Exhibit 10.4
THIS SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT (the “ Agreement ”) is
made as of the date last executed below, between Aurora Medical
Group, Inc., a Wisconsin non-stock corporation (“
Tenant ”), having an address at 3000 West Montana,
Milwaukee, Wisconsin and PNC Bank, National Association (“
Lender ”), located at 10851 Mastin, Overland Park,
Kansas, 66210.
RECITALS
| A. |
|
Tenant is or will at Closing be the current tenant under that
certain lease dated December 21, 2007, by and between Tenant, as
original tenant, and NNN Eastern Wisconsin Medical Portfolio, LLC,
as original landlord, which has been amended, if at all, only by
those instruments described in Exhibit A attached
hereto (the original lease, as amended, is herein the “
Lease ”) affecting certain premises commonly known as
(the “ Premises ”) located on the real property
described in Exhibit B attached hereto (the “
Land ”); and |
| |
| B. |
|
Lender is about to make a loan to NNN Eastern Wisconsin Medical
Portfolio, LLC, who is, or will become, the landlord under the
Lease (hereinafter “ Landlord ”), which loan
will be evidenced by a promissory note to made by Landlord in favor
of Lender and secured by the lien of a mortgage or deed of trust
(the “ Mortgage ”) encumbering the Land (the
Mortgage and all other documents securing the loan are herein
collectively called the “ Security Documents ”);
and |
| |
| C. |
|
Lender and Tenant desire to confirm their agreements with
respect to the Lease and the Security Documents. |
AGREEMENT
NOW, THEREFORE, in consideration of
the mutual covenants and agreements herein contained, Lender and
Tenant hereby agree and covenant as follows:
| 1. |
|
Subordination . The Lease and all right, title and
interest in the Land created thereby (including without limitation,
any purchase options, rights of first refusal or similar rights
possessed by Tenant with respect to the Premises) are, shall be and
shall at all times remain and continue to be subject and
subordinate in all respects to the liens, terms, covenants,
provisions and conditions of the Security Documents, and all
renewals, modifications, extensions, consolidations and
replacements thereof. |
| |
| 2. |
|
Non-Disturbance . So long as the Lease is in full force
and effect and Tenant is not in default under the Lease (beyond any
period given Tenant to cure such default) or under this
Agreement: |
| |
(a) |
|
Tenant’s possession of the Premises and Tenant’s
rights and privileges under the Lease shall not be diminished or
interfered with by Lender, and Tenant’s occupancy of the
Premises shall not be disturbed by Lender for any reason whatsoever
during the term of the Lease or any extensions or renewals thereof;
and |
| |
(b) |
|
Lender will not name or join Tenant as a party defendant in any
action or proceeding to foreclose the Mortgage or to enforce any
rights or remedies of Lender under the Mortgage that would cut-off,
destroy, terminate or extinguish the Lease or Tenant’s
interest and estate under the Lease unless the joinder is required
by law in order to perfect the trustee’s sale, foreclosure or
other proceeding, and without in any way diminishing or otherwise
affecting the rights and privileges granted to, or inuring to the
benefit of, Tenant under this Agreement. |
| |
| |
(c) |
|
Tenant agrees that any option or right of first refusal
contained in the Lease shall not apply to Lender taking title
pursuant to any bona fide deed in lieu of foreclosure or purchase
at a foreclosure sale. |
| |
(a) |
|
After notice is given by Lender that a default has occurred
under the Mortgage and that the rentals and all other payments to
be made by Tenant under the Lease should be paid to Lender, Tenant
will pay to Lender, or in accordance with the directions of Lender,
all rentals and other monies due and to become due to Landlord
under the Lease or otherwise in respect to the |
 |