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Subordination, Non - Disturbance and Attornment Agreement

1. The document is a subordination, non-disturbance and attornment agreement between a tenant ("Tenant") and a lender ("Lender"). 2. The Lender has provided one or more loans to the landlord ("Landlord") secured by a mortgage on the property. 3. The agreement subordinates the Tenant's lease to the Lender's mortgage. It also provides that if the Lender forecloses, the lease will remain in effect as long as the Tenant is not in default. 4. If the Lender becomes the new owner, the Tenant must attorn to and recognize the Lender as the new landlord, with some protections for the Lender regarding prior

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0% found this document useful (0 votes)
349 views7 pages

Subordination, Non - Disturbance and Attornment Agreement

1. The document is a subordination, non-disturbance and attornment agreement between a tenant ("Tenant") and a lender ("Lender"). 2. The Lender has provided one or more loans to the landlord ("Landlord") secured by a mortgage on the property. 3. The agreement subordinates the Tenant's lease to the Lender's mortgage. It also provides that if the Lender forecloses, the lease will remain in effect as long as the Tenant is not in default. 4. If the Lender becomes the new owner, the Tenant must attorn to and recognize the Lender as the new landlord, with some protections for the Lender regarding prior

Uploaded by

David Cromwell
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT

THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT


AGREEMENT (this "Agreement") is made as of the ___ day of __________________, 2021, by
and between ______________________, a _____________ ("Tenant") and
__________________, a national banking association ("Lender").

RECITALS:

A. Lender has agreed to make one or more loans to


_________________________ ("Landlord"), which Loans will be given pursuant to the terms
and conditions of one or more loan agreements between Lender and Landlord (collectively, the
"Loan Agreement") and will be evidenced by one or more promissory notes given by Landlord to
Lender from time to time (collectively, the "Note") and secured by a mortgage, deed of trust or
similar security instrument given by Landlord to Lender (the "Mortgage"), encumbering
Landlord's title to those certain premises described in Exhibit A attached hereto (the "Property")
(the Loan Agreement, Note, Mortgage and other documents securing or governing the Note, the
"Loan Documents").

B. The Property, or portions of it, are leased to Tenant pursuant to that certain
_____________ (the "Lease"), executed on _______________, 20__, by and among Tenant and
____________ ("Original Landlord"), a memorandum of which Lease has been recorded under
Instrument No. _________ in the real property records of _________________. The rights of
Original Landlord in the Property and under the Lease have been assigned to and have become
vested in Landlord.

C. Tenant has agreed to subordinate the Lease to the Mortgage and to the lien
thereof and Lender has agreed to grant non-disturbance to Tenant under the Lease on the terms
and conditions hereinafter set forth.

AGREEMENT:

NOW, THEREFORE, for good and valuable consideration, Tenant and Lender
agree as follows:

1. Subordination. Tenant agrees that the Lease and all of the terms,
covenants and provisions thereof and all rights, remedies and options of Tenant thereunder are
and shall at all times continue to be subject and subordinate in all respects to the Mortgage and to
the lien thereof and all terms, covenants and conditions set forth in the Mortgage, including
without limitation all renewals, increases, modifications, consolidations, replacements and
extensions thereof and to all sums secured thereby with the same force and effect as if the
Mortgage had been executed, delivered and recorded prior to the execution and delivery of the
Lease. Toward that end, Tenant does hereby fully and expressly subordinate all of its rights
under the Lease to the rights of Lender, and its successors in interest, under the Mortgage.

2. Non-Disturbance. Lender agrees that if any action or proceeding is


commenced by Lender for the foreclosure of the Mortgage or the sale of the Property, Tenant
shall not be named as a party therein (unless such joinder shall be required by law), and the sale
of the Property in any such action or proceeding shall be made subject to all rights of Tenant
under the Lease except as set forth in Sections 3 and 4 below, provided that at the time of the
commencement of any such action or proceeding or at the time of any such sale or exercise of
any such other rights (a) Tenant shall be in possession of the premises demised under the Lease,
(b) the Lease shall be in full force and effect and (c) Tenant shall not be in default under any of
the terms, covenants or conditions of the Lease or of this Agreement on Tenant’s part to be
observed or performed beyond the expiration of any applicable notice or grace periods. Lender's
agreement not to disturb Tenant in its use and possession of the premises shall continue only so
long as Tenant continues in the payment when due of all amounts falling due under the Lease
and otherwise continues to perform all of its obligations under the Lease and to comply with all
terms, covenants and conditions of the Lease.

3. Attornment. If Lender or any other person, party or entity becomes the


owner of the Property (each a "Transferee") as a result of a foreclosure sale under the Mortgage,
dation en paiement, or other proceedings brought by Lender in lieu of or pursuant to a
foreclosure, or in any other manner, the Lease shall not be terminated or affected thereby (at the
option of the Transferee if the conditions set forth in Section 2 above have not been met at the
time of such transfer) but shall continue in full force and effect as a direct lease between the
Transferee and Tenant upon all of the terms, covenants and conditions set forth in the Lease
(except as otherwise provided in Section 4), and Tenant shall attorn to Transferee as its landlord,
such attornment to be automatically effective immediately upon Transferee's succeeding to the
interest of Landlord in the Property, without the execution of any further instruments on the part
of any of the parties hereto.

