SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For Quarter Ended August 31, 1995 Commission File Number
0-12353
PLASMA-THERM, INC.
(Exact name of registrant as specified in its charter)
FLORIDA 04-2554632
State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification No.)
9509 INTERNATIONAL COURT, ST. PETERSBURG, FLORIDA 33716
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code
(813) 577-4999
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of
the Securities Exchange Act of 1934 during the preceding 12
months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes X No
Indicate the number of shares outstanding of each of the
issuer's classes of common stock, as of the latest
practicable date.
Common Stock, par value $.01 per share 10,274,561
Class Outstanding at
September 20, 1995
1<PAGE>
INDEX
Part I. Financial Information
Page
Number
Item 1. Consolidated Financial Statements
Balance Sheets - August 31, 1995 and
November 30, 1994 ............................... 3
Statements of Income - Three Months and
Nine Months EndedAugust 31, 1995 and
August 31, 1994................................... 5
Statements of Cash Flows - Nine Months Ended
August 31, 1995 and August 31, 1994.............. 6
Notes to Consolidated Financial Statements ....... 8
Item 2. Management's Discussion and Analysis of
Financial Condition and Results
of Operations............................. 10
Part II. Other Information
Item 6. Exhibits and Reports on Form 8-K ............ 13
2<PAGE>
<TABLE>
<CAPTION>
PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
August 31, November 30,
ASSETS 1995 1994
(Unaudited) (Note 1)
<S> <C> <C>
Current assets
Cash and cash equivalents $ 4,408,731 $ 2,625,850
Accounts receivable 8,073,921 4,725,876
Income tax deposits 269,494 0
Inventories 8,940,535 7,219,340
Current portion - note receivable 60,000 60,000
Prepaid expenses and other 207,234 218,569
Deferred tax asset 208,000 208,000
Total current assets 22,167,915 15,057,635
Property and equipment, at cost
Land 786,017 0
Construction In Progress 233,978 0
Machinery and equipment 2,224,220 2,118,537
Leasehold improvements 422,368 375,099
3,666,583 2,493,636
Less accumulated depreciation and
amortization 1,845,113 1,633,535
1,821,470 860,101
Other assets
Note receivable, less current portion 0 45,000 <PAGE>
Deferred tax asset 745,283 498,380
Deferred offering costs 0 86,878
Other 61,834 35,904
807,117 666,162
$ 24,796,502 $ 16,583,898
</TABLE>
See accompanying notes to these consolidated financial statements.
-3-<PAGE>
<TABLE>
<CAPTION>
PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
August 31, November 30,
LIABILITIES 1995 1994
(Unaudited) (Note 1)
<S> <C> <C>
Current liabilities
Short-term borrowings $ 2,000,000 $ 1,000,000
Current portion of notes payable 333,333 375,000
Current maturities of obligations under
capital leases 76,266 111,565
Accounts payable 2,074,030 1,544,791
Billings in excess of costs and estimated
earnings on uncompleted contracts 0 27,330
Accrued payroll and related 402,384 390,913
Accrued expenses 881,429 327,958
Income taxes payable 0 151,962
Customer deposits 39,782 738,000
Total current liabilities 5,807,224 4,667,519
Long-term obligations
Notes payable 250,000 500,000 <PAGE>
Obligations under capital leases 257,411 311,484
507,411 811,484
SHAREHOLDERS' EQUITY
Shareholders' equity
Common stock
$.01 par value
Authorized - 25,000,000 shares
Issued and outstanding - 10,259,561
shares - 1995 and 8,428,561 shares -
1994 102,597 84,287
Additional paid-in capital 14,672,226 7,885,857
Retained earnings 3,707,044 3,134,751
18,481,867 11,104,895
$ 24,796,502 $ 16,583,898
</TABLE>
See accompanying notes to these consolidated financial statements.
-4-<PAGE>
<TABLE>
<CAPTION>
PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
Three Months Ended Nine Months Ended
August 31, August 31,
1995 1994 1995 1994
<S> <C> <C> <C> <C>
Net sales $ 9,068,855 $ 6,257,120 $ 21,185,376 $ 17,167,045
License income 0 0 30,000 0
9,068,855 6,257,120 21,215,376 17,167,045
Costs and expenses
Cost of products sold 5,923,870 3,945,734 14,117,596 10,669,609
Research and development 710,462 558,154 1,898,999 1,664,556
Selling and administrative 1,791,998 1,133,323 4,354,764 3,432,580
Interest expense 60,610 27,774 135,155 46,828
Other (income) expense, net (83,683) 5,450 (258,444) 28,826
8,403,257 5,670,435 20,248,070 15,842,399
Income before income taxes and cumulative
effect of change in accounting principle 665,598 586,685 967,306 1,324,646
Income taxes 277,775 212,047 395,013 397,403
Income before cumulative effect of change
in accounting principle 387,823 374,638 572,293 927,243
Cumulative effect of change in
accounting for income taxes 0 0 0 350,000
Net income $ 387,823 $ 374,638 $ 572,293 $ 1,277,243
Income per share (primary and fully dilutive)
Income per share before cumulative effect
of change in accounting principle $0.04 $0.04 $0.05 $0.10 <PAGE>
Cumulative effect of change
in accounting principle 0.00 0.00 0.00 0.04
$0.04 $0.04 $0.05 $0.14
</TABLE>
See accompanying notes to these consolidated financial statements.
-5-<PAGE>
<TABLE>
<CAPTION>
PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
Nine Months Ended August 31,
1995 1994
<S> <C> <C>
Cash flows from operating activities
Net income $572,293 $1,277,243
Adjustments to reconcile net income to net
cash provided by operating activities
Depreciation and amortization 372,018 325,613
Gain (loss) on disposal of assets 5,100 (21,070)
Deferred taxes (246,903) (282,216)
Compensation - stock options 93,203 182,076
Changes in assets and liabilities
Increase in accounts receivable (3,348,045) (1,140,580)
Decrease in income tax deposits 298,807 0
Increase in inventories (1,721,195) (1,584,460)
(Increase) decrease in prepaid expenses and other 11,335 (34,330)
Increase in accounts payable 529,239 89,399
Decrease in billings in excess of costs and
estimated earnings on uncompleted contracts (27,330) 0
Increase in accrued payroll and related 11,471 132,548
Increase (decrease) in accrued expenses 553,471 (36,004)
Increase (decrease) in income taxes payable (151,962) 173,812
Increase (decrease) in customer deposits (698,218) 210,000
Net cash used in
operating activities (3,746,716) (707,969)
Cash flows from investing activities
Capital expenditures (1,338,487) (207,679)
Proceeds from sale of assets 0 61,500 <PAGE>
Payments received on loan to former subsidiary 45,000 45,000
Other (25,930) (22,346)
Net cash used in investing activities (1,319,417) (123,525)
</TABLE>
See accompanying notes to these consolidated financial statements.
-6-<PAGE>
<TABLE>
<CAPTION>
PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS - CONTINUED
(Unaudited)
Nine Months Ended August 31,
1,995 1994
<S> <C> <C>
Cash flows from financing activities
Proceeds from issuance of notes payable 0 1,033,649
Principal payments on notes payable (291,667) (270,833)
Principal payments under capital lease obligations (89,372) (48,368)
Net proceeds under line of credit agreements 1,000,000 650,000
Issuance of common stock 6,143,175 89,350
Deferred offering costs 86,878 0
Net cash provided by
financing activities 6,849,014 1,453,798
Net increase in cash and cash
equivalents 1,782,881 622,304
Cash and cash equivalents, beginning of period 2,625,850 1,496,113
Cash and cash equivalents, end of period $4,408,731 $2,118,417
</TABLE>
See accompanying notes to these consolidated financial statements.
-7- <PAGE>
PLASMA-THERM, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AUGUST 31, 1995 AND NOVEMBER 30, 1994
(UNAUDITED)
Note 1 Basis of Presentation
In the opinion of management, the accompanying
unaudited consolidated financial statements contain
all adjustments (consisting of only normal recurring
adjustments) necessary to present fairly the financial
position as of August 31, 1995 and November 30, 1994
and the results of operations and cash flows for the
nine months ended August 31, 1995 and 1994.
The results of operations for the nine months ended
August 31, 1995 and 1994 are not necessarily
indicative of results for the full year.
The November 30, 1994 balance sheet amounts and
disclosures included herein have been derived from the
November 30, 1994 audited financial statements of the
Registrant. While the Company believes that the
disclosures presented are adequate to make the
information not misleading, it is suggested that these
consolidated financial statements be read in
conjunction with the consolidated financial statements
and the notes included in the Company's latest annual
report on Form 10-K.
Note 2 Principles of Consolidation
The consolidated financial statements include the
accounts of Plasma-Therm, Inc. (the Company) and its
wholly owned subsidiary. All significant intercompany
transactions and balances have been eliminated.
Note 3 Income Per Share
Earnings per share is computed based on the weighted
average number of shares of common stock adjusted for
the conversion of dilutive common stock equivalents.
The primary and fully dilutive income per share are
the same for all periods presented. The following is
the weighted average outstanding share information.
8<PAGE>
PLASMA-THERM, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AUGUST 31, 1995 AND NOVEMBER 30, 1994
(UNAUDITED)
Three Months Ended August 31,
1995 1994
Primary 10,728,344 9,005,675
Fully Dilutive 10,734,481 9,094,814
Nine Months Ended August 31,
1995 1994
Primary 10,692,453 9,028,737
Fully Dilutive 10,751,694 9,168,706
Note 4 Short Term Borrowings
In January 1995, the Company replaced its existing
line of credit with a $2,000,000 line due May 19,
1996. Interest is payable monthly at the bank's prime
rate. The line is collateralized by accounts
receivable. The bank has a security interest in the
proceeds for the collection of accounts receivable in
the Company's depository account(s).
Note 5 Notes Payable
In January 1995, the note payable, payable in monthly
installments of $27,788 plus interest at 8.28%, was
amended to change the collateral requirements from all
the assets of the Company to accounts receivable and
inventory only. The bank has a security interest in
the proceeds for the collection of accounts receivable
in the Company's depository account(s).
Note 6 Shareholders' Equity
Changes in the Company's common stock and additional
paid-in capital during the nine months ended August
31, 1995 consist of the following:
9<PAGE>
PLASMA-THERM, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AUGUST 31, 1995 AND NOVEMBER 30, 1994
(UNAUDITED)
<TABLE>
<CAPTION>
Common Stock Additional
Shares Paid-In-
Issued Amount Capital
<S> <C> <C> <C>
Balance at November 30, 1994 8,428,561 $84,287 $7,885,857
Exercise of stock options 81,000 810 191,749
Compensation on unexercised
stock options 93,203
Exercise of warrants 250,000 2,500 672,967
Sale of 1,500,000 shares of
common stock 1,500,000 15,000 5,744,097
Repayment of obligations under
Section 16(b) of the
Securities Exchange Act of 1934 0 0 84,353
Balance at August 31, 1995 10,259,561 $102,597 $14,672,226
</TABLE>
Note 6 Shareholders' Equity (continued)
In connection with the Company's borrowing from its
former primary bank, the Company's president and chief
operating officer executed a limited guarantee of the
Company's indebtedness which was released in 1989. The
Company agreed to compensate the Company's president
for giving such guarantee by issuing to him a warrant
expiring in April 2002, for the purchase of 500,000
shares of the Company's common stock at a purchase
price per share of $.875. In accordance with the anti-
dilution provisions contained in the above warrants,
the exercise price of the warrants was adjusted as a
result of the spin-off of the Company's subsidiary in
1992. The adjusted conversion price of the warrants
is $.7721 per share. One hundred thousand warrants
were exercised in April 1995 for $77,210.
In conjunction with previous financing agreements, two
warrants expiring in 1995 were issued to a third party
in November 1988 and June 1989 to purchase 50,000 and
10<PAGE>
PLASMA-THERM, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AUGUST 31, 1995 AND NOVEMBER 30, 1994
(UNAUDITED)
100,000 shares of common stock, respectively, at a
price of $1.25 per share. In accordance with the anti-
dilution provisions contained in the above warrants,
the exercise price of the warrants was adjusted as a
result of the spin-off of the Company's
subsidiary in 1992. The adjusted conversion price of
the warrants is $1.1029 per share. Both warrants were
exercised in February 1995 for $165,435.
The Company completed a private placement offering of
its Common Stock in December 1994, raising gross
proceeds of $6,375,000 from the sale of 1,500,000
shares. Costs, including commissions, associated with
the offering were approximately $631,000. Part of
these proceeds were used to pay off the Company's line
of credit balance of $1,000,000 at November 30, 1994.
Note 7 Distributorship Agreement
The Company's exclusive distributorship agreement with
its current Japanese distributor, Nissin Hi-Tech,
Inc./Nissin Electric Co., Ltd., expired in August
1995. The Company has selected a replacement
distributor and plans to finalize an agreement during
the month of September.
Note 8 Construction of New Facility
In August, 1995 the Company executed a promissory note
for $3,375,000 with its bank for the construction of
its new manufacturing facility. During the
construction phase, interest is payable monthly at the
bank's prime rate on the outstanding balance. The
outstanding balance at August 31, 1995 is $0.
On June 14, 1996, the maturity date of the
construction phase, the note converts to a five year
term loan, amortized over a fifteen year period.
Equal payments of principal and interest will be
payable monthly at a fixed interest rate based on the
11<PAGE>
PLASMA-THERM, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AUGUST 31, 1995 AND NOVEMBER 30, 1994
(UNAUDITED)
weekly average yield on U.S. Treasury securities plus
200 basis points. The interest rate will be determined
upon conversion. The loan will be collateralized by
the land, building and its contents.
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
Financial Position, Liquidity and Capital Requirements
The Company's cash position increased by $1,782,881
from November 30, 1994 to August 31, 1995. Working
capital at August 31, 1995 was $16,360,691 which is an
increase of $5,970,575 over November 30, 1994. The
increase in working capital was due primarily to the
completion of a private placement offering of the
Company's Common Stock in December 1994, raising net
cash of approximately $5,759,000 and an increase in
sales. A portion of the proceeds from the private
placement have been used to invest in working capital
requirements, including inventory which increased
$1,721,195. As a result of increased sales,
additional inventory has turned into accounts
receivable at August 31, 1995, which can be seen by
the increase in accounts receivable of $3,348,045 over
November 30, 1994.
Uses of cash included the repayment of $381,039 of
notes payable and capital lease obligations. In
addition, the Company has incurred $1,338,487 in
capital expenditures, of which approximately $232,000
relates to the computer software and hardware required
for current and anticipated growth. Approximately
$1,020,000 relates to the initial costs associated
with the construction of the new building including
$786,017 for the purchase of land (See Note 8 to the
financial statements).
The Company has extensive ongoing capital requirements
for research and development, the repayment of debt,
capital equipment and inventory. The Company believes
that its current cash reserves, together with the
proceeds of the private placement, working capital
expected to be generated by operations and funds
available under its line of credit, should be
sufficient to meet its capital requirements for the
immediate future. Should order input exceed projected
1995 levels, additional working capital may be
required.
The Company believes that inflation has had no
material impact upon its operations.
Results of Operations
Net sales of $9.1 million for the third quarter of
1995 increased by 45% from net sales of $6.3 million
for the third quarter of 1994. For the first nine
months of 1995, the Company reported net sales of
$21.2 million, 24% higher than net sales of $17.2
million for the first nine months of 1994. The
increase in net sales for both the third quarter and
nine month period was attributable to higher product
demand and an increase in Clusterlock (R) 7000 sales.
Cost of products sold of $5.9 million for the third
quarter of 1995 was 65% of net sales, compared to 63%
for the same period last year. Cost of products sold
of $14.1 million for the first nine months of 1995 was
67% of net sales compared to 62% for the same period
last year. The increase for both the quarter and the
nine month period relates primarily to lower margins
on Clusterlockr 7000 orders which shipped during the
second and third quarters. The initial Clusterlock(R)
7000 sales were taken at lower margins to enable the
Company to gain market share. In addition, the
planned recognition of approximately $561,000 for
field service costs (principally warranty costs) and a
planned inventory provision of $225,000 through August
31, 1995 contributed to higher cost of products sold.
Research and development expense for the third quarter
of 1995 and 1994 was $710,462 and $558,154, which is
8% and 9% of net sales respectively. For the first
nine months of 1995 and 1994, research and development
expense was $1,898,999 and $1,664,556, which is 9% and
10% of net sales respectively. Although the
percentage of research and development expense to net
sales has decreased slightly, total dollars spent has
increased.
Selling and administrative expense was $1,791,998 in
the third quarter of 1995, up from $1,133,323 in the
third quarter of 1994. The increase as a percentage
of net sales of 2% to 20% from 18% for the third
quarter of 1995 and 1994 respectively, is the result
of costs associated with the evaluation, eventual
purchase and implementation of new manufacturing
computer software. The projected completion date of
this project is June 1996. Selling and administrative
expense for the first nine months of 1995 was
$4,354,764, up from $3,432,580 for the first nine
months of 1994. Selling and administrative expense
has remained constant at 20% for the first nine months
of 1995 and 1994, although actual expense has
increased as a percentage of net sales..
The Company recorded income before income taxes of
$665,598 in the third quarter of 1995, up from
$586,685 in the third quarter of 1994. Income before
income taxes for the first nine months of 1995 was
$967,306, a $357,340 decrease from $1,324,646 earned
the first nine months of 1994. The primary reason for
the decrease is the result of an increase in cost of
products sold, as discussed above.
12<PAGE>
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits.
10.23 Promissory Note dated August 14, 1995 with
NationsBank of Florida, N.A.
10.24 Mortgage, Assignment of Rents and Security
Agreement dated August 14, 1995 with
NationsBank of Florida, N.A.
10.25 Environmental Indemnity Agreement dated
August 14, 1995 with NationsBank of
Florida, N.A.
10.26 Amendment (to Amended and Restated Revolving
Credit Agreement between Plasma-Therm, Inc.
and NationsBank of Florida, N.A., dated
January 19, 1995) dated August 14, 1995
with NationsBank of Florida, N.A.
10.27 Construction Loan Agreement dated August 14,
1995 with NationsBank of Florida, N.A.
10.28 Collateral Assignment of General Construction
Contract, Subcontracts, Plans and
Specifications and Permits dated August 14,
1995 with NationsBank of Florida, N.A.
10.29 Collateral Assignment of Professional
Agreements and Plans and Specifications
dated August 14, 1995 with NationsBank of
Florida, N.A.
10.30 Amendment to Employment Agreement between
the Company and Ronald H. Deferrari, dated
6/26/95.
10.31 Amendment to Employment Agreement between
the Company and Ronald S. Deferrari, dated
6/26/95.
27 Financial Data Schedule (for SEC use only)
(b) No reports on Form 8-K were filed during the third
quarter of fiscal 1995.
13<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned thereunto duly
authorized.
PLASMA-THERM, INC.
Dated: October 3, 1995 By:/s/ STACY WAGNER
Stacy Wagner
V.P. of Finance
& Controller
14<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM CONSOLIDATED
BALANCE SHEETS AS OF AUGUST 31, 1995 AND CONSOLIDATED STATEMENTS OF INCOME FOR
THE NINE MONTHS AND AUGUST 31, 1995 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENT
</LEGEND>
<CIK> 0000354452
<NAME> PLASMA-THERM, INC.
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> NOV-30-1995
<PERIOD-START> DEC-01-1994
<PERIOD-END> AUG-31-1995
<CASH> 4,408,731
<SECURITIES> 0
<RECEIVABLES> 8,073,921
<ALLOWANCES> 0
<INVENTORY> 8,940,535
<CURRENT-ASSETS> 22,167,915
<PP&E> 3,666,583
<DEPRECIATION> 1,845,113
<TOTAL-ASSETS> 24,796,502
<CURRENT-LIABILITIES> 5,807,224
<BONDS> 0
<COMMON> 102,597
0
0
<OTHER-SE> 18,397,270
<TOTAL-LIABILITY-AND-EQUITY> 24,796,502
<SALES> 21,185,376
<TOTAL-REVENUES> 21,215,376
<CGS> 14,117,596
<TOTAL-COSTS> 20,371,359
<OTHER-EXPENSES> (258,444)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 135,155
<INCOME-PRETAX> 967,306
<INCOME-TAX> 395,013
<INCOME-CONTINUING> 572,293
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 572,293
<EPS-PRIMARY> .05
<EPS-DILUTED> .05
</TABLE>
PROMISSORY NOTE
$3,375,000.00 August 14, 1995
St. Petersburg, Florida
1. Payment Schedule and Maturity Date. FOR VALUE
RECEIVED, the undersigned (herein called "Maker," whether one
or more) hereby promises to pay to the order of NATIONSBANK OF
FLORIDA, N.A., a national banking association ("Lender")
without offset, in immediately available funds in lawful money
of the United States of America, at Real Estate Loan
Administration, 400 North Ashley Drive (FL1-010-07-01), in the
City of Tampa, Hillsborough County, Florida 33602, the
principal sum of THREE MILLION THREE HUNDRED SEVENTY-FIVE
THOUSAND AND NO/100 DOLLARS ($3,375,000.00) (or the unpaid
balance of all principal advanced against this Note, if that
amount is less) together with interest on the unpaid principal
balance of this Note from day to day outstanding as
hereinafter provided, as follows:
The entire principal balance of this Note then
unpaid shall be due and payable and shall be paid on
June 14, 1996, the final maturity of this Note (the
"Maturity Date"). Accrued unpaid interest for the
preceding month shall be due and payable and shall
be paid (i) commencing on September 15, 1995, and on
the fifteenth (15th) day of each succeeding month
thereafter immediately following the month for which
said interest has accrued until the Maturity Date.
