LA1631: SNDA FOR WACHOVIA BANK SUBORDINATING OFFICE LEASE WITH WORK LETTER, RENEWAL OPTIONS AND FIRST REFUSAL RIGHTS TO REAL ESTATE FINANCING $99.95
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
Lender: WACHOVIA BANK, NATIONAL ASSOCIATION
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this “Agreement”) is made and entered into as of ___________ , 20__, by and among COMMERCIAL TENANT, LLC, a __________ limited liability company ("Tenant”), whose address is ___________________________; COMMERCIAL LANDLORD, L.P., a __________ limited partnership ("Borrower"), whose address is ________________________; and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association ("Lender"), whose address is ___________________________________.
Lender has made or may hereafter make a loan or loans to Borrower, which loan or loans are (or will be) secured by a Deed of Trust (defined below) covering all of that certain property described in Exhibit A attached hereto and made a part hereof for all purposes, together with all improvements located thereon (the "Property").
As a condition to its making the loans now or hereafter evidenced or secured by the Deed of Trust (the “Loans”), Lender has required that Tenant acknowledge that Tenant’s leasehold interest in the Premises is subordinate to all liens and security interests securing payment of the Loans and to subordinate such leasehold interest to the liens and security interests securing payment of the Loans to the extent they are not already subordinate.
NOW, THEREFORE, in consideration of the mutual terms and provisions contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Lease Subordinate to Deed of Trust. Tenant covenants and agrees with Lender that the Lease and all of Tenant’s right, title and interest in and to the Premises and any lease hereafter executed by Tenant covering any part of the Property is and shall be subject, subordinate and inferior to (a) the Deed of Trust and all liens and security interests securing payment of the Loans and all other security instruments securing payment of any indebtedness of Borrower to Lender now or hereafter created which cover or affect any part of the Property, and all renewals, extensions, substitutions, replacements, consolidations and increases in amount of the indebtedness secured by the Deed of Trust or any related loan papers, and to (b) all right, title and interest of Lender in the Property created by the Deed of Trust or any other security instrument held by Lender in the same manner and to the same extent as if the Lease had been executed subsequent to the execution, delivery, and recordation of such Deed of Trust and related loan papers. Borrower and Tenant hereby expressly subordinate to the Deed of Trust any and all options to purchase the Property contained in the Lease or in any modification or amendment to the Lease, and further acknowledge that any such option or right of first refusal pursuant to the Lease to acquire all or any portion of the Property shall not be applicable to or effective after Lender’s acquisition of the Property by foreclosure or otherwise.
2. Non-Disturbance. Lender covenants and agrees with Tenant, for Lender and its successors and assigns, that so long as Tenant is not then in default under the Lease (or beyond any grace period), Lender shall not disturb Tenant’s right of possession to the Premises in the event that Lender or Lender’s successors or assigns acquire title to all or any part of the Premises pursuant to the exercise of any remedy provided for in the Security Instruments, nor shall Tenant be named as a party defendant to any action to foreclose the liens and security interests securing payment of the Loans.
(b) subject to any offset or counterclaim which Tenant might be entitled to assert against any previous landlord (including Landlord), other than offsets specifically provided for in the Lease, and only applicable to the period after Lender or such other owner acquires title to the Property;
(d) bound by any amendments or modifications of the Lease hereafter made without the consent of Lender or such owner other than with respect to the exercise of rights, options or elections presently contained in the Lease, including without limitation, options to extend the term of the lease and rights of first refusal;
(e) in any way responsible for any deposit or security which was not delivered to Lender or such owner; or
(f) liable with respect to any representations, warranties or indemnities from Borrower, whether pursuant to the Lease or otherwise, respecting use, compliance with zoning, landlord’s title, landlord’s authority, habitability or fitness for purpose or commercial suitability or hazardous wastes, hazardous substances, toxic materials or similar phraseology relating to the environmental condition of the Property or any part thereof.
In the event Lender shall acquire title to the Property, Tenant agrees to look solely to Lender’s interest in the Premises and rent and income derived therefrom for the recovery of any judgment against Lender, it being agreed that Lender shall have no obligation nor incur any liability beyond Lender’s then equity interest, if any, in the Premises, for payment and discharge of any obligations imposed upon Lender hereunder or under the Lease, and Lender is hereby released and relieved of any other obligations hereunder and under the Lease, and, in such event, Lender’s liability shall be limited as set forth herein.
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