The Non-Disturbance Agreement is a critical document in Canadian commercial real estate transactions where a property is subject to both a mortgage and a lease. It becomes particularly relevant when tenants require assurance that their lease rights will be preserved if the landlord defaults on their mortgage obligations. The agreement typically includes detailed provisions about the relationships between all three parties (tenant, landlord, and lender), specific rights and obligations under various scenarios, and the hierarchy of interests in the property. Key considerations under Canadian law include provincial property legislation, security interests, and commercial tenancy requirements. The document is especially important for tenants making significant investments in leased premises or entering into long-term lease commitments. It provides crucial protection for business continuity while ensuring lenders maintain their security rights in the property.
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1. Parties: Identifies and defines the three main parties: Tenant, Landlord, and Lender
2. Background: Recitals explaining the existing lease arrangement, the loan/security arrangement, and the purpose of the agreement
3. Definitions: Defines key terms including Property, Lease, Security Interest, and Mortgage
4. Non-Disturbance Covenant: Core provision where lender agrees not to terminate lease or disturb tenant's possession upon foreclosure
5. Recognition of Lease: Lender's acknowledgment of the lease and agreement to honor its terms
6. Attornment: Tenant's agreement to recognize lender as landlord in case of foreclosure
7. Subordination: Confirmation that the mortgage has priority over the lease
8. Notice Requirements: Procedures for serving notices between parties
9. Representations and Warranties: Each party's confirmations about their authority and the lease status
10. General Provisions: Standard clauses including governing law, amendments, and successors/assigns
1. Tenant Estoppel Provisions: Used when combining the NDA with estoppel certificates, confirming current lease status and terms
2. Cure Rights: Added when giving lender specific rights to cure landlord defaults
3. Insurance and Casualty: Include when specific arrangements for insurance proceeds or restoration rights are needed
4. Assignment and Subletting: Added when special provisions regarding tenant's transfer rights are required
5. Lender's Work Obligations: Include when there are ongoing construction or improvement obligations
6. Rental Payment Provisions: Used when specific arrangements for direct payment to lender are required
1. Schedule A - Property Description: Legal description of the property
2. Schedule B - Lease Details: Summary of key lease terms, dates, and amendments
3. Schedule C - Mortgage Details: Summary of the mortgage or security interest details
4. Schedule D - Permitted Encumbrances: List of approved existing encumbrances on the property
5. Appendix 1 - Notice Particulars: Contact information and addresses for notice delivery to all parties
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