At Maker's option, the Maturity Date may be extended to June
14, 2001 (the "Extension Maturity Date"), if on or before the
Maturity Date the following conditions have been satisfied:
a. Maker has delivered written notice of its in-
tention to exercise the extension option to extend the
Maturity Date no less than 30 days prior to the Maturity Date.
b. Maker has complied with all terms and
conditions of the Loan Agreement and Loan Documents (as
defined below), including, without limitation, that construc-
tion of the Improvements, and the installation of any required
items of tangible property, have been completed; and Maker has
submitted an acceptable title policy or current "update"
endorsement thereto to Lender;
c. At the time Maker delivers its written notice
of intention to exercise the extension option and as of the
Maturity Date, no Default then exists, nor any condition or
state of facts which after notice and/or lapse of time would
constitute a default under this Note, the Loan Agreement, or
the Loan Documents (as defined below);
DOCUMENTARY STAMPS IN THE AMOUNT OF
c:\wp50\NBPLASMA.002\95.5042\081195\NBMISC#12\MJC\MS
$11,812.50 HAVE BEEN PAID AND PROPER
Promissory Note - 15 Year
STAMPS HAVE BEEN AFFIXED TO THE MORTGAGE<PAGE>
d. If required by Lender, Maker has executed an
extension agreement and such other documentation as Lender may
require;
e. There has been no adverse change in the
financial condition of Maker or any guarantors of this Note or
with respect to the Property which is the collateral for this
Note.
f. All applicable regulatory requirements,
including appraisal requirements as determined by Lender,
shall have been satisfied with respect to the extension of the
Maturity Date.
The time period between the Maturity Date and the Extension
Maturity Date is referred to as the "Term Phase." During the
Term Phase equal monthly payments of principal and interest in
an amount calculated based upon the applicable interest rate
as applied to the outstanding principal amount of this Note,
and amortized over a fifteen (15) year period shall be due and
payable and shall be paid commencing on the earlier of (i) the
fifteenth (15th) day of the tenth (10th) month following the
date of this Note, or (ii) the fifteenth (15th) day of the
first (1st) month following the first (1st) day of the Term
Phase, and shall continue on the fifteenth (15th) day of each
subsequent month thereafter until the Extension Maturity Date.
Whether or not the extension becomes effective,
Maker shall pay all out-of-pocket costs and expenses incurred
by Lender in connection with processing Maker's request to
exercise its extension option, and all costs and expenses
incurred by Maker in connection with documenting the extension
(both pre- and post-closing), including but not limited to
such costs and expenses as are outlined and described in
Section 4.7 of the Loan Agreement, and all such costs and
expenses shall be due and payable upon the Lender's demand.
2. Security; Loan Documents. The security for this
Note includes a Mortgage, Assignment of Rents and Security
Agreement which, as it may have been or may hereafter be
amended, restated, modified or supplemented from time to time,
is herein called the "Mortgage" dated August 14, 1995, from
PLASMA-THERM, INC., a Florida corporation to Lender,
encumbering certain property in Pinellas County, Florida
described therein (the "Property"). This Note, the Mortgage,
the loan commitment letter from Lender to Maker dated May 1,
1995, as amended by letter dated July 25, 1995, the
construction loan agreement between Maker and Lender of even
date herewith and the Amended and Restated Revolving Credit
Agreement between Lender and Maker dated January 19, 1995, as
amended (collectively, the "Loan Agreement"), UCC Financing
Statements of even date to be filed for record in the public
records of Pinellas County, Florida and in the Office of the
Secretary of State of the State of Florida (the "Financing
Statements"), Collateral Assignment of General Construction
Contract, Subcontracts, Plans and Specifications and Permits,
Collateral Assignment of Professional Agreements and Plans and
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Promissory Note - 15 Year 2<PAGE>
Specifications and any other documents now or hereafter
securing, guaranteeing or executed in connection with the loan
evidenced by this Note, are, as the same have been or may be
amended, restated, modified or supplemented from time to time,
herein sometimes called individually a "Loan Document" and
together the "Loan Documents." All of the terms, definitions,
conditions and covenants of the Loan Documents are expressly
made a part of this Note by reference in the same manner and
with the same effect as if set forth herein at length, and any
holder of this Note is entitled to the benefit of and remedies
provided in the Loan Documents. Subject to the terms and
conditions of this Note and the Loan Documents, Lender shall
advance funds to Maker pursuant to the terms of the Loan
Agreement.
3. Interest Rate. Subject to the further provisions of
this Section 3, the unpaid principal balance of this Note from
day to day outstanding which is not past due shall bear
interest at a rate per annum equal to the lesser of (i) the
Maximum Rate (hereinafter defined) or (ii) the Stated Rate
(hereinafter defined) computed on the Annual Basis
(hereinafter defined). The term "Stated Rate" as used in this
Note means the following:
From the date hereof until the Maturity Date, at a
variable rate ("Variable Rate") equal to the Prime
Rate of Lender. The term "Prime Rate" as used in
this Note means, on any day, the rate of interest
per annum then most recently established by Lender
as its "prime rate." Any such rate is a general
reference rate of interest, may not be related to
any other rate, and may not be the lowest or best
rate actually charged by Lender to any customer or a
favored rate and may not correspond with future
increases or decreases in interest rates charged by
other lenders or market rates in general.
During the Term Phase, at a fixed rate based upon
the Index Rate plus two hundred (200) basis points
rounded to the nearest 1/8 of one percent. The term
"Index Rate" is hereby defined as the weekly average
yield on United States Treasury securities adjusted
to a constant maturity of five (5) years as made
available by the Federal Reserve Board through
periodic Federal Reserve Statistical Releases or
other comparable Federal Reserve Publications. If
the Index Rate is no longer available, the Lender
will choose a new index which is based upon
comparable information. The most recent weekly
interest rate available as of the date which is
fifteen (15) days before the first day of the Term
Phase shall be used as the Index Rate.
If a Variable Rate applies, then (i) the Stated Rate shall,
unless otherwise specified herein and subject to clause (ii)
following, change with each change in such Variable Rate as of
the date of any such change, without notice, subject always to
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Promissory Note - 15 Year 3<PAGE>
the limitations set out in this Section 3; and (ii) if on any
day the Variable Rate shall exceed the maximum permitted by
application of the Maximum Rate in effect on that day, the
Variable Rate shall be limited to, but shall remain at and
vary with, the maximum permitted by application of the Maximum
Rate on that day and on each day thereafter until the total
amount of interest accrued at the Variable Rate on the unpaid
balance of this Note equals the total amount of interest which
would have accrued if there were no limitation by the Maximum
Rate, or until the earlier payment in full of this Note.
The interest rate charged hereunder is authorized by Florida
Statutes Section 687.12 (1993).
The "Annual Basis" referred to in this Note means computation
of interest for the actual number of days elapsed and as if
each year were composed of 360 days.
However, use of the Annual Basis is subject always to
limitation by the Maximum Rate and in no event shall any such
computation result in an amount of interest in excess of the
Maximum Amount (hereinafter defined). In any event, all
interest at the Maximum Rate shall be computed on the Annual
Basis of 365 days (366 in a leap year).
Any principal of, and to the extent permitted by applicable
law, any interest on this Note, and any other sum payable
hereunder, which is not paid when due shall bear interest,
from the date due and payable until paid, payable on demand,
at a rate per annum (the "Default Rate") equal to the lesser
of (i) twenty percent (20%) or (ii) the Maximum Rate.
The term "Maximum Rate" as used in this Note means the maximum
nonusurious rate of interest per annum permitted by whichever
of applicable United States federal law or the law of the
state indicated in Paragraph 10 hereof permits the higher
interest rate, including to the extent permitted by applicable
law, any amendments thereof hereafter or any new law hereafter
coming into effect to the extent a higher Maximum Rate is
permitted thereby. The Maximum Rate shall be applied by
taking into account all amounts characterized by applicable
law as interest on the debt evidenced by this Note, so that
the aggregate of all interest does not exceed the maximum
nonusurious amount permitted by applicable law (the "Maximum
Amount").
4. Late Charges. Should Maker fail to pay the
installments of interest or principal (if applicable) on any
due date provided herein, the Maker further promises to pay a
late payment charge equal to four percent (4%) of the amount
of the unpaid installment as liquidated compensation to Lender
for the extra expense to Lender to process and administer the
late payment, Maker agreeing, by execution hereof, that any
other measure of compensation for a late payment is
speculative and impossible to compute. This provision for
late charges shall not be deemed to extend the time for
payment or be a "grace period" or "cure period" that gives
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Promissory Note - 15 Year 4<PAGE>
Maker a right to cure a Default. Imposition of late charges
is not contingent upon the giving of any notice or lapse of
any cure period provided for in the Mortgage or other Loan
Documents and shall not be deemed a waiver of any right or
remedy of Lender including without limitation, acceleration of
this Note.
5. Prepayment. At any time during this Note while the
Variable Rate is in effect, the Maker may prepay the principal
balance of this Note, in full at any time or in part from time
to time, provided that (i) Lender shall have actually received
from Maker at least five (5) business days' prior written
notice of Maker's intent to prepay, of the amount of principal
which will be prepaid (the "Prepaid Principal") and of the
date on which the prepayment will be made; (ii) each
prepayment shall be in the amount of $1,000.00 or a larger
integral multiple of $1,000.00 (unless the prepayment retires
the outstanding balance of this Note in full); and (iii) each
prepayment shall be in the amount of 100% of the Prepaid
Principal, plus any due and unpaid interest thereon to the
date of prepayment, plus any other sums which have become due
to Lender under the Loan Documents on or before the date of
prepayment but have not been paid.
Except as set forth below, during the Term Phase when a fixed
rate of interest is in effect, Maker shall pay to Lender,
contemporaneously with any prepayment of any amount of the
Note, a prepayment fee calculated as follows:
A prepayment fee shall be due and payable to Lender
in an amount equal to the product of (A) the amount
so prepaid multiplied by (B) the difference (but not
less than zero) of (iv) the Constant Maturity 360-
day interest yield (as of the first day of the Term
Phase and expressed as a decimal) for a United
States Treasury bill, note or bond (a "Treasury
Obligation") selected by Lender, in an aggregate
amount comparable to the amount prepaid, and having,
as of the first day of the Term Phase, a remaining
term approximately equal to the Term Phase, minus
(v) the 360-day interest yield (as of the business
day immediately preceding the prepayment date and
expressed as a decimal) on such Treasury Obligation
and having, as of the business day immediately
preceding the prepayment date, a remaining term
until maturity approximately equal to the unexpired
portion of the Term Phase, multiplied by (C) the
quotient of (y) the number of calendar days in the
unexpired portion of the Term Phase, divided by (z)
360. The applicable yields on the Treasury
Obligations described above shall be determined
based upon the Federal Reserve statistical release
H.15 published for the applicable determination
dates set forth above. Any Treasury Obligation
selected when the Term Phase is one year or less
shall be United States Treasury Bills. Lender shall
not be obligated or required to have actually
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Promissory Note - 15 Year 5<PAGE>
reinvested the prepaid amount of the Note in any
such Treasury Obligation as a condition precedent to
Maker being obligated to pay a prepayment fee as
outlined above. Lender shall not be obligated to
accept any prepayment of principal unless it is
accompanied by the prepayment fee, if any, due in
connection therewith as calculated pursuant to the
provisions of this paragraph. No prepayment fee
payable in connection herewith shall in any event or
under any circumstance be deemed or construed as a
penalty.
The prepayment fee described above shall not apply as to
principal prepayments made up to the amount of $60,000.00 in
any calendar year.
If this Note is prepaid in full, any commitment of Lender for
further advances shall automatically terminate. Any partial
prepayment shall be applied in accordance with Paragraph 6
below and shall not postpone the due date of any subsequent
installments or the Maturity Date, or change the amount of
such installments due, unless Lender shall otherwise agree in
writing, and further except that any prepayments which
represent partial release fees in accordance with the terms of
the Loan Agreement, shall be credited to the then next due
principal paydown required in this Note.
6. Certain Provisions Regarding Payments. All payments
made as scheduled on this Note shall be applied, to the extent
thereof, to any due and unpaid interest, unpaid principal, and
any other sums due and unpaid to Lender under the Loan
Documents, in such manner and order as Lender may elect in its
discretion. All prepayments on this Note shall be applied, to
the extent thereof, first, to any due and unpaid interest on
the amount prepaid, next to the remaining principal
installments, and last to any other sums due and unpaid to
Lender under the Loan Documents. Except to the extent that
specific provisions are set forth in this Note or another Loan
Document with respect to application of payments, all payments
received by the holder hereof shall be applied, to the extent
thereof, to the indebtedness secured by the Mortgage in such
manner and order as Lender may elect in its discretion, any
instructions from Maker or anyone else to the contrary
notwithstanding. Remittances in payment of any part of the
indebtedness other than in the required amount in immediately
available U.S. funds shall not, regardless of any receipt or
credit issued therefor, constitute payment until the required
amount is actually received by the holder hereof in
immediately available U.S. funds and shall be made and
accepted subject to the condition that any check or draft may
be handled for collection in accordance with the practice of
the collecting bank or banks. Acceptance by the holder hereof
of any payment in an amount less than the amount then due on
any indebtedness shall be deemed an acceptance on account only
and shall not in any way excuse the existence of a Default
(hereinafter defined).
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Promissory Note - 15 Year 6<PAGE>
7. Default/Acceleration. It shall be a default
("Default") under this Note and each of the other Loan
Documents if (a) any principal, interest or other amount of
money due under this Note is not paid in full when due,
regardless of how such amount may have become due; or (c)
there shall occur any default or Event of Default under the
Mortgage or any other Loan Document. Upon the occurrence of a
Default, the holder hereof shall have the right to declare the
unpaid principal balance and accrued but unpaid interest on
this Note at once due and payable (and upon such acceleration,
the same shall be at once due and payable without
presentation, demand, protest or notice of any kind, which are
all hereby waived by Maker, and this Note shall thereafter
bear interest at the Default Rate), to foreclose any liens and
security interests securing payment hereof and to exercise any
of its other rights, powers and remedies under this Note,
under any other Loan Document, or at law or in equity.
All of the rights, remedies, powers and privileges (together,
"Rights") of the holder hereof provided for in this Note and
in any other Loan Document are cumulative of each other and of
any and all other Rights at law or in equity. The resort to
any Right shall not prevent the concurrent or subsequent
employment of any other appropriate Right. No single or
partial exercise of any Right shall exhaust it, or preclude
any other or further exercise thereof, and every Right may be
exercised at any time and from time to time. No failure by
the holder hereof to exercise, nor delay in exercising any
Right, including but not limited to the right to accelerate
the maturity of this Note, shall be construed as a waiver of
any Default or as a waiver of the Right. Without limiting the
generality of the foregoing provisions, the acceptance by the
holder hereof from time to time of any payment under this Note
which is past due or which is less than the payment in full of
all amounts due and payable at the time of such payment, shall
not (i) constitute a waiver of or impair or extinguish the
right of the holder hereof to accelerate the maturity of this
Note or to exercise any other Right at the time or at any
subsequent time, or nullify any prior exercise of any such
Right, or (ii) constitute a waiver of the requirement of
punctual payment and performance or a novation in any respect.
If any holder of this Note retains an attorney in connection
with any Default or at the Maturity Date or to collect,
enforce or defend this Note or any other Loan Document in any
lawsuit, at trial, or in any appellate, probate,
reorganization, bankruptcy or other proceeding, or if Maker
sues any holder in connection with this Note or any other Loan
Document and does not prevail, then Maker agrees to pay to
each such holder, in addition to principal, interest and any
other sums owing to Lender under the Loan Documents, all
reasonable costs and expenses incurred by such holder in
trying to collect this Note or in any such suit or proceeding,
including without limitation reasonable attorneys' fees,
paralegals' fees and costs.
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Promissory Note - 15 Year 7<PAGE>
8. Controlling Agreement. All parties to the Loan
Documents intend to comply with applicable usury law. All
existing and future agreements regarding the debt evidenced by
this Note are hereby limited and controlled by the provisions
of this Section. In no event (including but not limited to
prepayment, default, demand for payment, or acceleration of
maturity) shall the interest taken, reserved, contracted for,
charged or received under this Note or under any of the other
Loan Documents or otherwise, exceed the maximum nonusurious
amount permitted by applicable law (the "Maximum Amount").
If, from any possible construction of any document, interest
would otherwise be payable in excess of the Maximum Amount,
then ipso facto, such document shall be reformed and the
interest payable reduced to the Maximum Amount, without
necessity of execution of any amendment or new document. If
the holder hereof ever receives interest in an amount which
apart from this provision would exceed the Maximum Amount, the
excess shall, without penalty, be refunded to the payor, or at
the option of such payor, be applied to the unpaid principal
of this Note in inverse order of maturity of installments and
not to the payment of interest. The holder hereof does not
intend to charge or receive unearned interest on acceleration.
All interest paid or agreed to be paid to the holder hereof
shall be spread throughout the full term (including any
renewal or extension) of the debt so that the amount of
interest does not exceed the Maximum Amount.
9. Mandatory Arbitration. Any controversy or claim
between or among the parties hereto including but not limited
to those arising out of or relating to this Note or any
related agreements or instruments, including any claim based
on or arising from an alleged tort, shall be determined by
binding arbitration in accordance with the Federal Arbitration
Act (or if not applicable, the applicable state law), the
Rules of Practice and Procedure for the Arbitration of
Commercial Disputes of Judicial Arbitration and Mediation
Services, Inc. (J.A.M.S.), and the "Special Rules" set forth
below. In the event of any inconsistency, the Special Rules
shall control. Judgment upon any arbitration award may be
entered in any court having jurisdiction. Any party to this
Note may bring an action, including a summary or expedited
proceeding, to compel arbitration of any controversy or claim
to which this Note applies in any court having jurisdiction
over such action.
(a) Special Rules. The arbitration shall be
conducted in Tampa, Florida, and administered by Endispute,
Inc. d/b/a J.A.M.S./Endispute who will appoint an arbitrator;
if J.A.M.S./Endispute is unable or legally precluded from
administering the arbitration, then the American Arbitration
Association will serve. All arbitration hearings will be
commenced within 90 days of the demand for arbitration;
further, the arbitrator shall only, upon a showing of cause,
be permitted to extend the commencement of such hearing for up
to an additional 60 days.
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Promissory Note - 15 Year 8<PAGE>
(b) Reservations of Rights. Nothing in this Note
shall be deemed to (i) limit the applicability of any
otherwise applicable statutes of limitation or repose and any
waivers contained in this Note; or (ii) be a waiver by the
Lender of the protection afforded to it by 12 U.S.C. Sec. 91
or any substantially equivalent state law; or (iii) limit the
right of the bank hereto (A) to exercise self help remedies
such as (but not limited to) setoff, or (B) to foreclose
against any real or personal property collateral, or (C) to
obtain from a court provisional or ancillary remedies such as
(but not limited to) injunctive relief or the appointment of a
receiver. The Lender may exercise such self help rights,
foreclose upon such property, or obtain such provisional or
ancillary remedies before, during or after the pendency of any
arbitration proceeding brought pursuant to this Note. At
Lender's option, foreclosure under a deed of trust or mortgage
may be accomplished by any of the following: the exercise of
a power of sale under the deed of trust or mortgage, or by
judicial sale under the deed of trust or mortgage, or by
judicial foreclosure. Neither this exercise of self help
remedies nor the institution or maintenance of an action for
foreclosure or provisional or ancillary remedies shall
constitute a waiver of the right of any party, including the
claimant in any such action, to arbitrate the merits of the
controversy or claim occasioning resort to such remedies.
10. General Provisions. Time is of the essence
hereunder. If more than one person or entity executes this
Note as Maker, all of said parties shall be jointly and
severally liable for payment of the indebtedness evidenced
hereby. Maker and all sureties, endorsers, guarantors and any
other party now or hereafter liable for the payment of this
Note in whole or in part, hereby severally (i) waive demand,
presentment for payment, notice of dishonor and of nonpayment,
protest, notice of protest, notice of intent to accelerate,
notice of acceleration and all other notices (except any
notices which are specifically required by this Note or any
other Loan Document), filing of suit and diligence in
collecting this Note or enforcing any of the security herefor;
(ii) agree to any substitution, subordination, exchange or
release of any such security or the release of any party
primarily or secondarily liable hereon; (iii) agree that the
holder hereof shall not be required first to institute suit or
exhaust its remedies hereon against Maker or others liable or
to become liable hereon or to perfect or enforce its rights
against them or any security herefor; (iv) consent to any
extensions or postponements of time of payment of this Note
for any period or periods of time and to any partial payments,
before or after maturity, and to any other indulgences with
respect hereto, without notice thereof or further consent of
Maker or any guarantors to any of them; and (v) submit (and
waive all rights to object) to non-exclusive personal
jurisdiction in the State of Florida, and venue in the county
in which payment is to be made as specified in Section 1 of
this Note or in Pinellas County, Florida, for the enforcement
of any and all obligations under this Note and the Loan
Documents.
