1. Presented to the RIAOC
Orange County
April 21, 2009
4/21/2009 Howard F. Kline, Esq. (949) 888-7708 1
2. TRUST DEED GUARANTOR
LIABILITIES
NEGOTIATING TERMS WITH DEEP
POCKET TENANTS
SUBORDINATION, ATTORNMENT &
NON-DISTURBMENT LEASE
PROVISIONS
LANDLORD BANKRUPTCY EFFECT
4/21/2009 Howard F. Kline, Esq. (949) 888-7708 2
3. Early to mid 90’s
Changing economic conditions
Not limited to real estate
Not limited to residential real estate
Stagflation
Prices going up
People spending less
Retail downturn
Overleveraged property
4/21/2009 Howard F. Kline, Esq. (949) 888-7708 3
4. Prevalence of ownership in LLC;
Non-Recourse Loans
Guarantees of principals of LLC
Limited or unlimited
Non-Judicial Foreclosure
Anti-Deficiency Rules
Judicial Foreclosure
Fraud
Deficiency
Receivership
4/21/2009 Howard F. Kline, Esq. (949) 888-7708 4
5. Recession Proof Tenants
Fast Food
Discount
Retail
Co-Tenancy Provisions
Landlord Financials
Marketing Provisions
Previously second tier tenants
Long Term Leases with Tenant’s right to terminate early
Long Term Protections from Foreclosure
Franchisee Leases
Purchase as an option
4/21/2009 Howard F. Kline, Esq. (949) 888-7708 5
6. Paragraph 30 of Win AIR Multi-Tenant Gross
Lease
More significant in slowing or weakening
economy
Foreclosures
Tenant or subtenant may lose rights to long term
lease!!!!!!!
Modifiable
4/21/2009 Howard F. Kline, Esq. (949) 88-7708 6
7. Delay Foreclosure
May terminate unwanted leases,
notwithstanding attornment provisions
Landlord may assume or reject executory leases
Should not be a concern to tenant unless a long term,
very favorable tenant lease;
Tenant must still perform unless lease has been
rejected
Brokers better collect commissions early
Secure commissions if delayed – Good luck
4/21/2009 Howard F. Kline, Esq. (949) 888-7708 7
8. Tenants
Lease Terminations?
Stave off foreclosure
Brokers
Get paid as soon as possible
Can record commission obligation as a lien on
property – Good Luck
Property Managers
Recession Proof
4/21/2009 Howard F. Kline, Esq. (949) 888-7708 8