Mortgagee Subordination Non-Disturbance Agreement

NON-DISTURBANCE, ATTORNMENT, ESTOPPEL, AND SUBORDINATION AGREEMENT

This Agreement is dated . It is between (the “Beneficiary”), whose address is ; (the “Lessee”), whose address is ; and, (the “Lessor”), whose address is (collectively all of them may be referred to in this Agreement as the “Parties” or individually as a “Party”).

Beneficiary is the owner and holder of a Promissory Note from Lessor dated , in the principal sum of ($), secured by a Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (the “Deed of Trust”) recorded prior to the recording of this Agreement, in Volume , page of the Records of County, , which Deed of Trust constitutes a lien or encumbrance on the real property (the “Property”) more particularly described on Exhibit “A” attached to and incorporated into this Agreement.

Lessee is the holder of a leasehold estate (the “Leased Premises”) on a part of the Property pursuant to the terms of that certain (the “Lease”) dated , executed by Lessee and Lessor, recorded in Volume , page of the Records of County, .

Lessee and Beneficiary desire to confirm their understanding with respect to the Lease and the Deed of Trust.

In consideration of the mutual covenants and agreements provided below, the Parties agree and covenant as follows:

1. So long as Lessee is not in default (beyond any period given Lessee to cure a default) in the payment of rent or in the performance of any of the terms, covenants, or conditions of the Lease to be performed by Lessee, Beneficiary shall not disturb or interfere with Lessee’s possession and occupancy of the Leased Premises during the term of the Lease or any extension of it. Pursuant to the Deed of Trust, Beneficiary was granted an assignment of rents and leases. On receipt of notice from Beneficiary, Lessee agrees it will pay all rents due under the Lease directly to Beneficiary. Lessor expressly relieves Lessee from any liability to Lessor by reason of the payment of the rents to Beneficiary.

2. If the interests of Lessor shall be transferred to and owned by Beneficiary by judicial foreclosure, private trustee sale, or any other manner, and Beneficiary succeeds to the interest of Lessor under the Lease, Lessee shall be bound to Beneficiary under all of the covenants, conditions, and provisions of the Lease for its remaining term, and any extension of it duly exercised by Lessee, with the same force and effect as if Beneficiary were the lessor under the Lease. Lessee attorns to Beneficiary as its Lessor, and that attornment shall be self-operative and effective immediately on Beneficiary’s succeeding to the interest of Lessor under the Lease without the execution of any further instruments by any of the Parties to this Agreement.

3. If the interests of Lessor shall be transferred to and owned by Beneficiary by judicial foreclosure, private trustee sale, or any other manner, and Beneficiary succeeds to the interest of Lessor under the Lease, Beneficiary shall be bound to Lessee under all of the terms, covenants, and conditions of the Lease except that Beneficiary shall not be:

a. Liable for any act or omission of any prior lessor (including Lessor);

b. Subject to any offsets or defenses that Lessee might have against any prior lessor (including Lessor);

c. Bound by any rent or additional rent or advance rent that Lessee might have paid for more than the current year to any prior lessor (including Lessor) and all such rent shall remain due and owing notwithstanding any advance payment;

d. Bound by any amendment or modification of the Lease made without its consent and written approval;

e. Bound to commence or complete any construction or to make any contribution toward construction or installation of any improvements on the Leased Premises required under the Lease or any expansion or rehabilitation of existing improvements on it, or for restoration of improvements following any casualty not required to be insured under the Lease, or for the costs of any restoration in excess of any proceeds recovered under any insurance required to be carried under the Lease;

f. Bound by any restriction on competition beyond the Property; or,

g. Personally liable under the Lease. Beneficiary’s liability under the Lease shall be limited to the ownership interest of Beneficiary in the Leased Premises.

In addition, Beneficiary shall not have any liability or responsibility under or pursuant to the terms of the Lease or this Agreement after it ceases to own an interest in or to the Property.

4. The Lease is now, and shall at all times continue to be subject and subordinate to each and every respect to the Deed of Trust and to all extensions, modifications, renewals, replacements, substitutions, and/or consolidations of the Deed of Trust. Nothing contained in this Agreement shall be deemed or construed as limiting or restricting the enforcement by Beneficiary of any of the covenants, conditions, provisions, or remedies of the Deed of Trust, whether or not consistent with the Lease.