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Promissory Note - 15 Year 9<PAGE>
A determination that any provision of this Note is
unenforceable or invalid shall not affect the enforceability
or validity of any other provision and the determination that
the application of any provision of this Note to any person or
circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply
to other persons or circumstances. The remaining provisions
of this Note shall remain operative and in full force and
effect and shall in no way be affected prejudiced, or
disturbed thereby. This Note may not be amended except in a
writing specifically intended for the purpose and executed by
the party against whom enforcement of the amendment is sought.
In the event any provisions of this Note are inconsistent with
the provisions of the Loan Documents, or any other agreements
or documents executed in connection with this Note, this Note
shall control. The holder of this Note may, from time to
time, sell or offer to sell the loan evidenced by this Note,
or interests therein, to one or more assignees or participants
and is hereby authorized to disseminate any information it has
pertaining to the loan evidenced by this Note, including,
without limitation, any security for this Note and credit
information on Maker, any of its principals and any guarantor
of this Note, to any such assignee or participant or
prospective assignee or prospective participant, and to the
extent, if any, specified in any such assignment or
participation, such assignee(s) or participant(s) shall have
the rights and benefits with respect to this Note and the
other Loan Documents as such person(s) would have if such
person(s) were Lender hereunder. Maker warrants and
represents to Lender and all other holders of this Note that
the loan evidenced by this Note is and will be for business or
commercial purposes and not primarily for personal, family, or
household use. The terms, provisions, covenants and
conditions hereof shall be binding upon Maker and the heirs,
devisees, representatives, successors and assigns of Maker.
Captions and headings in this Note are for convenience only
and shall be disregarded in construing it. The pronouns used
in this instrument shall be construed as masculine, feminine
or neuter as the occasion may require. Use of the singular
includes the plural, and vice versa. Any reference herein to
a day or business day shall be deemed to refer to a banking
day which shall be a day on which Lender is open for the
transaction of business, excluding any national holidays, and
any performance which would otherwise be required on a day
other than a banking day shall be timely performed in such
instance, if performed on the next succeeding banking day.
Notwithstanding such timely performance, interest shall
continue to accrue hereunder until such payment or performance
has been made.
THIS NOTE, AND ITS VALIDITY, ENFORCEMENT AND
INTERPRETATION, SHALL BE GOVERNED BY FLORIDA LAW (WITHOUT
REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND APPLICABLE
UNITED STATES FEDERAL LAW.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
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Promissory Note - 15 Year 10<PAGE>
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
IN WITNESS WHEREOF, Maker has duly executed this Note as
of the date first above written.
MAKER:
PLASMA-THERM, INC.,
a Florida corporation
By: /s/Ronald S. Deferrri
Ronald S. Deferrari,
President
(CORPORATE SEAL)
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Promissory Note - 15 YeaR 11<PAGE>
Rec 123.00
Doc 11,812.50
Int 6,750.00
Total 18,685.50
MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS MORTGAGE, ASSIGNMENT OF RENTS AND SECURITY
AGREEMENT (the "Mortgage"), made as of the 14th day of August,
1995, between PLASMA-THERM, INC., a Florida corporation (the
"Mortgagor"), as mortgagor and debtor, whose principal place
of business is 9509 International Court, St. Petersburg,
Florida 33716, and NATIONSBANK OF FLORIDA, N.A., a national
banking association (the "Mortgagee"), as mortgagee and
secured party, whose address is 400 North Ashley Drive (FL1-
010-07-01), Tampa, Florida 33602.
ARTICLE I
DEFINITIONS, HEADINGS, RULES OF
CONSTRUCTION AND SECURITY AGREEMENT
1.1 Definitions. As used in this Mortgage and in
the exhibits attached hereto, the following terms shall have
the following meanings herein specified, such definition to be
applicable equally to the singular and plural forms of such
terms:
(a) Commitment: The commitment letter from
Mortgagee to Mortgagor dated May 1, 1995, as amended by letter
dated July 25, 1995.
(b) Default Rate: The Default Rate as defined
in the Note.
(c) Environmental Claim: Any investigative,
enforcement, cleanup, removal, containment, remedial or other
private or governmental or regulatory action at any time
threatened, instituted or completed pursuant to any applicable
Environmental Requirement, against Mortgagor or against or
with respect to the Mortgaged Property or any condition, use
or activity on the Mortgaged Property (including any such
action against Mortgagee), and any claim at any time
threatened or made by any person against Mortgagor or against
or with respect to the Mortgaged Property or any condition,
use or activity on the Mortgaged Property (including any such
claim against Mortgagee), relating to damage, contribution,
cost recovery, compensation, loss or injury resulting from or
in any way arising in connection with any Hazardous Material
or any Environmental Requirement.
(d) Environmental Law: Any federal, state or
local law, statute, ordinance, code, rule, regulation,
license, authorization, decision, order, injunction, decree,
or rule of common law, and any judicial or agency
interpretation of any of the foregoing, which pertains to
health, safety, any Hazardous Material, or the environment
(including but not limited to ground or air or water or noise
pollution or contamination, and underground or above ground
tanks) and shall include without limitation, the Solid Waste
Disposal Act, 42 U.S.C. section 6901 et seq.; the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. section 9601 et seq.
("CERCLA"), as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("SARA"); the Hazardous Materials
This instrument prepared by and returned to:
MARY JO CARNEY
Powell, Carney, Moore, Hucks & Olson, P.A.
Post Office Box 1689
St. Petersburg, FL 33731-1689<PAGE>
Transportation Act, 49 U.S.C. section 1801 et seq.; the
Federal Water Pollution Control Act, 33 U.S.C. section 1251 et
seq.; the Clean Air Act, 42 U.S.C. section 7401 et seq.; the
Toxic Substances Control Act, 15 U.S.C. section 2601 et seq.;
the Safe Drinking Water Act, 42 U.S.C. section 300f et seq.;
the Florida Resource Recovery and Management Act, the Water
Quality Assurance Act of 1983, The Florida Resource
Conversation and Recovery Act, the Florida Air and Water
Pollution Control Act, The Florida Safe Drinking Water Act,
The Pollution Spill Prevention and Control Act and any other
local, state or federal environmental statutes, and all rules,
regulations, orders and decree now or hereafter promulgated
under any of the foregoing, as any of the foregoing now exist
or may be changed or amended or come into effect in the
future.
(e) Environmental Requirement: Any
Environmental Law, agreement or restriction (including but not
limited to any condition or requirement imposed by any
insurance or surety company), as the same now exists or may be
changed or amended or come into effect in the future, which
pertains to health, safety, any Hazardous Material, or the
environment, including but not limited to ground or air or
water or noise pollution or contamination, and underground or
above ground tanks.
(f) Events of Default: Those events described
in Article VII hereof.
(g) Fixtures: All property and equipment now
owned or hereafter acquired by Mortgagor and now or hereafter
located under, on, or above the Land, whether or not
permanently affixed, which, to the fullest extent permitted by
applicable law in effect from time to time, shall be deemed
fixtures and a part of the Land.
(h) Future Advances: Any loan of money from
Mortgagee to Mortgagor made within twenty (20) years from the
date hereof. The total amount of such loan or loans may
decrease or increase from time to time, but the total unpaid
aggregate balance secured by this Mortgage at any one time
shall not exceed $6,750,000.00, plus interest thereon, and any
disbursements made for the payment of the Impositions (whether
taxes, levies or otherwise), insurance, or other liens on the
Mortgaged Property, with interest on such disbursements. The
Mortgagee has no obligation, whatsoever, to make a Future
Advance.
(i) Governmental Authority: Any (domestic or
foreign) federal, state, county, municipal or other
governmental department, entity, authority, commission, board,
bureau, court, agency or any instrumentality of any of them.
(j) Governmental Requirement: Any law,
enactment, statute, code, ordinance, order, rule, regulation,
judgment, decree, writ, injunction, franchise, permit,
certificate, license, authorization, or other direction or
requirement of any Governmental Authority now existing or
hereafter enacted, adopted, promulgated, entered, or issued
applicable to Mortgagee, Mortgagor or the Mortgaged Property,
including, without limitation, any Environmental Law.
(k) Hazardous Material: Any substance,
whether solid, liquid or gaseous which is listed, defined or
regulated as a "hazardous substance," "hazardous waste," or
"solid waste," or pesticide or otherwise classified as
hazardous or toxic, in or pursuant to any Environmental
Requirement; or which is or contains asbestos, radon, any
polychlorinated biphenyl, urea formaldehyde foam insulation,
explosive or radioactive material, or motor fuel or other
petroleum hydrocarbons; which causes or poses a threat to
This instrument prepared by and returned to:
MARY JO CARNEY
Powell, Carney, Moore, Hucks & Olson, P.A.
Post Office Box 1689
St. Petersburg, FL 33731-1689 2<PAGE>
cause a contamination or nuisance on the Mortgaged Property or
any adjacent property or a hazard to the environment or to the
health or safety of persons on the Mortgaged Property.
(l) Impositions: All (i) real estate and
personal property taxes and other taxes and assessments,
public or private; utility rates and charges including those
for water and sewer; all other governmental and non-
governmental charges and any interest or costs or penalties
with respect to any of the foregoing; and charges for any
public improvement, easement or agreement maintained for the
benefit of or involving the Mortgaged Property, general and
special, ordinary and extraordinary, foreseen and unforeseen,
of any kind and nature whatsoever that at any time prior to or
after the execution of this Mortgage may be assessed, levied
or imposed upon the Mortgaged Property or the Rent or income
received therefrom, or any use or occupancy thereof,
(ii) other taxes, assessments, fees and governmental and non-
governmental charges levied, imposed or assessed upon or
against Mortgagor or any of its properties and (iii) taxes
levied or assessed upon this Mortgage, the Note, and the other
Obligations, or any of them.
(m) Improvements: All buildings, structures,
appurtenances and improvements, including all additions
thereto and replacements and extensions thereof, now
constructed or hereafter to be constructed under, on or above
the Land, which term includes any part thereof.
(n) Junior Mortgage: Any mortgage permitted
by Mortgagee which now or hereafter encumbers all or any
portion of the Mortgaged Property and which is junior or
subordinate to the lien of this Mortgage, which term shall
collectively refer to all such mortgages and the note or notes
secured thereby.
(o) Land: The real property described in
Exhibit "A" attached hereto and made a part hereof, together
with all rights, privileges, tenements, hereditaments, rights-
of-way, easements, appendages, projections, appurtenances,
water rights including riparian and littoral rights, streets,
ways, alleys, and strips and gores of land now or hereafter in
any way belonging, adjoining, crossing or pertaining to the
Land.
(p) Leases: Any and all leases, subleases,
licenses, concessions, or grants of other possessory
interests, together with the security therefor, now or
hereafter in force, oral or written, covering or affecting the
Mortgaged Property or any part thereof.
(q) Loan: $3,375,000.00 as evidenced by the
Note.
(r) Loan Agreement: The construction loan
agreement of even date herewith between Mortgagor and
Mortgagee and that certain Amended and Restated Revolving
Credit Agreement between Mortgagee and Mortgagor dated January
19, 1995, as amended on even date herewith.
(s) Loan Documents: Those items required by
the Commitment and any other document or instrument executed,
submitted, or to be submitted by Mortgagor or others in
connection with the Loan, including but not limited to the:
i) Note, ii) Mortgage, iii) Loan Agreement, iv) financing
statements, v) Environmental Indemnity Agreement, and vi) any
other document or instrument executed by Mortgagor in
connection with the Loan.
(t) Mortgaged Property: The Land,
Improvements, Fixtures, Leases, Rents and Personal Property
together with:
(i) all judgments, awards of damages
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and settlements hereafter made resulting from condemnation
proceedings or the taking of the Mortgaged Property or any
part thereof under the power of eminent domain, or by
agreement in lieu thereof, or for any damage thereto caused by
any governmental action (whether by such taking or otherwise),
such as without limitation, any award for change of grade of
streets;
(ii) all judgments, awards and
settlements hereafter made, and all insurance proceeds
hereafter paid for any damage to the Mortgaged Property, and
all unearned insurance premiums on any insurance policies
maintained by the Mortgagor pursuant to this Mortgage;
(iii) all awards and refunds hereafter
made with respect to any Imposition; and
(iv) the estate, right, title,
interest, privilege, claim or demand whatsoever of Mortgagor,
now or hereafter, either at law or in equity, in and to the
Mortgaged Property.
The term Mortgaged Property includes any part of the foregoing
property described as Mortgaged Property, and all proceeds,
products, replacements, improvements, betterments, extensions,
additions, substitutions, renewals, accessories, and
appurtenances thereto and thereof.
(u) Mortgagee: NationsBank of Florida, N.A.,
a national banking association, its successors and assigns.
(v) Mortgagor: Plasma-Therm, Inc., a Florida
corporation.
(w) Note: The promissory note dated of even
date herewith from Mortgagor to Mortgagee, in the amount of
$3,375,000.00, by this reference made a part hereof to the
same extent as though set out in full herein, and any other
note given to Mortgagee evidencing a Future Advance as any of
said notes may from time to time hereafter be modified,
amended, extended or renewed. As used herein the term "Note"
shall refer to all of said notes collectively, as well as to
each of said notes individually, as the context may require.
(x) Obligations:
(i) Any and all of the indebtedness,
liabilities, covenants, promises, agreements, terms,
conditions, and other obligations of every nature whatsoever,
whether joint or several, direct or indirect, absolute or
contingent, liquidated or unliquidated, of Mortgagor to
Mortgagee, evidenced by, secured by, under and as set forth in
the Note, this Mortgage, the Guaranty or the other Loan
Documents;
(ii) Any and all other indebtedness,
liabilities and obligations of every nature whatsoever
(whether or not otherwise secured or to be secured) of
Mortgagor (whether as maker, endorser, surety, guarantor or
otherwise) to Mortgagee or any of Mortgagee's affiliates,
whether now existing or hereafter created or arising or now
owned or howsoever hereafter acquired by Mortgagee or any of
the Mortgagee's affiliates, whether such indebtedness,
liabilities and obligations are or will be joint or several,
direct or indirect, absolute or contingent, liquidated or
unliquidated, matured or unmatured, including, but not limited
to, any letter of credit issued by Mortgagee for the account
of Mortgagor; together with all expenses, attorneys' fees,
paralegals' fees and legal assistants' fees incurred by
Mortgagee in the preparation, execution, perfection or
enforcement of any document relating to any of the foregoing;
and
(iii) Any and all Future Advances.
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(y) Partnership: Any general or limited
partnership, joint venture, or other form of partnership,
howsoever designated.
(bb) Permitted Title Exceptions: Those
matters, if any, described in Schedule B to the title
insurance policy insuring Mortgagee's interest in this
Mortgage.
(cc) Person: Any individual, corporation,
partnership, joint venture, association, joint stock company,
trust, unincorporated organization, government, or agency or
political subdivision thereof, or any other form of entity.
(dd) Personal Property: All of the following
property of Mortgagor whether now owned or existing, or
hereafter acquired or arising, whether located in, on,
pertaining to, used or intended to be used in connection with
or resulting or created from the ownership, development,
management, or operation of the Land:
(i) all Improvements (to the extent
same are not deemed to be real property) and landscaping;
(ii) all Fixtures (to the extent same
are not deemed to be real property) and goods to become
Fixtures;
(iii) all machinery, equipment,
furniture, furnishings, building supplies and materials,
appliances, business machines, tools, and all warranties and
guaranties for any of the foregoing, but specifically
excluding all goods (including, without limitation, equipment
and machinery) held for sale or lease or to be furnished under
contracts of service, or raw materials, work-in-process or
materials used or consumed in a business;
(iv) all general intangibles relating
to the construction, maintenance or operation of the
Improvements (but not related to the Mortgagor's business
conducted in the Improvements), including without limitation,
corporate or other business records and books, computer
records whether on tape, disc or otherwise stored, blueprints,
surveys, architectural or engineering drawings, plans and
specifications, licenses, governmental approvals, franchises,
permits, payment and performance bonds, tax refund claims, and
agreements with utility companies, together with any deposits,
prepaid fees and charges paid thereon;
(v) all Leases and Rents (to the
extent same are not deemed to be real property);
(vi) all judgments, awards of damages
and settlements from any condemnation or eminent domain
proceedings regarding the Land, the Improvements or any of the
Mortgaged Property;
(vii) all insurance policies required
by this Mortgage, the unearned premiums therefor and all loss
proceeds thereof;
(viii) all construction contracts,
architectural contracts, service contracts, engineering
contracts, contracts for purchase and sale of any of the
Mortgaged Property, equipment leases, monies in escrow
accounts, reservation agreements, prepaid expenses, deposits
and down payments with respect to the sale or rental of any of
the Mortgaged Property, options and agreements with respect to
additional real property for use or development of the
Mortgaged Property (including any rights of first refusal to
purchase lands adjacent to the Mortgaged Property), end-loan
commitments, abstracts of title, all brochures, advertising
materials, condominium documents and prospectuses; and
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(ix) all proceeds, products,
replacements, additions, better-ments, extensions,
improvements, substitutions, renewals and accessions of any
and all of the foregoing.
Provided, however, that trade secrets and other proprietary
information owned by Mortgagor, such as trademarks, copyrights
and patents shall not be included within the definition of
Personal Property, and shall not be encumbered by the lien of
this Mortgage.
(ee) Rents: All rents, revenues, rental income
and profits from leases, franchises, concessions or licenses
of or on any part of the Mortgaged Property.
1.2 Rules of Construction. The use of any gender
shall include all other genders. The singular shall include
the plural and the plural shall include the singular. The
word "or" is not exclusive and the use of the word "and" may
be conjunctive or disjunctive in the sole and absolute
discretion of Mortgagee. The captions of Articles, Sections
and Subsections of this Mortgage are for convenient reference
only, and shall not affect the construction or interpretation
of any of the terms and provisions set forth herein.
1.3 Security Agreement. This Mortgage constitutes
a "Security Agreement" within the meaning of and shall create
a security interest under the Uniform Commercial Code-Secured
Transactions as adopted by the State of Florida, with respect
to the Fixtures, Leases, Rents and Personal Property. A
carbon, photographic or other reproduction of this Mortgage or
of any financing statement shall be sufficient as a financing
statement. The debtor's principal place of business and the
secured party's address is set forth in the introduction to
this Mortgage.
ARTICLE II
GRANT
2.1 Grant. For good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged,
and to secure the payment, observance, performance and
discharge of the Obligations, Mortgagor does by these presents
give, transfer, grant, bargain, sell, alien, remise, release,
assign, mortgage, hypothecate, deposit, pledge, set over,
confirm, convey and warrant unto Mortgagee all estate, right,
title and interest of Mortgagor in and to the Mortgaged
Property, whether now owned or held or hereafter acquired by
Mortgagor, subject, however, to the Permitted Title
Exceptions, to have and to hold the Mortgaged Property unto
Mortgagee, its successors and assigns forever.
2.2 Condition of Grant. Subject to the provisions
of this Mortgage, the condition of these presents is such that
if Mortgagor shall pay, observe, perform and discharge the
Obligations, or cause same to be paid, observed, performed and
discharged in strict accordance with the terms thereof, then
this Mortgage and the estates, interests, rights and
assignments granted hereby shall be null and void, but
otherwise shall remain in full force and effect.
2.3 Subrogation. The Mortgagee is hereby
subrogated to the claims and liens of all parties whose claims
or liens are fully or partially discharged or paid with the
proceeds of the indebtedness secured by this Mortgage
notwithstanding that such claims or liens may have been
canceled and satisfied of record.
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ARTICLE III
ASSIGNMENT OF LEASES AND RENTS
3.1 Assignment. The Mortgagor does hereby
absolutely and unconditionally assign and transfer to
Mortgagee all of Mortgagor's estate, right, title and interest
in and to the Leases and Rents, to have and to hold the Leases
and Rents unto Mortgagee, its successors and assigns forever.
From time to time, upon request of Mortgagee, Mortgagor shall
give further evidence of this assignment to Mortgagee by
executing and delivering to Mortgagee specific assignments of
the Leases and Rents, in form and content approved by
Mortgagee. All such specific assignments shall be of the same
dignity and priority as this Mortgage. From time to time,
upon request of Mortgagee, Mortgagor shall also execute and
deliver to Mortgagee any notification to tenants or other
document reasonably required by Mortgagee.
