Tenant Form LENDER AND TENANT ISSUES WITH ESTOPPELS

Tenant Form
LENDER AND TENANT ISSUES WITH ESTOPPELS
AND SUBORDINATION AGREEMENTS
Shopping Center Developer, Inc. ("Developer") develops regional shopping centers in the
San Diego area. After successful construction of a center Developer has obtained a take-out loan
from a New York conduit lender ("Lender"). We are acting as counsel for the Lender in this
transaction. One of the conditions to the funding of the loan is that Developer deliver to Lender
a tenant estoppel and a Subordination, Non-disturbance and Attornment agreement ("SNDA")
from the largest retail outlet in the shopping center ("Tenant"). Developer delivers the Lenders
form of both the estoppel and the SNDA to the Tenant who refuses to sign them and instead
delivers to Developer its own forms of estoppel and SNDA. Developer forwards the Tenant
forms to the Lender, but the Lender refuses to accept them. Developer's counsel tells us that he
knows nothing about estoppels and SNDA's and wants us to negotiate directly with the Tenant to
satisfactorily resolve the differences. Although it is the Developer's counsel's responsibility to
reconcile the two views, we agree to assist by negotiating with the Tenant's in-house legal staff.
The forms of Lender's and Tenant's estoppel and SNDA are attached as exhibits A and B,
respectively, to this hypothetical. Issues that you should focus on are as follows:
A.
Tenant Estoppel:
1.
Assume that the Tenant erroneously overstates the rent on the premises by
50%. What effect does that have on the Tenant form of estoppel and on the Lender form of
estoppel? Does paragraph no. 7 of the Tenant estoppel solve the Tenant's problem? Also the last
paragraph of the estoppel that says, in the event of a conflict between the Lease and the estoppel,
the Lease prevails. The Lender will not want either of those provisions in the estoppel; is there a
middle ground that both the Tenant and the Landlord can agree upon?
2.
Assume that Tenant has an option to purchase the property from the
Landlord but signs an estoppel with no mention of the option. The option was granted by an
amendment to the Lease. Assume that the Lender was given a copy of the amendment but did
not review it. Is the Lender bound by the option provision if it forecloses on the property?
(Assume that the lease predates the mortgage). Would the answers to your questions be different
if the Tenant signed its own estoppel instead of the Lender form?
3.
Would your answers to either of the above questions be different if the
estoppel did not state that the Tenant was certifying the facts? See California Evidence Code
Section 622 which states that the facts set forth in a written instrument are conclusively deemed
to be true as between the parties thereto and their successors and assigns.
B.
SNDA
1.
If Lender were to agree to the provisions of paragraph 5 of the Tenant
SNDA, what effect does that have on Lender's future obligations with regard to the Lease?
Specifically, would the Lender be liable for breaches of the lease that occur after the Lender has
sold the property? Compare this provision to paragraph 8 of the Lender's form of SNDA.
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2.
Paragraph 5 of the Tenant SNDA states that the Lease shall prevail in the
event of any conflict between the Lease and the Mortgage. What is the effect of that provision?
Should the Lender agree to this in case of condemnation or material damage from casualty to the
property?
3.
What is effect of section 6 of the Tenant SNDA which the Lender agrees
that all of the improvements on the property shall remain in Tenant? Can and should a Lender
agree to this?
4.
If Tenant and Lender cannot agree on the form of the SNDA would it be
better for the Lender to dispense with the SNDA and just place its lien on the property subject to
the Lease? Note that in many states Leases are covenants running with the land and the
successor to a lease who has not signed the original lease or assumed the obligations of the Lease
is not personally liable for the obligations thereunder unless and until the successor takes
possession of the property and will remain liable only until the possession of the property is
terminated by a future sale of the property. In such a case how would the Lender receive notices
of defaults by Landlord under the Lease?
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SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
AGREEMENT executed on the date(s) indicated on each acknowledgment, but to be effective as
of _______________, 20___, among ____________________________, a _________________
corporation (hereinafter referred to as "Lender"), ______________________________________
(hereinafter referred to as "Tenant"), and ____________________________________________
(hereinafter referred to as "Landlord").
