Subordination, Non-Disturbance, and Attornment Agreements...

Subordination, Non-Disturbance, and Attornment

Agreements: Drafting to Protect Lenders, Tenants,

and Landlords

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TUESDAY, SEPTEMBER 22, 2020

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Ronald S. Gart, Partner, Seyfarth Shaw, Washington, D.C.

James C. O'Brien, Partner, Seyfarth Shaw, Washington, D.C. and San Francisco

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“Seyfarth” refers to Seyfarth Shaw LLP (an Illinois limited liability partnership).

Seyfarth Shaw LLP

Subordination, Non-Disturbance and Attornment Agreements

Drafting to Protect Lenders,

Tenants, and Landlords

September 2020

©2020 Seyfarth Shaw LLP. All rights reserved. Private and Confidential

Agenda

01Overview of the Subordination, Non-Disturbance and

Attornment Agreement (“SNDA”)

02 Lender Perspective

03 Tenant Perspective

04 Drafting an SNDA

05 Negotiating an SNDA

06 Summary and Resources

©2020 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 6

Speakers

Ronald Gart

Partner, Washington. D.C.

Seyfarth Shaw LLP

(202) 828-5320

[email protected]

James O’Brien

Partner, Washington, D.C.

Seyfarth Shaw LLP

(202) 828-5360

[email protected]


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“Seyfarth” refers to Seyfarth Shaw LLP (an Illinois limited liability partnership).

Seyfarth Shaw LLP

Overview of the Subordination, Non-Disturbance and Attornment Agreement

• What is an SNDA?

• When Do You Need It?

• What Happens if You Do Not Have One?


What is an SNDA?

• Subordination, Non-Disturbance and Attornment Agreement.

– A key element to most mortgage financing and leasing transactions.

– Parties: Mortgage Lender, Tenant, Landlord.

– Establishes lien and contractual priority between Lender and Tenant.

– Landlord is the midwife.

• Like a Prenuptial Agreement for a bride and a groom who don’t want to

marry.

– Lender and Tenant are not otherwise in privity of contract, and hope not to be.

– Set rules of engagement between Lender and Tenant, particularly after foreclosure.

– Addresses competing contractual provisions.


What is an SNDA?

Deals with three interconnected legal concepts:

– Subordination, Non-Disturbance and Attornment.

– Subordination and Attornment date back hundreds

of years to feudal England.

– A vassal’s interest in land was subordinate to the rights of the lord and the vassal

made payments of tribute to the lord.

– If a new lord took over the estate, the vassal would “turn” his loyalty to the new lord.

– “Attornment” comes from the old French verb “torner” or “to turn.”


What is an SNDA?

• Subordination.

– The Tenant agrees to subordinate its leasehold interest to the lien of the Lender’s

mortgage.

– Positions the interests of the mortgage lienholder in front of the Tenant’s possessory

interest in the property.

– Ensures that conflicts between the lease and the lien instrument will be resolved in

favor of the lienholder.

• Non-Disturbance.

– A more modern concept.

– Mortgage lienholder agrees not to disturb Tenant’s possession of leased property.

– Mortgage lienholder agrees to “recognize” Tenant’s rights under its lease.


What is an SNDA?

• Attornment.

– Tenant agrees to become the Tenant of Mortgage Lender, or its successor

following a foreclosure.

– Tenant agrees that new owner of the property is its Landlord.

– The equivalent of accepting a lease from another.

– Rent is now owed to the new Landlord.

– The king is dead; long live the king!


• Perhaps never.

− Some argue that SNDAs do not justify the time,

energy and effort that they can consume.

− The problems and risks an SNDA covers, although

theoretically conceivable, do not arise that often in

the real world.

− Practical and economic incentives will most likely

align to achieve the same end result: Tenant

remaining in place following a foreclosure with

Lender or its successor as the new Landlord.

• In reality.

− A part of most leasing and mortgage transactions.

− Required by Mortgage Lenders for major Tenants.

− Demanded by significant Tenants as a condition to

lease effectiveness.

When do you need it?


What happens if you do not have one?

• Relationship between Lender and Tenant established by applicable law.

• Priority.

– First to record generally holds superior interest.

– In some jurisdictions, Tenant’s possession prior to recording the mortgage establishes

Tenant’s priority.

