Exhibit 10.10
-------------
LANDLORD'S WAIVER
Contract No. 1786
(C)2001, DVI, Inc., All Rights Reserved
THIS LANDLORD'S WAIVER (this "waiver") is entered into effective as of
May________,2001, by and among [LANDLORD] ("landlord"), HOWARD SILVERMAN
("Obligor") and DVI FINANCIAL SERVICE INC. ("DVI")
BACKGROUND
A. Obligor, as tenant, and landlord have entered into a lease
("l\lease") for the real estate located at 6646 Indian School Road, Albuquerque,
NM 87110, as more described on schedule A attached hereto ("Leased premises").
B. DVI is or will be the owner of and/or has or will have security
interest in and lien on the personal property (as defined below).
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and affirmed, and
intending to be legally bound hereby, the parties agree as follows:
1. Waiver of rights. Landlord hereby waives, releases and relinquishes
to DVI all right, title, interest, claim and lien that landlord has, or may in
the future have, in, to against the personal property located at any time on the
leased promises as specifically described on schedule B attached hereto, as the
same may be amended by DVI, from time to time, by written notice to landlord, to
the extent personal property is now owned or hereafter acquired by DVI and
leased to obligor or now owned or hereafter acquired by obligor and pledge To
DVI as collateral security for obligations of obligor to DVI(collectively,
"Personal Property"). Personal Property will not be subject to levy, sale,
distress or distraint for rent or to any claim, lien or demand of any kind by
landlord.
2. Entry to Leased Premises. Landlord and obligor authorize DVI and its
attorneys, agents and employees to enter on the leased premises, upon
responsible notice (provided that no notice will be required if all or any part
of the Personal Property is subject imminent harm or loss) and, at any
responsible time, to inspect, preserve, maintain, take possession of, remove or
dispose of the personal property ("Permitted Activities"); provided, however,
that DVI agrees or its attorneys, agents or employees on the leased premises.
DVI further agrees to indemnify and hold harmless Landlord from against any loss
or claim of any third party directly resulting from any of the Permitted
Activities engaged in by DVI or it attorneys, agents or employees on the Leased
Premises.
3. Not Fixtures. Landlord agrees that the Personal Property (except the
extent such Personal Property consists of ordinary building materials (such as
dry wall or carpeting) fully integrated into the lease Premises) is and will
not be deemed a fixtures or part of the leased Premises, but will at all times
be considered personal property. Except as provided in section 4 hereof or with
Form 33 S:\SHARED DOCUMENT\DS MAVARRO\Dr. Howard Silverman\Silverman LLW.Doc
05/15/2001 3:15 PM
Revised 3/6/01 Page 1 of 5
DVI's express written consent, landlord will take no steps to remove the
Personal Property from the lease premises.
4. Used of Leased Premises. If obligor has vacated the leased premises,
voluntarily, the lease is terminated or Landlord has accelerated all amounts due
under the lease, Landlord may upon written notice to DVI ("Landlord Notice")
request that DVI remove the personal property from the Leased Premises. Unless
DVI elects to abandon the personal property, DVI will pay to the landlord the
regular monthly, non-accelerated rental payments due under the lease (not
including any past-due, additional or bonus rental) prorated for the number of
dats DVI keeps the Personal Property on the leased premises commencing on that
day that is ten (10) days after DVI's receipt of the Landlord Notice. In any
event, unless DVI elects to abandon the Personal Property, DVI will remove the
Personal Property, from the leases Premises within one hundred twenty (120) days
after DVI's receipt of the Landlord Notice unless such removal is stayed,
enjoined or prevented by causes outside DVI's control, in which case the one
hundred twenty (120) days will commence on the date DVI obtains relief from such
stay or injunction or such causes are eliminated. Nothing herein or elsewhere
will be deemed to prevent or limit DVI, at its option, from abandoning any part
of the Personal Property; provided, however, that DVI must give Landlord written
notice of abandonment in order to be relieved of any obligation hereunder to pay
rent to Landlord. If DVI elects to abandon the Personal Property or fails to
timely pay the rental due from DVI hereunder, Landlord may, using commercially
reasonable methods, undertake to remove the Personal Property from the Leased
Premises.
5. Landlord's Representations. Landlord represents and warrants to DVI
that: (a) the Lease is in full force and effect and has not been amended,
modified or renewed, (b) to the Landlord's knowledge, Obligor is not in default
of any of its obligations under the Lease and (c) all rent and other payments,
if any, due under the Lease have been paid by Obligor. Landlord understands and
agrees that DVI is relying on the agreements, representations and warranties
contained in this Waiver in extending, continuing or maintaining certain credit
facilities to Obligor.
6. Notices. All notices, requests and other communications made or
given in connection with this Waiver will be in writing and will be deemed to be
received (a) upon personal delivery to the individual or division or department
to whose attention notices to a party are to be addressed by private carrier ,
(b) three (3) business days after being sent by registered or certified mail, in
all cases, with charges prepaid, addressed to landlord or to Obligor at heir
respective addresses set forth on the Signature Page hereto or to DVI as
follows:
TO DVI: With Copy To:
DVI Financial Services Inc DVI Financial Services Inc
2500 York Road 2500 York Road
Jamison, PA 18929 Jamison, PA 18929
Attention: Chief Credit Officer Attention: Legal Department
Telephone: 215-488-5000 Telephone: 215-488-5000
Facsimile: 215-488-5408 Facsimile: 215-488-5415
E-Mail: DVI@dvi-inc.com E-Mail: DVI@dvi-inc.com
Form 33 S:\SHARED DOCUMENT\DS MAVARRO\Dr. Howard Silverman\Silverman LLW.Doc
05/15/2001 3:15 PM
Revised 3/6/01 Page 2 of 5
Any party may change such address by sending notice of the change to other
parties: such change of address is effective only upon actual receipt of such
notice by the other parties.
