EXHIBIT 10.19
MORTGAGEE'S WAIVER AND CONSENT
This MORTGAGEE'S WAIVER AND CONSENT ("Waiver and Consent") is
made and entered into as of August 25, 1999, by and among PUBLIC SCHOOL
EMPLOYES' RETIREMENT SYSTEM, (the "New Lender"), POLYCHEM CORPORATION, a
Pennsylvania corporation (the "Company"), and GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation (together with any successors and assigns,
the "Lender").
A. The New Lender is the mortgagee under that certain Open End
Mortgage and Security Agreement, dated as of August 24, 1999, made by the
Company, and to be recorded in the real estate records of Xxxxxxx County,
Pennsylvania (the "Mortgage").
B. Pursuant to the Mortgage, the Company has granted to the
New Lender a lien upon all or a portion of the real property commonly known as
Franklin Avenue and Grant Street, and as more fully described in Appendix A
attached hereto (the "Premises").
C. The Lender has previously entered into or is about to enter
into certain financing transactions with the Company, and to secure such
financing the Company has granted to the Lender a security interest in and lien
upon certain of the tangible and intangible property of the Company, including,
without limitation, all of the Company's cash, cash equivalents, goods,
inventory, machinery, equipment, furniture and fixtures, together with all
additions, substitutions, replacements and improvements to, and proceeds of, the
foregoing (collectively, the "Collateral").
NOW, THEREFORE, in consideration of any financial
accommodations extended by the Lender to the Company at any time, and other good
and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. The New Lender is not aware of any existing default under
the Mortgage, and agrees to give written notice to the Lender in the event the
New Lender acquires an ownership or possessory interest in the Premises pursuant
to the exercise of its rights under the Mortgage or any other document executed
by the Company or under applicable law.
2. The New Lender acknowledges the validity of the Lender's
lien on the Collateral and, until such time as the obligations of the Company to
the Lender are indefeasibly paid in full, the New Lender waives any interest in
the Collateral and agrees not to distrain or levy upon any Collateral or to
assert any lien, right of distraint or other claim against the Collateral for
any reason. Any provision in the Mortgage to the contrary notwithstanding, the
New Lender acknowledges that, for so long as the Loan and Security Agreement,
dated as of September 30, 1998, as amended by the Waiver and Amendment Agreement
thereto, dated as of December 8, 1998, and the Waiver and Amendment to Loan and
Security Agreement, dated as of April 22, 1999, as it may be further amended or
modified, between the Company and Lender is outstanding, all equipment now or
hereafter owned and/or used by the Company in the operation of its business and
located at the Premises is part of the Collateral and the New Lender does not
have
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and will not take a lien on or security interest in any such equipment,
regardless of whether such equipment is deemed to be personal property or
fixtures. Notwithstanding the above, the Collateral shall not include any
equipment or fixtures which are required in connection with the operation of the
premises, including, without limitation, HVAC systems, temperature control
systems, theft detection systems, sprinkler systems, carpeting and lighting
fixtures.
3. The New Lender agrees that the Collateral may be stored,
utilized, and/or installed at the Premises and shall not be deemed a fixture or
part of the real estate but shall at all times be considered personal property,
whether or not any Collateral becomes so related to the real estate that an
interest therein would otherwise arise under applicable law.
4. The New Lender acknowledges that the Lender or its
representatives or invitees may enter upon the Premises at any time without any
interference by the New Lender to inspect, repossess, remove or otherwise deal
with the Collateral, and the Lender may advertise and conduct public auctions or
private sales of the Collateral at the Premises, in each case without
interference by the New Lender or liability of the Lender to the New Lender. The
Lender shall promptly repair, at the Lender's expense, any physical damage to
the Premises actually caused by the conduct of such auction or sale and any
removal of Collateral by or through the Lender (ordinary wear and tear
excluded). The Lender shall not be liable for any diminution in value of the
Premises caused by the absence of Collateral actually removed or by any
necessity of replacing the Collateral, and the Lender shall have no duty or
obligation to remove or dispose of any Collateral or any other property left on
the Premises by the Company.
5. Foreclosure by New Lender. In the event of a mortgage
foreclosure by the New Lender, the Lender agrees to arrange for the sale and/or
removal of the Collateral within 180 days from the date of a written notice to
do so served upon the Lender at the address set forth herein. In the event the
Lender wishes to abandon such Collateral, it shall provide the New Lender with
its intention to do so within 120 days of the date of such notice to remove such
Collateral. If the Lender abandons the Collateral, the New Lender shall be held
harmless for any damage or loss to the Collateral which may occur.
6. Notices. All notices hereunder shall be in writing, sent by
certified mail, return receipt requested, to the respective parties and the
following addresses:
The Lender: General Electric Capital Corporation
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Polychem Corporation - Account Manager`
Telephone: 000-000-0000
Facsimile: 000-000-0000
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The New Lender: Public School Employes'
Retirement System
c/x Xxxx Xxxxx Real Estate Services, Inc.
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Telephone: 215-496-3000
Facsimile: 000-000-0000
The Company: Polychem Corporation
Xxxxxxxx Xxxxxx & Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
7. Miscellaneous. This Waiver and Consent may be executed in
any number of several counterparts, shall be governed and controlled by, and
interpreted under, the laws of the State of New York and shall inure to the
benefit of the Lender and its successors and assigns and shall be binding upon
the New Lender and its successors and assigns (including any transferees of the
Mortgage or Premises). The New Lender agrees and consents to the filing of this
document for recording in the land records of the county in which the Premises
is located.
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IN WITNESS WHEREOF, this Mortgagee's Waiver and Consent is
entered into as of the date first set forth above.
PUBLIC SCHOOL EMPLOYES'
RETIREMENT SYSTEM
By its agent Xxxx Xxxxx Real Estate Services, Inc.
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Xxxxxx X. Xxxx
Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: _________________________
Name:
Title:
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Agreed to and acknowledged by the Company:
POLYCHEM CORPORATION
By: /s/ Xxxx X. XxXxxxxx
--------------------------------------------
Name: Xxxx X. XxXxxxxx
Title: Chairman & CEO
[ATTACH NOTARIAL ACKNOWLEDGMENTS]
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