Bank Alert Notice: Landlord Waiver and Collateral Access Agreement

January 12, 2017 - Business Law

Presumably documents you are asked to sign are carefully read.  I recently ran into a case, however, where a mortgagee for a commercial/industrial building was asked to sign a Landlord Waiver and Collateral Access Agreement for the lender financing the FF&E for a tenant.  The lender had signed off on the agreement, but prior to mailing it back asked us to take a brief look.  They thought it was a “standard agreement.”

We have all seen Landlord Waiver Agreements.  They essentially state that the landlord releases and subordinates any landlord lien or claim to the FF&E that is secured to the tenant’s lender.  There are, however, other points which must be included in these agreements, such as: (i) whether the secured creditor pays use and occupancy, (ii) how long possession is to be provided, (iii) mutual sharing of default notices, (iv) whether the secured creditor may abandon any of its collateral in place if it takes possession, (v) repairs or damages to the building in connection with the collateral removal, (vi) whether a public auction sale may be held on the premises, or (vii) whether the landlord should be given notice if the secured party intends to take possession. 


There are numerous other provisions that can be inserted into these agreements.  Landlord Waiver Agreements are anything but standard and depending on the size and complexity of the transaction, they must tailored accordingly.