3.2 Payment of Rents to Mortgagor, as Trustee,
Until Default. So long as no Event of Default has occurred,
Mortgagor may, as trustee for the use and benefit of
Mortgagee, collect, receive and accept the Rents as they
become due and payable (but in no event for more than two (2)
months in advance); provided, however, that if the Rents
exceed the payments due under the Note, the Mortgagor may use
such excess, first, for the operation and benefit of the
Mortgaged Property and, second, for the general benefit of the
Mortgagor. Upon the occurrence of an Event of Default
Mortgagee may, at its option, remove the Mortgagor as trustee
for the collection of the Rents and appoint any other person
including, but not limited to, itself as a substitute trustee
to collect, receive, accept and use all such Rents in payment
of the Obligations, in such order as Mortgagee shall elect in
its sole and absolute discretion, whether or not Mortgagee
takes possession of the Mortgaged Property. Mortgagor hereby
directs each of the respective tenants under the Leases, and
any rental agent, to pay to Mortgagee all such Rents, as may
now be due or shall hereafter become due, upon demand for
payment thereof by Mortgagee without any obligation on the
part of any such tenant or rental agent to determine whether
or not an Event of Default has in fact occurred. Upon an
Event of Default, the permission hereby given to Mortgagor to
collect, receive and accept such Rents as trustee shall
terminate; however such permission shall be reinstated upon a
cure of the Event of Default with Mortgagee's specific written
consent. Further, upon the event of a Default, Mortgagor
shall immediately turn over to Mortgagee all Rents in the
actual or constructive possession of Mortgagor, its
affiliates, contractors, or its agents, together with an
accounting thereof. Exercise of Mortgagee's rights under
this Section, and the application of any such Rents to the
Obligations, shall not cure or waive any default or notice of
default hereunder or invalidate any act done pursuant hereto,
but shall be cumulative and in addition to all other rights
and remedies of Mortgagee.
3.3 Performance Under Leases. Mortgagor covenants
that it shall, at its sole cost and expense, (a) duly and
punctually perform and discharge, or cause to be performed and
discharged, all of the obligations and undertakings of
Mortgagor or its agents under the Leases, (b) use its best
efforts to enforce or secure, or cause to be enforced or
secured, the performance of each and every obligation and
undertaking of the respective tenants under the Leases,
(c) promptly notify Mortgagee if Mortgagor receives any notice
from a tenant claiming that Mortgagor is in default under a
Lease and (d) appear in and defend any action or proceeding
arising under or in any manner connected with the Leases.
3.4 Leases In Good Standing. All Leases are in
full force and effect, and there are no defaults thereunder or
any defenses or offsets thereto on the part of any tenant.
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3.5 Provisions of Leases and Approval of Tenants.
All Leases shall be inferior and subordinate to the lien of
this Mortgage and the terms of each Lease shall so expressly
provide. Mortgagor covenants that all Leases hereafter
entered into by Mortgagor shall be in form and substance
satisfactory to Mortgagee. Further, the Mortgagee
specifically reserves the right to approve all proposed
tenants, and any assignee or sublessee of any existing tenant.
3.6 Termination or Modification. Mortgagor
covenants that it shall not, without the prior express written
consent of Mortgagee, enter into a Lease, or materially
modify, terminate, or consent to the cancellation or surrender
of any Lease, or permit any tenant under any Lease to assign
or sublet its rights thereunder.
3.7 No Obligation of Mortgagee. This Assignment
shall not be deemed or construed to constitute Mortgagee as a
mortgagee in possession of the Mortgaged Property nor shall it
obligate Mortgagee to take any action or to incur expenses or
perform or discharge any obligation, duty or liability of
Mortgagor under any Lease.
3.8 Cumulative Remedies. Each and every right,
remedy and power granted to Mortgagee by this Article shall be
cumulative and in addition to every other right, remedy and
power given by the Loan Documents and now or hereafter
existing in equity, at law, or by virtue of statute or
otherwise. The failure of Mortgagee to avail itself of any of
its rights, remedies and powers shall not be construed or
deemed to be a waiver thereof.
3.9 Notification of Mortgagee's Rights. Mortgagee
shall have the right, but not the obligation, at any time and
from time to time, to notify any tenant under any Lease of the
rights of Mortgagee as provided in this Article III and
Mortgagor, upon demand from Mortgagee, shall confirm to such
tenant the existence of such rights.
3.10 Attorney-in-Fact. To further effectuate
Mortgagee's rights under this Article III, Mortgagor hereby
constitutes and irrevocably appoints Mortgagee its true and
lawful attorney-in-fact, which appointment is coupled with an
interest, with full power of substitution, and empowers said
attorney or attorneys in the name of Mortgagor, but at the
option of said attorney-in-fact, to (i) collect and receive
the Rents and to issue receipts therefor, (ii) to make, enter
into, extend, modify, amend, terminate, consent to the
cancellation or surrender of any Lease, or permit any tenant
to assign or sublet its rights thereunder, (iii) to execute,
acknowledge and deliver any and all instruments and documents
that Mortgagee may deem necessary or proper to implement its
rights as provided in this Article III, and (iv) to perform
and discharge any and all obligations and undertakings of
Mortgagor under any Lease.
3.11 Other Assignments. Mortgagor shall not further
assign or transfer the Leases or Rents except in favor of
Mortgagee as provided in this Article III, and shall not
create or permit to be created or to remain, any mortgage,
pledge, lien, encumbrance, claim, or charge on the Leases or
Rents. Any transaction prohibited under this Section shall be
null and void.
3.12 Section 697.07 of the Florida Statutes. The
assignments of Leases and Rents contained in this Mortgage are
intended to provide Mortgagee with all the rights and remedies
of mortgagees pursuant to Section 697.07 of the Florida
Statutes (hereinafter "Section 697.07"), as may be amended
from time to time. However, in no event shall this reference
diminish, alter, impair, or affect any other rights and
remedies of Mortgagee, including but not limited to, the
appointment of a receiver as provided in Article VIII, Section
8.1(e) herein, nor shall any provision in this Section 3.15
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diminish, alter, impair or affect any rights or powers of the
receiver in law or equity or as set forth in Article VIII,
Section 8.1(e) herein. In addition, this assignment shall be
fully operative without regard to value of the Mortgaged
Property or without regard to the adequacy of the Mortgaged
Property to serve as security for the obligations owed by
Mortgagor to Mortgagee, and shall be in addition to any rights
arising under Section 697.07. Further, except for the notices
required hereunder, if any, Mortgagor waives any notice of
default or demand for turnover of rents by Mortgagee, together
with any rights under Section 697.07 to apply to a court to
deposit the Rents into the registry of the court or such other
depository as the court may designate.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties. Mortgagor
hereby represents and warrants to Mortgagee that:
(a) Organization, Corporate Power, Partnership
Power, Etc. Mortgagor (i) if a corporation, (A) is duly
organized, validly existing and in good standing under the
laws of the state or country of its incorporation, (B) has the
corporate power and authority to own its properties and to
carry on its business as now being conducted, and all of its
issued and outstanding stock is fully paid and nonassessable,
(C) is qualified to do business in the State of Florida,
(D) is in compliance with all Governmental Requirements, and
(E) has not amended or modified its articles or certificate of
incorporation or its bylaws except as previously disclosed in
writing to Mortgagee prior to the execution hereof.
(b) Validity of Loan Documents. (i) The
execution, delivery and performance by Mortgagor of the Loan
Documents, and the borrowing evidenced by the Note, (A) are
within the powers and purposes of Mortgagor, (B) have been
duly authorized by all requisite action of Mortgagor, (C) do
not require the approval of any Governmental Authority, and
(D) will not violate any Governmental Requirement, the
articles of incorporation and bylaws or the partnership
agreement of Mortgagor or any indenture, agreement or other
instrument to which Mortgagor is a party or by which it or any
of its property is bound, or be in conflict with, result in a
breach of or constitute (with due notice or lapse of time or
both) a default under any such indenture, agreement or other
instrument, or result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any
of its property or assets, except as contemplated by the
provisions of the Loan Documents; and (ii) the Loan Documents,
constitute the legal, valid and binding obligations of
Mortgagor and other obligors named therein, if any, in
accordance with their respective terms.
(c) Financial Statements. All balance sheets,
statements of profit and loss, and other financial data that
have been given to Mortgagee with respect to the Mortgagor and
the Guarantor, (i) are complete and correct in all material
respects, (ii) accurately present the financial condition of
said parties as of the dates, and the results of its or their
operations, for the periods for which the same have been
furnished, and (iii) have been prepared in accordance with
generally accepted accounting principles consistently followed
throughout the periods covered thereby; all balance sheets
disclose all known liabilities, direct and contingent, as of
their respective dates; and there has been no change in the
condition of the Mortgagor or the Guarantor, financial or
otherwise, since the date of the most recent financial
statements given to Mortgagee with respect to said parties,
other than changes in the ordinary course of business, none of
which changes has been materially adverse.
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(d) Other Agreements. Mortgagor is not a
party to any agreement or instrument materially and adversely
affecting it or its present or proposed businesses, properties
or assets, operation or condition, financial or otherwise, and
Mortgagor is not in default in the performance, observance or
fulfillment of any of the material obligations, covenants or
conditions set forth in any agreement or instrument to which
it is a party.
(e) Other Information. All other information,
including reports, financial statements, certificates, papers,
data and otherwise, given and to be given to Mortgagee with
respect (i) to Mortgagor or any Guarantor, (ii) to the Loan
and (iii) to others obligated under the terms of the Loan
Documents, are true, accurate and correct in all material
respects and complete.
(f) Title. Mortgagor is indefeasibly seized
of and has and will have good and marketable fee simple title
to the Land and Improvements free and clear of any and all
mortgages, liens, encumbrances, claims, charges, equities,
covenants, conditions, restrictions, easements, rights-of-way
and all other matters affecting the Land and Improvements,
whether or not of record, except for the Permitted Title
Exceptions. Mortgagor has and will have good, absolute and
marketable title to the Fixtures and Personal Property all
free and clear of any and all liens, charges, encumbrances,
security interests and adverse claims whatsoever, except those
in favor of Mortgagee. Mortgagor will preserve its title to
the Mortgaged Property and will forever warrant and defend the
same to Mortgagee and will forever warrant and defend the
validity and priority of the lien of this Mortgage against the
claims of all persons and parties whomsoever.
(g) No Violations. No Governmental
Requirement (including, but not limited to, 21 U.S.C.
sectionsection 811 and 881, and 18 U.S.C. section1961), and no
covenant, condition, restriction, easement or similar matter
affecting the Land or Improvements has been violated, and
Mortgagor has not received any notice of violation from any
Governmental Authority or any other person with respect to any
of the foregoing matters.
(h) Taxes. Mortgagor has filed all federal,
state, county and municipal income tax returns required to
have been filed by it, and has paid all taxes that have become
due pursuant to such returns, pursuant to any assessments
received by it or pursuant to law, and Mortgagor does not know
of any basis for additional assessment with respect to such
taxes or additional taxes. The Land is (or will be prior to
the issuance of the first tax bill coming due after the date
of this Mortgage) assessed separately from all other adjacent
land for the purposes of real estate taxes and there is no
intended public improvements which may involve any charge
being levied or assessed, or which may result in the creation
of any lien upon the Mortgaged Property.
(i) Litigation. There are no judgments
outstanding against Mortgagor and there is no action, suit,
proceeding, or investigation now pending (or to the best of
Mortgagor's knowledge after diligent inquiry, threatened)
against, involving or affecting Mortgagor or the Mortgaged
Property, or any part thereof, at law, in equity or before any
Governmental Authority that if adversely determined as to the
Mortgaged Property or as to Mortgagor would result in a
material adverse change in the business or financial condition
of the Mortgagor or Mortgagor's operation and ownership of the
Mortgaged Property, nor is there any basis for such action,
suit, proceeding or investigation.
(j) Utilities. There is available to the Land
and Improvements through public or private easements or
rights-of-way abutting or crossing the Land (which would inure
to the benefit of Mortgagee in case of enforcement of this
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Mortgage) a water supply and a sanitary sewer service approved
by all health and other authorities having jurisdiction, and
electric, gas (if applicable) and telephone service, all of
sufficient capacity to serve the needs of the Land and
Improvements according to their intended purpose.
(k) Condition of Mortgaged Property. The
Mortgaged Property or any part thereof, now existing, is not
damaged or injured as a result of any fire, explosion,
accident, flood or other casualty. The Improvements, if any,
as of the date of this Mortgage, are free of any defects in
material, structure and construction and do not violate any
Governmental Requirements. There is no existing, proposed or
contemplated plan to modify or realign any street or highway
or any existing, proposed or contemplated eminent domain
proceeding that would result in the taking of all or any part
of the Mortgaged Property or that would adversely affect the
use or the operation of the Mortgaged Property.
(l) Zoning. The Land is zoned so as to permit
the Land and Improvements to be used for their intended
purpose.
(m) No Default. No default or Event of
Default exists under any of the Loan Documents; and no event
has occurred and is continuing which, with notice or the lapse
of time, or both, would constitute a default under any
provision thereof.
(n) Fictitious Name Statute. Mortgagor, if
applicable, has duly complied with all of the requirements of
the Florida Fictitious Name Statute.
(o) Junior Mortgage. No Junior Mortgage, if
any, existing as of the date hereof requires the consent of
any of the holders thereof to the Loan, the execution and
delivery of the Loan Documents, or to any transaction
contemplated under the Loan Documents. All Junior Mortgages
existing as of the date hereof, if any, are in good standing,
all principal, interest and other payments due thereunder have
been paid in accordance with the terms thereof, there is no
default thereunder and no event has occurred which with due
notice or the lapse of time, or both, would constitute a
default thereunder.
(p) Environmental Contamination/Hazardous
Material. Mortgagor and the Mortgaged Property are in full
compliance with all Environmental Laws, and there are no
civil, criminal or administrative actions, suits, demands,
claims, hearings, notices or demand letters, notices of
violation, investigations, or proceedings pending or
threatened against the Mortgagor or the Mortgaged Property
relating in any way to any Environmental Law or any agreement,
plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved under any
Environmental Law. There have never been nor are there
currently any Hazardous Material located on, in, or under the
Mortgaged Property or used in connection therewith, and
neither Mortgagor nor any other person has ever used the
Mortgaged Property for the manufacture, processing,
distribution, use, transport, handling, treatment, storage,
disposal, emission, discharge or release of any Hazardous
Material. No notice or advice has been received by Mortgagor
of any condition or state of facts that would be contributing
to a claim of pollution or any other damage to the environment
by reason of the conduct of any business on the Mortgaged
Property or operation of the Mortgaged Property, whether past
or present.
(q) Facilities For Handicapped: The
Improvements comply with all legal requirements regarding
access and facilities for handicapped or disabled persons,
including, without limitation, and to the extent applicable,
Part V of the Florida Building Construction Standards Act
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entitled "Accessibility by Handicapped Persons", Chapter 553,
Fla Stat.; the Federal Architectural Barriers Act of 1988 (42
U.S.C. section4151, et.seq.), The Fair Housing Amendment Act
of 1988 (42 U.S.C. section3601, et.seq), The Americans With
Disabilities Act of 1990 (42 U.S.C. section12101 et. seq.),
and The Rehabilitation Act of 1973 (29 U.S.C. section794).
(r) Representations and Warranties in Other
Loan Documents. All of the representations and warranties
contained in the other Loan Documents are true and correct.
Notwithstanding anything contained herein to the contrary, as
to the representations and warranties contained in subsections
(f) through and including (q), all of such representations and
warranties are made only to the best knowledge of the
Mortgagor. For purposes of this Mortgage, the phrase "the
best knowledge of Mortgagor" shall be deemed to mean the
actual knowledge or present recollection of the following
current officers of Mortgagor: Ronald S. Deferrari, Diana M.
DeFerrari, Ronald H. Deferrari, Stacy L. Wagner and Curtis A.
Barratt.
4.2 Reliance on Representations. The Mortgagor
acknowledges that the Mortgagee has relied upon the
Mortgagor's representations, has made no independent
investigation of the truth thereof, is not charged with any
knowledge contrary thereto that may be received by an
examination of the public records in Tallahassee, Florida and
wherein the Land is located, or that may have been received by
any officer, director, agent, employee or shareholder of
Mortgagee.
ARTICLE V
AFFIRMATIVE COVENANTS
5.1 Payment and Performance. Mortgagor shall
promptly pay and punctually perform, or shall cause to be
promptly paid and punctually performed, all of the Obligations
as and when due and payable.
5.2 Existence. Mortgagor shall preserve and keep
in full force and effect its existence, rights, franchises,
trade names and qualification to transact business in the
State of Florida.
5.3 Compliance With Laws. Mortgagor shall promptly
and faithfully comply with, conform to and obey all
Governmental Requirements and the rules and regulations now
existing or hereafter adopted by every Board of Fire
Underwriters having jurisdiction, or similar body exercising
similar functions, that may be applicable to Mortgagor or to
the Mortgaged Property or to the use or manner of use,
occupancy, possession, operation, maintenance, alteration,
repair or reconstruction of the Mortgaged Property, whether or
not such Governmental Requirement or rule or regulation shall
necessitate structural changes or improvements or interfere
with the use or enjoyment of the Mortgaged Property.
5.4 Impositions.
(a) Mortgagor shall pay all Impositions on the
Mortgaged Property and all taxes levied or assessed upon this
Mortgage, the Note and the Obligations, or any of them. In
the event of the passage, after the date of this Mortgage, of
any law (i) making it illegal for the Mortgagor to pay the
whole or any part of the Impositions, or charges or liens
herein required to be paid by Mortgagor, or (ii) rendering the
payment by Mortgagor of any and all taxes levied or assessed
upon this Mortgage, the Note, or the Obligations or the
interest in the Mortgaged Property represented by this
Mortgage unlawful, or (iii) rendering the covenants for the
payment of the matters set forth in Subparts (i) and (ii) of
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this Subsection by Mortgagor legally inoperative, the
Mortgagor shall pay, upon demand, the entire unpaid
Obligations notwithstanding anything in the Note, this
Mortgage, or the other Loan Documents to the contrary.
(b) Mortgagor shall pay all ad valorem taxes
on the Mortgaged Property on or before December 1st of each
year in which they become a lien on the Mortgaged Property,
and shall deliver to Mortgagee tax receipts evidencing said
payment on or before December 31 of each year. Mortgagor
shall also deliver to Mortgagee receipts evidencing the
payment of all other Impositions within thirty (30) days after
same become due and payable or before same shall become
delinquent, whichever is sooner.
5.5 Insurance. Until the Obligations shall have
been fully discharged by Mortgagor, Mortgagor shall cause to
be maintained, at Mortgagor's cost and expense, the following
insurance coverages in full force and effect at all times
throughout the term of the Loan:
(a) Hazard Insurance. Mortgagor shall keep
the Improvements and all Personal Property which now or
hereafter may constitute part of the Mortgaged Property
insured at all times against loss or damage by fire and other
hazards included within the term "all risk" or "extended
coverage" and against such other hazards as Mortgagee may
require in the full insurable value thereof (or such lesser
amount as Mortgagee may authorize in writing), with an insurer
satisfactory to Mortgagee. Such policy shall include a
Replacement Cost and Agreed Amount/Stipulated Value
Endorsement and a Sinkhole Endorsement, if deemed necessary by
Mortgagee.
(b) Liability Insurance. Mortgagor will
obtain and keep in full force a "Broad Form Comprehensive
General Liability" insurance coverage for both Mortgagor and
any contractor performing services to the Mortgaged Property
in the minimum coverage amount of One Million Dollars
($1,000,000.00) per occurrence and combined single limit
("CSL") of Five Million Dollars ($5,000,000.00) if the Loan
amount is less than $10,000,000.00 or CSL of Ten Million
Dollars, ($10,000,000.00) if the Loan amount is $10,000,000.00
or greater.
(c) Flood Insurance. If at any time the Land
or any portion thereof is located in a "Flood Hazard Area"
pursuant to the Flood Disaster Protection Act of 1973 or any
successor or supplemental act thereto, flood insurance in the
maximum amount available or such other amount as Mortgagee may
reasonably request.
(d) Builder's Risk Insurance. An "All risk",
non-reporting, completed value builder's risk insurance
policy, which policy shall include Agreed Amount, Replacement
Cost, Permit to Occupy and Vandalism/Malicious Mischief
Endorsements.
(e) Other Insurance. Boiler and machinery
insurance, worker's compensation insurance, wind damage
insurance, and other insurance coverages as Mortgagee may
reasonably require.
The policy or policies of insurance shall (i) be
from companies and in coverage amounts acceptable to
Mortgagee, (ii) contain a standard mortgagee clause in favor
of Mortgagee naming Mortgagee as a mortgagee and including a
lender's loss payee clause in such policy, as applicable (iii)
not be terminable or modified without thirty (30) days' prior
written notice to Mortgagee, and (iv) be evidenced by evidence
certificates or other certificates deemed acceptable to
Mortgagee, to be held by Mortgagee until the Obligations shall
have been fully paid and discharged. Mortgagor shall furnish
Mortgagee satisfactory evidence of payment of all premiums
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required and similar evidence of renewal or replacement
coverage not later than thirty (30) days prior to the date any
coverage will expire.
