HomeMy WebLinkAboutThe Seasons - SNDA - Escalon_City of AuburnSNDA U.S. Department of Housing OMB Approval #2502-0029
and Urban Development Exp. (xx/xx/xxxx)
Office of Housing
Federal Housing Commissioner
RECORDING REQUESTED BY
Michael Decina
Kantor Taylor PC
1200 Fifth Avenue, Suite 1910
Seattle, WA 98101
AND WHEN RECORDED RETURN TO:
Leslie F. Dominy
Greystone Funding Company LLC
419 Belle Air Lane
Warrenton, VA 20186
(Space above this line for Recorder’s Use)
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of this ___ day of _________________, 2021, by and between
ESCALON, LLC, a Washington limited liability company (“Owner” or “Lessor”), as lessor under the
lease hereinafter described, and CITY OF AUBURN, WASHINGTON, a Washington municipal
corporation (“Operator” or “Lessee”), lessee under the aforementioned lease, in favor of
GREYSTONE FUNDING COMPANY LLC, a Delaware limited liability company (“FHA Lender”),
the owner and holder of the Mortgage hereinafter described.
W I T N E S S E T H:
WHEREAS, Lessor and The Seasons I, LLC, a Washington limited liability company
(“Borrower”) entered into that certain Master Lease Agreement dated December 20, 2006; and
WHEREAS, Borrower has executed, or will execute that certain Multifamily Deed of Trust,
Security Agreement, Assignment of Rents, and Fixture Filing (Washington) dated as of
_______________, 2021, (the “Mortgage”), in favor of FHA Lender and covering certain real property
(the “Property”) located in the City of Auburn, County of King, State of Washington, with a legal
description as set forth in Exhibit “A” attached hereto and incorporated herein by this reference, and
covering the improvements situated thereon (the “Improvements”); and
WHEREAS, Lessor and Lessee entered into that certain unrecorded Lease Agreement dated
November 17, 2015, and all amendments thereto (the “Lease”), covering a portion of the
Improvements for the term and upon the conditions set forth therein; and
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WHEREAS, the parties hereto now desire to enter into this Agreement to establish certain
rights and obligations with respect to their interests, and to provide for various contingencies as
hereinafter set forth.
NOW, THEREFORE, in consideration for the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and of the mutual
benefits to accrue to the parties hereto, it is hereby declared, understood and agreed that the Lease, all
terms and conditions set forth in the Lease, the leasehold interests and estates created thereby, and the
priorities, rights, privileges and powers of Lessee and Lessor thereunder shall be and the same are
hereby, and with full knowledge and understanding of the effect thereof, unconditionally made subject
and subordinate to the lien and charge of the Mortgage, all terms and conditions contained therein, any
renewals, extensions, modifications or replacements thereof, and the rights, privileges and powers of
the trustee and FHA Lender thereunder, and shall hereafter be junior and inferior to the lien and charge
of the Mortgage. The parties further agree as follows:
1. It is expressly understood and agreed that this Agreement shall supersede, to the extent
inconsistent herewith, the provisions of the Lease relating to the subordination of the
Lease and the leasehold interests and estates created thereby to the lien or charge of the
Mortgage.
2. FHA Lender consents to the Lease.
3. In the event FHA Lender or any other purchaser at a foreclosure sale or sale under
private power contained in the Mortgage, or by acceptance of a deed in lieu of
foreclosure, succeeds to the interest of Lessor under the Lease by reason of any
foreclosure of the Mortgage or the acceptance by FHA Lender of a deed in lieu of
foreclosure, or by any other manner, it is agreed as follows:
a. Lessee shall be bound to FHA Lender or such other purchaser under all of the
terms, covenants and conditions of the Lease for the remaining balance of the
term thereof, with the same force and effect as if FHA Lender or such other
purchaser were the lessor under such Lease, and Lessee does hereby agree to
attorn to FHA Lender or such other purchaser as its lessor, such attornment to
be effective and self-operative without the execution of any further instruments
on the part of any of the parties to this Agreement, immediately upon FHA
Lender or such other purchaser succeeding to the interest of Lessor under the
Lease.