4. Protection of Transferee. If any Transferee shall succeed to the interest of


Landlord in the Property, Tenant agrees as follows:

(a) Such Transferee shall not be: (i) subject to any credits, offsets, abatements,
deductions, defenses, claims or counterclaims, of any nature or type, that Tenant might have
against any prior landlord (including Landlord or Original Landlord); (ii) liable for any act or
omission of any prior landlord (including Landlord or Original Landlord) or liable for Landlord’s
failure to perform any of its obligations under the Lease which have accrued prior to the date on
which the Transferee shall become the owner of the Property; (iii) liable for the return of any
security deposit made by Tenant to any prior landlord (including Landlord or Original Landlord),
unless such Transferee shall have actually received such security deposit from the prior landlord;
(iv) bound by any rent or additional rent that Tenant shall have paid in advance to any prior
landlord (including Landlord or Original Landlord); (v) liable under any indemnity provision of
whatever nature contained in the Lease, including, but not limited to, any environmental
indemnification; (vi) liable for or have any responsibility related to any hazardous materials or
other environmental conditions or contamination that existed on or under the Property prior to
the date the Transferee shall become the owner of the Property; or (vii) bound by (A) any
amendment, modification, renewal or extension (except for extensions unilaterally made by
Tenant pursuant to any extension options that are contained in the Lease) to the Lease, (B) any
surrender, cancellation or termination of the Lease, whether in whole or in part (unless the
surrender, cancellation or termination is effected unilaterally by Tenant under a specific term of
the Lease; provided, however, that if Tenant's right to cancel, surrender or terminate the Lease
arises because of a default by Landlord under the Lease, Tenant shall not terminate, cancel or
surrender the Lease because of that default unless (1) Landlord is in default under the Lease
beyond any cure period provided in the Lease; (2) Tenant has given Lender prior written notice
of the default as provided in Section 7 below; and (3) the cure period provided to Lender in
Section 7 below has expired without Lender having cured the default), or (C) any waiver of any
provision of the Lease, in each of cases (A) through (C) above, that has not been consented to in
writing by Lender.

(b) Tenant shall look solely to the Property for the recovery of any judgment
or damages from Lender or any other Transferee. Tenant agrees that neither Lender, any
Transferee nor any partner, officer, director, shareholder, member, manager, employee or agent
of any of them or any successor or assign of any of the foregoing shall have any personal
liability, directly or indirectly, under or in connection with the Lease or this Agreement. The
limitation of liability provided in this paragraph is in addition to, and not in limitation of, any
limitation on liability contained in the Lease.

(c) The Transferee shall be released from all duties and obligations under the
Lease and this Agreement from and after the date that it conveys its interest in the Property to
any third person.

5. Payment of Rents. After notice is given to Tenant by Lender that


Landlord is in default under the Loan Documents and that the rentals under the Lease should be
paid to Lender pursuant to the terms of the pledge of leases and rents executed and delivered by
Landlord to Lender in connection therewith, Tenant shall thereafter pay to Lender (or as directed
by the Lender) all rentals and all other monies due or to become due to Landlord under the
Lease, and Landlord hereby expressly authorizes Tenant to make such payments to Lender and
hereby releases and discharges Tenant from any liability to Landlord on account of any such
payments made to or at the direction of Lender.

6. Lender’s Consent. Tenant shall not, without obtaining the prior written
consent of Lender, (a) enter into any agreement amending, modifying or terminating the Lease,
(b) prepay any of the rents, additional rents or other sums due under the Lease more than one
month in advance of the date due, (c) voluntarily surrender the premises demised under the Lease
or terminate the Lease without cause or shorten the term thereof, or (d) assign the Lease or sublet
the premises demised under the Lease or any part thereof other than pursuant to the provisions of
the Lease. Any such amendment, modification, termination, prepayment, voluntary surrender,
assignment or subletting, without Lender’s prior consent, shall not be binding upon Lender.

7. Lender to Receive Notices; Lender's Right to Cure Defaults . Tenant shall


provide Lender with copies of all written notices sent to Landlord pursuant to the Lease
simultaneously with the transmission of such notices to the Landlord. In the event of any default
on the part of Landlord under the Lease, Tenant will give notice thereof to Lender and will
permit Lender a period of sixty (60) days from the date of such notice in which to cure such
default prior to exercising any of the rights or remedies of Tenant under the Lease, including
termination of the Lease, abatement of payments due thereunder or the performance of any of the
Landlord's covenants or obligations which are alleged to be in default; provided, however, that
such cure period shall be extended by any period of time during which Lender is diligently
pursuing the cure of a default which cannot reasonably be expected to be cured within the initial
sixty-day cure period and, where foreclosure upon the Mortgage would be necessary to allow
Lender to effect such cure, shall be extended through sixty days following the completion of
foreclosure proceedings and for so long thereafter as Lender is diligently pursuing the cure of the
default. Nothing herein shall be deemed to obligate Lender to cure any default by Landlord
under the Lease. Notwithstanding any contrary provision of the Lease, without the written
consent of Lender, the Lease shall not terminate or lapse for any cause whatever unless and until
the time allowed Lender to cure such default or to take such action shall have expired without
cure of the default or without the removal of the condition giving rise to the termination or lapse
of the Lease. Tenant agrees to accept the curing of any default by Lender as a curing of said
default by Landlord. Nothing contained in this Agreement, however, shall obligate Lender to
cure any default by Landlord under the Lease.

