Negotiating, Structuring, and Drafting SNDA agreements in What Real Estate Lawyers Need to Know Tara A. Scanlon, Esq.

Transcription

1 Negotiating, Structuring, and Drafting SNDA agreements in What Real Estate Lawyers Need to Know, Esq. Material in this webinar is for reference purposes only. This webinar is sold with the understanding that neither any of the authors nor the publisher are engaged in rendering legal, accounting, investment, or any other professional service directly through. this webinar. Neither the publisher nor the authors assume any liability for any errors or omissions, or for how this webinar or its contents are used or interpreted, or for any consequences resulting directly or indirectly from the use of this webinar. For legal, financial, strategic or any other type of advice, please personally consult the appropriate professional

2 Slide 2 About the Webinar Speaker About, Esq. Partner in the DC office of Holland & Knight, LLP and Co-Chair of the firm s Retail Development and Leasing Group Over 19 years experience in representing landlords, tenants and lenders in connection with these types of agreements Experience in work outs, mortgagee in possession and receivership situations where the provisions of the SNDA become operative Experience with master servicers and special servicers in negotiating lease approvals and SNDA provisions, Esq.

3 Slide 3 Overview Volatility of the real estate marketplace The Lender Perspective - If a lender takes possession of an asset, the SNDA will govern the relationship between the lender as the new landlord and the tenant The ups and downs of the commercial real estate market, have made lenders much more focused on the prospect that the provisions of the SNDA may come into play. The Tenant Perspective - For the same reason, Tenant s are now increasingly concerned that when certain Landlord obligations come due such as payment of a tenant improvement allowance, the landlord may in fact be the lender. This increases the tenant s concerns regarding the provisions of the SNDA which would limit the tenant s ability to exercise the remedies. The Landlord Perspective - For landlord s having to obtain an SNDA may add several weeks to several months to the lease execution process. Different types of lenders have different procedures for approval. Landlord s may also find that they need to negotiate certain lease provisions differently to accommodate tenant s concerns about what they may or may not be able to negotiate in the SNDA., Esq.

4 Slide 4 Latest Developments and Trends Recent Trends and Developments affecting SNDA Agreements. Timing: With many conduit loans still in place, one of the key issues is finding a way through the master servicer, special servicer and some times other layers to determine i) which parties need to get notice, and ii) which will do the review, approval and negotiation. Even conventional lenders may be much slower to respond on any deals involving changes to the asset or additional investment in the asset. SNDA Terms: Lender s are very concerned about liability for a landlord s failure to perform. This has caused them to push more of the risk on to tenants. Lenders may be considering again whether they want to grant non-disturbance to all tenants or if there are some instances where they want to reserve the right to foreclose out a tenant

5 Slide 5 What to Know Item 1: Subordination Item 2: Non-Disturbance Item 3: Attornment Item 4: Exclusions for Lender from Landlord s obligations Item 5: Timing *When will the lender agree to review or negotiate the SNDA? *What are drawbacks to involving the lender in the process too early?

6 Slide 6 What to Know Item 1: Subordination Lender s typical requirement is that all leases be subordinate to the lien of their mortgage. What does this mean? * That if their lien were foreclosed the lease would be wiped out. Tenant would lose their rights to the premises and would be forced to leave or renegotiate to stay in the premises. How does the subordination section of the Lease affect this, and what do the typical subordination provisions of the Lease look like? * Automatic subordination clause * Subordination conditioned upon receipt of an SNDA * Landlord will use reasonable efforts to obtain an SNDA * Landlord is obligated to obtain an SNDA How is the subordination reflected in the SNDA and what is the legal impact of that language? What is the difference if there is a preexisting lender or no current lender?

7 Slide 7 What to Know Item 2: Non-Disturbance Once the tenant agrees to subordinate their lease to the lender s lien, even though they have priority in the land records, the lender s lien becomes the instrument with priority. However, in exchange for the subordination, the lender typically agrees it will NOT DISTURB or foreclose out the tenant unless they are in default under the lease. This is the effect of the Non-Disturbance Issues Under the Non-Disturbance language usually concern: * Conditions which permit the Lender to disturb or foreclose out the tenant * How you define the occurrence of such an event and whether a tenant s cure reinstates the agreement not to disturb the tenant.

8 Slide 8 What to Know Item 3: Attornment This concept tracks the non-disturbance. Attornment is a legal concept that means the tenant has agreed to become the tenant of the lender and treat them as the successor to the landlord under the Lease. Issues under this concept usually concern the lender s desire to be granted the rights of the landlord but not to be subject to certain categories of obligations of the landlord under the Lease. Category 1: Obligations which the Landlord incurred prior to the date Lender takes title Category 2: Major obligations that Lender does not want to incur which are specifically excluded such as obligations to construct a building or certain landlord s work, or to pay a tenant allowance.

9 Slide 9 What to Know Item 4: Lender Liability In addition to the Lender s desire to assume all the rights of the landlord but not all of the obligations, there are other areas where lender desires to carve out exceptions from the wording of the lease. Examples of these areas are below: Obligation to rebuild in a casualty Lender s desire to have the right to apply insurance proceeds to their debt. Whether the terms of the lease or the loan documents control in the event of a conflict. Whether the lender is obligated to honor amendments or modifications to the lease to which the lender has not consented.

10 Slide 10 What to Know Item 5: Timing Most lender s will not review or negotiate SNDA Agreements until a lease is ready to be signed. However, the SNDA review and approval process can stretch into months even when the tenant doesn t request any material changes. It is important to identify how the approval process works with the landlord s lender and make sure that the process isn t delayed due to technical details such as a request to the wrong party. Conditions to Delivery: Tenant s want to condition rent and in some cases the effectiveness of the lease on the receipt of an SNDA. However once the lease is signed leverage to get a lender to negotiate changes a tenant may want becomes much more limited. In addition, in the case of any major lease under the landlord s loan documents, lender approval and an SNDA may be required before the loan documents are signed

11 Slide 11 Case Studies Case Study # 1 Construction/Development of a Mixed Use Project: Case Study #2 Class A Office Building Case Study # 3 Retail Grocery Anchored Shopping Center

12 Slide 12 FAQs Number 1 - Who does the SNDA protect? Number 2 - What are the risks to a tenant who permits a lender to carve out pre-existing Liabilities from the SNDA? Number 3 - What are the risks to a lender who does not get an SNDA? Number 4 - Why are SNDA Agreements so contentious? Number 5 - Do SNDA Agreements need to be recorded? Number 6 - Why do SNDA Agreements need to be acknowledged and in some cases witnessed when Lease did not?