b. Subject to the observance and performance by Lessee of all the terms,
covenants and conditions of the Lease on the part of the Lessee to be observed
and performed, FHA Lender or such other purchaser shall recognize the
leasehold estate of Lessee under all of the terms, covenants and conditions of
the Lease for the remaining balance of the term (as the same may be extended
in accordance with the provisions of the Lease) with the same force and effect
as if FHA Lender or such other purchaser were the lessor under the Lease and
the Lease shall remain in full force and effect and shall not be terminated,
except in accordance with the terms of the Lease or this Agreement; provided,
however, that FHA Lender or such other purchaser shall not be (i) liable for
any act or omission of Lessor or any other prior lessor, (ii) obligated to cure
any defaults of Lessor or any other prior lessor under the Lease which occurred
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prior to the time that FHA Lender or such other purchaser succeeded to the
interest of Lessor or any other prior lessor under the Lease, (iii) subject to any
offsets or defenses which Lessee may be entitled to assert against Lessor or any
other prior lessor, (iv) bound by any payment of rent or additional rent by
Lessee to Lessor or any other prior lessor for more than one (1) month in
advance, (v) bound by any amendment or modification of the Lease made
without the written consent of FHA Lender or such other purchaser, or (vi)
liable or responsible for or with respect to the retention, application and/or
return to Lessee of any security deposit paid to Lessor or any other prior
landlord, whether or not still held by Lessor, unless and until FHA Lender or
such other purchaser has actually received for its own account as lessor the full
amount of such security deposit.
Lessee hereby agrees that it will not exercise any right granted it under the Lease, or which it might
otherwise have under applicable law, to terminate the Lease on account of a default of Lessor
thereunder or the occurrence of any other event without first giving to FHA Lender prior written notice
of its intent to terminate, which notice shall include a statement of the default or event on which such
intent to terminate is based. Thereafter, Lessee shall not take any action to terminate the Lease if FHA
Lender (a) within thirty (30) days after service of such written notice on FHA Lender by Lessee of its
intention to terminate the Lease, shall cure such default or event if the same can be cured by the
payment or expenditure of money, or (b) shall diligently take action to obtain possession of the leased
premises (including possession by receiver) and to cure such default or event in the case of a default
or event which cannot be cured unless and until FHA Lender has obtained possession, but in no event
to exceed ninety (90) days after service of such written notice on FHA Lender by Lessee of its intention
to terminate.
1. Lessor and Lessee hereby certify to FHA Lender that the lease as previously submitted
to FHA Lender has not been further amended.
2. For the purposes of facilitating FHA Lender’s rights hereunder, FHA Lender shall
have, and for such purposes is hereby granted by Lessee and Lessor, the right to enter
upon the Property and the Improvements thereon for the purpose of affecting any such
cure.
3. Lessee hereby agrees to give to FHA Lender concurrently with the giving of any notice
of default under the Lease, a copy of such notice by mailing the same to FHA Lender
in the manner set forth herein below, and no such notice given to Lessor which is not
at or about the same time also given to FHA Lender shall be valid or effective against
FHA Lender for any purpose.
4. Subordination of Lease to Mortgage and Regulatory Agreements and Regulation by
the U.S. Department of Housing and Urban Development (“HUD”).
a. The Lease and all estates, rights, options, liens and charges therein contained
or created under the Lease are and shall be subject and subordinate to the lien
or interest of (i) the Mortgage on the Lessor’s interest in the Property in favor
of FHA Lender, its successors and assigns insofar as it affects the real and
personal property comprising the Property (and not otherwise owned, leased or
licensed by Lessee) or located thereon or therein, and to all renewals,
modifications, consolidations, replacements and extensions thereof, and to all
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advances made or to be made thereunder, to the full extent of amounts secured
thereby and interest thereon, and (ii) that certain Regulatory Agreement for
Multifamily Projects between Lessor and HUD to be recorded against the
Property.
b. The parties to the Lease agree to execute and deliver to FHA Lender and/or
HUD such other instrument or instruments as the FHA Lender and/or HUD, or
their respective successors or assigns, shall reasonably request from time to
time to reconfirm the status of the lease and to effect and/or confirm the
subordination of the Lease to the lien of the Mortgage and the above-described
Regulatory Agreements. To the extent that any provision of the Lease shall be
in conflict with the HUD Program Obligations (as such term is defined below),
the HUD Program Obligations shall be controlling.
c. In the event HUD, at a foreclosure sale or sale under private power contained
in the Mortgage, or by acceptance of a deed in lieu of foreclosure, succeeds to
the interest of Lessor under the Lease by reason of any foreclosure of the
Mortgage or the acceptance by HUD of a deed in lieu of foreclosure, or by any
other manner, it is agreed as follows:
i. HUD can terminate the Lease for any violation of the Lease that is not
cured within any applicable notice and cure period given in the Lease.