8. Consent to Encumbrance.  To the extent that Tenant's consent may be


required, Tenant hereby consents to Landlord's pledge to Lender of all of Landlord's rights under
the Lease and the rent accruing thereunder. Notwithstanding the pledge in favor of Lender as
aforesaid, Tenant specifically agrees that Lender is not assuming, and is in no way becoming
bound by, any of Landlord's obligations arising under the Lease prior to the date that Lender
becomes the owner of the Property. Lender's acceptance of rent as pledgee prior to the date that
Lender becomes the owner of the Property shall not operate to bind Lender by any provision of
the Lease.

9. Notices. All notices or other written communications hereunder shall be


deemed to have been properly given (i) upon delivery, if delivered in person or by facsimile
transmission with receipt acknowledged by the recipient thereof and confirmed by telephone by
sender, (ii) one (1) Business Day (hereinafter defined) after having been deposited for overnight
delivery with any reputable overnight courier service, or (iii) three (3) Business Days after
having been deposited in any post office or mail depository regularly maintained by the U.S.
Postal Service and sent by registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:

If to Tenant:

If to Lender:

For purposes of this Section, the term "Business Day" shall mean a day on which national
banks are not authorized or required by law to close in Bossier City, Louisiana. Either party by
notice to the other may designate additional or different addresses for subsequent notices or
communications.

10. Definitions. The term "Lender" as used herein shall include the successors
and assigns of Lender and any person, party or entity which shall become the owner of the
Property by reason of a foreclosure of the Mortgage or the acceptance of a deed or assignment in
lieu of foreclosure or otherwise. The term "Landlord" as used herein shall mean and include the
present landlord under the Lease and such landlord’s predecessors and successors in interest
under the Lease, but shall not mean or include Lender. The term "Property" as used herein shall
mean the Property, the improvements now or hereafter located thereon and the estates therein
encumbered by the Mortgage.

11. No Oral Modifications. This Agreement may not be modified in any


manner or terminated except by an instrument in writing executed by the parties hereto

12. Modification of Liabilities. From time to time, Lender may, without notice
to or consent of Tenant and without impairing or affecting this Agreement, do any of the
following: (a) amend, modify, extend, or renew any or all of the Loan Documents or the
indebtedness, obligations or liabilities governed or secured thereby (the "Liabilities"); (b) change
the rate of interest being charged on the Note and/or any or all of the Liabilities; (c) release
Landlord, any guarantor, any surety or any other third party from liability on any or all of the
Liabilities; (d) compromise or settle the terms of any or all of the Liabilities; (e) forbear or agree
to forbear from taking any action against Landlord, any guarantor, any surety or any other party
in regard to any or all of the Liabilities; or (f) substitute, release, exchange, or take any other
action in regard to any collateral, including the Property, for any or all of the Liabilities.

13. Governing Law. This Agreement shall be deemed to be a contract entered


into pursuant to the laws of the state in which the Property is located and shall in all respects be
governed, construed, applied and enforced in accordance with the laws of that state.

14. Inapplicable Provisions. If any term, covenant or condition of this


Agreement is held to be invalid, illegal or unenforceable in any respect, this Agreement shall be
construed without such provision.

15. Duplicate Originals; Counterparts. This Agreement may be executed in


any number of duplicate originals and each duplicate original shall be deemed to be an original.
This Agreement may be executed in several counterparts, each of which counterparts shall be
deemed an original instrument and all of which together shall constitute a single Agreement.
The failure of any party hereto to execute this Agreement, or any counterpart hereof, shall not
relieve the other signatories from their obligations hereunder.

16. Number and Gender. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice versa.

17. Further Acts. Tenant will, at the cost of Tenant, and without expense to
Lender, do, execute, acknowledge and deliver all and every such further acts and assurances as
Lender shall, from time to time, require, for the better assuring and confirming unto Lender the
property and rights hereby intended now or hereafter so to be, or for carrying out the intention or
facilitating the performance of the terms of this Agreement or for filing, registering or recording
this Agreement, or for complying with all applicable laws.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.

LENDER:

___________________________

By: _____________________________________

Name:
Title:

TENANT:

____________________________________

By:_____________________________________

Name:
Title:

The undersigned accepts and agrees to


the provisions of Section 5 hereof:

LANDLORD:

_____________________________

By:_____________________________________
Name:
Title:
Exhibit A
REAL ESTATE DESCRIPTION

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