– Unrecorded lease may also be superior to mortgage if Lender has actual knowledge of

lease.



• Foreclosure.

– If lease is superior interest, purchaser at foreclosure takes subject to the lease.

– If mortgage is superior, then lease generally extinguished by foreclosure, though some states allow Lender to keep the lease in place.

– In some states, Lender is entitled to possession upon default and, if its interest is superior, it can treat Tenant as trespasser prior to foreclosure.

• Attornment.

– Some states provide a mechanism for attornment following foreclosure.

– Depending on the state, attornment can create a new lease or continue the existing lease with a substituted Landlord.

– Attornment may result from Tenant’s express agreement to pay rent to mortgage lienholder.

– Attornment may also arise without a written agreement if the parties actions indicate mutual consent to attornment.

– Courts have held that not all lease covenants run with the land.



• Landlord obligations.

– Even if a lease survives foreclosure, successor owner may not have to fulfill all

covenants of Landlord under the lease.

– Courts mixed on which covenants bind a future owner. Must the future owner

maintain the premises? Must the future owner honor expansion options or renewal

rights? Or related tenant improvement allowances?



• Lease Modifications.

– Lender consent often required.

– Modifications without consent may not bind Lender.

– Surrender/Termination may be prohibited without

Lender consent.

• Foreclosure.

– What counts? Deed in Lieu or other remedies?

• Default Notices.

– Landlord may be required to send Tenant default

notices to Lender.

COVID-19 and the SNDA


• More Financial Distress Means

More Scrutiny of SNDAs

– With lease and loan defaults more likely, Landlords,

Tenants and Lenders will focus more on SNDAs.

– Existing SNDAs will be examined closely for

application to COVID workouts.

• Potential Issues of Concern:

➢Construction Obligations

➢Prior Landlord Liabilities

➢Lender Consent Rights

➢Security Deposits

COVID-19 and the SNDA


Lender Perspective• Why Does a Lender Want an SNDA?

• What is a Lender Trying to

Accomplish in an SNDA?

• Leases are the engine that drives real estate finance.

• Lenders want to preserve the cash flow they have

underwritten.

• Lenders value predictability.

− Subordination, attornment and recognition handled

differently under common law from state to state.

− SNDAs enable Lenders to set procedures and clarify

rights and obligations.

• Lenders want conflicting contractual provisions

resolved in their favor, e.g., application of

insurance proceeds.

• Lenders want to be protected from unanticipated

obligations following a foreclosure, e.g., tenant

improvement work.

• Lenders want to avoid “landlord/tenant conspiracies,”

e.g. undisclosed amendments.

Why does a Lender want an SNDA?


• Ensure that any pre-existing leases are subordinate

to its mortgage:

− Mortgage lien primes Tenant occupancy right.

− Loan provisions control when lease provisions

conflict.

• Limit the liabilities and obligations of Lender or

other Successor Landlord following foreclosure.

• Retain a valuable asset.

− Tenant attorns to Landlord.

− Landlord recognizes Tenant.

• Protect a valuable asset.

− Lender receives default notices.

− Lender can cure defaults.

− Lease not to be amended without Lender consent.

What is a Lender trying to accomplish in an SNDA?


Tenant Perspective• Why Does a Tenant Want an SNDA?

• What is a Tenant Trying to

Accomplish in an SNDA?


• Tenants often invest heavily in their leased

premises.

− Significant tenant improvements, e.g., retail stores,

large office premises, specialized industrial and R&D

uses.

− Commitment to a specific location.

− Local partnerships or incentives.

• Tenants do not want to risk such investments on

the performance of their Landlords’ loans.

• Tenants want their occupancy and other rights

recognized in the event of foreclosure.

• Tenants want the full benefit of their bargain.

• Tenants prefer specifically negotiated subordination

language over “generic” lease provisions.

− Protection from subordination to junior liens.

− Negotiated framework for conflicting provisions.

Why does a Tenant want an SDNA?


• Ensure that its right to occupy the leased premises

will be preserved following any foreclosure by its

Landlord’s Lender.

• Ensure that any other important rights under the

lease will be recognized.

• Require any future Landlord to perform current

Landlord’s obligations under the lease.

• Avoid long periods of uncertainty while a distressed

mortgage loan is restructured or foreclosed.

