Exhibit 10.41
MORTGAGEE'S WAIVER AND CONSENT
THIS MORTGAGEE'S WAIVER AND CONSENT ("Waiver and Consent") is made and
entered into as of May 9, 2003, by and among EASTERN BANK ("Bank"), TITAN PCB
EAST, INC., a Delaware corporation ("Company") and EQUINOX BUSINESS CREDIT
CORP., a New Jersey corporation (together with any successors and assigns,
"Lender").
A. Bank is named the mortgagee under that certain Mortgage Security
Agreement and Fixture Financing Statement dated May 13, 1999 made by Xxxxxx X.
Xxxxx, Xx., Trustee of HD Realty-Trust-1993 (the "Trust") in favor of Bank
covering the property located at One and Two Industrial Way, Amesbury,
Massachusetts (the "Property") and as more fully described in Exhibit A attached
hereto (the "Mortgage").
B. Bank also received from the Trust a Collateral Assignment of Leases
and Rents dated May 13, 1999 with respect to the Property (the "Assignment of
Leases").
C. Company leases the Property from the Trust (the "Lease") which Lease
is subordinate to the Mortgage and the Assignment of Leases (collectively, the
"Mortgage Documents").
D. Lender has previously entered into or is about to enter into certain
financing transactions with Company, and to secure such financing Company has
granted to Lender a security interest in and lien upon certain of the tangible
and intangible property of Company, including, without limitation, all of
Company's cash, cash equivalents, accounts, goods, inventory, machinery,
equipment, furniture and fixtures, together with all additions, substitutions,
replacements and improvements to, and proceeds of, the foregoing (collectively,
the "Collateral"); provided, however the Collateral shall not include those
fixtures which are necessary to the operation of the building on the Property
such as HVAC systems, temperature control systems, building theft detection
systems, sprinkler systems, carpeting and premises lighting fixtures but the
Collateral shall include all trade fixtures owned by the Company.
NOW, THEREFORE, in consideration of any financial accommodations
extended by Lender to 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. Bank agrees to give written notice to Lender upon the commencement
of the exercise of any of its rights under the Mortgage Documents (the "Bank
Notice"). Landlord will permit Lender to remain on the Property for a period of
up to seventy five (75) days following receipt by Lender of the Bank Notice. In
the event Lender intends to exercise such right to occupy the Property, Lender
shall (a) notify Bank of its intention to occupy the Property (the "Lender
Notice") within ten (10) days after Lender's receipt of the Bank Notice and (b)
pay to Bank an amount equal to the Minimum Monthly Rent (as set forth in the
Lease) for the period of time from the date it delivers the Lender Notice until
the date upon which it vacates the Property. During such period of occupancy by
Lender, Lender may advertise and conduct public auctions or private sales of the
Collateral at the Property, in each case without interference by Bank or
liability of Lender to Bank. Lender shall promptly repair, at Lender's expense,
any physical damage to the Property actually caused by the conduct of such
auction or sale and any removal of Collateral by or through Lender (ordinary
wear and tear excluded) and leave the Property in reasonably good condition upon
vacation of the Property. Upon vacation of the Premises, Lender shall remove
from the Property all machinery and equipment of the Company upon which Lender
has a lien. Notwithstanding the foregoing, Lender shall have no obligation to
remove any machinery and equipment from the Property that in any manner may
cause Lender to suffer any loss, liability, damage, expense on account of any
environmental laws.
2. Until such time as the obligations of Company to Lender are
indefeasibly paid in full, Bank 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.
3. Bank acknowledges that the Collateral may be stored, utilized,
and/or installed at the Property 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. Bank acknowledges that prior to Bank acquiring any possessory or
ownership interest in the Property, Lender or its representatives or invitees
may enter upon the Property at any time without any interference by Bank to
inspect, repossess, remove or otherwise deal with the Collateral, and Lender may
advertise and conduct public auctions or private sales of the Collateral at the
Property, in each case without interference by Bank or liability of Lender to
Bank. Lender shall promptly repair, at Lender's expense, any physical damage to
the Property actually caused by the conduct of such auction or sale and any
removal of Collateral by or through Lender (ordinary wear and tear excluded).
Lender shall not be liable for any diminution in value of the Property caused by
the absence of Collateral actually removed or by any necessity of replacing the
Collateral, and Lender shall have no duty or obligation to remove or dispose of
any Collateral or any other property left on the Property by Company.
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5. Notices. All notices hereunder shall be in writing, sent by
certified mail, return receipt requested, to the respective parties and the
following addresses:
Lender: Equinox Business Credit Corp.
000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone: 000-000-0000
Facsimile: 732-635-1111
Bank: Eastern Bank
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone: _____________________
Facsimile: ______________________
Company: Titan PCB East, Inc.
0 Xxxxxxxxxx Xxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: _____________________
Telephone: 000-000-0000
Facsimile: 000-000-0000
6. 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 Massachusetts. This Waiver and Consent shall
inure to the benefit of Lender and its successors and assigns and shall be
binding upon Bank and its successors and assigns (including any transferees of
the Mortgage or Property). Bank agrees and consents to the filing of this
document for recording in the land records of the county in which the Property
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.
EASTERN BANK
By: /s/ Xxxx X Xxxxxx
------------------------------------
Name: Xxxx X Xxxxxx
Title: Vice President
EQUINOX BUSINESS CREDIT CORP.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: President
Agreed to and acknowledged by Company:
TITAN PCB EAST, INC.
By: /s/ Xxxxx X Xxxxx
------------------------------------
Name: Xxxxx X Xxxxx
Title: Chairman
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STATE OF Massachusetts )
---------------------------
) ss:
COUNTY OF Suffolk )
--------------------------
Before me, the undersigned, on this 8 day of May, 2003, personally
appeared Xxxx X. Xxxxxx, to me known personally, and who being by me duly sworn,
deposes and says that s/he is the Vice President of Eastern Bank and that s/he
was authorized to sign her/his name thereto.
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Notary Public
STATE OF New York )
---------------------------
) ss:
COUNTY OF New York )
--------------------------
Before me, the undersigned, on this 12 day of May, 2003, personally
appeared Xxxxx Xxxxx, to me known personally, and who being by me duly sworn,
deposes and says that s/he is the President of Equinox Business Credit Corp. and
that s/he was authorized to sign her/his name thereto.
/s/ Xxxxxx Xxxxxx
-------------------------------------
Notary Public
STATE OF Wisconsin )
---------------------------
) ss:
COUNTY OF Milwaukee )
--------------------------
On the 8 day of May, 2003, before me personally came Xxxxx X. Xxxxx to
me known, who being by me duly sworn, did depose and say s/he is the Chairman of
Titan PB East, Inc., the corporation described in and which executed the
foregoing instrument; and that s/he signed her/his name thereto by order of the
board of directors of said corporation.
/s/ X. Xxxxxxx
----------------------------
Notary Public
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
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