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What is a Collateral Access Agreement?
A collateral access agreement is a legal document that outlines the terms and conditions of how an individual can borrow money from a business owner. It will state what the borrower needs to do in order to repay the loan, as well as any interest rates or penalties for late repayment.
Collateral access agreements are typically used by small businesses that don't have enough cash flow on hand to provide financing for their customers. This type of agreement is very common with companies like banks and credit unions; however, it may also be used by larger firms if they offer this type of service.
Collateral Access Agreement Sample
COLLATERAL ACCESS AGREEMENT |
1. | To the actual knowledge of the Landlord, the Tenant is not in default under the terms of the Lease. |
2. | The Landlord hereby waives and releases in favor of the Lender and the other Credit Parties (as defined in the documents and agreements executed in connection with the Loan Arrangement): (a) any and all rights of distraint, levy, and execution which the Landlord may now or hereafter have against the Collateral; (b) any and all statutory liens, security interests, or other liens which the Landlord may now or hereafter have in the Collateral; and (c) any and all other interests or claims of every nature whatsoever which the Landlord may now or hereafter have in or against the Collateral for any rent, storage charges, or other sums due, or to become due, to the Landlord by the Tenant. The Landlord agrees not to exercise any of the Landlord’s rights, remedies, powers, privileges, or discretions with respect to the Collateral, or the Landlord’s liens or security interests in the Collateral, unless and until the Landlord receives written notice from an officer of the Lender that the Tenant’s obligations to the Lender and the other Credit Parties have been paid in full, and that the commitment of the Lender and the other Credit Parties to make loans or furnish other financial accommodations to the Borrowers (as defined in the documents and agreements executed in connection with the Loan Arrangement) has been terminated. The foregoing waiver is for the benefit of the Lender and the other Credit Parties only and does not affect the obligations of the Tenant to the Landlord. |
3. | In the event of the exercise by the Lender of its rights upon default with respect to the Collateral, the Lender shall have a reasonable time, but in no event less than ninety (90) days or more than one hundred twenty (120) days, in which the Landlord will not hinder the Lender from repossessing and/or disposing of the Collateral from the Leased Premises; provided, however, that such period will be tolled during any period in which the Lender has been stayed from taking action to remove the Collateral in any bankruptcy, insolvency or similar proceeding, and the Lender shall have an additional period of time (but in no event less than ninety (90) days) or more than one hundred twenty (120) days thereafter in which to repossess and/or dispose of the Collateral from the Leased Premises. In those circumstances, the Landlord will, upon reasonable prior written notice from the Lender, (a) not hinder the Lender in gaining access to the Leased Premises for the purpose of repossessing said Collateral and (b) if requested by the Lender, permit the Lender, or its agents or nominees, to dispose of the Collateral on the Leased Premises in a manner reasonably designed to minimize any interference with any of the Landlord’s other tenants at the Leased Premises. The Lender shall promptly repair, at the Lender’s cost and expense, any physical damage to the Leased Premises actually caused by the Lender, but shall not be liable for any diminution in value of the Leased Premises caused by the removal or absence of the Collateral. The Tenant hereby releases the Landlord with respect to any cost, claim, or damage resulting from the Landlord's actions in accordance with this paragraph 3, except to the extent such cost, claim or damages arises from the negligence or willful misconduct of the Landlord. |
4. | To the extent not paid or prepaid by the Tenant, the Lender shall pay the Landlord a sum for its use and occupancy of the Leased Premises on a per diem basis in an amount equal |
5. | Without limiting the Lender’s rights pursuant to paragraph 3 hereof, prior to the Landlord’s terminating the Lease or evicting the Tenant from the Leased Premises for breach of or default under the Lease ("Lease Default"), the Landlord shall give the Lender not less than thirty (30) days’ written notice of such action at the address set forth below, and a reasonable opportunity to preserve, protect, liquidate, or remove any Collateral on the Leased Premises and, if the Lender so elects, to cure such breach of or default under the Lease within (x) thirty (30) days following receipt of notice of any monetary Lease Default and (y) thirty (30) days following receipt of notice of any non-monetary Lease Default that is reasonably susceptible to cure by Lender, provided that if Lender is diligently pursuing a cure of a non-monetary Lease Default and such non-monetary Lease Default can reasonably be cured within an additional thirty (30) days, Lender will be given an additional thirty (30) days to cure such Lease Default. If Lender desires to cure a Lease Default, Lender will give Landlord notice of such intent ("Notice of Intent to Cure") within fifteen (15) Business Days following Lender's receipt of the notice of Lease Default. Notwithstanding the provisions of this paragraph, the Lender shall not have any obligation to cure any such breach or default. The cure of any such breach or default by the Lender on any one occasion shall not obligate the Lender to cure any other breach or default or to cure such breach or default on any other occasion. Notwithstanding anything to the contrary herein, but without limiting the Lender’s rights pursuant to paragraph 3 hereof, in no event will Lender have the right to cure a Lease Default due to the failure of Tenant to maintain the "Letter of Credit" (as defined in the Lease) or Lease Default arising under Section 7.01(e) or Section 7.01(f) of the Lease. |