STATEMENT
OF
BACKGROUND
Landlord and Tenant have entered into that certain lease (hereinafter referred to as the
"Lease") dated ___________________________, amended ____________________________,
relating to the premises described therein (hereinafter referred to as the "Premises") and being
part of the Property (as hereinafter described). Lender has made or has committed to make a
loan to Landlord in the approximate principal amount of $____________ secured by a mortgage
or deed of trust (hereinafter referred to as the "Mortgage") and an assignment of leases and rents
from Landlord to Lender covering certain property described in Exhibit "A" attached hereto and
by this reference made a part hereof (the "Property") including the Premises. Tenant has agreed
that the Lease shall be subject and subordinate to the Mortgage held by Lender, provided Tenant
is assured of continued occupancy of the Premises under the terms of the Lease;
STATEMENT
OF
AGREEMENT
For and in consideration of the mutual covenants herein contained, the sum of Ten
Dollars ($10.00) and other good and valuable considerations, the receipt and sufficiency of
which are hereby acknowledged, and notwithstanding anything in the Lease to the contrary, it is
hereby agreed as follows:
1. Lender, Tenant and Landlord do hereby covenant and agree that the Lease with all rights,
options (including options to acquire or lease all or any part of the Premises), liens and
charges created thereby, is and shall continue to be subject and subordinate in all respects
to the Mortgage and to any renewals, modifications, consolidations, replacements and
extensions thereof and to all advancements made thereunder.
2. Lender does hereby agree with Tenant that, in the event Lender becomes the owner of the
Premises by foreclosure, conveyance in lieu of foreclosure or otherwise, so long as
Tenant complies with and performs its obligations under the Lease, (a) the Lease shall
continue in full force and effect as a direct Lease between the succeeding owner of the
Property and Tenant, upon and subject to all of the terms, covenants and conditions of the
Lease, for the balance of the term of the Lease, and Lender will not disturb the possession
of Tenant, and (b) the Premises shall be subject to the Lease and Lender shall recognize
Tenant as the tenant of the Premises for the remainder of the term of the Lease in
accordance with the provisions thereof; provided, however, that Lender shall not be
subject to any claims, offsets or defenses which Tenant might have against any prior
landlord (including Landlord) nor shall Lender be liable for any act or omission of any
prior landlord (including Landlord), nor shall Lender be bound by any rent or additional
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rent which Tenant might have paid for more than the current month or any security
deposit or other prepaid charge paid to any prior landlord (including Landlord) nor shall
it be bound by any amendment or modification of the Lease made without its written
consent. Nothing contained herein shall prevent Lender from naming Tenant in any
foreclosure or other action or proceeding initiated by Lender pursuant to the Mortgage to
the extent necessary under applicable law in order for Lender to avail itself of and
complete the foreclosure or other remedy.
3. Tenant does hereby agree with Lender that the Lease is and shall be subordinate to the
lien of the Mortgage and that, in the event Lender becomes the owner of the Premises by
foreclosure, conveyance in lieu of foreclosure or otherwise, then Tenant shall attorn to
and recognize Lender as the landlord under the Lease for the remainder of the term
thereof, and Tenant shall perform and observe its obligations thereunder, subject only to
the terms and conditions of the Lease. Tenant further covenants and agrees to execute
and deliver upon request of Lender an appropriate agreement of attornment to Lender and
any subsequent titleholder of the Premises.
4. Tenant acknowledges that Landlord will execute and deliver to Lender an assignment of
the Lease as security for said loan, and Tenant hereby expressly consents to such
assignment. Tenant agrees to notify Lender of any default(s) by Landlord under the
Lease; Lender shall have the same right to cure such default(s) as is provided to Landlord
under the Lease.
5. Lender shall have no obligation or incur any liability with respect to the construction or
completion of the improvements in which the Premises are located or for completion of
the Premises or any improvements for Tenant's use and occupancy. Lender shall have no
obligations nor incur any liability with respect to any warranties of any nature
whatsoever, including, without limitation, any warranties respecting use, compliance with
zoning, hazardous wastes or environmental laws, Landlord's title, Landlord's authority,
habitability, fitness for purpose or possession. In the event that Lender shall acquire title
to the Premises [or the Property], Lender shall have no obligation, nor incur any liability,
beyond Lender's then equity interest, if any, in the Premises, and Tenant shall look
exclusively to such equity interest of Lender, if any, in the Premises for the payment and
discharge of any obligations or liability imposed upon Lender hereunder, under the Lease
or under any new lease of the Premises.
