10. Unless otherwise specifically provided in this Agreement, any notice to be given
hereunder shall be in writing and signed by the party giving such notice. Any notices under or pursuant
to this Agreement shall include the Borrower's name, the loan number and the effective date of the Note
and shall be deemed to have been properly given if sent by U.S. registered or certified mail, postage
prepaid, return receipt requested, or by overnight delivery service, addressed as follows:
a. If to Lender: First Financial Bank
Attn: Commercial File
225 Pictoria Dr.
Cincinnati, Ohio 45246
and
First Financial Bank
300 North Meridian Street, Suite 1400
Indianapolis, Indiana 46204
Attention: Jeffrey Cartwright
With a copy to: Krieg DeVault LLP
12800 North Meridian Street, Suite 300
Carmel, Indiana 46032
Attention: John B. Baxter, Esq.
b. If to Lessee:
City of South Bend
Department of Innovation & Technology
County -City Building
227 West Jefferson Boulevard, Suite 1200N
South Bend, Indiana 46601
Attn. Chief Innovation Officer
With a copy to: City of South Bend
Department of Law
County -City Building
227 West Jefferson Boulevard, Suite 1200N
South Bend, Indiana 46601
Attn. Corporation Counsel
c. If to Lessor:
or at such other address or addresses as the party changing its address shall have given notice to the other
parties.
11. Subject to the provisions of this Section 111, this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, devisees, personal representatives,
successors, and assigns. As used in this Agreement, the word "Lessee" shall mean the Lessee 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, and the word "Lender" shall mean Lender or any
subsequent holder or holders of the Mortgage and the Assignment.
KD_SNDA (City of South Bend) (Building Two) (First Financial - Cata.._
12. No modification, amendment or waiver of, or consent to any departure from, any
provision of this Agreement nor consent to any departure by Lessor and Lessee therefrom will be
effective unless made in a writing signed by Lender, 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 Lessor or
Lessee in any case will entitle the Lessor or Lessee to any other or further notice or demand in the same,
similar or other circumstance.
13. 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 and 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.
14. This Agreement is delivered in, is intended to be performed in, will be construed and
enforceable in accordance with and governed by the internal laws of, the State of Indiana without regard
to principles of conflicts of law. Lessor and Lessee agree that the state and federal courts of Indiana shall
have exclusive jurisdiction over all matters arising out of this Agreement, and that service of process in
any such proceeding shall be effective if mailed by certified mail to Lessor and Lessee at their respective
addresses set forth herein.
15. LESSOR AND LESSEE WAIVE THE RIGHT TO A TRIAL BY JURY OF ANY
MATTERS ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. LESSOR AND LESSEE ACKNOWLEDGE THAT THE FOREGOING WAIVER IS
KNOWING AND VOLUNTARY.
IN WITNESS WHEREOF, Lender, Lessor, and Lessee have executed this instrument to be
effective as of the day and year first above written.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
5
KD_SNDA (City of South Bend) (Building Two) (First Financial - Cata.._
LENDER'S SIGNATURE PAGE TO SUBORDINATION,
NON -DISTURBANCE AND ATTORNMENT AGREEMENT
LENDER:
FIRST FINANCIAL BANK, an Ohio state chartered
bank,
M
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Jeffrey Cartwright, Senior Vice President
Before me, a Notary Public in and for said County and State, personally appeared Jeffrey
Cartwright, known to me be an Senior Vice President of FIRST FINANCIAL BANK, an Ohio state
chartered bank, and acknowledged the execution of the foregoing for and on behalf of said bank.
Witness my hand and Notarial Seal, this day of , 2019..
Notary Public — Signature
Notary Public — Printed
My Commission Expires: My County of Residence:
LESSEE'S SIGNATURE PAGE TO SUBORDINATION,
NON -DISTURBANCE AND ATTORNMENT AGREEMENT
LESSEE:
CITY OF SOUTH BEND, INDIANA,
an Indiana municipal corporation,
BY AND THROUGH ITS BOARD OF PUBLIC
WORKS, FOR THE BENEFIT OF ITS
DEPARTMENT OF INNOVATION &
01 X* k11$ 7 61M
By:....... _.
