An interesting situation has come up several times just recently (these issues come in droves – after never confronting the issue for a really long time, all of a sudden you get the same issue coming up again and again):
- Tenant relocates to new space in the same center;
- Landlord and Tenant amend existing lease to provide new space, rent and term;
- Tenant entered into memorandum of lease and SNDA when it executed original lease;
- There is a new loan with new lender in place at the time of the relocation; and
- Tenant enters into an amendment to the memorandum of lease at time of relocation.
Who holds the senior interest – the tenant or the new lender?
If it is the same center, with the legal description of the center attached to original memorandum of lease, and the new lender consents to lease amendment, I believe the tenant should have senior interest.
If the tenant executed an entirely new lease rather than an amendment to the existing lease, would the analysis differ? It should not, otherwise form would trump substance.
A lender who consents in any way to a lease or amendment should not be able to terminate that lease upon foreclosure (unless of course if the tenant is in default). Great minds differ on issues such as this, but law and equities lien in our direction. What do you think ?