6. If any portion or portions of this Agreement shall be held invalid or inoperative, then all
of the remaining portions shall remain in full force and effect, and, so far as is reasonable
and possible, effect shall be given to the intent manifested by the portion or portions held
to be invalid or inoperative.
7. This Agreement shall be governed by and construed in accordance with the laws of the
State in which the Property is located.
8. Lender shall not, either by virtue of the Mortgage, the Assignment of Leases or this
Agreement, be or become a mortgagee in possession or be or become subject to any
liability or obligation under the Lease or otherwise until Lender shall have acquired the
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interest of Landlord in the Premises, by foreclosure or otherwise, and then such liability
or obligation of Lender under the Lease shall extend only to those liability or obligations
accruing subsequent to the date that Lender has acquired the interest of Landlord in the
Premises as modified by the terms of this Agreement.
9. Any and all notices, elections, approvals, consents, demands, requests and responses
thereto ("Communications") permitted or required to be given under this Agreement shall
be in writing and shall be deemed to have been properly given and shall be effective upon
the earlier of receipt thereof or deposit thereof in the United States mail, postage prepaid,
certified with return receipt requested, to the other party at the address of such other party
set forth hereinbelow or at such other address within the continental United States as such
other party may designate by notice specifically designated as a notice of change of
address and given in accordance herewith; provided, however, that the time period in
which a response to any Communication must be given shall commence on the date of
receipt thereof; and provided further that no notice of change of address shall be effective
with respect to Communications sent prior to the time of receipt thereof. Any notice, if
given to Lender, must be addressed as follows, subject to change as provided
hereinabove:
Lender:
_____________________________
_____________________________
_____________________________
_____________________________
and, if given to Tenant, must be addressed as follows, subject to change as provided hereinabove:
_____________________________
_____________________________
_____________________________
_____________________________
and, if given to Landlord, must be addressed as follows, subject to change as provided
hereinabove:
______________________________
______________________________
______________________________
______________________________
10. This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective heirs, legal representatives, successors, successors-in-title and assigns.
When used herein, the term "Landlord" refers to Landlord and to any successor to the
interest of Landlord under the Lease, and the term "Lender" refers to Lender and to any
successor-in-interest of Lender under the Mortgage.
11. This Agreement may be executed in any number of counterparts, each of which shall be
effective only upon delivery and thereafter shall be deemed an original, and all of which
shall be taken to be one and the same instrument, for the same effect as if all parties
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hereto had signed the same signature page. Any signature page of this Agreement may
be detached from any counterpart of this Agreement without impairing the legal effect of
any signatures thereon and may be attached to another counterpart of this Agreement
identical in form hereto but having attached to it one or more additional signature pages.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal to
be effective as of the date set forth in the first paragraph hereof.
LENDER:
____________________________________,
a _______________ corporation
By:
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______________________________
Name: ___________________
Title: ___________________
TENANT:
____________________________________,
a _______________ corporation
By:
______________________________
Name: ___________________
Title: ___________________
(CORPORATE SEAL)
STATE OF __________
COUNTY OF __________
§
§
§
BEFORE ME, a Notary Public in and for said County and State, personally appeared
______________________________________________, ___________________________, of
______________________________________________, a(n) __________________________,
TENANT in the foregoing, and (s)he acknowledged that (s)he did sign said instrument for and
on behalf of said _____________________________, as the voluntary act and deed of said
____________________________, for all the uses and purposes therein mentioned.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
notarial seal on this _____ day of ___________________, 20___.
_______________________________________
Notary Public
Commission Expiration Date: ______________
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LANDLORD:
____________________________________,
a _______________ corporation
By:
STATE OF __________
COUNTY OF __________
______________________________
Name: ___________________
Title: ___________________
§
§
§
BEFORE ME, a Notary Public in and for said County and State, personally appeared
______________________________________________, ___________________________, of
______________________________________________, a(n) __________________________,
TENANT in the foregoing, and (s)he acknowledged that (s)he did sign said instrument for and
on behalf of said _____________________________, as the voluntary act and deed of said
____________________________, for all the uses and purposes therein mentioned.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
notarial seal on this _____ day of ___________________, 20___.
_______________________________________
Notary Public
Commission Expiration Date: ______________
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_____________________________, as guarantor of the obligations of Tenant under the
Lease, has executed this Agreement under seal for the purpose of acknowledging and consenting
to the same and confirming to Lender the ongoing existence and enforceability of Guarantor's
guaranty obligation.