7. Governing Law. This Waiver will be governed by the laws of the state
in which the Leased Premises are located.
8. Contract Number. The inclusion of a Contract Number herein is not
intended to, and should not be interpreted to, limit in anyway the
enforceability of this Waiver solely to the Personal Property described in that
Contract.
9. Binding Effect. This waiver is binding upon and will inure to the
benefit of the heirs, successors and assigns of the parties hereto.
(THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK)
Form 33 S:\SHARED DOCUMENT\DS MAVARRO\Dr. Howard Silverman\Silverman LLW.Doc
05/15/2001 3:15 PM
Revised 3/6/01 Page 3 of 5
Contract No. 1409
LANDLORD'S WAIVER - SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Waiver effective as of
the date first above written.
STATE OF : [LANDLORD]
----------------------- : SS
COUNTY OF---------------------- --------------------------
On , 20 , before
------------- ------
me, the undersigned, personally
appeared Address: [LANDLORD'S MAILING ADDRESS]
--------------------------,
who acknowledged himself to be -------------------------------------
of Contact person:
- --------------, &----------------, ---------------------
and that he as such Telephone:
---------------, --------------------------
being authorized to do so, executed Facsimile:
the foregoing instrument for the --------------------------
purposes therein contained. IN E-Mail:
WITNESS WHEREOF, I hereunto set my -----------------------------
and official seal.
- ----------------------------------
Notary Public
My Commission Expires:
COMMONWEALTH OF PENNSYLVANIA DVI FINANCIAL SERVICES INC.
COUNTY OF BUCKS : SS
On , 20 , before By:
------------- ----- ----------------------------
me, the undersigned, personally Name:
appeared , --------------------------
who acknowledged himself to be Title:
of DVI -------------------------
- ----------------------,
Financial Services Inc., a Delaware
Corporation, and that he as such officer,
being authorized to do so, executed the
foregoing instrument for the purposes
therein contained. IN WITNESS WHEREOF,
I hereunto set my hand and official seal.
- -------------------------------------
Notary Public
My Commission Expires:
Form 33 S:\SHARED DOCUMENT\DS MAVARRO\Dr. Howard Silverman\Silverman LLW.Doc
05/15/2001 3:15 PM
Revised 3/6/01 Page 4 of 5
STATE OF : HOWARD SILVERMAN
----------------------- : SS
COUNTY OF---------------------- --------------------------
On , 20 , before
------------- ------
me, the undersigned, personally
appeared Address: 2618 South Beverly Drive
--------------------------, Los Angeles, CA 90034
who acknowledged himself to be -------------------------------------
of Contact person:
- --------------, &----------------, ---------------------
and that he as such Telephone:
---------------, --------------------------
being authorized to do so, executed Facsimile:
the foregoing instrument for the --------------------------
purposes therein contained. IN E-Mail:
WITNESS WHEREOF, I hereunto set my -----------------------------
and official seal.
- ----------------------------------
Notary Public
My Commission Expires:
Form 33 S:\SHARED DOCUMENT\DS MAVARRO\Dr. Howard Silverman\Silverman LLW.Doc
05/15/2001 3:15 PM
Revised 3/6/01 Page 5 of 5
Contract No. 1409
LEGAL DESCRIPTION OF LEASED PREMISES
[See Attached]
SCHEDULE A
TO
LANDLORD'S WAIVER
Form 33 S:\SHARED DOCUMENT\DS MAVARRO\Dr. Howard Silverman\Silverman LLW.Doc
05/15/2001 3:15 PM
Revised 3/6/01 Page 6 of 5
Contract No. 1409
DESCRIPTION OF PERSONAL PROPERTY
[COLLATERAL DESCRIPTION]
SCHEDULE B
TO
LANDLORD'S WAIVER
Form 33 S:\SHARED DOCUMENT\DS MAVARRO\Dr. Howard Silverman\Silverman LLW.Doc
05/15/2001 3:15 PM
Revised 3/6/01 Page 7 of 5
ATTACHMENT TO UCC-1 FINANCING STATEMENT
(Specific Equipment)
(C)2001, DVI, Inc, All Rights Reserved Contract No. 1786-002
DEBTOR: SECURED PARTY:
HOWARD SILVERMAN DVI FINANCIAL SERVICES INC.
2618 South Beverly Drive 2500 York Road
Los Angeles , CA 90034 Jamison, Pennsylvania 18929
Debtor hereby grants to and for the benefits of Secured Party and it's
Affiliates, as collateral security for the DVI Indebtedness, a security interest
in, and lien on, all right title and interest of Debtor in and to the following
equipment, together with all parts and accessories and additions incorporated
therein, attached thereto and used in connection therewith, all replacements and
substitutions therefore and all income, proceeds and products thereof.
Serial No. Manufacture Year/Model Description Software Level
- ---------- ------------ ---------- ------------ --------------
S/N VISX 1998 EXIMER LASER
Debtor acknowledges and agrees that this Attachment and the grant of
the security interest and lien combined herein are subject to the terms and
conditions of that certain Master Loan and Security Agreement dated March 17,
1998, by and between Debtor and Secured Party. All undefined capitalized terms
used herein have the meanings set forth in such Master Security Agreement.
Form 40 S:\SHARED DOCUMENT\DS MAVARRO\Dr. Howard Silverman\Silverman LLW.Doc
05/5/2001 2:54 PM
Revised 3/8/01