Each insurance policy or endorsement required herein
shall be written by an insurer having a rating not less than
"A-XII" Best's Rating according to the most current edition of
Best's Key Rating Guide as determined at the time of the
initial policy and at all times during the term hereof. All
policies shall indicate that notices related to such insurance
shall be sent to Mortgagee at:
400 North Ashley Drive (FL1-010-07-01)
Tampa, Florida 33602
Attn: Loan Administration Section,
Real Estate Banking Group
5.6 Restoration Following Casualty.
(a) If all or any part of the Mortgaged
Property shall be damaged or destroyed by a casualty,
Mortgagor shall immediately give written notice thereof to
Mortgagee and the appropriate insurer, and Mortgagee is
authorized and empowered (but not obligated or required) to
make proof of loss and to settle, adjust or compromise any
claims for loss, damage or destruction under any policies of
insurance required under this Mortgage. All proceeds of
insurance, as provided in Section 5.5, shall be paid to
Mortgagee and shall be applied first to the payment of all
costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) incurred by Mortgagee in
obtaining such proceeds, and second, at the option of
Mortgagee, either to the payment of the Obligations whether or
not due, in such order as Mortgagee may elect, or to the
restoration, repair, or replacement of the Mortgaged Property.
If Mortgagee elects to apply the insurance proceeds to the
restoration, repair or replacement of the Mortgaged Property,
such proceeds shall be disbursed to Mortgagor as work
progresses pursuant to a construction and disbursing agreement
in form and content satisfactory to Mortgagee in its sole
discretion, and Mortgagor shall promptly and diligently,
regardless of whether there shall be sufficient insurance
proceeds therefor, restore, repair and rebuild the Mortgaged
Property to the equivalent of its condition immediately prior
to the casualty. During the period of restoration and repair,
Mortgagor shall continue to duly and promptly pay, perform,
observe and comply with all of the Obligations. The election
by Mortgagee to apply the insurance proceeds to the
restoration, repair or replacement of the Mortgaged Property
shall not affect the lien of this Mortgage or affect or reduce
the Obligations.
(b) If all or any of the Mortgaged Property
shall be damaged or destroyed by a casualty not covered by
insurance under Section 5.5, or, if so covered, the insurer
fails or refuses to pay the claim within thirty (30) days
following the filing thereof, Mortgagor shall immediately give
written notice thereof to Mortgagee, and Mortgagor shall
promptly and diligently, at Mortgagor's sole cost and expense,
restore, repair and rebuild the Mortgaged Property to the
equivalent of its condition immediately prior to the casualty.
During the period of restoration and repair, Mortgagor shall
continue to duly and promptly pay, perform, observe and comply
with all of the Obligations.
(c) If any work required to be performed under
Subsections (a) or (b) above, or both, shall involve an
estimated expenditure of more than $25,000.00, no such work
shall be undertaken until plans and specifications therefor,
prepared by an architect satisfactory to Mortgagee, have been
submitted to and approved by Mortgagee.
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5.7 Condemnation.
(a) Mortgagor shall immediately notify
Mortgagee upon obtaining any knowledge of the institution of
any proceedings for the condemnation of the Mortgaged Property
or any part thereof.
(b) If all or any part of the Mortgaged
Property shall be damaged or taken through condemnation (which
term when used in this Mortgage shall include any damage or
taking by any Governmental Authority and any transfer by
private sale in lieu thereof, either temporarily or
permanently), Mortgagee at its option may declare all of the
unpaid Obligations to be immediately due and payable, and upon
ten (10) days written notice from Mortgagee to Mortgagor all
such Obligations shall immediately become due and payable as
fully and to the same effect as if such date were the date
originally specified for the final payment or maturity
thereof. The Mortgagee shall be entitled to all compensation,
awards and other payments resulting from such condemnation and
is hereby authorized, at its option, to commence, appear in
and prosecute, in its own or in Mortgagor's name, any action
or proceeding relating to any condemnation, and to settle or
compromise any claim in connection therewith. All such
compensation, awards, damages, claims, rights of action and
proceeds and the right thereto are hereby assigned by
Mortgagor to Mortgagee and shall, be applied first to the
payment of all costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) incurred
by Mortgagee in connection with any action or proceeding under
this Section 5.7, and second, at the option of Mortgagee,
either to the payment of the Obligations whether or not due,
in such order as Mortgagee may elect, or to the restoration,
repair or alteration of the Mortgaged Property. If Mortgagee
elects to apply the condemnation awards to the restoration,
repair or alteration of the Mortgaged Property, such awards
shall be disbursed to Mortgagor as work progresses pursuant to
a construction and disbursing agreement in form and content
satisfactory to Mortgagee in its sole discretion, and
Mortgagor shall promptly and diligently, regardless of whether
there shall be sufficient condemnation awards therefor,
restore, repair and alter the Mortgaged Property in a manner
satisfactory to Mortgagee. During the period of restoration,
repair and alteration, the Mortgagor shall continue to duly
and promptly pay, perform, observe and comply with all of the
Obligations. The election by Mortgagee to apply the
condemnation awards to the restoration, repair or alteration
of the Mortgaged Property shall not affect the lien of this
Mortgage or affect or reduce the Obligations. If any
restoration, repair or alteration of the Mortgaged Property
shall involve an estimated expenditure of more than
$25,000.00, same shall not be commenced until plans and
specifications therefor, prepared by an architect satisfactory
to Mortgagee, have been submitted to and approved by
Mortgagee.
5.8 Mortgagor's Right to Rebuild the Mortgaged
Property.
(a) Notwithstanding the provisions of Sections
5.6 and 5.7 hereof to the contrary, in the event that any
portion or portions of the Mortgaged Property are damaged or
destroyed by fire or by any other casualty, or are the subject
of a "de minimis" (for purposes of this Section 5.8, the term
"de minimis" shall mean an amount, as determined by Mortgagee
in its sole discretion, which does not adversely affect the
actual use of the Improvements) condemnation, and such damage,
destruction, or condemnation results in the need for repair,
rebuilding, or restoration work to be performed on the Mort-
gaged Property (such repair, rebuilding, or restoration is
referred to herein as the "Work"), Mortgagee shall allow
Mortgagor to use the amount by which the proceeds of all
insurance policies, judgments, settlements, or awards
collected with respect to such damage, destruction, or
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condemnation (except such amounts as are attributable to a
loss of rents) exceed the cost, if any, to Mortgagee for the
recovery of such proceeds (said net amount is defined herein
as the "Reconstruction Funds"), to perform the Work, so long
as the following conditions have been met:
(i) No Event of Default exists
hereunder, under the Note, or under any other of the Loan
Documents;
(ii) Mortgagor shall have
delivered evidence satisfactory to Mortgagee that the
Improvements may be reconstructed in accordance with all
applicable zoning and building codes, and all rules,
regulations, and ordinances of Governmental Authorities and
that, upon completion of the Work, the condition of the
Improvements will be at least equal in value and general
utility to that which existed immediately prior to such
casualty or condemnation;
(iii) Mortgagor shall have delivered
evidence satisfactory to Mortgagee that sufficient funds,
including the Reconstruction Funds, are available to perform
the Work and that the Work is capable of completion prior to
the then effective maturity date of the Note; and
(iv) Mortgagee shall be satisfied, in
its sole discretion, that the work can be completed and the
Improvements can be ready for occupancy at least three (3)
months prior to the maturity of the Loan;
(v) All parties having existing or
expected possessory interest in the Property agree in a manner
satisfactory to Mortgagee that they will continue or extend
their intent and arrangements for the contract terms then in
effect following the work;
(vi) All parties having operating,
management, or franchise interest in, and arrangement
concerning the Property agree that they will continue their
interest and arrangements for the contract terms then in
effect following the work; and
(vii) Mortgagee shall be satisfied
that it will not incur any liability to any other person as a
result of such use or release of insurance proceeds.
(b) In the event that the conditions set forth
in Section 5.8(a) above are satisfied, Mortgagee shall make
the Reconstruction Funds available to Mortgagor for the Work
only under the following procedures, terms, and conditions:
(viii) Mortgagor shall execute and
deliver to Mortgagee a copy of a contract with a licensed
contractor acceptable to Mortgagee setting forth a fixed price
for the Work and a completion date acceptable to Mortgagee;
(ix) Mortgagor shall demonstrate to
Mortgagee that the Reconstruction Funds are at least equal to
the fixed price of the Work as set forth in said contract or
shall deposit with Mortgagee funds in the amount by which such
fixed price exceeds the Reconstruction Funds;
(x) The Work shall be supervised by
an architect or engineer and performed in accordance with
plans and specifications prepared by such architect or
engineer and approved by Mortgagee;
(xi) The Reconstruction Funds, plus
any additional funds deposited by Mortgagor, shall be received
and held by Mortgagee and disbursed in accordance with the
terms and conditions used by Mortgagee in connection with the
a loan disbursing agreement to be prepared by Mortgagee and
Mortgagor's expense, and Mortgagor shall reimburse Mortgagee
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for costs and expenses incurred in connection with such
disbursements;
(xii) Upon completion of and final
payment for the Work, any remaining Reconstruction Funds
shall, at the option of Mortgagee, be applied to the
Obligations in such order as Mortgagee shall elect or paid
over to Mortgagor; provided, however, that in either event,
any remaining additional funds deposited by Mortgagor for
excess costs shall be refunded to Mortgagor; and
(xiii) Mortgagor shall otherwise comply
with the terms and conditions of this Mortgage and the other
Loan Documents during the performance of the Work.
(c) In the event any one or more of the
conditions set forth in Subsection 5.8(a) and 5.8(b) above is
not satisfied, Mortgagee may elect, in its sole discretion, to
apply the Reconstruction Funds against the balance of the
Obligations, whether or not due, in such manner as Mortgagee
shall elect.
(d) If an Event of Default shall occur
hereunder, or if Mortgagor shall fail diligently to pursue and
complete the Work, Mortgagee may, in its sole discretion,
apply any undisbursed Reconstruction Funds and any of
Mortgagor's deposits against the balance of the Obligations,
whether or not due, in such manner as Mortgagee shall elect.
5.9 Tax and Insurance Escrow. Supplementing the
provisions of Sections 5.4 and 5.5 hereof, and if required by
Mortgagee, Mortgagor shall pay to Mortgagee on the payment
date of installments of interest as provided in the Note,
together with and in addition to such installments of
interest, an installment of the Impositions and insurance
premiums for such insurance as is required hereunder, next due
on the Mortgaged Property in an amount sufficient, as
estimated by Mortgagee, to accumulate the sum required to pay
such Impositions and insurance, as applicable, thirty (30)
days prior to the due date thereof. Amounts held hereunder
shall not be, nor be deemed to be, trust funds, but may be
commingled with the general funds of Mortgagee, and no
interest shall be payable with respect thereto. Upon demand
of Mortgagee, Mortgagor shall deliver to Mortgagee, within ten
(10) days after such demand, such additional money as is
necessary to make up any deficiencies in the amounts necessary
to enable Mortgagee to pay such Impositions and insurance
premiums when due. In case of an Event of Default, Mortgagee
may apply any amount under this Section remaining to
Mortgagor's credit to the reduction of the Obligations, at
such times and in such manner as Mortgagee shall determine.
Notwithstanding anything contained herein to the contrary,
Mortgagee will not enforce its rights to require an escrow
hereunder unless an Event of Default has occurred or if a
material adverse change in the financial condition of
Mortgagor shall occur.
5.10 Repair. Mortgagor shall keep the Mortgaged
Property in good order and condition and make all necessary or
appropriate repairs and replacements thereof and betterments
and improvements thereto, ordinary and extraordinary, foreseen
and unforeseen, and use its best efforts to prevent any act
that might impair the value or usefulness of the Mortgaged
Property.
5.11 Inspection. Mortgagor shall permit Mortgagee
and its agents to inspect the Mortgaged Property at any time
during normal business hours and at all other reasonable
times.
5.12 Contest of Tax Assessments, Etc. After prior
written notice to Mortgagee, Mortgagor, at its own expense,
may contest by appropriate legal proceedings, promptly
initiated and conducted in good faith and with due diligence,
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the amount, validity or application, in whole or in part, of
(a) any of the Governmental Requirements referred to in
Section 5.3, or (b) any Imposition; provided that: (i) in the
case of any unpaid Imposition, such proceedings shall suspend
the collection thereof from Mortgagor and from the Mortgaged
Property, (ii) the Mortgaged Property or any part thereof will
not be in danger of being sold, forfeited, terminated,
canceled or lost, (iii) the use of the Mortgaged Property or
any part thereof for its present or future intended purpose or
purposes will not be interrupted, lost or terminated,
(iv) Mortgagor shall have set aside adequate reserves with
respect thereto, and (v) Mortgagor shall have furnished such
security as may be required in the proceedings or as may be
reasonably requested by Mortgagee.
5.13 Expenses.
(a) Mortgagor shall pay all costs and expenses
in connection with the Loan and the preparation, execution,
and delivery of the Loan Documents including, but not limited
to, fees and disbursements of counsel appointed by Mortgagee,
and all recording costs and expenses, documentary stamp tax
and intangible tax on the entire amount of funds disbursed
under the Loan, and other taxes, surveys, appraisals, premiums
for policies of title and other insurance and all other fees,
costs and expenses, if any, set forth in the Commitment, the
Loan Agreement, or otherwise connected with the Loan
transaction.
(b) Mortgagor shall pay or reimburse Mortgagee
for all costs, charges, expenses, and reasonable attorneys'
fees paid or incurred by Mortgagee pursuant to this Mortgage
including but not limited to those costs, charges, expenses
and fees paid or incurred for the payment of the Impositions,
insurance, completion of construction, repairs, appraisal
fees, environmental assessment fees, or any other fees paid or
incurred in any action, proceeding or dispute of any kind in
which Mortgagee is a party because of any Obligation not being
duly and promptly performed or being violated, including, but
not limited to, the foreclosure or other enforcement of this
Mortgage, any condemnation or eminent domain action involving
the Mortgaged Property or any part thereof, any action to
protect the security hereof, or any proceeding in probate,
reorganization, bankruptcy, arbitration, or forfeiture in rem.
All such amounts paid or incurred by Mortgagee, together with
interest thereon at the Default Rate from the date incurred by
Mortgagee, shall be secured by this Mortgage and shall be due
and payable by Mortgagor immediately, whether or not there be
notice or demand therefor.
(c) Any reference in this Mortgage to
attorneys' or counsels' fees paid or incurred by Mortgagee
shall be deemed to include paralegals' fees and legal
assistants' fees. Moreover, wherever provision is made herein
for payment of attorneys' or counsels' fees or expenses
incurred by the Mortgagee, said provision shall include, but
not be limited to, such fees or expenses incurred in any and
all judicial, bankruptcy, reorganization, administrative, or
other proceedings, including appellate proceedings, whether
such fees or expenses arise before proceedings are commenced
or after entry of a final judgment.
5.14 Preservation of Agreements. Mortgagor shall
preserve and keep in full force and effect all agreements,
approvals, permits and licenses necessary for the development,
use and operation of the Mortgaged Property for its intended
purpose or purposes.
5.15 Books and Records. The Mortgagor shall keep
and maintain, at all times, full, true and accurate books of
accounts and records, adequate to correctly reflect the cost,
performance, maintenance or condition of the Mortgaged
Property. Upon advance notice to Mortgagor, the Mortgagee
shall have the right to examine such books and records and to
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make such copies or extracts therefrom as the Mortgagee shall
require.
5.16 Estoppel Affidavits. Mortgagor, within ten
(10) days after written request from Mortgagee, shall furnish
a written statement, duly acknowledged, setting forth the
unpaid principal balance of, and interest on, the Obligations
secured by this Mortgage, and whether or not any off-sets or
defenses exist thereto.
5.17 Indemnification.
(a) Mortgagor shall at its own expense, and
does hereby agree to, protect, indemnify, reimburse, defend
and hold harmless Mortgagee and its directors, officers,
agents, employees attorneys, successors and assigns from and
against any and all liabilities (including strict liability),
losses, suits, proceedings, settlements, judgments, orders,
penalties, fines, liens, assessments, claims, demands,
damages, injuries, obligations, costs, disbursements, expenses
or fees, of any kind or nature (including attorneys' fees and
expenses paid or incurred in connection therewith) arising out
of or by reason of (i) an incorrect legal description of the
Land; (ii) any action, or inaction of Mortgagee in connection
with the Note, this Mortgage, the other Loan Documents or the
Mortgaged Property; (iii) the construction of any
Improvements; (iv) the use and operation of the Mortgaged
Property; (v) any acts or omissions of Mortgagor or any other
Person at, on or about the Mortgaged Property regarding the
contamination of air, soil, surface waters or groundwaters
over, on or under the Mortgaged Property; (vi) the presence,
whether past, present or future, of any Hazardous Material on,
in or under the Mortgaged Property; or (vii) any past, present
or future events, conditions, circumstances, activities,
practices, incidents, actions or plans involving the
manufacture, processing, distribution, use, transport,
handling, treatment, storage, disposal, cleanup, emission,
discharge, seepage, spillage, leakage, release or threatened
release of any Hazardous Material on, in, under or from the
Mortgaged Property, in connection with Mortgagor's operations
on the Mortgaged Property, or otherwise; all of the foregoing
regardless of whether within the control of Mortgagee.
(b) The indemnifications of this Section 5.17
shall survive the full payment and performance of the
Obligations and the satisfaction of this Mortgage.
5.18 Mortgagor to Furnish Financial Statements.
Mortgagor shall submit annual and interim financial statements
and other accounting data as required in the Loan Agreement.
Such statements shall include, at a minimum: a balance sheet;
an income and expense statement; and a statement showing
contingent liabilities. Each unaudited statement must contain
a certification to Mortgagee of the statement's accuracy and
completeness signed by an authorized officer or the
individual, as applicable. Unless otherwise specified in the
Loan Agreement, annual statements of business entities
(including corporations) shall be audited and bear the
unqualified opinion of an acceptable certified public
accountant. The annual statements shall be submitted when
required in the Loan Agreement, or if not specified then no
later than April 30 of each year of the Loan term. Interim
statements shall be submitted as required in the Loan
Agreement.
5.19 Further Assurances. Mortgagor, at its sole
expense, upon the request of Mortgagee, shall execute,
acknowledge and deliver such further instruments and do such
further acts as may, in the opinion of the Mortgagee, be
necessary, desirable, or proper to carry out more effectively
the purpose of this Mortgage and to subject to the lien hereof
any property intended by the terms hereof to be covered
hereby, including, without limitation, any proceeds, renewals,
additions, substitutions, replacements, products, betterments,
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accessions and appurtenances thereto and thereof.
5.20 Junior Mortgage(s) and Rights of Mortgagee.
(a) Mortgagor shall, with respect to any
Junior Mortgage, (i) promptly observe and perform all of the
covenants and conditions contained in the Junior Mortgage,
(ii) duly and promptly make all payments required by the terms
of the Junior Mortgage, (iii) promptly notify Mortgagee in
writing upon receipt by Mortgagor of any notice that Mortgagor
is in default under the Junior Mortgage or that an event has
occurred which with due notice or the lapse of time, or both,
would constitute a default under the Junior Mortgage, and to
promptly cause a copy of each such notice given by the holder
thereof to be delivered to Mortgagee, and (iv) from time to
time upon demand of Mortgagee submit evidence to Mortgagee
that Mortgagor has maintained and is maintaining the Junior
Mortgage in good standing. Upon receipt by Mortgagee of any
such aforesaid notice, Mortgagee may rely thereon even though
the existence of such default or the nature thereof may be
questioned or denied by Mortgagor or by any party on behalf of
Mortgagor.
(b) If Mortgagor fails to make any payment
required under the Junior Mortgage as and when due, or fails
to perform any condition, covenant, or term of the Junior
Mortgage, then Mortgagee may on behalf of Mortgagor, but
without obligation to do so, and without notice to and demand
upon Mortgagor, and without releasing Mortgagor from any
Obligation and without waiving any Event of Default hereunder,
take any action Mortgagee deems necessary or desirable to
prevent or cure any such default by Mortgagor, including, but
without limitation, the right to pay any and all payments of
principal and interest, insurance premiums, taxes and
assessments and other sums due or to become due under the
Junior Mortgage. Mortgagor hereby expressly grants to
Mortgagee and agrees that Mortgagee and its agents shall have
the absolute and immediate right to enter upon the Land and
the Improvements or any part thereof to such extent and as
often as Mortgagee in its sole discretion deems necessary or
desirable in order to prevent or cure any such default by
Mortgagor. All payments and all costs and expenses incurred
by Mortgagee in connection with any such prevention or cure
(including, without limitation, reasonable attorneys' fees and
expenses), together with interest thereon at the Default Rate
from the date incurred by Mortgagee, shall be secured by this
Mortgage and shall be due and payable by Mortgagor
immediately, whether or not there be notice, demand, an
attempt to collect same, or suit pending.
(c) Nothing in this Section 5.20 shall in any
manner be construed as consent by Mortgagee to the further
encumbering or mortgaging of the Mortgaged Property.