GUARANTOR:
_____________________________________
Name: _________________________
The undersigned, or holder of that certain Mortgage instrument entitled ______________
________________________________________, dated ______________, hereby enters into
this Agreement for the purpose of subordinating its interest in the Property and all improvements
and fixtures thereon, to the interests of Lender. The foregoing shall be binding upon the
undersigned to the same extent as the Tenant.
LEASEHOLD MORTGAGE LENDER:
_____________________________________
Name: _________________________
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
ALLEN MATKINS LECK GAMBLE
& MALLORY LLP
333 Bush Street, Seventeenth Floor
San Francisco, California 94104-2806
Attention:
(Space Above For Recorder's Use)
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
AGREEMENT ("Agreement") is made as of the ________ day of _______________, 2004,
between ___________________________, a California limited liability company ("Landlord"),
____________________, a Delaware corporation ("Tenant"), and _____________________, a
Delaware corporation ("Lender").
RECITALS:
A.
Tenant is the holder of a leasehold interest in that certain real property together
with all easements, rights and appurtenances thereto located in the City of ______________,
County of ______________, State of California ("Leased Premises") pursuant to that certain
Shopping Center Ground Lease dated as of _________________________, between
________________________________, as landlord, and Tenant. The Shopping Center Ground
Lease as it may have been amended from time to time shall hereafter be referred to as the
"Lease"; and
B.
The Leased Premises are part of a larger tract of land located in the City of
___________________, County of ____________, State of California, legally described in
Schedule I attached hereto and incorporated herein by this reference ("Shopping Center"); and
C.
Lender has made or has agreed to make a loan to Landlord in the maximum
principal amount of $__________________________, which loan shall be secured by that
certain Deed of Trust encumbering all or a part of the Shopping Center, dated as of _________,
2004, and recorded on ________________, 2004, as Instrument No. _________________,
Public Records of Riverside County, California ("Mortgage"); and
D.
The parties desire to subordinate the Lease to the Mortgage and to establish
certain rights-of quiet and peaceful possession to the Leased Premises for Tenant's benefit
together with certain obligations of attornment, all in the manner hereafter provided.
The foregoing recitals are incorporated into and made an integral part of this Agreement.
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AGREEMENT:
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it is mutually
agreed between the parties as follows:
A.
Subject to the terms and conditions set forth in this Agreement, the Tenant agrees
that the Lease is and shall at all times be subordinate to the Mortgage.
12. Lender agrees that, if no default exists under the Lease which at such time would then
permit Landlord to terminate the Lease or to exercise any dispossessory remedy provided
for therein, (a) Tenant will not be made a party in any action or proceeding to foreclose
the Mortgage or to remove or evict Landlord from the Leased Premises or from any part
of the Shopping Center; (b) Tenant will not be evicted or removed from the Leased
Premises or from any part of the Shopping Center nor will its possession or right to
possession of the Leased Premises or of any part of the Shopping Center under the Lease
for the term thereof (including any and all extensions or renewals thereof effected in
accordance with any option therefor in the Lease) be terminated or disturbed or in any
way interfered with by any action taken by Lender to enforce any rights or remedies
under the Mortgage; and (c) Lender, upon succeeding to Landlord's interest in the Leased
Premises, will recognize the Lease and Tenant as its direct tenant under the Lease for the
full term thereof (including any and all extensions or renewals thereof effected in
accordance with any option therefor in the Lease), and will be bound by and perform all
of the obligations of Landlord set forth in the Lease as if said person were originally
named therein as the landlord thereunder.
13. In the event that the Lender or any other person acquires title to the Leased Premises
pursuant to the exercise of any remedy provided for in the Mortgage or under the law of
the state where the Leased Premises is located, the Lease shall not be terminated or
affected by said foreclosure or sale resulting from any such proceeding and the Lender
hereby covenants that any sale by it of the Leased Premises pursuant to the exercise of
any rights and remedies under the Mortgage or otherwise shall include the assumption by
the purchaser or grantee of the Lease and the obligations of the Landlord thereunder.
