Consent to Leasehold Deed of Trust
Basic Information
Date:
Landlord:
Landlord’s Mailing Address:
Tenant:
Tenant’s Mailing Address:
Lender:
Lender’s Mailing Address:
Lease (between Landlord and Tenant)
Date:
Premises:
Recording information (if applicable):
Amendments (if applicable):
Obligation
Note
Date:
Maker: Tenant
Payee: Lender
Original principal amount:
Maturity date:
Deed of Trust
Date:
Trustee:
Recording information (if known):
Other Debt (if any):
A.Landlord’s Agreements and Representations
A.1.Landlord consents to the encumbrance by Tenant of Tenant’s interest under the Lease pursuant to the Deed of Trust.
A.2.Landlord represents to Lender that (a) the Lease is in effect, (b) except as set forth above, there are no amendments to the Lease, (c) no default under the Lease has occurred by Landlord or by Tenant, and (d) to Landlord’s actual knowledge, no event has occurred that, with the passage of time or the giving of notice or both, is a default by Landlord or Tenant under the Lease.
A.3.Until the Obligation is satisfied, Landlord will not (a) take any action to terminate the Lease or exercise any other remedy for default by Tenant under the Lease without first complying with the requirements of this agreement or (b) modify or cancel the Lease without Lender’s prior written consent.
A.4.Lender has the right to access and remove from the Premises Tenant’s personal property to enforce Lender’s security interest, either during the term of the Lease or within [number] days after the expiration or termination of the Lease or rejection of the Lease in bankruptcy. If Lender exercises this right after the end of the Lease term, Lender must, for that period, pay all rent and comply with all other requirements of Tenant under the Lease as a condition to exercising this right. Landlord subordinates to Lender’s security interest any lien that Landlord has in any of Tenant’s personal property located at the Premises.
A.5.Landlord will concurrently send to Lender a copy of any notice of default sent to Tenant. Landlord will accept performance by Lender of any term of the Lease.
A.6.The Lease will not be terminated because of a default by Tenant unless (a) notice of the default is delivered to Lender; (b) Lender has not cured a monetary default within fifteen days after the expiration of any of Tenant’s notice and cure periods set forth in the Lease; (c) Lender has not cured a nonmonetary default within thirty days after the expiration of any of Tenant’s cure periods in the Lease or, if the default is curable but cannot be cured within the thirty-day period, (i) Lender has not notified Landlord within the thirty-day period that it intends to cure the default, (ii) Lender has not diligently commenced to cure the default, or (iii) Lender does not prosecute the cure to completion within a reasonable period of time after the expiration of any applicable cure periods in the Lease, but not to exceed sixty days; and (d) with respect to a nonmonetary default of such a nature that it is not reasonably susceptible of being cured by Lender (e.g., a nonpermitted assignment by Tenant), Lender is not otherwise paying rent and performing all of Tenant’s obligations that, by their nature, Lender may perform.
A.7.If Lender acquires Tenant’s interest under the Lease pursuant to foreclosure proceedings or otherwise, Lender is not required to cure any default under the Lease existing prior to such acquisition if the default cannot be cured by the payment of money or is personal to Tenant and, therefore, not susceptible of cure by Lender.
A.8.The following transfers of Tenant’s interest under the Lease are permitted and do not require the consent of Landlord as long as the transferee assumes all of Tenant’s obligations under the Lease: (a) a transfer resulting from a foreclosure under the Deed of Trust, (b) a deed in lieu of foreclosure of the Deed of Trust, and (c) a subsequent transfer by Lender or its designee if they acquire such interest.
A.9.On request by Lender, Landlord will deliver to Lender estoppel certificates related to the Lease and copies of documents creating or evidencing the Lease, certified by Landlord.
B.General Provisions
B.1.Until the Obligation is satisfied, Landlord and Tenant will not subordinate the Lease to any lien that may be placed on Landlord’s interest in the Premises unless the lienholder enters into a subordination and nondisturbance agreement reasonably acceptable to Landlord, Tenant, and Lender.
B.2.If the Lease is terminated for any reason before expiration of its stated term or is rejected in bankruptcy, Landlord will, within fifteen days after Lender requests it, deliver to Lender or its designee a new lease of the Premises on the following terms:
a.The new lease will be for the remainder of the term of the Lease, effective on the date of termination or rejection, and will contain the same terms contained in the Lease.
b.The new lease will be executed by Landlord and Lender or its designee within ten days after receipt by Lender of the new lease.
c.On execution of the new lease, the new tenant will cure all monetary defaults that existed under the Lease upon its termination or rejection.
d.Within thirty days after the execution of the new lease, the new tenant will cure all nonmonetary defaults that existed upon termination or rejection that are curable or, if any nonmonetary default is curable but cannot be cured within the thirty-day period, (i) the new tenant must notify Landlord within the thirty-day period that the new tenant intends to cure the default, (ii) the new tenant must diligently commence to cure the default, and (iii) the new tenant must diligently prosecute the cure to completion within a reasonable period of time after execution of the new lease, but not to exceed sixty days.
e.All noncurable defaults that existed under the Lease on its termination or rejection shall be waived.
f.Any new lease will have the same priority as the Lease.
g.Landlord will hold for the account of the new tenant any moneys then held by or payable to Landlord that Tenant would have been entitled to receive but for the termination or rejection of the Lease.
B.3.To the extent of any inconsistency between the terms contained in the Lease and the terms set forth in this agreement, the terms of this agreement will control.
B.4.If the ownership of the fee and leasehold interests in the Premises become vested in the same person or entity, that occurrence will not result in a merger of title as long as the Deed of Trust remains outstanding.
B.5.Any notice required or permitted under this agreement must be in writing. Any notice required by this agreement will be deemed to be given (whether received or not) the earlier of receipt or three business days after being deposited with the United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address shown in this agreement. Notice may also be given by regular mail, personal delivery, courier delivery, or e-mail and will be effective when received. Any address for notice may be changed by written notice given as provided herein.
B.6.This agreement will not be affected by (a) any renewal or modification of the Obligation, (b) the invalidity or unenforceability of any document evidencing or securing the Obligation, (c) the release or other disposition of any collateral for the Obligation, (d) the exercise or nonexercise of any right or remedy with respect to the Obligation, or (e) any waiver, consent, release, delay or other action, inaction, or omission with respect to the Obligation.
[Name of landlord]
[Name of tenant]
[Name of lender]