5.21 Financing Statements. Mortgagor shall execute
and deliver to Mortgagee, in form and substance satisfactory
to Mortgagee, such financing statements, continuation
statements, and such further assurances as Mortgagee may from
time to time consider reasonably necessary to create, perfect,
preserve and maintain in full force and effect Mortgagee's
lien upon the Fixtures, Leases, Rents and Personal Property;
and, Mortgagee, at the expense of Mortgagor, may cause such
statements and assurances to be recorded and rerecorded, filed
and re-filed, in the name of Mortgagor, and Mortgagor hereby
constitutes and irrevocably appoints Mortgagee its true and
lawful attorney-in-fact, which appointment is coupled with an
interest, with full power of substitution, and empowers said
attorney or attorneys in the name of Mortgagor, but at the
option of said attorney-in-fact, to execute and file any and
all financing statements.
5.22 Withholding Taxes.
(a) If under any applicable law or regulation
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or the interpretation thereof by any Governmental Authority
charged with the administration thereof, Mortgagor shall be
required to make any withholding or deduction from any payment
of the Obligations (whether of principal, interest or
otherwise) to be made by or on behalf of Mortgagor to
Mortgagee for or in respect of any present or future taxes,
levies, imposts, duties, charges, or fees of any nature
(excepting only Mortgagee's income taxes of the United States
of America and its political subdivisions), the amount due to
Mortgagee from Mortgagor in respect of such payment shall be
increased to the extent necessary to ensure that after making
such withholding or deduction and any withholdings or
deductions required to be made in respect to any such
increase, Mortgagee shall receive an amount equal to the
amount which Mortgagee would have received had no such
withholding or deduction been required to be made. In the
event of any such withholding or deduction, Mortgagor shall
deliver to Mortgagee forthwith after receipt thereof the
official receipt or other official documentation evidencing
the payment of the amount so withheld or deducted.
(b) If Mortgagor shall fail to make any
withholding or deduction so required to be made, Mortgagee
reserves the right to make payment thereof to the appropriate
Governmental Authority. If Mortgagee makes such payment under
any applicable law or regulation or if as a result of the
interpretation thereof by any Governmental Authority charged
with the administration thereof in respect of any such
payment, whether of principal, interest or otherwise made or
to be made by Mortgagor, Mortgagee shall be required to pay
any tax, levy, impost, duty, charge or fee of any nature
(excepting only Mortgagee's income taxes of the United States
of America and its political subdivisions), Mortgagor shall
and does hereby indemnify Mortgagee against and shall
forthwith upon demand of Mortgagee pay to Mortgagee the amount
of such payment, together with any interest, penalties, and
expenses in connection therewith, and interest thereon at the
Default Rate; and in the event any of the aforesaid amounts,
interest, penalties or expenses shall be subject to
withholding or deduction, the amount thereof shall be
increased to the extent necessary to ensure that after making
such withholding or deduction and any withholdings or
deductions in respect of any such increase, Mortgagee shall
receive an amount equal to the amount which Mortgagee would
have received had no such withholding or deduction been
required to be made.
(c) Any increased amount required to be paid
by Mortgagor in accordance with the provisions of this
Section 5.22 shall have the same character as the amount in
respect of which such increased amount is determined, but
shall not (i) if characterized as principal, be applied in
reduction of the principal amount outstanding under the
Obligations or (ii) if characterized as interest, be applied
in reduction of accrued, unpaid interest under the
Obligations.
5.23 Hazardous Material. Mortgagor hereby
discloses to Mortgagee that in the course of conducting
Mortgagor's business upon the Mortgaged Property, Mortgagor
will use various chemicals in its manufacturing and assembly
processes, some of which may constitute a Hazardous Material,
such as by way of example, chlorine gas. Mortgagee hereby
recognizes that such chemicals may be used in the ordinary
course of Mortgagor's business operations upon the Property.
Provided, however, that any such use, handling and storage of
Hazardous Material must be in compliance with all
Environmental Requirements and Environmental Laws, and shall
not constitute a violation of such Environmental Requirements
and Environmental Laws or this Mortgage.
(a) Mortgagor shall immediately notify
Mortgagee orally and in writing (i) if Mortgagor becomes aware
of the presence of any Hazardous Material or other
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environmental problem or liability on, in, under, released
from or associated with the Mortgaged Property except as to
Hazardous Material lawfully used by the Mortgagor in the
ordinary course of Mortgagor's business operations on the
Mortgaged Property, or (ii) if an Environmental Claim is then
existing with respect to the Mortgaged Property. Mortgagor
shall forthwith transmit to Mortgagee all information it has
received with respect to the Environmental Claim.
(b) Mortgagor shall, at its own cost and
expense, take any action necessary or advisable for the
cleanup of any unlawfully used Hazardous Material on, in,
under, released from or associated with the Mortgaged
Property, including any removal, containment or remedial
actions in accordance with all applicable Environmental Laws,
and shall pay or cause to be paid all cleanup, administrative,
enforcement and other costs, expenses or fines which may be
asserted against Mortgagor, Mortgagee, the Mortgaged Property,
or any other Person in connection therewith.
(c) Mortgagee shall have the right but not the
obligation, and without any limitation of Mortgagee's other
rights under this Mortgage, to enter onto the Mortgaged
Property or to take any action as it deems necessary or
advisable to cleanup, remove, resolve or minimize the impact
of, or otherwise deal with, any Hazardous Material or any
Environmental Claim following receipt of any notice from any
Person or Governmental Authority asserting the existence of
any Hazardous Material or an Environmental Claim pertaining to
the Mortgaged Property or any part thereof which, if true,
could result in an order, suit or other action against
Mortgagor or Mortgagee which, in the sole opinion of
Mortgagee, could jeopardize Mortgagee's security under this
Mortgage. All costs and expenses incurred by Mortgagee in the
exercise of any such rights shall be secured by this Mortgage
and shall be payable by Mortgagor upon demand.
(d) Except as to Hazardous Material lawfully
used by the Mortgagor in the ordinary course of Mortgagor's
business operations on the Mortgaged Property, if Mortgagee
shall have reason to believe that any other Hazardous Material
affects the Mortgaged Property, or if required by any
Governmental Authority or Governmental Requirement, or if any
Environmental Claim is made or threatened, or if an Event of
Default shall have occurred hereunder or under any of the Loan
Documents, or if the lien of the Mortgage is foreclosed upon
or upon a conveyance by deed in lieu of foreclosure wherein
possession of the Mortgaged Property has been given to and
accepted by the purchaser or grantee, then Mortgagor shall,
within forty-five (45) days of Mortgagee's written request,
cause to be prepared an environmental assessment of the
Mortgaged Property (but not more frequently than annually
unless an Environmental Claim is then outstanding) and, if
required by Mortgagee, an environmental assessment (as
hereinafter defined) of the Mortgaged Property including
Hazardous Material waste management practices and Hazardous
Material waste disposal sites thereon. As used herein, the
term "Environmental Assessment" means a report (including all
drafts thereof) of an environmental assessment of the
Mortgaged Property of such scope (including but not limited to
the taking of soil borings and air and groundwater samples and
other above and below ground testing) as Mortgagee may
request, by a consulting firm acceptable to Mortgagee, made in
accordance with Mortgagee's established guidelines and at
Mortgagor's sole cost and expense. Should Mortgagor fail to
provide such Environmental Assessment within said forty-five
(45) day period, Mortgagee shall have the right, but not the
obligation, to retain an environmental consultant to perform
and prepare same. All costs and expenses incurred by
Mortgagee in the exercise of such rights shall be secured by
this Mortgage and shall be payable by Mortgagor upon demand or
charged to Mortgagor's loan balance at the discretion of
Mortgagee. In the event Mortgagee causes an Environmental
Assessment of the Mortgaged Property to be conducted,
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Mortgagee agrees to provide a copy of such Environmental
Assessment to Mortgagor, upon Mortgagor's request.
5.24 Financial Reports, Etc. Mortgagor shall, at
Mortgagor's sole cost and expense, provide Mortgagee with any
financial statements, financial reports, appraisals or other
documentation with respect to Mortgagor or the Mortgaged
Property which may be required from time to time by any
Governmental Authority having regulatory authority over
Mortgagee. Such information shall be provided by Mortgagor
within thirty (30) days after written request from Mortgagee.
5.25 Appraisals. In addition to the appraisals
required by Mortgagee prior to closing of the Loan, updated
appraisals shall be prepared at Mortgagor's expense when
requested by Bank or when required in connection with any
extension options in the Note. Such appraisals shall be
prepared in accordance with written instructions from
Mortgagee by a professional appraiser selected and engaged by
Mortgagee. Mortgagor shall cooperate fully with the appraisal
process and shall allow the appraisers reasonable access to
the Mortgaged Property and its tenants. Notwithstanding
anything contained herein to the contrary, Mortgagee shall not
request updated appraisals pursuant to this Section unless an
Event of Default has occurred, or if required by any
governmental law or regulation, or for good cause (i.e.
Mortgagee has reason to believe the value of the Mortgaged
Property has declined such that the Original Loan-to-Value
Ratio [as defined below] is no longer maintained).
5.26 Reappraisal of Mortgaged Property. Mortgagor
acknowledges that Mortgagee was induced to enter into the
subject Loan transaction based upon a specific loan-to-value
ratio (the "Original Loan-to-Value Ratio"). The Original
Loan-to-Value Ratio was based upon the appraised value (the
"Original Appraised Value") of the Mortgaged Property set
forth in the appraisal Mortgagor submitted to Mortgagee prior
to the closing of the subject Loan transaction. If any
updated appraisal received by Mortgagee pursuant to Section
5.25 above reflects that the appraised value of the Mortgaged
Property has decreased from the Original Appraised Value and
if such decrease results in a loan-to-value ratio which is
higher than the Original Loan-to-Value Ratio, Mortgagor shall
within ten (10) days of Mortgagee's written request make a
principal payment (the "Prepayment") under the Note in an
amount sufficient to maintain the Original Loan-to-Value
Ratio. Such Prepayment shall not entitle Mortgagor to a
release of any of the Mortgaged Property.
5.27 Performance of Loan Documents. Mortgagor shall
duly and punctually perform all covenants, terms and
agreements expressed as binding upon it under all of the Loan
Documents.
5.28 Performance of Other Agreements. Mortgagor
shall duly and punctually perform all covenants, terms and
agreements expressed as binding upon it under any Permitted
Title Exception, or any other agreement of any nature
whatsoever binding upon it with respect to the Mortgaged
Property.
5.29 Construction Loan Agreement. The Loan
evidenced by the Note and secured by this Mortgage is to be
disbursed in accordance with the terms and provisions of the
Loan Agreement. The Note, this Mortgage and the Loan
Agreement shall always be taken and read together as
constituting parts of one transaction. All sums disbursed
pursuant to the terms of the Loan Agreement shall be secured
by this Mortgage with the same priority as if advanced on the
date hereof. Mortgagor shall fully, duly and promptly
discharge each and every of its agreements contained in the
Loan Agreement and comply with, abide by and perform all of
the provisions and conditions thereof.
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ARTICLE VI
NEGATIVE COVENANTS
6.1 Use Violations, Etc. Mortgagor shall not use
the Mortgaged Property or allow the same to be used or
occupied for any unlawful purpose or in violation of any
Governmental Requirement or restrictive covenant covering,
affecting or applying to the ownership, use or occupancy
thereof, commit or permit or suffer any act to be done or any
condition to exist on the Mortgaged Property or any article to
be brought thereon that may be dangerous, or that may in any
way increase any ordinary fire or other hazard, unless
safeguarded as required by law, or that may, in law,
constitute a nuisance, public or private.
6.2 Care of the Mortgaged Property.
(a) Mortgagor shall not commit or permit any
waste, impairment, or deterioration of the Mortgaged Property,
or (except as may be provided for in the Loan Agreement)
perform any clearing, grading, filling or excavation of the
Mortgaged Property, or make or permit to be made to the
Mortgaged Property any alterations or additions that would
have the effect of materially diminishing the value thereof
(in Mortgagee's sole opinion) or take or permit any action
that will in any way increase any ordinary fire or other
hazard arising out of the construction or operation thereof.
(b) Mortgagor shall not, without the prior
written consent of Mortgagee, remove, demolish or
substantially alter, or permit the removal, demolishment or
substantial alteration of, any Improvements on the Land. In
the event such consent is given and if any work to be
performed shall involve an estimated expenditure of more than
$25,000.00, no such work shall be undertaken until plans and
specifications therefor, prepared by an architect satisfactory
to Mortgagee, shall have been submitted to and approved by
Mortgagee.
(c) Mortgagor shall not permit any of the
Fixtures or Personal Property to be demolished or to be
removed from the Land, without the prior written consent of
Mortgagee. In the event such consent is given, the Mortgagee
may require that said Fixture or Personal Property be replaced
by an article of equal suitability and value, owned by
Mortgagor free and clear of any vendor's lien, chattel
mortgage, or security interest of any kind, except such as may
be approved in writing by Mortgagee, and that such replacement
article be encumbered by the lien of this Mortgage.
Notwithstanding the foregoing, the Mortgagor may remove or
demolish any Fixture or Personal Property without first
obtaining the Mortgagee's prior written consent provided
(i) the value of such article does not exceed in value at the
time of disposition thereof $50,000.00 for any single item, or
a total of $150,000.00 in any one year for all such items and
(ii) that said article is replaced and subject to the lien of
this Mortgage as aforesaid.
6.3 Other Liens and Mortgages.
(a) Mortgagor shall not, without the prior
written consent of Mortgagee, create or permit to be created
or to remain, any mortgage, pledge, construction lien or other
lien, conditional sale or other title retention agreement,
encumbrance, claim, or charge on (whether prior or subordinate
to the lien of this Mortgage or the other Loan Documents) the
Mortgaged Property or income therefrom, other than this
Mortgage, the other Loan Documents and the Permitted Title
Exceptions. Any transaction prohibited under this Section
shall be null and void.
(b) Mortgagor shall not, without the prior
written consent of Mortgagee, (i) enter into any agreement
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either oral or in writing, whereby any permitted Junior
Mortgage is modified or amended in any manner whatsoever,
(ii) permit the release of any guarantor or modification of
any guaranty affecting any permitted Junior Mortgage, or
(iii) incur any additional indebtedness secured thereby.
(c) Mortgagor shall not directly or
indirectly, take, acquire, or permit to be taken or acquired
by any other party, any interest whatsoever in any permitted
Junior Mortgage without the prior written consent of
Mortgagee.
6.4 Transfer of Mortgaged Property. Except as may
otherwise be expressly permitted in the Loan Agreement (if
any) executed in connection with this Mortgage, Mortgagor
shall not sell, convey, or transfer or permit to be sold,
conveyed or transferred any interest in the Mortgaged Property
or any part thereof. A contract to deed or agreement for
deed, or an assignment, pledge, or encumbrance of a beneficial
interest in any land trust, or a lease for all or
substantially all of the Land or Improvements shall constitute
a transfer prohibited by the provisions of this Section and
shall be null and void.
6.5 Mortgagor's Certificate of Incorporation and
Partnership Agreement. Mortgagor, if a corporation or a
Partnership, shall not, without the prior written consent of
Mortgagee, materially amend or modify its articles or
certificate of incorporation or bylaws or its certificate of
Partnership or Partnership agreement.
6.6 Environmental Contamination/Hazardous Material.
Mortgagor and the Mortgaged Property shall at all times remain
in full compliance with all Environmental Laws. Except as to
Hazardous Material lawfully used by the Mortgagor in the
ordinary course of Mortgagor's business operations on the
Mortgaged Property, Mortgagor shall not, nor permit any other
person to manufacture, process, distribute, use, transport,
handle, treat, store, dispose, emit, discharge, leak, spill or
release any Hazardous Material on, in, under or from the
Mortgaged Property.
ARTICLE VII
EVENTS OF DEFAULT
7.1 Events of Default. An "Event of Default", as
used in this Mortgage, shall occur at any time or from time to
time:
(a) Failure to Pay. If any Obligation or any
installment thereof is not paid as and when due and payable;
(b) Failure to Perform. If any Obligation
other than an Obligation requiring the payment of money or the
occurrence of an event described in Subsections 7.1(e), (g),
(i), (l) or (m) below is not duly and promptly performed or is
violated and such non-performance or violation is not curable,
or if curable continues for a period of ten (10) days after
written notice thereof from Mortgagee to Mortgagor, provided,
however, if such non-performance or violation may not
reasonably be cured within such ten (10) day period, an Event
of Default shall not be deemed to have occurred so long as
same shall be diligently and continuously endeavored to be
cured. Notwithstanding the foregoing, it shall be an Event of
Default if such non-performance or violation has not been
cured within sixty (60) days after notice thereof;
(c) False Representation. If any
representation or warranty made in any Loan Document by or on
behalf of Mortgagor or any Guarantor is at any time false,
misleading, or breached;
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(d) Judgment. If a final judgment for the
payment of money is rendered against Mortgagor or any
Guarantor, and the same remains unsatisfied except for such
period of time as execution on the judgment is effectively
stayed;
(e) Voluntary Bankruptcy, Etc. If Mortgagor
or any Guarantor (i) is voluntarily adjudicated a bankrupt or
insolvent, (ii) seeks or consents to the appointment of a
receiver or trustee for itself or for all or any part of its
property, (iii) files a petition seeking relief, including
reorganization, arrangement or similar relief, under the
present Bankruptcy Code or other similar present or future
applicable laws of the United States or any state or any other
competent jurisdiction, (iv) makes a general assignment for
the benefit of creditors or (v) admits in writing its
inability to pay its debts as they mature;
(f) Involuntary Bankruptcy, Etc. If a
receiver or trustee is appointed for Mortgagor or any
Guarantor or for all or any part of their respective
properties without their respective consents and such
appointment is not vacated within one hundred twenty (120)
days, or if a petition is filed against Mortgagor or any
Guarantor seeking relief, including reorganization,
arrangement or similar relief, under the present Bankruptcy
Code or other similar present or future applicable laws of the
United States or any state or other competent jurisdiction,
and such petition is not dismissed within one hundred twenty
(120) days after the filing thereof;
(g) Dissolution. If Mortgagor or any
Guarantor voluntarily or involuntarily dissolves or
liquidates;
(h) Financial Condition. If a material
adverse change has occurred, at any time or times subsequent
to the date hereof, in the financial condition, results of
operations, operations, business, properties, or prospects of
Mortgagor, its subsidiaries, parent or affiliates;
(i) Default Under Loan Documents. If any
default occurs under any of the other Loan Documents or if any
obligation of Mortgagor under any of the other Loan Documents
is not fully performed;
(j) Foreclosure of Other Liens. If the holder
of any mortgage or other lien on the Mortgaged Property,
whether a Permitted Title Exception or not (without hereby
implying Mortgagee's consent to any such mortgage or other
lien) institutes foreclosure or other proceedings for the
enforcement of any of its remedies thereunder;
(k) Notice Limiting Future Advances. If
Mortgagor, pursuant to Florida Statutes 697.04(1)(b) as
amended from time to time, files for record a notice limiting
the maximum amount which may be secured by this Mortgage;
(l) Default Under Junior Mortgage. If any
default or any event of default occurs under any permitted
Junior Mortgage, whether or not foreclosure or other
proceedings have been instituted thereunder; or
(m) Other Events of Default. If a general
partner of Mortgagor, if Mortgagor is a limited partnership,
or any partner of Mortgagor, if Mortgagor is a general
partnership, is the subject of any occurrence described in
Subsections (d) through (h), inclusive, of this Article.
ARTICLE VIII
RIGHTS AND REMEDIES
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8.1 Remedies. If an Event of Default shall have
occurred, Mortgagee may, at its option, exercise any, some or
all of the following remedies, concurrently or consecutively.
(a) Acceleration. Mortgagee may declare all
of the unpaid Obligations, together with all accrued interest
thereon, to be due and payable without notice or demand which
are hereby expressly waived, and upon such declaration all
such Obligations shall immediately become due and payable as
fully and to the same effect as if the date of such
declaration were the date originally specified for the full
payment or maturity thereof.
(b) Mortgagee's Right to Enter and Take
Possession, Operate and Apply Income.
(i) Mortgagee may demand that
Mortgagor surrender the actual possession of the Mortgaged
Property and upon such demand, Mortgagor shall forthwith
surrender same to Mortgagee and, to the extent permitted by
law, Mortgagee itself, or by such officers or agents as it may
appoint, may enter and take possession of all of the Mortgaged
Property and may exclude Mortgagor and its agents and
employees wholly therefrom. Notwithstanding anything to the
contrary contained herein, the surrender of possession of the
Mortgaged Property by Mortgagor herein shall under no
circumstances be construed to mean Mortgagor's surrender of
the business operated on the Mortgaged Property.
(ii) If Mortgagor shall for any
reason fail to surrender or deliver the Mortgaged Property or
any part thereof after Mortgagee's demand, Mortgagee may
obtain a judgment or order conferring on Mortgagee the right
to immediate possession or requiring the Mortgagor to deliver
immediate possession to Mortgagee, to the entry of which
judgment or decree the Mortgagor hereby specifically consents.