14. Tenant agrees that, if the interest of Landlord in the Leased Premises shall be transferred
to and owned by Lender by reason of foreclosure or other proceeding brought by it under
any present or future lien against Landlord's interest in the Leased Premises, or by any
other manner, Tenant shall be bound to the Lender under all of the terms, covenants,
conditions and agreements set forth in the Lease for the balance of the term thereof
remaining (including any and all extensions or renewals thereof effected in accordance
with any option therefor in the Lease) with the same force and effect as if Lender were
originally named therein as the landlord thereunder, and Tenant does hereby agree to
attorn to Lender as its landlord thereunder so as to establish direct privity of estate and
contract between Lender and Tenant, said attornment to be effective and self-operative
without the execution of any further instrument on the part of either of the parties hereto
immediately upon Lender succeeding to the interest of Landlord in the Leased Premises.
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The parties acknowledge and agree that the Mortgage provides that, under certain
circumstances, Lender shall be entitled to collect, receive and demand payment of all or
any part of the rent and other sums due and payable to Landlord under the Lease to
Lender. The parties agree that: (a) Tenant shall be under no obligation to pay rent or any
other sums due and payable to Landlord under the Lease to Lender until such time as
Tenant receives written notice from Lender demanding payment of said amounts to
Lender; (b) Tenant shall be entitled to rely on any such written notice from Lender and
shall not incur any liability to Landlord as a result of such reliance notwithstanding the
existence of any dispute between Landlord and Lender with respect to the existence of
any default or the satisfaction of any condition under the Mortgage or any other
document executed in connection with the transaction which is the subject of the
Mortgage which would entitle Lender to collect, receive or demand payment of said
amounts from tenant; (c) all amounts paid by Tenant to Lender shall be credited toward
Tenant's corresponding obligations under the Lease; and (d) all of Lender's rights
described in this sentence shall be subject to all of Tenant's rights and remedies set forth
in the Lease including, without limitation, the right of offset against rent.
15. Lender hereby ratifies, confirms, approves, and at such time, if any, as Lender succeeds
to the Landlord's interest in the Leased Premises, assumes and agrees to be bound by
each and every term, covenant, condition and agreement contained in the Lease as if each
thereof were set forth herein at length, and each of said terms, covenants, conditions and
agreements shall inure to the benefit of and be enforceable by Tenant, its successors and
assigns, including, without limitation, the mortgagee or beneficiary under any mortgage
or deed of trust on Tenant's interest in the Lease or the Leased Premises, its successors
and assigns. Lender covenants and agrees that in the event of a conflict, whether in the
express provisions or by reason of variation in inclusion of provisions, between the
Mortgage and the Lease, the provisions of the Lease shall govern for all purposes.
Lender hereby acknowledges and agrees that, with respect to any assignment of rents
contained in the Mortgage as it applies to the Lease between Landlord and Tenant, said
assignment shall apply only to the rent which Landlord is entitled to receive pursuant to
the Lease.
16. Lender agrees that fee title to all improvements constructed on the Leased Premises,
together with all additions, alterations and improvements thereto, even though a part of
the realty, shall be and remain in Tenant, and shall not be subject to the lien of the
Mortgage during the term of the Lease and that all condemnation awards and insurance
proceeds payable with respect to the Leased Premises shall be paid to Tenant. Lender
further agrees that all condemnation awards and insurance proceeds payable to Landlord
or Lender with respect to the Leased Premises or the Shopping Center shall be paid and
applied to restoration of the Leased Premises and the Shopping Center in accordance with
the provisions for condemnation and casualty under the Lease. In no event shall the lien
of the Mortgage affect or constitute a lien or charge on any fixtures, equipment or
personal property owned by Tenant, and Tenant may remove any of its fixtures,
equipment or personal property from the Leased Premises in accordance with the
provisions of the Lease.
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17. For the purpose of this Agreement: (a) the term "Lease" shall be deemed to include the
Lease as described above in Recital A along with all amendments, modifications and
supplements thereto; provided, however, that no such amendment, modification or
supplement shall be binding on Lender without Lender's written consent, which consent
shall not be unreasonably withheld or delayed; (b) the term "foreclosure" shall be deemed
to include the acquisition of Landlord's interest in the Leased Premises by foreclosure or
pursuant to the exercise of any power of sale contained in the Mortgage, or by deed (or
assignment) given in lieu of, or in anticipation of, foreclosure or the exercise of any such
power of sale, or by any other means whatsoever; and (c) the term "Lender" shall be
deemed to include anyone who succeeds to Landlord's interest in the Leased Premises
pursuant to the Mortgage including, without limitation, any purchaser at foreclosure or
pursuant to the exercise of any power of sale contained in the Mortgage, or any grantee of
a deed (or assignment) given in lieu of, or in anticipation of, foreclosure or the exercise of
any such power of sale.