• Protect itself from any over-reaching “generic”

provisions in the lease that cover subordination.

• Establish a framework for conflicting provisions.

What is a Tenant trying to accomplish in an SDNA?



Drafting an SNDA• Key Elements

• Relationship to Loan Documents

and Lease

• Standard Forms

Key Elements

• Recitals.

• Subordination.

• Non-Disturbance/Recognition.

• Attornment.

• Lender Protections and Lease Amendments.

• Estoppel.

• See forms included in materials for reference, particularly Model Nondisturbance

Agreement Based on New York State Bar Association Report.


Recitals

• Use recitals to set the stage.

• Identify the parties.

• Identify the property and the premises.

• Provide a narrative explanation of the transaction.

• Define terms.

– Some terms may be defined in the recitals themselves.

– Some terms may be defined in a separate section.


Subordination

• Cut to the chase:

“The Lease shall be, and shall at all times remain, subject and subordinate to

the Mortgage, the lien imposed by the Mortgage and all advances made under

the Mortgage.”

• Note that the lease is subordinate not just to the lien imposed by the mortgage,

but also is subject and subordinate to the mortgage itself.

• Lender’s right to sell the collateral to repay its loan trumps Tenant’s right to

occupy.

• The provisions of the mortgage supersede conflicting provisions of the lease.


Non-Disturbance and Recognition

• Live and let live:

“...Mortgagee shall not name or join Tenant as a defendant in any

exercise of Mortgagee’s rights and remedies arising upon a default

under the Mortgage…when Successor Landlord takes title to Landlord’s

Premises: (a) Successor Landlord shall not terminate or disturb Tenant’s

possession of Tenant’s Premises….(b) Successor Landlord shall be

bound to Tenant under all the terms and conditions of the Lease (except

as provided in this Agreement)…”


Non-Disturbance and Recognition

• Lender agrees not to disturb Tenant’s possession and agrees to recognize the

terms and conditions of the Lease.

• Note that the NYSBA form contains exceptions: (i) If Tenant is in default under

the lease; (ii) if law requires Tenant to be joined to any foreclosure action; (iii)

“except as provided in this Agreement”.

• If you are a Tenant or represent one, watch that last exception, as it can pull the

rug out from under you.


Attornment

• I turn to you:

“…when Successor Landlord takes title to Landlord’s Premises: …(c) Tenant shall

recognize and attorn to Successor Landlord as Tenant’s direct landlord under the

Lease as affected by this Agreement; and (d) the Lease shall continue in full force and

effect as a direct lease, in accordance with its terms (except as provided in this

Agreement)…”

• Tenant turns from its previous Landlord and turns to its new Landlord.

• The duties that Tenant once owed to Landlord are now owed to its successor.

• Note again the references to “except as provided in this Agreement.” In middle

school English class, that’s called foreshadowing.


Lender Protections and Lease Amendments

• Although Lender is willing to recognize Tenant’s lease, that generosity is

subject to some limits:

“Notwithstanding anything to the contrary in the Lease or the Mortgage, Successor

Landlord shall not be liable for or bound by any of the following matters…”

“Notwithstanding anything to the contrary in this Agreement or the Lease, upon an

Attornment the Lease shall be deemed to have been automatically amended to state

that Successor Landlord’s obligations and liability under the Lease shall never extend

beyond Successor Landlord’s…interest…in Landlord's Premises…”

“Notwithstanding anything to the contrary in the Lease or this Agreement, before

exercising any Termination Right or Offset Right, Tenant shall provide Mortgagee with

notice of the breach or default by Landlord…”



• Following foreclosure, Lender wants to be protected from certain liabilities,

particularly those over which it exercises little or no control, hence the litany of

“Notwithstanding” clauses.

• Lender is not in the business of operating real estate and views the property not

as a business opportunity, but as collateral -- as means of repaying its loan.

• Lender would like to be protected from certain operational liabilities incurred by

its borrower, the Landlord.


Lender Protections and Lease Amendments• When Lender or another Successor Landlord succeeds to Landlord’s

interest in the property, it wants to be protected from the following:

– Claims against former Landlord. The Successor Landlord does not want to be liable

for offset rights or damages relating to events before it became the Landlord.

– Prepayments of rent. Prepaid rent is unlikely to be recovered from former Landlord.