5. Lessor certifies to Beneficiary that a true and correct copy of the Lease has been delivered to Beneficiary and Lessor and Lessee certify to Beneficiary as follows:

(a) the Lease is presently in full force and effect and unmodified or unchanged;

(b) the term shall commence or did commence on , and full rental will then accrue or is now accruing;

(c) all conditions required under the Lease to have been satisfied as of the date of this Agreement have been satisfied;

(d) as of the date of this Agreement, Lessee has not assigned or sublet the Leased Premises;

(e) there is no lease deposit paid or to be paid, however, the first year term has been paid in advance;

(f) Beneficiary shall have no liability or responsibility for the application or return of any security deposit of Lessee (if any) except to the extent a security deposit has been delivered to Beneficiary;

(g) no default exists under the Lease;

(h) Lessee, as of the date of this Agreement, has no charge, lien, or claim of offset under the Lease or otherwise, against rents or other charges due or to become due;

(i) Lessee has not received notice of any assignment, mortgage, or pledge of Lessor’s interest in the Lease or any rents or other amounts payable;

(j) the Lease constitutes the entire rental agreement between the parties;

(k) the only persons, firms or corporations in possession of the Leased Premises or having any right to the possession or use of the Leased Premises (other than the record owner or holders of recorded easements) are those holding under the Lease;

(l) Lessee has no right or interest in or under any contract, option, or agreement involving the sale or transfer of the Leased Premises.

6. Lessee shall give written notice to Beneficiary of any failure by Lessor to perform or observe any of the covenants, conditions, or provisions of the Lease, and Beneficiary shall have the right, but not the obligation, to cure the failure. In the event of any failure by Lessor, Lessee shall not take any action with respect to the failure, including without limitation any action to terminate, rescind, or avoid the Lease or to withhold any rent, for a period of thirty (30) days after notice to Beneficiary; provided, however, that if the failure cannot reasonably be remedied within that thirty (30) day period, Lessee shall not take any action with respect to the failure, including without limitation any action to terminate, rescind or avoid the Lease or to withhold any rent, so long as Beneficiary shall commence to remedy the failure within the thirty (30) day period and then diligently prosecute the remedy to completion.

All notices required or permitted to be given by this Agreement shall be in writing and may be given in person or by United States mail, by delivery service or by electronic transmission. Any notice directed to a Party to this Agreement shall become effective on the earliest of the following: (i) actual receipt by that Party; (ii) delivery to the designated address of that Party, addressed to that Party, or (iii) if given by certified or registered United States mail, twenty-four (24) hours after deposit with the United States Postal Service, postage prepaid, addressed to that Party at its designated address. The designated address of a Party shall be the address of that Party shown at the beginning of this Agreement or such other address as that party, from time to time, may specify by notice to the other Parties.

7. The term “Beneficiary” shall be deemed to include , and its successors and assigns, including anyone who shall have succeeded to Lessor’s interest by or through judicial foreclosure, private trustee’s sale, or other proceedings brought pursuant to the Deed of Trust or deed in lieu of a foreclosure or those proceedings.

8. Each covenant, condition, and provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any covenant, condition, or provision of this Agreement shall be held to be void or invalid, the same shall not affect the remainder of it, which shall be effective as though the void or invalid covenant, condition, or provision had not been contained in this Agreement.

9. This Agreement may not be modified orally or in any other manner than by an agreement in writing signed by the Parties to it or their respective successors in interest. This Agreement shall inure to the benefit of and be binding on the parties to it and their successors and assigns.

10. This Agreement shall be governed by and construed according to the laws of the State of , without giving effect to conflict of laws principles.

11. This Agreement may be executed in counterparts, all of which executed counterparts shall together constitute a single document. Signature pages may be detached from the counterparts and attached to a single copy of this Agreement to physically form one document.

This Agreement is executed by the Parties as of the date specified above.

(Acknowledgments)

Exhibit “A”: Description of Property