6. | No payment by the Lender to the Landlord hereunder shall affect any obligation of the Tenant and its affiliates to reimburse the Lender for any such payment by the Lender pursuant to the terms of the Loan Arrangement. |
7. | Lender hereby releases the Building Systems from any security interest held by Lender. |
8. | All notices under this Agreement shall be made to the following addresses by recognized overnight courier, by hand delivery or by facsimile transmission: |
9. | This Agreement shall inure to the benefit of the Lender and the other Credit Parties, and their respective successors and assigns, and shall be binding upon the Landlord, its heirs, assigns, representatives, and successors. |
10. | This Agreement may not be amended or waived except by an instrument in writing signed by the Lender, the Landlord, and the Tenant. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the conflicts of law principles thereof, but including Section 5-1401 of the New York General Obligations Law. Delivery of an executed signature page of this Agreement to the Lender by facsimile or .pdf transmission shall be binding on the Landlord as if the original of such facsimile or .pdf had been delivered to the Lender. |
LANDLORD: | ||
2400 XENIUM, LLC | ||
By: | /s/ Stephanie A. Shields | |
Name: | Stephanie A. Shields | |
Title: | Manager |
TENANT: | ||
CHRISTOPHER & BANKS CORPORATION | ||
By: | /s/ Keri Jones | |
Name: | Keri Jones | |
Title: | President and Chief Executive Officer |
LENDER: | ||
WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
By: | /s/ Michael Watson | |
Name: | Michael Watson | |
Title: | Duly Authorized Signatory |
Reference:
Security Exchange Commission - Edgar Database, EX-10.4 5 exhibit104-collateralagree.htm EXHIBIT 10.4, Viewed December 13, 2021, View Source on SEC.
Who Helps With Collateral Access Agreements?
Lawyers with backgrounds working on collateral access agreements work with clients to help. Do you need help with a collateral access agreement?
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Meet some of our Collateral Access Agreement Lawyers
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Elbert T.
Elbert Thomas is the founder of the Thomas Law Group, LLC. Elbert is proficient in contract creation, drafting, reviewing, and negotiating various business contracts and demand letters in industries such as construction, personal, professional services, non-profits, and real estate. Elbert typically represents small and large companies in drafting and negotiating countless agreements such as purchase sale agreements, interconnection agreements, lease agreements, demand letters, cease & desist letters, transfer of deeds in real property, and merger/acquisition agreements. In addition, Elbert is also experienced in start-ups, small business formation, drafting operating agreements, and estate planning.
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Jonathan K.
Pico & Kooker provides hands on legal advice in structuring, drafting, negotiating, interpreting, managing and enforcing complex high value commercial transactions. Adept at navigating complex environments, Jonathan has extensive expertise advising clients on a wide range of long- and medium-term cross border and financial engagements, including public tender participation, PPPs, export sales agreements as well as policy and regulatory formulation. Jonathan and his co-founder, Eva Pico have represented and acted on behalf of lenders, global corporations and other market participants across a range of industries including financial services, infrastructure and transportation. As outside counsel, Pico & Kooker, has developed a strong rapport and working relationship with their clients and appropriately work with their in-house teams to increase consistency, processes and procedures. The company employs a unique approach as practical, business minded outside legal counsel who believe in proactively partnering with their clients to achieve desired results while managing and engaging key stakeholders. They listen to their clients to develop customized solutions that best meet their needs while aligning with their objectives, vision and values. Some representative transactions include advising the World Bank on project finance and portfolio options to address the costs and risks associated with integrating renewable power sources. Also advising them as legal counsel, Jonathan developed policies, regulation and models for emerging market governments entering into public-private partnerships. In addition to his work with the World Bank, Jonathan has worked with some of the world’s largest consulting firms, financial institutions and governmental organizations, including the United Nations, the governments of the US, UK and select African countries. Through out his career, he has worked with large, multinational corporations both by consulting in-house and acting as outside counsel on large cross-border transactions. He graduated from Georgetown University’s law school and was admitted practice as a lawyer in New York, England and Wales and, as a foreign lawyer, in Germany. He has written several articles for trade journals and has been cited by several business publications in worldwide. Jonathan is a native English speaker and has high proficiency in German and a functional understanding of Spanish.
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