18. If any term, covenant, condition or agreement contained in this Agreement or the
application thereof to any person, firm or entity shall at any time or to any extent be
deemed or found to be invalid or unenforceable by operation of law, judicial proceedings
or otherwise, the remainder of this Agreement or the application of such term, covenant,
condition or provision to persons or entities or to circumstances other than those as to
which it is held invalid or unenforceable shall not be affected thereby, and each
remaining term, covenant, condition or provision of this Agreement or the application
thereof shall be valid and enforced to the fullest extent permitted by law.
19. All notices given pursuant to this Agreement shall be in writing and shall be given by
personal delivery, by United States registered or certified mail, or by United States
express mail or other established express delivery service (such as Federal Express),
postage or delivery charge prepaid, return receipt requested, addressed to the appropriate
party at the address set forth below.
Landlord:
_______________________________
_______________________________
_______________________________
_______________________________
Tenant:
_______________________________
_______________________________
_______________________________
_______________________________
Lender:
_______________________________
_______________________________
_______________________________
_______________________________
The person and address to which notices are to be given may be changed at any time by any
party upon written notice to the other party. All notices given pursuant to this Agreement shall
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be deemed given upon receipt. For the purpose of this Agreement, the term "receipt" shall mean
any of the following: (a) the date of delivery of the notice or other document to the address
specified above as shown on the return receipt; (b) the date of actual receipt of the notice or other
document by the person or entity specified pursuant to this section; or (c) in the case of refusal to
accept delivery or inability to deliver the notice or other document, the earlier of: (i) the date of
the attempted delivery or refusal to accept delivery; (ii) the date of the postmark on the return
receipt; or (iii) the date of receipt of notice of refusal or notice of nondelivery by the sending
party. Lender agrees that, upon satisfaction of the Mortgage, Lender shall notify Tenant of such
satisfaction at the address shown in this paragraph.
20. If any litigation is commenced between the parties hereto concerning this Agreement or
the rights or obligations of any party in relation thereto, the prevailing party in such
litigation shall be entitled, in addition to such other relief as may be granted, to a
reasonable sum for its attorney's fees in such litigation (including any appeal thereof),
which sum shall be determined by the court in such litigation or in a separate action
brought for that purpose.
21. This Agreement shall bind and inure to the benefit of the parties hereto, their heirs,
personal representatives, successors and assigns, including, without limitation, the
mortgagee or beneficiary under any mortgage or deed of trust on Tenant's interest in the
Lease or the Leased Premises, its successors and assigns.
22. This Agreement may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all of which together shall constitute but one
and the same instrument, and shall be effective upon execution of one or more of such
counterparts by each of the parties hereto.
23. This Agreement contains the entire agreement between the parties and supersedes all
prior agreements, oral or written, with respect to the subject matter hereof. This
Agreement may not be modified in any manner whatsoever except by an instrument in
writing signed by each of the parties hereto.
24. In construing the provisions of this Agreement and whenever the context so requires, the
use of a gender shall include all other genders, the use of the singular shall include the
plural, and the use of the plural shall include the singular.
25. Lender shall, at its expense, promptly record this Agreement in the Official Records of
Riverside County, California, and the original, recorded Agreement shall be promptly
provided by Lender to Tenant.
[signatures on following page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
TENANT:
__________________________,
a Delaware corporation
By:
_____________________________
Name
Title
)
) ss.
COUNTY OF _________________ )
STATE OF CALIFORNIA
On ______________________, before me, ______________________, a Notary Public
in and for said state, personally appeared ________________________________________,
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that he/she executed
the same in his/her authorized capacity, and that by his/her signature on the instrument, the
person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(SEAL)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
LENDER:
_______________________________
a Delaware corporation
By:
____________________________
Its ______________________
)
) ss.
COUNTY OF _________________ )
STATE OF CALIFORNIA
On ______________________, before me, ______________________, a Notary Public
in and for said state, personally appeared ________________________________________,
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that he/she executed
the same in his/her authorized capacity, and that by his/her signature on the instrument, the
person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(SEAL)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
LANDLORD:
_________________________________,
a California limited liability company
By:
_______________________________
Its:
_____________________
)
) ss.