(iii) Mortgagee may from time to time:
(A) continue and complete construction of, hold, store, use,
operate, manage and control the Mortgaged Property and conduct
the business thereof; (B) make all reasonably necessary
maintenance, repairs, renewals, replacements, additions,
betterments and improvements thereto and thereon and purchase
or otherwise acquire additional Fixtures and Personal
Property; (C) insure or keep the Mortgaged Property insured;
(D) exercise all the rights and powers of the Mortgagor in its
name or otherwise with respect to the same; and (E) enter into
agreements with others (including, without limitation, new
Leases or amendments, extensions, or cancellations to existing
Leases) all as Mortgagee from time to time may determine in
its sole discretion. Mortgagor hereby constitutes and
irrevocably appoints Mortgagee its true and lawful attorney-
in-fact, which appointment is coupled with an interest, with
full power of substitution, and empowers said attorney or
attorneys in the name of Mortgagor, but at the option of said
attorney-in-fact, to do any and all acts and execute any and
all agreements that Mortgagee may deem necessary or proper to
implement and perform any and all of the foregoing.
(iv) The Mortgagee may, with or
without taking possession of the Mortgaged Property as
hereinabove provided, collect and receive all the Rents
therefrom, including those past due as well as those accruing
thereafter, and shall apply the monies so received first, to
the payment of all costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) incurred
by Mortgagee and its agents in connection with the collection
of same, whether or not in possession of the Mortgaged
Property, and second, in such order as Mortgagee may elect, to
the payment of the Obligations.
(c) Proceedings To Recover Sums Due.
(i) If any installment or part of
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any Obligation shall fail to be paid when due, Mortgagee shall
be entitled to sue for and to recover judgment against the
Mortgagor for the amount so due and unpaid together with all
costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) incurred by Mortgagee in
connection with such proceeding, together with interest
thereon at the Default Rate from the date incurred by
Mortgagee. All such costs and expenses shall be secured by
this Mortgage and shall be due and payable by Mortgagor
immediately.
(ii) If Mortgagor shall fail to pay
upon the Mortgagee's demand, after acceleration as provided in
Subsection 8.1(a), all of the unpaid Obligations, together
with all accrued interest thereon, Mortgagee shall be entitled
to sue for and to recover judgment against the Mortgagor for
the entire amount so due and unpaid together with all costs
and expenses (including, without limitation, reasonable
attorneys' fees and expenses) incurred by Mortgagee in
connection with such proceeding, together with interest
thereon at the Default Rate from the date incurred by
Mortgagee. All such costs and expenses shall be secured by
this Mortgage and shall be payable by Mortgagor immediately.
Mortgagee's right under this Sub-section (ii) may be exercised
by Mortgagee either before, after or during the pendency of
any proceedings for the enforcement of this Mortgage,
including appellate proceedings.
(iii) No recovery of any judgment as
provided in Subsections (i) and (ii) above and no attachment
or levy of any execution upon any of the Mortgaged Property or
any other property shall in any way affect the lien of this
Mortgage upon the Mortgaged Property or any part thereof, or
any lien, rights, powers, or remedies of Mortgagee hereunder,
but such lien, rights, powers and remedies shall continue
unimpaired as before.
(d) Foreclosure.
(i) Mortgagee may institute
proceedings for the partial or complete foreclosure of this
Mortgage and Mortgagee may, pursuant to any final judgment of
foreclosure, sell the Mortgaged Property as an entirety or in
separate lots, units, or parcels.
(ii) In case of a foreclosure sale of
all or any part of the Mortgaged Property, the proceeds of
sale shall be applied in accordance with Section 8.8 hereof,
and the Mortgagee shall be entitled to seek a deficiency
judgment against the Mortgagor to enforce payment of any and
all Obligations then remaining due and unpaid, together with
interest thereon, and to recover a judgment against the
Mortgagor therefor.
(iii) The Mortgagee is authorized to
foreclose this Mortgage subject to the rights of any tenants
of the Mortgaged Property, or Mortgagee may elect which
tenants Mortgagee desires to name as parties defendant in such
foreclosure and failure to make any such tenants parties
defendant to any such foreclosure proceedings and to foreclose
their rights will not be, nor be asserted by the Mortgagor to
be, a defense to any proceedings instituted by the Mortgagee
to collect the unpaid Obligations or to collect any deficiency
remaining unpaid after the foreclosure sale of the Mortgaged
Property.
(e) Receiver. Mortgagee may apply to any
court of competent jurisdiction to have a receiver appointed
to enter upon and take possession of the Mortgaged Property,
collect the Rents therefrom and apply the same as the court
may direct, such receiver to have all of the rights and powers
permitted under the laws of the State of Florida. The right
of the appointment of such receiver shall be a matter of
strict right without regard to the value or the occupancy of
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the Mortgaged Property or the solvency or insolvency of
Mortgagor. The expenses, including receiver's fees,
attorneys' fees, costs and agent's commission incurred
pursuant to the powers herein contained, together with
interest thereon at the Default Rate, shall be secured hereby
and shall be due and payable by Mortgagor immediately without
notice or demand. Notwithstanding the appointment of any
receiver or other custodian, Mortgagee shall be entitled as
pledgee to the possession and control of any cash or deposits
at the time held by, payable, or deliverable under the terms
of this Mortgage to the Mortgagee, and the Mortgagee shall
have the right to offset the unpaid Obligations against any
such cash or deposits in such order as Mortgagee may elect.
(f) Remedies as to Personal Property.
Mortgagee may exercise any or all of its rights and remedies
under the Uniform Commercial Code-Secured Transactions as
adopted by the State of Florida or other applicable law as
well as all other rights and remedies possessed by Mortgagee,
all of which shall be cumulative. Mortgagee is hereby
authorized and empowered to enter the Mortgaged Property or
other place where the Personal Property may be located without
legal process, and to take possession of the Personal Property
without notice or demand, which hereby are waived to the
maximum extent permitted by the laws of the State of Florida.
Upon demand by Mortgagee, Mortgagor shall make the Personal
Property available to Mortgagee at a place reasonably
convenient to Mortgagee. Mortgagee may sell at one or more
public or private sales and for such price as Mortgagee may
deem commercially reasonable, any and all of the Personal
Property secured by this Mortgage, and any other security or
property held by Mortgagee and Mortgagee may be the purchaser
of any or all of the Personal Property.
(g) Other. Mortgagee may institute and
maintain any suits and proceedings as the Mortgagee may deem
advisable (i) to prevent any impairment of the Mortgaged
Property by any acts which may be unlawful or in violation of
this Mortgage, (ii) to preserve or protect its interest in the
Mortgaged Property, and (iii) to restrain the enforcement of
or compliance with any Governmental Requirement that may be
unconstitutional or otherwise invalid, if the enforcement of
or compliance with such Governmental Requirement might impair
the security hereunder or be prejudicial to the Mortgagee's
interest.
8.2 Remedies Cumulative and Concurrent. No right,
power or remedy of Mortgagee as provided in the Note, this
Mortgage, the Guaranty, or the other Loan Documents is
intended to be exclusive of any other right, power, or remedy
of Mortgagee, but each and every such right, power and remedy
shall be cumulative and concurrent and in addition to any
other right, power or remedy available to Mortgagee now or
hereafter existing at law or in equity and may be pursued
separately, successively or together against Mortgagor, any
Guarantor, or any endorser, co-maker, surety or guarantor of
the Obligations, or the Mortgaged Property or any part
thereof, or any one or more of them, at the sole discretion of
Mortgagee. The failure of Mortgagee to exercise any such
right, power or remedy shall in no event be construed as a
waiver or release thereof.
8.3 Waiver, Delay or Omission. No waiver of any
Event of Default hereunder shall extend to or affect any
subsequent or any other Event of Default then existing, or
impair any rights, powers or remedies consequent thereon, and
no delay or omission of Mortgagee to exercise any right, power
or remedy shall be construed to waive any such Event of
Default or to constitute acquiescence therein.
8.4 Credit of Mortgagee. To the maximum extent
permitted by the laws of the State of Florida, upon any sale
made under or by virtue of this Article, Mortgagee may bid for
and acquire the Mortgaged Property, or any part thereof, and
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in lieu of paying cash therefor may apply to the purchase
price, any portion of or all of the unpaid Obligations in such
order as Mortgagee may elect.
8.5 Sale. Any sale or sales made under or by
virtue of this Article shall operate to divest all the estate,
right, title, interest, claim and demand whatsoever at law or
in equity, of the Mortgagor and all Persons, except tenants
pursuant to Leases approved by Mortgagee, claiming by, through
or under Mortgagor in and to the properties and rights so
sold, whether sold to Mortgagee or to others.
8.6 Proofs of Claim. In the case of any
receivership, insolvency, bankruptcy, reorganization,
arrangement, adjustment, composition, seizure of the Mortgaged
Property by any Governmental Authority, or other judicial
proceedings affecting the Mortgagor, any Guarantor, any
endorser, co-maker, surety, or guarantor of the Obligations,
or any of their respective properties, the Mortgagee, to the
extent permitted by law, shall be entitled to file such proofs
of claim and other documents as may be necessary or advisable
in order to have its claim allowed in such proceedings for the
entire unpaid Obligations at the date of the institution of
such proceedings, and for any additional amounts which may
become due and payable after such date.
8.7 Waiver of Redemption, Notice, Marshalling, Etc.
Mortgagor hereby waives and releases, for itself and anyone
claiming through, by, or under it, to the maximum extent
permitted by the laws of the State of Florida:
(a) all benefit that might accrue to Mortgagor
by virtue of any present or future law exempting the Mortgaged
Property, or any part of the proceeds arising from any sale
thereof, from attachment, levy or sale on execution, or
providing for any appraisement, valuation, stay of execution,
exemption from civil process, redemption or extension of time
for payment,
(b) unless specifically required herein, all
notices of default, or Mortgagee's actual exercise of any
option or remedy under the Loan Documents, or otherwise, and
(c) any right to have the Mortgaged Property
marshalled.
8.8 Application of Proceeds. The proceeds of any
sale of all or any portion of the Mortgaged Property shall be
applied by Mortgagee first, to the payment of receiver's fees
and expenses, if any, and to the payment of all costs and
expenses (including, without limitation, reasonable attorneys'
fees and expenses) incurred by Mortgagee, together with
interest thereon at the Default Rate from the date so
incurred, in connection with any entry, action or proceeding
under this Article and, second, in such order as Mortgagee may
elect, to the payment of the Obligations. Mortgagor shall be
and remain liable to Mortgagee for any difference between the
net proceeds of sale and the amount of the Obligations until
all of the Obligations have been paid in full.
8.9 Discontinuance of Proceedings. If Mortgagee
shall have proceeded to enforce any right under any Loan
Document and such proceedings shall have been discontinued or
abandoned for any reason, then except as may be provided in
any written agreement between Mortgagor and Mortgagee
providing for the discontinuance or abandonment of such
proceedings, Mortgagor and Mortgagee shall be restored to
their former positions and the rights, remedies and powers of
Mortgagee shall continue as if no such proceedings had been
instituted.
8.10 Mortgagee's Actions. Mortgagee may, at any
time without notice to any Person and without consideration,
do or refrain from doing any or all of the following actions,
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and neither the Mortgagor, any Guarantor, any endorser, co-
maker, surety or guarantor of the Obligations, nor any other
Person (hereinafter in this Section 8.10 collectively referred
to as the "Obligor") now or hereafter liable for the payment
and performance of the Obligations shall be relieved from the
payment and performance thereof, unless specifically released
in writing by Mortgagee: (a) renew, extend or modify the
terms of the Note, this Mortgage, the Guaranty and the other
Loan Documents, or any of them; (b) forbear or extend the time
for the payment or performance of any or all of the
Obligations; (c) apply payments by any Obligor to the
reduction of the unpaid Obligations in such manner, in such
amounts, and at such times and in such order and priority as
Mortgagee may see fit; (d) release any Obligor; (e) substitute
or release in whole or in part the Mortgaged Property or any
other collateral or any portion thereof now or hereafter held
as security for the Obligations without affecting, disturbing
or impairing in any manner whatsoever the validity and
priority of the lien of this Mortgage upon the Mortgaged
Property which is not released or substituted, or the validity
and priority of any security interest of the Mortgagee in such
other collateral which is not released or substituted;
(f) subordinate the lien of this Mortgage or the lien of any
other security interest in any other collateral now or
hereafter held as security for the Obligations; (g) join in
the execution of a plat or replat of the Land; (h) join in and
consent to the filing of a declaration of condominium or
declaration of restrictive covenants regarding all or any part
of the Land; (i) consent to the granting of any easement on
the Land; and (j) generally deal with any Obligor or any other
party as Mortgagee may see fit.
ARTICLE IX
MORTGAGEE'S PERFORMANCE
9.1 Governmental Regulation of Mortgagee.
Mortgagee is subject to various Governmental Authorities and
the laws, rules and regulations enacted, adopted and
promulgated by them. To the extent that Mortgagee's authority
to perform its obligations (if any) under this Mortgage, now
or hereafter, may be limited or regulated by such Governmental
Authorities, Mortgagee is hereby excused from such
performance.
9.2 Mortgagee's Failure to Perform. If Mortgagee
fails to perform its obligations (if any) under this Mortgage
(except to the extent excused therefrom as provided in Section
9.1 above), Mortgagor shall notify Mortgagee in writing (the
"Notice") within thirty (30) days after Mortgagor's obtaining
knowledge of such failure. Each such Notice shall describe in
detail the act or event constituting the non-performance by
Mortgagee. Mortgagee shall have thirty (30) days after its
receipt of the Notice to cure any such failure to perform,
unless such cure can not be accomplished using reasonable
efforts within said thirty (30) day period, in which case
Mortgagee shall have such additional time as may be necessary,
using reasonable efforts, to cure such non-performance (the
"Mortgagee Cure Period").
9.3 Mortgagor's Rights and Remedies. The giving of
the Notice and the expiration of the Mortgagee Cure Period
shall be conditions precedent to any right of the Mortgagor to
bring an action against Mortgagee. Mortgagor hereby expressly
agrees that its sole remedy against Mortgagee in any such
action shall be that of specific performance.
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ARTICLE X
MISCELLANEOUS
10.1 Maximum Rate of Interest. Nothing contained
herein, in the Note, or in any other Loan Document, or the
Commitment, or in any instrument or transaction related
thereto, shall be construed or so operate as to require the
Mortgagor or any person liable for the payment of the Loan
made pursuant to the Note, or liable for the payment of any
Obligations, to pay interest, or any charge in the nature of
interest, in an amount or at a rate which exceeds the maximum
rate of interest allowed by applicable law, as amended from
time to time. Should any interest or other charges in the
nature of interest received by Mortgagee or paid by the
Mortgagor or any parties liable for the payment of the Loan
made pursuant to the Note, or liable for the payment of any
Obligations, exceed the maximum rate of interest allowed by
applicable law, as amended from time to time, then such excess
sum shall be credited against the principal balance of the
Note or the balance of the other Obligations, as applicable,
unless the Mortgagor or such other parties liable for such
payments, as applicable, shall notify the Mortgagee, in
writing, that the Mortgagor or such other party elects to have
such excess sum returned to it forthwith, it being the intent
of the parties hereto that under no circumstances shall the
Mortgagor or any parties liable for any of the aforesaid
payments be required to pay interest in excess of the maximum
rate of interest allowed by applicable law, as amended from
time to time. The Mortgagee may, in determining the maximum
rate of interest allowed under applicable law, as amended from
time to time, take advantage of any state or federal law, rule
or regulation in effect from time to time which may govern the
maximum rate of interest which may be reserved, charged or
taken.
10.2 Continuing Agreement. This Mortgage and all of
the Mortgagor's representations, warranties and covenants
herein, Mortgagee's security interest in the Mortgaged
Property and all of the rights, powers and remedies of
Mortgagee hereunder shall continue in full force and effect
until all of the Obligations have been paid and performed in
full; until Mortgagee has no further obligation to make any
advances under the Loan; and until Mortgagee, upon the request
of the Mortgagor, has executed a satisfaction of mortgage.
Furthermore, if for any reason no Obligations are owing,
notwithstanding such occurrence, this Mortgage shall remain
valid and in full force and effect as to subsequent
Obligations, so long as Mortgagee has not executed a
satisfaction of mortgage; provided, however, that the
indemnifications set forth in Article V of this Mortgage shall
survive the satisfaction of this Mortgage.
10.3 Survival of Warranties and Covenants. The
warranties, representations, covenants and agreements set
forth in this Mortgage shall survive the making of the Loan
and the execution and delivery of the Note, and shall continue
in full force and effect until all of the Obligations shall
have been paid and performed in full.
10.4 No Representation By Mortgagee. By accepting
or approving anything required to be observed, performed or
fulfilled, or to be given to Mortgagee, pursuant to this
Mortgage, or the other Loan Documents, or the Commitment,
including, but not limited to, any officer's certificate,
balance sheet, statement, survey or appraisal, Mortgagee shall
not be deemed to have warranted or represented the
sufficiency, legality, effectiveness or legal effect of the
same, or of any term, provision or condition thereof, and such
acceptance or approval thereof shall not be or constitute any
warranty or representation with respect thereto by Mortgagee.
10.5 Notice. All notices, demands, requests and
other communications required under this Mortgage may be given
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orally (either in person or by telephone if confirmed in
writing within three (3) days thereafter), by telex, telegram,
or telecopy, or in writing delivered by hand or mail and shall
be conclusively deemed to have been received if delivered or
attempted to be delivered by United States first class mail,
return receipt requested, postage prepaid, addressed to the
party for whom it is intended at its address set forth in the
introduction to this Mortgage. Any party may designate a
change of address by written notice to the other party,
received by such other party at least ten (10) days before
such change of address is to become effective.
10.6 Mortgagee's Right to Pay and Perform. If
Mortgagor shall fail to duly pay or perform any of the
Obligations required by this Mortgage, then at any time
thereafter without notice to or demand upon Mortgagor, and
without waiving or releasing any right, remedy, or power of
Mortgagee, and without releasing any of the Obligations or any
Event of Default, Mortgagee may pay or perform such Obligation
for the account of and at the expense of Mortgagor, and shall
have the right to enter and to authorize others to enter upon
the Mortgaged Property for such purpose and to take all such
action thereon and with respect to the Mortgaged Property as
may be necessary or appropriate for such purpose. All
payments made and all costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) incurred
by Mortgagee, together with interest thereon at the Default
Rate from the date incurred by Mortgagee shall be secured by
this Mortgage and shall be due and payable by Mortgagor
immediately, whether or not there be notice, demand, an
attempt to collect same, or suit pending.
10.7 Covenants Running With the Land. All covenants
contained in this Mortgage shall be binding on the Mortgagor
and shall run with the Land.
10.8 Successors and Assigns. All of the terms of
this Mortgage shall apply to and be binding upon, and inure to
the benefit of, the heirs, devisees, personal representatives,
successors and assigns of Mortgagor and Mortgagee,
respectively, and all persons claiming under or through them.
10.9 Invalidity.
(a) If any one or more of the provisions
contained in this Mortgage is declared or found by a court of
competent jurisdiction to be invalid, illegal, or
unenforceable, such provision or portion thereof shall be
deemed stricken and severed and the remaining provisions
hereof shall continue in full force and effect.
(b) If any one or more of the Obligations is
declared or found by a court of competent jurisdiction to be
invalid, illegal, or unenforceable, the validity, legality and
enforceability of the remaining Obligations shall continue in
full force and effect.
10.10 Modification. No agreement unless in writing
and signed by an authorized officer of Mortgagee and no course
of dealing between the parties hereto shall be effective to
change, waive, terminate, modify, discharge, or release in
whole or in part any provision of this Mortgage. No waiver of
any rights or powers of Mortgagee or consent by it shall be
valid unless in writing signed by an authorized officer of
Mortgagee and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for
which given.
10.11 Applicable Law. This Mortgage shall be
construed, interpreted, enforced and governed by and in
accordance with the laws of the State of Florida (excluding
the principles thereof governing conflicts of law), and
federal law, in the event federal law permits a higher rate of
interest than Florida law.
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10.12 Replacement of Note. Upon receipt of
evidence reasonably satisfactory to Mortgagor of the loss,
theft, destruction or mutilation of the Note, or any amendment
or modification thereto, including without limitation any
renewal note or additional note, and in the case of any such
loss, theft, or destruction, upon delivery of any indemnity
agreement, reasonably satisfactory to Mortgagor or, in the
case of any such mutilation, upon surrender of such mutilated
note, Mortgagor will execute and deliver, in lieu thereof, a
replacement Note, identical in form and substance to the Note
and dated as of the date of the Note and upon such execution
and delivery all references in any of the Loan Documents to
the Note shall be deemed to refer to the replacement Note.
10.13 Strict Performance. It is specifically
agreed that time is of the essence as to all matters provided
for in this Mortgage and that no waiver of any Obligation
hereunder or secured hereby shall at any time thereafter be
held to be a waiver of the Obligations.