– Obligations to repay amounts owed to Tenant by former Landlord. Including expense

reimbursements, CAM reconciliation, security deposits.

– Modifications to the Lease made without Lender’s consent. Keeps Successor

Landlord free from unanticipated and undisclosed changes to the lease.

– Surrender. Any agreement made by Landlord and Tenant outside of the four corners

of the lease to allow for early termination.

– Construction related obligations. Requirements to perform tenant improvements or to

reimburse Tenant for them.



• Lender wants to ensure that it is not personally liable for the obligations of

Landlord under the lease.

– Lender seeks to amend the lease to provide that its liability under the lease will be

non-recourse, never extending beyond its interest in the property or the proceeds

thereof.

– Lender seeks an agreement from Tenant that Tenant will only satisfy judgments

against any Successor Landlord by looking solely to such Successor Landlord’s

interest in the property.



• Lender would like the right to cure lease defaults.

– Lender seeks an amendment to the Lease requiring Tenant to notify Lender of lease

defaults before pursuing remedies.

– Lender seeks an additional cure period beyond that provided to Landlord.


Estoppel

• An Estoppel is a related agreement that is often sought by Lenders at the same

time as an SNDA.

• Estoppels are a form of Lender due diligence.

• Estoppels help establish the current state of the lease: Is there an existing

default by Landlord or Tenant, has rent been paid currently, are there

undisclosed amendments?

• Estoppel provisions can be included in an SNDA in lieu of having a separate

agreement.

• If Tenant is seeking the SNDA, then estoppel provisions are not needed.

• If negotiation of estoppel provisions proves cumbersome, they are not essential

to the SNDA and can be dropped.

• If a separate estoppel is desired or obtained, there is no need to repeat the

provisions in the SNDA.


To Record or not to Record? That is the question

• An SNDA should be prepared with the requisite formalities for recording in the

jurisdiction in which the property is located.

– Certain cover page and formatting requirements must be met.

– The agreement must be notarized.

– A legal description of the property should be included.

– Consult with title company or attorney on proper form for recording.

• Even an unrecorded SNDA is binding on the parties to the agreement.

• Recording discloses the subordination and any amendments to the lease to

public generally.


To Record or not to Record? That is the question

• Recording also ensures the parties will not forget about the SNDA.

• If the lease is recorded, the SNDA should be recorded.

• If the lease is not recorded, the parties may refrain from recording the SNDA.

– To avoid unnecessary costs.

– To maintain Tenant confidentiality.

• Remember to clean up record to remove SNDAs when loan repaid.


• Bridges a gap between Lender and Tenant.

– Landlord and Tenant have a contractual relationship.

– Landlord and Lender have a contractual relationship.

– Absent the SNDA, Lender and Tenant do not.

• SNDA can, and usually does, modify the Lease.

– Both currently (default notices).

– And prospectively (absolving Successor Landlord).

Relationship to Loan Documents and Lease


• SNDA provides that Loan Document provisions

will have priority over Lease provisions.

– Use of insurance proceeds is key provision.

– Tenant wants proceeds to rebuild.

– Lender wants proceeds to repay the loan.

– In practice, Lender will usually allow restoration.

• Be aware of conflicting subordination terms in

Lease.

– May provide for different outcomes than the SNDA.

Relationship to Loan Documents and Lease


• Battle of the forms.

– Usually Lender wins by default.

– Lenders generally maintain standard form SNDAs.

– Some larger Tenants may also have standard SNDA

forms.

▪ Most Tenants do not.

▪ Those without forms may have standard language for

Insertion into the Lender form.

▪ More frequently, Tenants have previously negotiated

SNDAs. These can serve as precedent.

Standard Forms


• New York State Bar Association Model

Nondisturbance Agreement and Report.

– Aims to provided a balanced approach

– Serves as the basis for some Lender forms.

– Included in your materials.

– Source of provisions quoted above.

Standard Forms



Negotiating an SNDA• Practical Tips

• Accomplishing Lender Goals

• Accomplishing Tenant Goals

• Reasonable Compromise Positions

• Start early.

– Tenants should not leave SNDA negotiations to the

end of a lease negotiation.

– Lenders should highlight SNDA requirements early on

in the loan documentation process.