Gary A. Gi ot, President
By. r
Therese Dorau ;Merttker
1.2
00
STATE OF INDIANA )
) SS:
COUNTY OF ST. JOSEPH )
Before me, a Notary Public in and for said County and State, personally appeared Gary A. Gilot,
known to me be the President, and Therese Dorau, Suzanna Fritzberg, Elizabeth Maradik, and Laura
O'Sullivan, known to me to be Members of the CITY OF SOUTH BEND, INDIANA, BOARD OF
PUBLIC WORKS, and acknowledged the execution of the foregoing for and on behalf of the City of
South Bend, Indiana.
Witness my hand and Notarial Seal, this �-) day of r 2019,
LINDA M MARTIN r ry public —.S
Notary Public- Seal
State of Indiana
My Commission Expires Jun 20, 2020,
ry Public —Printed
My Commission Expires: My County of Residence:
LESSOR'S SIGNATURE PAGE TO SUBORDINATION,
NON -DISTURBANCE AND ATTORNMENT AGREEMENT
State of
ss:
County of
LESSOR:
CATALYST TWO, LLC
By: GREAT LAKES CAPITAL MANAGEMENT,
LLC
Its: Manager
By:
Ryan C. Rans, Manager
Before me, the undersigned, a Notary Public, personally appeared Ryan C. Rans, known to me to
be the Manager of Great Lakes Capital Management, LLC, an Indiana limited liability company, the
manager of Catalyst Two, LLC, an Indiana limited liability company, and acknowledged execution of
the foregoing instrument for and on behalf of Catalyst Two, LLC.
Y Y _..................� 2019,
Witness m an an notarial seat 's a of
Notary Public
My Commission Expires:
Printed
My County of Residence is:
This instrument was prepared by John B. Baxter, ''1-;skuitd', i icg DeVault LLP, 12800 North Meridian
Street, Suite 300, Carmel, Indiana 46032.
I affirm, under the penalties for perjury, that I hav taken reasonable care to redact each social security
number in this document, unless required by law. Jibl ,1 . Baxter, Esquire
EXHIBIT A
Legal Description
BOARD OF PUBLIC WORKS
AGENDA ITEM REVIEW REQUEST FORM
Date
Name
BPW Date
1/15/19
Dan Buckenmeyer Department
1 /22/19
Phone Extension
DCI
X5823
��._ _._... RIT Prior to Submittal to Board
Legal ® Attorney Name Sandra Kennedy
Controller ❑ Controller review is required for all Contracts $5,000.00 or more anc
greater than one year in length per the City Purchasing Policy
Purchasing ❑
Check the
❑ Agreement
❑ Professional Services
❑ Bid Opening
❑ Quote Opening
❑ Change Order No.
❑ Ease/Encroach.
® Other: Lease
ropriate Item Tyr
Contract
❑ Resolution
❑ Bid Award
❑ Quote Award
❑ C/O & PCA No.
❑ Traffic Control
w for All Submissions
Proposal ❑ Addendum
❑ Req. to Advertise ❑ Title Sheet
uired Information
Company or Vendor Name Catalyst 2, LLC.
❑ PCA
New Vendor [:] Yes Z No ❑ If Yes, Approved by Purchasing
MBE/WBE Contractor ❑ MBE ❑ WBE
MBE/WBE Contractor Requested ❑ No ❑ Yes Name of Company
Professional Services — Economic Development and Marketing —
Project Name
Project Number
Funding Source
Account No.
Amount
Terms of Contract
Chamber of Commerce
n/a
n/a
DA for Lease at Cata
2 for Tech Resource Center
Purpose/Description Required for bank
® Required Contractor's Certification Form Attached (Non -
Collusion, Non -Discrimination, Non -Debarment, E-Verify, Iran, etc.
Amount of El Increase $
El Decrease $
Previous Amount
...................................................
Current Percent of Change: %
New Amount _.- ........................
Total Percent of Change: %
_.... ......... _.. _.. _.............
Dispersal After Approval
Copy Original
® ❑ Dan Buckenmeyer - DCI
® ❑ Jame......
s Mueller -DCI
y
Jud Love — Finance/D.C.l�......_................�.�.........................
® ❑