NON-DISTURBANCE, SUBORDINATION, AND ATTORNMENT AGREEMENT
This Non-Disturbance, Subordination, and Attornment Agreement (the “Agreement”) dated [Date] between [Company Name], a [Type of Entity] duly organized and existing under the laws of [State of Organization] (“Lender”), [Company Name], a [Type of Entity] duly organized and existing under the laws of [State of Organization] (“Landlord”) and [Company Name], a [Type of Entity] duly organized and existing under the laws of [State of Organization] (“Tenant”),
WHEREAS, Tenant has entered into a lease dated [Date] (the “Lease”) covering specified premises (the “Premises”) at [Location of leased premises] (the “Project”) as described in the Lease; and
WHEREAS, Landlord, in order to obtain a loan from Lender to develop the Project, is required to enter into this Agreement and require Tenant to do likewise; and
WHEREAS, Lender is the holder of a note (the “Note”) secured by a Deed of Trust upon the real estate of which the Premises are a portion, the lien of said Deed of Trust being prior to the Tenant's leasehold estate; and
WHEREAS, Tenant desires to be assured of the continued use and occupancy of the Premises under the terms of said Lease; and
WHEREAS, Lender agrees to such continued use and occupancy by Tenant provided that by these presents Tenant agrees to recognize and attorn to Lender of purchaser in the event of foreclosure or otherwise.
NOW, THEREFORE, in consideration Ten and NO/100s Dollars and other good and valuable consideration, receipt of which is hereby acknowledged, it is hereby mutually covenanted and agreed as follows:
1. In the event it becomes necessary to foreclose the Deed of Trust (a “Foreclosure”) or Lender otherwise comes into possession of the Premises, Lender will not join Tenant under the Lease in summary or foreclosure proceedings and will not disturb the use and occupancy of Tenant under the Lease provided that (a) Tenant is not in default under any of the terms, conditions or provisions of the Lease and (b) the Lease is not terminated due to Tenant’s default and failure to cure within any applicable cure period.
2. Tenant agrees that in the event any proceedings are brought for the foreclosure of the Deed of Trust, it will attorn to the purchaser (the “Purchaser”) of such foreclosure sale and recognize Purchaser as Landlord under the Lease. Purchaser shall be deemed to have assumed and agreed to be bound as Landlord by the terms, provisions, and conditions of the Lease, provided that such assumption shall in no event be deemed an acknowledgment by Purchaser of the validity of any then-existing claims of Tenant against the original Landlord. Except as specifically noted, all rights and obligations set forth herein and thereunder shall continue as though such foreclosure proceedings had not been brought. Tenant shall execute and deliver to Purchaser such reasonable further assurances as Purchaser requests, including execution of a new lease upon the same terms and conditions as the Lease, in order to confirm the foregoing. Tenant waives the provisions of any statute or rule of law now or hereafter in effect which may give or purport to give it any right or election to terminate or otherwise adversely affect the Lease and the obligations of Tenant thereunder by reason of any such foreclosure proceeding.
3. The provisions of this Agreement are binding upon and shall inure to the benefit of the heirs, successors, and/or assigns of the parties hereto.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the date first written above.