• Look before you leap.

– Do you need an SNDA?

– Consider your leverage.

– Consider the importance of the premises/lease.

Practical Tips


• Consider Conflicts.

– If you are an attorney, consider whether you might

have a conflict in representing your client in an SNDA

negotiation.

▪ If so, obtain a waiver.

▪ Or have SNDA handled by an in-house attorney.

• Look for precedents. Tenant and Lender may

have previously negotiated an SNDA for a different

location.

• Don’t forget Landlord consent.

• Consider Guarantor acknowledgement.

• Consider any required local law provisions.

Practical Tips


Accomplishing Lender Goals

• Having a commercially reasonable SNDA in place is the goal.

– Gives Lender the predictability, protections and contractual superiority it wants.

– Keeps cash flow engine in place.

• Require SNDAs as a condition to making of the loan.

– Can cause delay and expense.

– Limit to major Tenants.

– Permit post-closing delivery.


Accomplishing Lender Goals

• Require SNDAs as a condition to lease approval.

• Don’t overreach.

• Use loan covenants to supplement SNDA.

– Require approval of lease modifications.

– Impose leasing standards in loan documents to help shape Tenant leases.


Accomplishing Tenant Goals

• Know your priority. Know your leverage.

– If you are subordinating to an otherwise junior mortgage lien, you have more leverage.

– If you are an anchor Tenant or otherwise important to Landlord and the project (and by

extension to Lender), you have more leverage.

• If you have sufficient leverage, require delivery of SNDA from current

Lender as a condition to the effectiveness of the Lease or the

commencement of the term.



• Know your Landlord.

– What is their financial strength?

– Is loan default a likely occurrence?

• Make sure that lease provisions indicate that SNDAs are to be

“commercially reasonable” or “reasonably acceptable to Tenant”. Avoid

agreeing to provide SNDA on Lender form.



• Closely examine provisions in lease regarding subordination.

– Condition subordination on non-disturbance.

– Do not agree to subordinate to any and all future liens, but only to first priority

mortgages.

– Replace self-operative subordination provisions, particularly detailed Lender

protections, with reference to the SNDA.



• Avoid lengthy cure periods for Lender.

– Particularly those that incorporate time to foreclose.

– Lender cure periods should be capped.

– Consider preserving self-help rights, notwithstanding extended cure.

• Consider including recognition of important rights (extension, expansion).

• If SNDA not delivered at lease signing, consider rental abatement and

termination as penalties for failure to deliver.


Reasonable Compromise Positions

• Subordination.

– Lender position: Lease subordinate to mortgage. Not usually controversial.

– Tenant compromise: Clarify that the lien of the mortgage does not extend to Tenant’s

personal property, equipment, merchandise or trade fixtures.



• Non-Disturbance/Recognition.

– Tenant position: Notwithstanding subordination, Lender will not disturb Tenant’s

possession, join Tenant in any exercise of remedies to realize on mortgage lien, and

Lender will recognize Tenant’s lease agreement.

– Lender compromises:

▪ Lender not prohibited from disturbing Tenant possession if lease is subject to termination due

to Tenant default.

▪ Lender not prohibited from joining Tenant in enforcement actions if required by law prior to

enforcement against Landlord or otherwise required to preserve Lender remedies under

applicable law; so long as Lender does not terminate lease or disturb possession.

▪ Lender not subject to certain liabilities of former Landlord.



• Attornment.

– Lender position: Tenant shall attorn to Successor Landlord as Tenant’s direct Landlord

under the lease and the lease shall continue as a direct lease between Tenant and

successor Landlord. Usually not controversial.

– Reasonable Lender condition: Lender not responsible for certain obligations of former

Landlord.



• Lender Protections and Lease Amendments.

Where the rubber hits the road.

– Claims against former Landlord.

▪ Lender position: Successor Landlord has no liability for claims arising due to acts of former

Landlord or arising prior to attornment.

▪ Tenant compromises:

- Landlord must cure any ongoing Landlord defaults that still exist as of the date of

attornment.

- Tenant can enforce abatement, self-help and offset rights that are expressly set forth in the

lease and are triggered by the occurrence of specific conditions.



– Prepayments of Rent.

▪ Lender position: No credit given for Rent paid more than 30 days in advance.

