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Waiver Of Distraint(Chattel Claims)
Waiver of Distraint (Chattel Claims)
This Waiver of Distraint is dated _____________, by and between _____________ (“Landlord”), ______________ (“Tenant”) and ___________________ (“Secured Lender’).
Whereas:
(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.
7. Notices.
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.
12. Severability.
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 LenderWaiver of Distraint (Chattel Claims)
Review ListThis 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.
Frequently Asked Questions
What is a Waiver of Distraint (Chattel Claims)?
A Waiver of Distraint (Chattel Claims) is a legal agreement between a landlord, a tenant, and a secured lender. In it, the landlord waives its right to distrain against the tenant's chattels and fixtures in favor of the lender's rights. This waiver is typically required by the lender as a condition for making a loan to the tenant.
Who are the parties involved in a Waiver of Distraint?
The parties are the landlord, the tenant, and the secured lender. The landlord owns the premises leased to the tenant. The secured lender is providing a loan to the tenant and requires the waiver to protect its security interest.
Why would a landlord sign a Waiver of Distraint?
A landlord signs a Waiver of Distraint because the tenant's secured lender requires it as a condition for making a loan to the tenant. By signing, the landlord agrees to waive its right to distrain against the tenant's chattels and fixtures in favor of the lender's rights. This helps facilitate the financing the tenant needs.
What does the landlord waive in a Waiver of Distraint?
The landlord specifically waives its right to distrain against the chattels and fixtures of the tenant. This waiver is in favor of any rights the lender may now or hereafter have with respect to those chattels and fixtures. Distraint is a landlord's remedy to seize a tenant's personal property for unpaid rent.
What representations does the landlord make in a Waiver of Distraint?
The landlord represents that the lease is presently in good standing, all payments have been made to date, no modifications have been made to the lease, there are no existing defaults, and the lease is in full force and effect. These representations provide assurance to the lender about the lease's status.
What is the purpose of a Waiver of Distraint?
The purpose is to protect a secured lender's interest in a tenant's chattels and fixtures by having the landlord waive its right to distrain. This ensures that the lender's security interest takes priority over the landlord's distraint rights. It is a condition for the lender making a loan to the tenant.
How does a Waiver of Distraint affect a landlord's rights?
By signing a Waiver of Distraint, the landlord gives up its right to distrain against the tenant's chattels and fixtures in favor of the secured lender's rights. This means the landlord cannot seize those assets to satisfy unpaid rent if the lender has a security interest. The waiver is limited to the chattels and fixtures covered by the lender's security agreement.
When is a Waiver of Distraint typically used?
It is used when a tenant seeks a loan from a secured lender and the lender requires a waiver from the landlord as a condition of the loan. The loan is to be secured by a security agreement forming a security interest on the tenant's personal property, including chattels and fixtures. The waiver is part of the loan documentation.
What is distraint in the context of a Waiver of Distraint?
Distraint is a landlord's right to seize a tenant's personal property, including chattels and fixtures, to recover unpaid rent. In a Waiver of Distraint, the landlord waives this right in favor of a secured lender. This helps protect the lender's security interest in the tenant's assets.
What does the landlord agree to regarding the lease in a Waiver of Distraint?
The landlord represents, covenants, and agrees that the lease is in good standing, all payments have been made, no modifications have been made, there are no defaults, and the lease is in full force and effect. These assurances are given to the secured lender. They confirm the lease's validity and current status.
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