ii. As used in this Agreement “Program Obligations” means (1) all
applicable statutes and any regulations issued by the Secretary pursuant
thereto that apply to the Project, including all amendments to such
statutes and regulations, as they become effective, except that changes
subject to notice and comment rulemaking shall become effective only
upon completion of the rulemaking process, and (2) all current
requirements in HUD handbooks and guides, notices, and mortgagee
letters that apply to the Project, and all future updates, changes and
amendments thereto, as they become effective, except that changes
subject to notice and comment rulemaking shall become effective only
upon completion of the rulemaking process, and provided that such
future updates, changes and amendments shall be applicable to the
Project only to the extent that they interpret, clarify and implement
terms in this Agreement rather than add or delete provisions from such
document. Handbooks, guides, notices, and mortgagee letters are
available on HUD's official website:
(http://www.hud.gov/offices/adm/hudclips/index.cfm, or a successor
location to that site).
d. To the extent there is any inconsistency between the terms of this
Subordination, Non-Disturbance and Attornment Agreement, and the Lease,
the terms of this Subordination, Non-Disturbance and Attornment Agreement
shall be controlling.
5. For purposes of any notices to be given to FHA Lender hereunder, the same shall be
sent by U.S. certified mail, return receipt requested, postage prepaid, to FHA Lender
at the following address:
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Greystone Funding Company LLC
419 Belle Air Lane
Warrenton, VA 20186
Attn: General Counsel
or to such other address as FHA Lender may hereafter notify Lessee in writing by
notice sent to Lessee as aforesaid at Lessee’s address at the Property, or such other
address as FHA Lender may hereafter be advised of in writing by notice sent to FHA
Lender as aforesaid.
6. The agreements contained herein shall run with the land and shall be binding upon and
inure to the benefit of the respective heirs, administrators, executors, legal
representatives, successors and assigns of the parties hereto.
7. This Agreement may be executed in one or more counterparts, all of which when taken
together shall constitute a single instrument.
8. This Agreement shall, in all respects, be governed by and construed and interpreted in
accordance with the laws of the State of Washington.
[SEE ATTACHED SIGNATURE PAGES]
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SIGNATURE PAGE TO
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
year first written above.
OWNER/LESSOR:
ESCALON, LLC,
a Washington limited liability company
By:
Evan J. Hunden, Managing Member
State of Washington
County of King
On this ____ day of ________________, 2021, before me, the undersigned, a Notary Public in and
for the State of Washington, duly commissioned and sworn, personally appeared Evan J. Hunden, to
me known to be the Managing Member of Escalon, LLC, a Washington limited liability company,
that executed the within and foregoing instrument, and acknowledged said instrument to be the free
and voluntary act and deed of said party for the uses and purposes therein mentioned, and on oath
stated that he was authorized to execute said instrument.
Witness my hand and seal the day and year first above written.
Notary Public resident at
Print Name:
My commission expires:
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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SIGNATURE PAGE TO
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first written above.
OPERATOR/LESSEE:
CITY OF AUBURN, WASHINGTON,
a Washington municipal corporation
By:
Name:
Title:
State of Washington
County of King
On this ____ day of ________________, 2021, before me, the undersigned, a Notary Public in and
for the State of Washington, duly commissioned and sworn, personally appeared
, to me known to be the
of the City of Auburn, Washington, a Washington municipal corporation, that executed the within
and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and
deed of said party for the uses and purposes therein mentioned, and on oath stated that he was
authorized to execute said instrument.
Witness my hand and seal the day and year first above written.
Notary Public resident at
Print Name:
My commission expires:
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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SIGNATURE PAGE TO
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first written above.
FHA LENDER:
GREYSTONE FUNDING COMPANY LLC,
a Delaware limited liability company
By:
Tiffany Baymiller,
Vice President
[NOTARY ACKNOWLEDGEMENT FOLLOWS]
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SIGNATURE PAGE TO
SUBORDINATION AGREEMENT
)
) ss.
COUNTY OF )
I certify that I know or have satisfactory evidence that Tiffany Baymiller is the person who appeared
before me, and said person acknowledged that she signed this instrument, on oath stated that she was
authorized to execute the instrument and acknowledged it as the Vice President of Greystone Funding
Company LLC, a Delaware limited liability company, to be the free and voluntary act of such party
for the uses and purposes mentioned in the instrument.
Dated this ____ day of _________________, 2021.
Signature of Notary
Print Name:
NOTARY PUBLIC in and for
residing at:
My appointment expires:
[Seal or Stamp]
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EXHIBIT A
Legal Description
[TO BE INSERTED]
4844-6722-9737, v. 2