COUNTY OF _________________ )
STATE OF CALIFORNIA
On ______________________, before me, ______________________, a Notary Public
in and for said state, personally appeared ________________________________________,
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that he/she executed
the same in his/her authorized capacity, and that by his/her signature on the instrument, the
person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(SEAL)
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TENANT ESTOPPEL
Lender
__________________________
__________________________
__________________________
Attention: _________________
Re:
Lease (the "Lease") between ___________________________________, as
Landlord or its assignees ("Landlord"), and ______________________
____________________________________, as Tenant ("Tenant"), dated
_______________, 20___ for approximately ___________ square feet of space in
[name, city, state of project] __________________________
______________________________________ (the "Project") as amended by the
following amendments [list; if none, say "None"]: ____________
____________________________________________________________
Ladies and Gentlemen:
Tenant understands that
[Lender]
(together with any successors of
or assignees from ____________________ or subsequent holders of the Loan, the "Lender")
intends to make a loan (the "Loan") to Landlord or Landlord's successor or designee approved by
Lender ("Borrower") to be secured by the Project. Tenant presently leases premises within the
Project pursuant to the Lease, and, in connection with the foregoing, Tenant does hereby certify
to Borrower and Lender as follows:
i. The Lease is in full force and effect; there are no amendments or
modifications of any kind to the Lease except as referenced above (if any);
there are no other promises, agreements, understandings, or commitments
between Landlord and Tenant relating to the premises leased under the
Lease; and Tenant has not given Landlord any notice of termination
thereunder;
ii. There has not been and is now no subletting of the leased premises, or any
part thereof, or assignment by Tenant of the Lease, or any rights therein, to
any party;
iii. A security deposit in the amount of $_______________ has been given by
Tenant under the terms of, or with respect to, the Lease;
iv. No uncured default, event of default, or breach by Landlord exists under
the Lease, no facts or circumstances exist that, with the passage of time,
will or could constitute a default, event of default, or breach under the
Lease. Tenant has made no claim against Landlord alleging Landlord's
default under the Lease;
v. Tenant is in full and complete possession of its leased premises in the
Project and has accepted its leased premises in the Project, including any
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work of Landlord performed thereon pursuant to the terms and provisions
of the Lease, and all common areas of the Project (including, without
limitation, parking areas, sidewalks, access ways and landscaping) are in
compliance with the Lease and are satisfactory for Tenant's purposes;
vi. To the best of Tenant's knowledge and belief, there are no rental, lease, or
similar commissions payable with respect to the Lease, except as may be
expressly set forth therein;
vii. Tenant is obligated to pay rent to Landlord at the rate set forth in the
Lease. Tenant is current with respect to, and is paying the full rent and
other charges stipulated in the Lease (including, without limitation,
common area maintenance charges) with no offsets, deductions, defenses
or claims; and Tenant has not prepaid any rent or other amounts to
Landlord other than rent and other charges due and payable in the calendar
month of this certification;
viii. Tenant is not entitled to any concession or rebate of rent or other charges
from time to time due and payable under the Lease, and there are no
unpaid or unreimbursed construction allowances or other offsets due
Tenant under the Lease;
ix. The current monthly estimated "common area maintenance" charge paid
by Tenant under the Lease is $_________________;
x. The current monthly estimated charge for taxes paid by Tenant under the
Lease is $________________;
xi. The current monthly estimated charge for insurance paid by Tenant under
the Lease is $______________;
xii. The monthly base rent under the Lease is $_____________ and has been
paid by Tenant through _____________________, 20__;
xiii. Tenant is open for business and in operation in the Project;
xiv. Tenant agrees to provide copies of all notices given Landlord under the
Lease to Lender at the following address:
Lender:
____________________________
____________________________
____________________________
____________________________
xv. The undersigned representative of Tenant is duly authorized and fully
qualified to execute this instrument on behalf of Tenant thereby binding
Tenant;
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xvi. Tenant agrees and acknowledges that the Lease is and shall be subordinate
to the mortgage of Lender. Tenant agrees that, in the event Lender
becomes the owner of the Project by foreclosure, conveyance in lieu of
foreclosure or otherwise, then Tenant shall attorn to and recognize Lender
as the landlord under the Lease for the remainder of the term thereof, and
Tenant shall perform and observe its obligations thereunder, subject only
to the terms and conditions of the Lease. Tenant further covenants and
agrees to execute and deliver upon request of Lender an appropriate
agreement of attornment to Lender and any subsequent titleholder of the
Project. So long as Tenant is not in default under its Lease, the Tenant's
interests under the Lease shall not be disturbed by the Lender or any
purchaser at a foreclosure sale.
xvii. Tenant acknowledges that the initial term of the Lease commenced on
_________________, 20__, and shall expire on __________________,
20__, unless sooner terminated in accordance with the terms of the Lease.
