06-08-2022 Council Packet - Laserfiche WebLink

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2 WHEREAS, the Property is being acquired and constructed, in part, with the proceeds of a loan to the Borrower made by Subordinate Lender, pursuant to a [Loan Agreement] dated ______________, 20__ (as amended, modified or supplemented from time to time, the “Subordinate Loan Agreement”) and evidenced by a promissory note in the original face amount of $__________ (as amended, modified or supplemented from time to time, the “Subordinate Note”); WHEREAS, the Borrower’s obligations to Subordinate Lender under the Subordinate Loan Agreement and the Subordinate Note (the “Subordinate Indebtedness”) are secured by a [Second] Mortgage and Security Agreement of even date herewith (as amended, modified or supplemented from time to time, the “Subordinate Mortgage”) and a [Second] Assignment of Rents (as amended, modified or supplemented from time to time, the “Subordinate Assignment” and together with the Subordinate Mortgage, the “Subordinate Mortgage Documents”) (the Subordinate Loan Agreement, the Subordinate Note, the Subordinate Mortgage Documents and all other agreements contemplated therein or evidencing or securing the Subordinate Indebtedness are hereinafter referred to as the “Subordinate Loan Documents”); WHEREAS, it is a requirement of the Senior Loan Documents that the Senior Mortgage shall be and remain liens or charges upon the Property prior and superior to the lien or charge of the Subordinate Mortgage Documents, that the Subordinate Indebtedness be subordinated in right of payment to the Senior Indebtedness and that the Subordinate Indebtedness be payable solely from cash available after payment of operating expenses of the Property and amounts due and owing in respect of the Senior Indebtedness. NOW, THEREFORE, in consideration of the foregoing and the mutual benefits accruing to the parties hereto and for other good and valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged and intending to be legally bound hereby, it is hereby declared, understood and agreed by the parties as follows: 1. Subordination of Subordinate Mortgage Documents. Subordinate Lender declares, agrees and acknowledges that the Senior Mortgage, and any renewals or extensions thereof, and any modifications thereof or substitutions therefor which do not increase the principal balance secured thereby (except increases by reason of protective advances or payment of Senior Lender’s costs or increases to which Subordinate Lender has consented in accordance with Section 3(c) hereof) and all advances made pursuant to the Senior Mortgage, all costs and expenses secured thereby and interest on the foregoing, shall unconditionally be and remain at all times liens or charges on the Property prior and superior to the lien or charge of the Subordinate Mortgage Documents. 2. Subordination of Subordinate Indebtedness; Remitting Subordinate Loan Payments to Senior Lender; Reinstatement. (a) The Subordinate Indebtedness is hereby subordinated in right of payment to any and all of the Senior Indebtedness and shall be payable only from and to the extent of revenues of the Property available after payment of all amounts then due and owing under the Senior Loan Documents and all current operating expenses of the Property. Notwithstanding the foregoing, unless and until the Senior Lender gives Subordinate Lender notice of the occurrence of a default, an event of default or any event which, with the giving of notice or the passage of time (or both) will constitute a default or an event of default, under the Senior Loan Documents, Subordinate Lender may receive and accept regularly scheduled payments on account of principal and interest payable under the Subordinate Loan Documents to the extent of cash flow of the Borrower available after payment of current operating expenses of the Property and amounts then due and owing under the Senior Loan Documents.