A client contacted us stating that his tenant, a small cell tower company, would like to sell their cell tower to Vertical Bridge. Our client’s tenant asked if he could sign what is called an “Agreement Regarding Ground Lease“. The tower company claimed it was an Estoppel and no big deal to sign.
Our client wasn’t sure if he should sign the agreement and asked if we could take a look at it first. Good thing he did because the “agreement” was far overreaching than an “estoppel”.
Here is what we found, but before we present our findings, lets start from the beginning.
What Is An Estoppel?
An Estoppel is a document often used in due diligence in real estate and mortgage related activities. Either the tenant, or the landlord, can request an estoppel from the other party. The fundamentals of an estoppel document boil down to the following:
- Confirmation by the other party of the rent amount being paid.
- The amount of security deposit being held by the landlord (if any).
- The expiration date of the lease agreement.
- A representation that there are no defaults under the agreement.
Tenant’s typically request an estoppel when they sell their cell tower to another company. Landlord’s typically request an estoppel when they are obtaining financing for the property, and their lender requires an estoppel from their tenant.
Do I Even Have To Sign An Estoppel?
Often times the answer is NO. Your answer will depend on the exact language found in your cell tower lease agreement.
If your lease agreement is silent, in other words, does not have any language addressing the signing of an estoppel at all, or your lease lacks any language where the landlord agrees to sign further documents, then the landlord will not have to willingly sign an estoppel.
If there is an estoppel provision in the agreement, the landlord only has to follow exactly what was agreed upon in their lease.
In this instance with our client, the landlord does have estoppel provision in the Agreement. It reads as follows:
Estoppel. Either party will, at any time upon twenty (20) business days prior written notice from the other, execute, acknowledge and deliver to the other a statement in writing (i) certifying that this Agreement is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying this Agreement, as so modified, is in full force and effect) and the date to which the Rent and other charges are paid in advance, if any, and (ii) acknowledging that there are not, to such party’s knowledge any uncured defaults on the part of the other party hereunder, or specifying such defaults if any are claimed. Any such statement may be conclusively relied upon by any prospective purchaser or encumbrance of the Premise.
Were going to stop right here for a minute. So the above states that either party will sign an Estoppel and the party only has to certify two things, as mentioned above.
That leads us into how cell tower companies try and trick you the landlord with estoppel requests.
How Do Cell Tower Companies Trick You With Estoppel Requests?
An Estoppel is a legal document signed by the landlord on a more recent date than the lease, and often includes language such as, “If this Agreement is inconsistent with the Lease, this Agreement shall control.”
Stop the presses!
So what this means is whatever they put in this agreement, if you agree to it, it does not matter what your lease agreement says, this document takes precedent.
In our scenario, this exact language is found in Section 8(a) of the Agreement Regarding Ground Lease presented to my client from Vertical Bridge.
So now that they have that sentence in the Agreement, its time for the cell tower company to add additional language into the agreement and increase restrictions put on the landlord. Watch out landlords!
What Are Some Of The Red Flags Found In A Cell Tower Estoppel?
In our scenario, we found the following red flags which you may run into as well.
Section 2 of the Agreement Regarding Ground Lease, Landlord Consent, to the extent any such consent is required by the Lease, Landlord hereby consents to the acquisition by Vertical Bridge or its affiliates.
Again, Landlord is not required to agree to this per their Lease Agreement which only requires them to represent two things in an estoppel. A Landlord needs to review their lease and the consent language within their lease. If the Landlord has the ability to prohibit an assignment of their cell tower lease, wouldn’t they want to exercise that right? Alternatively, they could grant consent contingent upon the payment of additional rent, or a one-time payment to Landlord.
Section 3(c) of the Agreement Regarding Ground Lease, Subleasing, the existing tenant may use the communications tower and related improvements located on the premises for the subleasing/sub-licensing of space for the collocation of communications equipment.
Again, Landlord is not required to agree to this per their Lease Agreement which only requires them to represent two things in an estoppel. In regards to subleasing if there are any restrictions on the tenant subleasing to other tenants, by agreeing to this language that restriction would be removed immediately.
Section 3(f) of the Agreement Regarding Ground Lease, Exhibits, all exhibits attached hereto are by this reference incorporated fully herein.
Again, Landlord is not required to agree to this per their Lease Agreement which only requires them to represent two things in an estoppel. What this language does is replace the lease area and the easement area exhibits. So landlord needs to take extra caution reviewing this to make sure the Tenant is not expanding the area landlord has agreed to grant them in the lease.
Section (4) of the Agreement Regarding Ground Lease, Tenant’s Lender, From and after a foreclosure, assignment or deed in lieu, or other enforcement of remedies, any Leasehold Lender and any purchaser or assignee of the Lease from Leasehold Lender shall have all of the rights of Vertical Bridge under the Lease, including, without limitation, the right ot exercise any renewal option(s) or purchase option(s) set forth in the Lease, and to assign the Lease as permitted in the Lease.
Again, Landlord is not required to agree to this per their Lease Agreement which only requires them to represent two things in an estoppel. This language opens up a lease to now include a tenant’s lender, in addition to the tenant. So if your tenant stops paying rent, their lender can step into their shoes.
Section (7) of the Agreement Regarding Ground Lease, Assignment Restriction, following the consummation of the acquisition of the Lease by Vertical Bridge, Landlord shall not assign the Lease, in whole or in part, or any of its rights or obligations under the Lease, except in connection with a sale of the fee interest underlying the Premises.
Again, Landlord is not required to agree to this per their Lease Agreement which only requires them to represent two things in an estoppel. This language removes the landlord’s ability to freely sell an assignment of the lease, or an easement underneath the cell tower in a cell tower lease buyout. Why would any landlord voluntarily hand-cuff themselves in exchange for no additional consideration?
Always proceed with caution when your tenant presents you an agreement they are asking you to sign. If you have any concerns at all, do what our client did, reach out to an expert who is familiar with the cell tower industry. Don’t allow your cell tower tenant to dictate what takes place on your property.
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About Nick G. Foster
Since founding Airwave Advisors® in 2014, Mr. Foster has added value to over 400 clients ranging from the State of Nevada, City of Beverly Hills, to Habitat For Humanity. Mr. Foster focuses on cell tower lease renewals, buyouts, new lease negotiation, and cell site lease management. Prior to starting Airwave Advisors® Mr. Foster founded and led the Cell Site Services Group within nationwide commercial real estate services leader Cassidy Turley (now known as Cushman & Wakefield).