The Non-Disturbance Agreement serves as a critical instrument in Pakistani commercial real estate transactions where property is both mortgaged and leased. It becomes particularly relevant when a property owner has obtained financing secured by a mortgage on their property and simultaneously leases or intends to lease the property to tenants. The agreement protects the interests of all parties by ensuring the continuation of the lease even if the property ownership changes due to foreclosure. This document, governed by Pakistani law, typically includes provisions about the recognition of the lease, the lender's rights and obligations, and the tenant's continued right of possession. It's essential for maintaining stable commercial tenancies and protecting investment value in financed properties.
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1. Parties: Identification of all parties to the agreement: Landlord, Tenant, and Lender/Mortgagee, including their full legal names and addresses
2. Background: Recitals explaining the existing lease arrangement, mortgage/financing arrangement, and the purpose of the agreement
3. Definitions: Definitions of key terms used throughout the agreement, including 'Lease', 'Mortgage', 'Property', and 'Foreclosure'
4. Non-Disturbance Covenants: Core provisions ensuring the tenant's right to continue occupying the property under the original lease terms, even if the mortgage is foreclosed
5. Recognition of Lease: Lender's acknowledgment of the lease and agreement to be bound by landlord obligations in case of foreclosure
6. Tenant's Obligations: Confirmation of tenant's obligations to continue performing under the lease and pay rent
7. Notice Requirements: Procedures for serving notices between parties and requirements for notification of defaults
8. Term and Termination: Duration of the agreement and circumstances under which it may terminate
9. Governing Law and Jurisdiction: Specification of Pakistani law as governing law and jurisdiction for dispute resolution
1. Subordination Provisions: Include when the agreement is also meant to subordinate the lease to the mortgage (making it a full SNDA)
2. Attornment Provisions: Include when requiring the tenant to recognize the lender or its successor as the new landlord following foreclosure
3. Insurance and Casualty: Include when specific arrangements regarding insurance proceeds or casualty restoration need to be addressed
4. Assignment and Subletting: Include when there are specific restrictions or requirements regarding the tenant's right to assign or sublease
5. Dispute Resolution: Include when parties want to specify alternative dispute resolution mechanisms like arbitration
6. Force Majeure: Include when parties want to address extraordinary circumstances that might affect performance
1. Schedule 1 - Property Description: Detailed legal description of the property including cadastral details and boundaries
2. Schedule 2 - Lease Details: Key terms of the existing lease agreement including date, parties, and essential provisions
3. Schedule 3 - Mortgage Details: Details of the mortgage/financing arrangement including date, amount, and key terms
4. Appendix A - Form of Notice: Standard format for notices to be served under the agreement
5. Appendix B - Registration Requirements: Checklist of registration and stamp duty requirements under Pakistani law
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