▪ Tenant compromise: Unless prepayment dictated by express terms of lease, in which case

Tenant to receive credit for that payment.

– Security Deposit.

▪ Lender position: Lender not responsible for any security deposit.

▪ Tenant compromise: Unless Lender actually receives the deposit from former Landlord.



– Modification, Amendment, Waiver.

▪ Lender position: No modification, amendment or waiver without Lender consent.


- Lender not bound by any modification, amendment or waiver not approved by Lender.

- Exclude “immaterial” amendments, so that Lender will be bound by these. The concept

can also be defined: Lender not bound by amendments affecting fundamental provisions:

Rent, term, expansion, assignment, etc.



– Construction Related Obligations.

▪ Lender position: Lender not responsible for any obligation to complete construction that

Landlord failed to complete.


- Lender to be responsible for restoration after casualty/condemnation in accordance with

Lease.

- If Lender does not complete construction, Tenant can terminate or complete work and

offset expense against future payments of rent.

▪ Lenders not usually responsible for tenant improvement work, but Tenant is paying rent on

the assumption that TI work has been done. Importance of this point will depend on the

specific circumstances.

▪ Often a specifically negotiated provision.



– Other Lease Amendments.

▪ Lender position: Lender not bound by certain provisions of the lease, e.g., options to expand

or purchase.

▪ Tenant position: Tenant should be entitled to all of the basic economic terms of the lease,

including options.

▪ Can be subject to negotiation, but if the terms are expressly provided in the lease, Tenant will

usually succeed in having them recognized. If there is concern, recognition of specific

provisions can be expressly set forth in the SNDA as a supplement to the provision that

generally recognizes the lease.



• Opportunity to Cure Landlord Defaults.

– Lender position: Tenant gives Lender notice of Landlord defaults and an opportunity to

cure that includes time to recover property in foreclosure.

– Tenant compromises:

▪ Landlord’s cure period is capped at 60-90 days.

▪ If Landlord’s cure period is longer, Tenant may seek rental abatement or self-help and offset

rights even during cure period.



• Nonrecourse.

– Lender position: Lender’s liability limited to its interest in the property.

– Tenant compromise: Lender’s liability to include proceeds of the property, including

rent, insurance/condemnation proceeds and proceeds of sale.



• Other provisions.

– Lender request: Lender may ask for Tenant’s agreement to pay rent directly to

Lender following a Landlord default.

– Tenant request: Tenant may request that the SNDA expressly supersede and

replace any subordination provisions set forth in the lease.

• See marked copy of New York State Bar Form included in materials.

Includes suggested revisions for Lenders and Tenants.



Summary and

Resources

Summary

• SNDAs are an important but often overlooked component of most mortgage

financing and leasing transactions.

• SNDAs provide a negotiated road map.

• Form an “SNDA game-plan” early in your transaction.

• Consider whether an SNDA is necessary.

• Know your priority and understand your leverage.


Resources

• Included in your materials:

– Report of Subcommittee on Nondisturbance Agreements, with Model Agreement, New

York State Bar Association, Real Property Law Section.

– NYSBA Model SNDA; For Use in Transactions; Streamlined. By Joshua Stein.

– Needless Disturbances? Do Nondisturbance Agreements Justify all the Time and

Trouble? By Joshua Stein.

– Revised Model SNDA. By James O’Brien


Resources

• Other resources:

– SNDAs: Can’t Live With ‘Em, Can Live Without ‘Em? By Thomas B. Mitchell, Jennifer

W. Haddad, and A. Rachel Rothman, appearing in ABA Probate & Property Magazine.

– The Ritual Dance Between Lessee and Lender – Subordination, Nondisturbance and

Attornment. By Morton P. Fisher, Jr. and Richard H. Goldman, appearing in ABA Real

Property Probate and Trust Journal.

– A Tenant’s Perspective on SNDAs: Non-Disturbance is Not Enough. By James C.

O’Brien, appearing in Commercial Leasing Law & Strategy.

– Friedman on Leases (Sixth Edition). By Andrew R. Berman. Milton R. Friedman,

originating author. Chapter 8, Fee Mortgages.


thank you

contact information

For more information please contact

Ronald Gart

email: [email protected]

phone: 202-828-5320

James O’Brien

email: [email protected]

phone: 202-828-5360


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