LANDLORD LIEN WAIVER FOR TENANT EQUIPMENT LEASE OR FINANCING AGREEMENT LEASE EXHIBIT
EXHIBIT [INSERT APPLICABLE LETTER]
FORM OF LIEN WAIVER
LANDLORD WAIVER AND AGREEMENT
This Landlord Waiver and Agreement (this "Waiver") dated ________________, is entered into by and between _________________ a _____________ limited ___________ ("Landlord") and ___________________ ("Secured Party").
Whereas, Landlord is the landlord of the premises described as ____________________________ (the "Property"); and
Whereas, Landlord and __________________ ("Tenant") have entered into that certain lease dated ___________ (as previously and/or hereafter amended, the "Real Property Lease") pursuant to which Tenant has leased approximately ____ square feet of space at the Property (the "Premises"); and
Whereas, Tenant has entered into an equipment lease and/or financing agreement pursuant to which Tenant has granted a security interest in the personal property described on Schedule 1 attached hereto (the "Personal Property") to Secured Party under that certain [Equipment Financing Agreement] between Tenant and Secured Party dated __________ (the "Financing Agreement"); and
Whereas, Secured Party and Landlord desire to establish their respective rights regarding the Personal Property and Secured Party's access to the Premises;
Now, Therefore, in consideration of the above Recitals and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
During the term of the Real Property Lease, and subject to Landlord's interest in the Personal Property, if any, at the expiration or earlier termination of the Real Property Lease, the Personal Property shall remain personal property and severable from the Premises and shall not become part of the Premises or construed as a fixture at the Premises to the extent that no funds of Landlord (including but not limited to the [Tenant Improvement Allowance] as defined in the Real Property Lease) have not been utilized to pay for the Personal Property or the financing thereof.
So long as Tenant occupies the Premises and is not in default under the Real Property Lease, Secured Party may enter the Premises at any time or from time to time upon reasonable written notice to Landlord and in compliance with the terms of the Financing Agreement for purposes of inspecting and/or removing any and all of the Personal Property in the exercise of its rights and remedies arising from the Financing Agreement. In the event of a default by Tenant under the Real Property Lease, Secured Party shall obtain Landlord's prior written consent prior to entering the Premises.
Landlord shall notify Secured Party in the event the Personal Property remains at the Premises after either (i) Tenant is evicted from the Premises or (ii) Tenant abandons (as opposed to vacates) the Premises prior to the expiration of the Real Property Lease. Secured Party shall have 15 days to remove the Personal Property from the Premises after notification of such action from Landlord. If Secured Party has not removed the Personal Property within such 15 day period, Landlord shall have all rights regarding the Personal Property accorded to it by law and/or pursuant to the Real Property Lease and Secured Party shall have no further rights regarding such Personal Property. After Tenant has vacated or been evicted from the Premises, and if Landlord in its sole discretion allows the Personal Property to remain at the Premises for any period of time, Secured Party shall be liable for holdover rent for the total amount of time the Personal Property remains at the Premises after such eviction or vacation. For purposes hereof, "holdover rent" shall mean 200% of the rent in effect under the Real Property Lease for the period immediately prior to such vacation or eviction.
If Secured Party exercises its right to remove the Personal Property from the Premises as provided herein, Secured Party shall repair any damage to the Premises and restore it to its condition existing prior to installation of such Personal Property. Landlord shall have the right to require Secured Party to post a bond acceptable to Landlord to cover the potential cost of such repair prior to removing any such Personal Property.
No auction or sale of the Personal Property shall be conducted by Secured Party from the Premises without Landlord's prior written consent, which consent Landlord may withhold in Landlord's sole and absolute discretion.
This waiver shall inure to the benefit of and shall be binding upon the heirs, administrators, executors, successors and assigns of the parties hereto. The prevailing party in any action to enforce or interpret this Agreement shall be entitled to recover from the non-prevailing party all costs and expenses (including but not limited to attorney's fees) incurred by it in connection therewith. This Agreement shall be governed by the laws of the State of _____________.
In Witness Whereof, the parties hereto have executed, sealed and delivered this Waiver this __________ day of ________________.
Title: Secured Party