Tenant has no option to renew or extend the lease term, except as follows
(if none, so state):
____________________________________
____________________________________________________________
__________________
____________________________________________________________
_________________.
xviii. Tenant has no option or right to purchase the property of which the
demised premises are a part, or any part thereof.
xix. Tenant understands and acknowledges that you are about to make the
Loan to Borrower and receive as part of the security for such loan (i) a
Mortgage/Deed of Trust encumbering Borrower's fee interest in the
Project (of which the demised premises are a portion) and the rents, issues
and profits of the Lease (the "Mortgage"), and (ii) an Assignment of
Leases and Rents ("Assignment of Leases") which affects the Lease, and
that you (and persons or entities to whom the Mortgage and/or
Assignment of Leases may subsequently be assigned) are relying upon the
representations and warranties contained herein in making such loan.
Further, Tenant has notice that the Lease and the rent and all other sums
due thereunder have been assigned or are to be assigned to you as security
for the aforesaid loan secured by the Mortgage. In the event that you (or
any person or entity to whom the Mortgage and/or the Assignment of
Leases may subsequently be assigned) notify Tenant of a default under the
Mortgage and/or the Assignment of Leases and demand that Tenant pay
its rent and all other sums due under the Lease to you (or such future
lender), Tenant shall honor such demand and pay its rent and all other
sums due under the Lease directly to you (or such future lender) or as
otherwise required pursuant to such notice. Tenant agrees to notify
Lender of any default(s) by Landlord under the Lease; Lender shall have
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the same right to cure such default(s) as is provided to landlord under the
Lease.
Tenant acknowledges and agrees that Landlord and Lender shall be entitled to rely on
Tenant's certifications set forth herein. Tenant hereby further agrees for a period of thirty (30)
days from the date hereof to notify Landlord and Lender in writing at the address set forth above
of any changes in the truth and accuracy of any of the certifications contained herein promptly
upon Tenant's learning of each such change.
IN WITNESS WHEREOF, Tenant has executed this instrument this _____ day of
_______________, 20___.
TENANT:
____________________________
By:
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____________________________
Name: ___________________
Title: ___________________
TENANT ESTOPPEL CERTIFICATE
The undersigned certifies as follows:
1. The undersigned is the tenant under the following described lease (the "Lease"): The
Lease dated ____________________ between __________________________
("Lessor"), and _________________________________________ ("Lessee"), for the
premises located at
_________________________________________________________________,
California.
2. the Lease is presently in full force and effect, and to the best of undersigned's
knowledge has not been modified or amended in writing or orally except as follows:
_____________________________________________________________________
____.
3. The undersigned has accepted and is presently occupying the premises described in
the Lease (the "Leased Premises"). The rentable square footage of the Leased
Premises is _______.
4. No rent under the Lease has been paid more than 30 days in advance of its due date.
For the current lease year, Lessee is to pay monthly basic rent in the amount of
$___________, a monthly operating expense charge in the amount of
$______________ and a monthly management fee in the amount of
$_______________.
5. To the best of the undersigned's knowledge, as of the date of this Estoppel Certificate,
the Lessor and Lessee are not in default under the Lease and no event has occurred
which with notice or the passage of time or both would constitute a default under the
Lease.
6. The Lease expires on ________________ and provides for ______ extension options
of ___________ years each.
7. Under the Lease and/or pursuant to law, Lessee has the right to cause an audit and/or
an accounting to be performed of Lessor's operations and/or books and records
pertaining to operating expenses and taxes. Such an audit and/or accounting could
result in a claim or an offset for rents paid under the Lease. Lessee's execution of this
Estoppel Certificate notwithstanding, Lessee reserves its right to perform such an
audit and/or accounting and to assert any Claims or offsets resulting therefrom.
This Estoppel Certificate is for information purposes only and shall not in any way amend the
terms of the Lease. If there are any conflicts between the terms of the Estoppel Certificate and
the Lease, the terms of the Lease will prevail.
____________________________
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By:
Name:
Title:
Date:
______________________
________________
________________
________________
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