We will be going over the concepts of a Subordination, Non-Disturbance, and Attornment Agreement (“SNDA”) with commercial real estate attorney Ron Rohde.
Note from Spencer: This is another post in a growing section we call ‘A.CRE Legal‘. One of Texas’ top real estate attorneys, Ronald Rohde, has graciously offered to share his time, expertise, and open his library of real estate legal templates for the A.CRE audience. Click here to learn more about Ron or to contact him directly.
SNDA Template Walkthrough
As a tenant of a commercial real estate property, your landlord may ask you to sign a Subordination, Non-Disturbance, and Attornment Agreement (“SNDA”). This agreement defines the relationship between the tenant and the lender of the landlord and includes three sections: subordination, non-disturbance, and attornment.
The timing of an SNDA is very important, as a tenant would have the most leverage before signing a lease. Before a lease is signed, a landlord has an incentive to get a deal done and may push their lender to execute an SNDA. Additionally, a lender that is motivated to close a loan, will be incentivized to openly negotiate with a tenant only prior to closing.
Once a form of SNDA or firm language in your commercial lease has been executed, the lender does not have much incentive to negotiate original terms. Therefore, it’s critical to address this document early in the lease negotiation process and not wait for an actual SNDA to be submitted by a lender.
When evaluating an SNDA, expect to review the below components:
It’s critical to have the landlord, the tenant, and the lender as parties to the Agreement. It’s insufficient to only have the landlord acknowledge this document, you want the landlord and lender to be a named party and actually have contractual obligations if they do not follow their obligations. If you are a tenant, the lender may become your landlord and this SNDA heavily modifies the lease agreement in favor of the lender.
Within this section of the agreement, a tenant usually agrees to subordinate its interest in the leased property to the lien of the mortgage of the landlord’s lender. A lender uses a borrower’s/landlord’s property as collateral for repayment of a loan. Therefore the lender wants to ensure that the security of the interest takes priority over what is granted in the lease. However, it’s critical to distinguish between subordination to the mortgage vs. the lien of the mortgage itself.
Especially important for tenants of commercial property, this section of the agreement states that in the event the landlord defaults on a loan and the lender forecloses on the property, a tenant can still operate in the leased property under the new landlord for the duration of the lease. Without a non-disturbance agreement, in the event of a foreclosure, a lender with a prior security deed can refuse to honor the lease.
If the agreement includes an attornment provision, this dictates that the tenant will attorn to the lender as the new landlord during a foreclosure of the leased property. Without this clause, a tenant may be able to walk away from a lease if there is a foreclosure. However, it is critical to understand what terms and conditions will apply to the new lease relationship. Not everything will remain identical.
Some of the most important clauses in an SNDA impact monetary obligations of the landlord. For example, many SNDA agreements limit or prohibit any monetary obligations from the landlord from transferring to the new landlord. This can present a tremendous financial burden on the tenant if the tenant had recently completed a significant Tenant Improvement (TI) project and was expecting reimbursement from the landlord. Language on what obligations, how much notice, security deposits, etc are transferable to the new landlord is critical in the event of a landlord foreclosure.
An SNDA balances the competing concerns of tenants, lenders, and landlords of commercial property. The final document addresses all parties’ interests but requires careful negotiation to protect your interests.
A lot of tenants casually sign this short document blindly when they receive it from the lender, but there’s really an opportunity to negotiate and if you don’t have an SNDA obligation in your lease agreement it can put the borrower in a little bit of a tricky position trying to get the tenant to sign a document, that the tenant has no obligation to sign. So consider rolling this into your initial commercial lease agreement or at least having a form of agreement, or putting an obligation that the tenant agrees to sign a reasonable SNDA within 14 [reasonable number] of days.
While the above guidelines are a place to start, should you still have questions, please contact Ron at Ronald Rohde Law. We are happy to evaluate if the specific clauses of an SNDA agreement are reasonable for your specific transaction needs.
Download the SNDA: Subordination, Non-Disturbance, and Attornment Agreement Template
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