This Waiver of Distraint is dated _____________, by and between _____________ (“Landlord”), ______________ (“Tenant”) and ___________________ (“Secured Lender’).
(A) Tenant has by Lease dated __________, (“Lease”) with Landlord for premises at ______________________________.
(B) Tenant has applied to Secured Lender for a loan (“Loan”) of to be secured by a Security Agreement forming a security interest on all personal property including all chattels and fixtures of the Tenant;
(C) As a condition of Lender making Loan, Lender has required Tenant to obtain this Agreement from Landlord;
Therefore, in consideration of the granting of Loan by Lender to the Tenant, Landlord represents, covenants and agrees with Lender as follows:
1. Lease is presently in good standing, all payments hereunder have been made to date, no modifications have been made to the Lease to date, there are no existing defaults under Lease and Lease is in full force and effect.
2. Landlord specifically waives its right to distrain against the chattels and fixtures of Tenant in favor of any rights which Lender may now or hereafter have with respect to the chattels and fixtures of Tenant and agrees to release all such chattels and fixtures to Lender in the event of default by Tenant pursuant to the terms of any lease of the premises by Tenant prior to the repayment by Tenant of the Loan.
3. Landlord agrees that as between Landlord and Lender, fixtures installed by Tenant remain Tenant’s fixtures notwithstanding any contrary provision of any Lease.
4. Landlord agrees that in the event of a default under Lease in relation to which Landlord intends to enforce remedies, Landlord will, within ten (10) days of such default and before taking the steps to enforce remedies, notify Lender in writing of the default and permit the Lender a period of ten (10) days following receipt of such notice to remedy the default.
5. Landlord agrees that upon receiving notification from the Lender of default by the Tenant under the Loan, the Landlord will permit the Lender and its representatives, agents and employees to enter on the Premises to remove any and all chattels and fixtures of the Tenant, which have been given as security for the Loan.
6. Landlord agrees not to accept a surrender of Lease without the written consent of Lender.
Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or a recognized over night delivery service such as FedEx.
If to Landlord: _____________________________________________________.
If to Secured Lender: ___________________________________________________.
If to Tenant: ___________________________________________________.
8. No Waiver.
The waiver or failure of either party to exercise in any respect any right provided in this agreement shall not be deemed a waiver of any other right or remedy to which the party may be entitled.
9. Entirety of Agreement.
The terms and conditions set forth herein constitute the entire agreement between the parties and supersede any communications or previous agreements with respect to the subject matter of this Agreement. There are no written or oral understandings directly or indirectly related to this Agreement that are not set forth herein. No change can be made to this Agreement other than in writing and signed by both parties.
10. Governing Law.
This Agreement shall be construed and enforced according to the laws of the State of ____________________ and any dispute under this Agreement must be brought in this venue and no other.
11. Headings in this Agreement
The headings in this Agreement are for convenience only, confirm no rights or obligations in either party, and do not alter any terms of this Agreement.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
In Witness whereof, the parties have executed this Agreement as of the date first written above.
_________________________ _______________________ _____________________
Landlord Tenant Secured Lender
Waiver of Distraint (Chattel Claims)
This review list is provided to inform you about this document in question and assist you in its preparation. All parties benefit, from some degree, from this Waiver of Claims (termed “Distraint”). Secured Lender gets forbearance from Landlord under certain circumstances; Tenant gets a Loan and use of the property on his property for that purposes; Landlord gets a new “friend” in the Secured Lender who may pay up any deficient Lease payments of Tenant, should that occur.
This Agreement is useful in particular to the Tenant to identify clearly that the property on its premises is theirs and not subject to Landlord liens.
1. Make copies for all key parties. Be sure to file this in your safe.
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