10.14 Joint and Several Liability. If more
than one Person executes this Mortgage, each is and shall be
jointly and severally liable hereunder; and if Mortgagor is a
general partnership, then all partners in Mortgagor (and if
Mortgagor is a limited partnership, then all general partners
in Mortgagor) shall be jointly and severally liable hereunder,
notwithstanding any contrary provision in the partnership laws
of the State of Florida.
10.15 MANDATORY ARBITRATION. ANY CONTROVERSY
OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING BUT NOT
LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS MORTGAGE
OR ANY RELATED AGREEMENTS OR INSTRUMENTS, INCLUDING ANY CLAIM
BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED
BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE
LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION
OF COMMERCIAL DISPUTES OF JUDICIAL ARBITRATION AND MEDIATION
SERVICES, INC. (J.A.M.S.), AND THE "SPECIAL RULES" SET FORTH
BELOW. IN THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES
SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD MAY BE
ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS
MORTGAGE MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED
PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM
TO WHICH THIS MORTGAGE APPLIES IN ANY COURT HAVING
JURISDICTION OVER SUCH ACTION.
(a) SPECIAL RULES. THE ARBITRATION SHALL BE
CONDUCTED IN TAMPA, FLORIDA AND ADMINISTERED BY ENDISPUTE,
INC., d/b/a J.A.M.S./ENDISPUTE WHO WILL APPOINT AN ARBITRATOR;
IF J.A.M.S./ENDISPUTE IS UNABLE OR LEGALLY PRECLUDED FROM
ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE
COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION;
FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE,
BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP
TO AN ADDITIONAL 60 DAYS.
(b) RESERVATIONS OF RIGHTS. NOTHING IN THIS
MORTGAGE SHALL BE DEEMED TO (i) LIMIT THE APPLICABILITY OF ANY
OTHERWISE APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY
WAIVERS CONTAINED IN THIS MORTGAGE; OR (ii) BE A WAIVER BY THE
MORTGAGEE OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC.
91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT
THE RIGHT OF THE MORTGAGEE HERETO (A) TO EXERCISE SELF HELP
REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO
FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR
(C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES
SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF OR THE
APPOINTMENT OF A RECEIVER. THE MORTGAGEE MAY EXERCISE SUCH
SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH
PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO
THIS MORTGAGE. AT MORTGAGEE'S OPTION, FORECLOSURE UNDER A
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DEED OF TRUST OR MORTGAGE MAY BE ACCOMPLISHED BY ANY OF THE
FOLLOWING: THE EXERCISE OF A POWER OF SALE UNDER THE DEED OF
TRUST OR MORTGAGE, OR BY JUDICIAL SALE UNDER THE DEED OF TRUST
OR MORTGAGE, OR BY JUDICIAL FORECLOSURE. NEITHER THIS
EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR
MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR
ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF
ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO
ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING
RESORT TO SUCH REMEDIES.
10.16 No Cross-Collateralization.
Notwithstanding anything contained in this Mortgage or the
Loan Documents to the contrary, Mortgagor and Mortgagee do not
intend for the Loan to be cross-collateralized with that
certain loan which is the subject of the Amended and Restated
Revolving Credit Agreement between Mortgagor and Mortgagee
dated January 19, 1995, as amended on even date herewith;
provided, however, that said loans are intended to be cross-
defaulted.
IN WITNESS WHEREOF, Mortgagor has executed this
instrument as of the day and year
first above written.
Signed, sealed and delivered
in the presence of:
PLASMA-THERM, INC., a Florida
corporation
/s/Lisa L. Disotelle
(Signature of Witness) By: /s/Ronald S. Deferrari
Lisa L. Disotelle Ronald S. Deferrari
(Print Name of Witness) President
/s/David R. Brittain
(Signature of Witness) (CORPORATE SEAL)
David R. Brittain
(Print Name of Witness)
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me
this 14th day of August, 1995, by RONALD S. DEFERRARI, as the
President of PLASMA-THERM, INC., a Florida corporation, on
behalf of the corporation. He is personally known to me or
has produced drivers license
as identification.
/s/Donna J. Landers
Donna J. Landers
(SEAL) (Print Name of Notary Public)
Notary Public
My Commission Expires:
Donna J. Landers
My Commission # CC483663
Expires
August 3, 1999
Bonded thru Troy Fain Insurance
Inc.
Prpared By: NationsBank of
Florida
400 N. Ashley Drive
Tampa, FL
Return to: Lawyers Title Ins.
Corp.
10500 University
Center Dr.
Tampa, FL 33612
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Mortgage, Assignment of Rents and Security Agreement
35<PAGE>
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Mortgage, Assignment of Rents and Security Agreement
36<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
Lots 28, 29, 30, 31 and the Northerly 130 feet of
Lot 27, all in Block C of METROPOINTE COMMERCE PARK
PHASE II, according to the map or plat thereof
recorded in Plat Book 103, pages 25 and 26, Public
Records of PINELLAS County, Florida.
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Mortgage, Assignment of Rents and Security Agreement<PAGE>
ENVIRONMENTAL INDEMNITY AGREEMENT
This Agreement, which is dated as of August 14, 1995, is
executed by PLASMA-THERM, INC., a Florida corporation
("Borrower") as a condition to, and to induce NationsBank of
Florida, N.A., a national banking association ("Lender") to
make, a loan (the "Loan") to Borrower evidenced or to be
evidenced by a Promissory Note of even date herewith made by
Borrower payable to the order of Lender in the principal face
amount of $3,375,000.00, which Loan is secured or to be
secured by a first Mortgage, Assignment, Security Agreement
and Financing Statement (the "Mortgage") of even date herewith
encumbering certain real and personal property as therein
described (collectively, the "Property") including the land
described in Exhibit A which is attached hereto and made a
part hereof. The term "Loan Documents" is used herein as
defined in the Mortgage. This Agreement is one of the Loan
Documents.
1. Certain Definitions. As used in this Agreement:
(a) "Environmental Claim" means any investigative,
enforcement, cleanup, removal, containment, remedial or
other private or governmental or regulatory action at any
time threatened, instituted or completed pursuant to any
applicable Environmental Requirement, against Borrower or
against or with respect to the Property or any condition,
use or activity on the Property (including any such
action against Lender), and any claim at any time
threatened or made by any person against Borrower or
against or with respect to the Property or any condition,
use or activity on the Property (including any such claim
against Lender), relating to damage, contribution, cost
recovery, compensation, loss or injury resulting from or
in any way arising in connection with any Hazardous
Material or any Environmental Requirement.
(b) "Environmental Requirement" means any
Environmental Law, agreement or restriction (including
but not limited to any condition or requirement imposed
by any insurance or surety company), as the same now
exists or may be changed or amended or come into effect
in the future, which pertains to health, safety, any
Hazardous Material, or the environment, including but not
limited to ground or air or water or noise pollution or
contamination, and underground or aboveground tanks.
(c) "Hazardous Material" means any substance,
whether solid, liquid or gaseous which is listed, defined
or regulated as a "hazardous substance", "hazardous
waste" or "solid waste", or pesticide, or otherwise
classified as hazardous or toxic, in or pursuant to any
Environmental Requirement; or which is or contains
asbestos, radon, any polychlorinated biphenyl, urea
formaldehyde foam insulation, explosive or radioactive
material, or motor fuel or other petroleum hydrocarbons;
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Environmental Indemnity Agreement<PAGE>
or which causes or poses a threat to cause a
contamination or nuisance on the Property or any adjacent
property or a hazard to the environment or to the health
or safety of persons on the Property.
(d) "Environmental Law" means any federal, state or
local law, statute, ordinance, code, rule, regulation,
license, authorization, decision, order, injunction,
decree, or rule of common law, and any judicial or agency
interpretation of any of the foregoing, which pertains to
health, safety, any Hazardous Material, or the
environment (including but not limited to ground or air
or water or noise pollution or contamination, and
underground or above ground tanks) and shall include
without limitation, the Solid Waste Disposal Act, 42
U.S.C. Section 6901 et seq.; the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. Section 9601 et seq. ("CERCLA"), as
amended by the Superfund Amendments and Reauthorization
Act of 1986 ("SARA"); the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801 et seq.; the
Federal Water Pollution Control Act, 33 U.S.C. Section
1251 et seq.; the Clean Air Act, 42 U.S.C. Section 7401
et seq.; the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq.; the Safe Drinking Water Act, 42
U.S.C. Section 300f et seq.; the Florida Resource
Recovery and Management Act, The Water Quality Assurance
Act of 1983, The Florida Resource Conservation and
Recovery Act, the Florida Air and Water Pollution Control
Act, The Florida Safe Drinking Water Act, The Pollution
Spill Prevention and Control Act and any other local,
state or federal environmental statutes, and all rules,
regulations, orders and decrees now or hereafter
promulgated under any of the foregoing, as any of the
foregoing now exist or may be changed or amended or come
into effect in the future.
(e) "On" or "on", when used with respect to the
Property or any property adjacent to the Property, means
"on, in, under, above or about".
2. Representations and Warranties. Borrower, after due
inquiry and investigation in accordance with good commercial
or customary practices, hereby represents and warrants to
Lender, without regard to whether Lender has or hereafter
obtains any knowledge or report of the environmental condition
of the Property, except as to that certain Environmental Site
Assessment prepared by Atlanta Testing & Engineering, Inc.
dated March 8, 1995, which report has been furnished to
Lender, as follows:
(a) During the period of Borrower's ownership of
the Property, the Property has not been used for
industrial or manufacturing purposes, for landfill,
dumping or other waste disposal activities or operations,
for generation, storage, use, sale, treatment,
processing, recycling or disposal of any Hazardous
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Environmental Indemnity Agreement 2<PAGE>
Material, for underground or aboveground storage tanks,
or for any other use that could give rise to the release
of any Hazardous Material on the Property; to the best of
Borrower's knowledge, no such use of the Property
occurred at any time prior to the period of Borrower's
ownership of the Property; and to the best of Borrower's
knowledge, no such use on any adjacent property occurred
at any time prior to the date hereof;
(b) to the best of Borrower's knowledge, there is
no Hazardous Material, storage tank (or similar vessel)
whether underground or otherwise, sump or well currently
on the Property;
(c) Borrower has received no notice and has no
knowledge of any Environmental Claim regarding the
Property or any adjacent property;
(d) to the best of Borrower's knowledge, the
present conditions, uses and activities on the Property
do not violate any Environmental Requirement and the use
of the Property which Borrower (and each tenant and
subtenant, if any) makes and intends to make of the
Property complies and will comply with all applicable
Environmental Requirements; and neither Borrower, nor to
Borrower's knowledge, any tenant or subtenant, has
obtained or is required to obtain any permit or other
authorization to construct, occupy, operate, use or
conduct any activity on any of the Property by reason of
any Environmental Requirement;
(e) to the best of Borrower's knowledge, the
Property does not appear on the National Priorities List
or any other list or database of properties maintained by
any local, state or federal agency or department showing
properties which are known to contain or which are
suspected of containing a Hazardous Material; and
(f) to the best of Borrower's knowledge, Borrower
has never applied for and been denied environmental
impairment liability insurance coverage relating to the
Property.
For purposes of this Agreement, the phrase "to the best of
Borrower's knowledge" shall be deemed to mean the actual
knowledge or present recollection of the following current
officers of Borrower: Ronald S. Deferrari, Diana M.
DeFerrari, Ronald H. Deferrari, Stacy L. Wagner and Curtis A.
Barratt.
3. Violations. Borrower will not cause, commit, permit
or allow to continue (i) any violation of any Environmental
Requirement by (A) Borrower or (B) by or with respect to the
Property or any use of or condition or activity on the
Property, or (ii) the attachment of any environmental lien to
the Property. Borrower hereby discloses to Lender that in the
course of conducting Borrower's business upon the Property,
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Environmental Indemnity Agreement 3<PAGE>
Borrower will use various chemicals in its manufacturing and
assembly processes, some of which may constitute a Hazardous
Material, such as by way of example, chlorine gas. Lender
hereby recognizes that such chemicals may be used in the
ordinary course of Borrower's business operations upon the
Property. Provided, however, that any such use, handling and
storage of Hazardous Material must be in compliance with all
Environmental Requirements and Environmental Laws, and shall
not constitute a violation of such Environmental Requirements
and Environmental Laws or this Agreement. Borrower will not
place, install, dispose of or release, or cause, permit, or
allow the placing, installation, disposal, spilling, leaking,
dumping or release of, any Hazardous Material or storage tank
(or similar vessel) on the Property in violation of any
Environmental Requirements or Environmental Laws and will keep
the Property free of Hazardous Material, except for such
material used in the ordinary course of Borrower's business
operations upon the Property in compliance with Environmental
Laws and Environmental Requirements.
4. Notice to Lender. Borrower shall promptly deliver
to Lender a copy of each report pertaining to the Property or
to Borrower prepared by or on behalf of Borrower pursuant to
any Environmental Requirement or investigation of compliance
therewith. Borrower shall immediately advise Lender in
writing of any Environmental Claim or of the discovery of any
Hazardous Material on the Property, as soon as Borrower first
obtains knowledge thereof, including a full description of the
nature and extent of the Environmental Claim and/or Hazardous
Material and all relevant circumstances.
5. Site Assessments and Information. Except as to
Hazardous Material lawfully used by the Borrower in the
ordinary course of Borrower's business operations on the
Property, if Lender shall ever have reason to believe that any
other Hazardous Material affects the Property, or if required
by any governmental law or regulation, or if any Environmental
Claim is made or threatened, or if a default shall have
occurred under the Loan Documents, or if the lien of the
Mortgage is foreclosed upon or upon a conveyance by deed in
lieu of foreclosure wherein possession of the Property has
been given to and accepted by the purchaser or grantee, if
requested by Lender, Borrower will at its expense provide to
Lender from time to time, in each case within 45 days after
Lender's request, an Environmental Assessment (defined below)
made after the date of Lender's request. As used in this
Agreement, the term "Environmental Assessment" means a report
(including all drafts thereof) of an environmental assessment
of the Property of such scope (including but not limited to
the taking of soil borings and air and groundwater samples and
other above and below ground testing) as Lender may request,
by a consulting firm acceptable to Lender and made in
accordance with Lender's established guidelines. Borrower
will cooperate with each consulting firm making any such
Environmental Assessment and will supply to the consulting
firm, from time to time and promptly on request, all
information available to Borrower to facilitate the completion
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Environmental Indemnity Agreement 4<PAGE>
of the Environmental Assessment. If Borrower fails to furnish
Lender within ten (10) days after Lender's request with a copy
of an agreement with an acceptable environmental consulting
firm to provide such Environmental Assessment, or if Borrower
fails to furnish to Lender such Environmental Assessment
within forty-five (45) days after Lender's request, Lender may
cause any such Environmental Assessment to be made at
Borrower's expense and risk. Lender and its designees are
hereby granted access to the Property at any time or times,
upon reasonable notice (which may be written or oral), and a
license which is coupled with an interest and irrevocable, to
make or cause to be made such Environmental Assessments.
Lender may disclose to interested parties any information
Lender ever has about the environmental condition or
compliance of the Property, but shall be under no duty to
disclose any such information except as may be required by
law. Lender shall be under no duty to make any Environmental
Assessment of the Property, and in no event shall any such
Environmental Assessment by Lender be or give rise to a
representation that any Hazardous Material is or is not
present on the Property, or that there has been or shall be
compliance with any Environmental Requirement, nor shall
Borrower or any other person be entitled to rely on any
Environmental Assessment made by Lender or at Lender's
request. Lender owes no duty of care to protect Borrower or
any other person against, or to inform them of, any Hazardous
Material or other adverse condition affecting the Property.
In the event Lender causes an Environmental Assessment of the
Property to be conducted, Lender agrees to provide a copy of
such Environmental Assessment to Borrower, upon Borrower's
request.
6. Remedial Actions.
(a) If any Hazardous Material is discovered on the
Property at any time and regardless of the cause, i)
Borrower shall solely under Borrower's name comply with
all applicable Environmental Requirements to promptly,
and at Borrower's sole risk and expense, remove, treat,
and dispose of the Hazardous Material or if such action
is prohibited by any Environmental Requirement, take
whatever action is required by any Environmental
Requirement, in addition to taking such other action as
is necessary to have the full use and benefit of the
Property as contemplated by the Loan Documents, and
provide Lender with satisfactory evidence thereof; and
ii) if requested by Lender, provide to Lender within 30
days of Lender's request a bond, letter of credit or
other financial assurance evidencing to Lender's
satisfaction that all necessary funds are readily
available to pay the costs and expenses of the actions
required by clause (i) preceding and to discharge any
assessments or liens established against the Property as
a result of the presence of the Hazardous Material on the
Property. Within 15 days after completion of such
remedial actions, Borrower shall obtain and deliver to
Lender an Environmental Assessment of the Property made
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Environmental Indemnity Agreement 5<PAGE>
after such completion and confirming to Lender's
satisfaction that all required remedial action as stated
above has been taken and successfully completed and that
there is no evidence or suspicion of any contamination or
risk of contamination on the Property or any adjacent
property, or of violation of any Environmental
Requirement, with respect to any such Hazardous Material.
(b) Lender may, but shall never be obligated to,
remove or cause the removal of any Hazardous Material
from the Property (or if removal is prohibited by any
Environmental Requirement, take or cause the taking of
such other action as is required by any Environmental
Requirement) if Borrower fails to promptly commence such
remedial actions following discovery and thereafter
diligently prosecute the same to the satisfaction of
Lender (without limitation of Lender's rights to declare
a default under any of the Loan Documents and to exercise
all rights and remedies available by reason thereof); and
Lender and its designees are hereby granted access to the
Property at any time or times, upon reasonable notice
(which may be written or oral), and a license which is
coupled with an interest and irrevocable, to remove or
cause such removal or to take or cause the taking of any
such other action.
7. Indemnity.
(a) Borrower hereby agrees to protect, indemnify
and hold i) Lender; ii) any persons or entities owned or
controlled by, owning or controlling, or under common
control or affiliated with Lender; iii) any participants
in the Loan; iv) the directors, officers, partners,
employees and agents of Lender, and/or such persons or
entities; and v) the heirs, personal representatives,
successors and assigns of each of the foregoing persons
or entities (each an "Indemnified Party") harmless from
and against, and, if and to the extent paid, reimburse
them on demand for, any and all Environmental Damages (as
hereinafter defined). Without limitation, the foregoing
indemnity shall apply to each Indemnified Party with
respect to Environmental Damages which in whole or in
part are caused by or arise out of the negligence of such
(and/or any other) Indemnified Party. However, such
indemnity shall not apply to a particular Indemnified
Party to the extent that the subject of the
indemnification is caused by or arises out of the
negligence or willful misconduct of that particular
Indemnified Party. Upon demand by Lender, Borrower shall
diligently defend any Environmental Claim which affects
the Property or is made or commenced against Lender,
whether alone or together with Borrower or any other
person, all at Borrower's own cost and expense and by
counsel to be approved by Lender in the exercise of its
reasonable judgment. In the alternative, at any time
Lender may elect to conduct its own defense through
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Environmental Indemnity Agreement 6<PAGE>
counsel selected by Lender and at the cost and expense of
Borrower.
(b) As used in this Agreement, the term
"Environmental Damages" means all claims, demands,
liabilities (including strict liability), losses, damages
(including consequential damages), causes of action,
judgments, penalties, fines, costs and expenses
(including fees, costs and expenses of attorneys,
paralegals, consultants, contractors, experts and
laboratories), of any and every kind or character,
contingent or otherwise, matured or unmatured, known or
unknown, foreseeable or unforeseeable, made, incurred,
suffered, brought, or imposed at any time and from time
to time, whether before or after the Transition Date (as
hereinafter defined) and arising in whole or in part
from:
(1) The presence of any Hazardous Material on
the Property, or any escape, seepage, leakage,
spillage, emission, release, discharge or
disposal of any Hazardous Material on or from
the Property, or the migration or release or
threatened migration or release of any
Hazardous Material to, from or through the
Property, on or before the Transition Date; or
(2) any act, omission, event or circumstance
existing or occurring in connection with the
handling, treatment, containment, removal,
storage, decontamination, clean-up, transport
or disposal of any Hazardous Material which is
at any time on or before the Transition Date
present on the Property; or
(3) the breach of any representation,
warranty, covenant or agreement contained in
this Agreement because of any event or
condition occurring or existing on or before
the Transition Date; or
(4) any violation on or before the Transition
Date, of any Environmental Requirement in
effect on or before the Transition Date,
regardless of whether any act, omission, event
or circumstance giving rise to the violation
constituted a violation at the time of the
occurrence or inception of such act, omission,
event or circumstance; or
(5) any Environmental Claim, or the filing or
imposition of any environmental lien against
the Property, because of, resulting from, in
connection with, or arising out of any of the
matters referred to in subparagraphs (1)
through (4) preceding;
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Environmental Indemnity Agreement 7<PAGE>
and regardless of whether any of the foregoing was caused
by Borrower or Borrower's tenant or subtenant, or a prior
owner of the Property or its tenant or subtenant, or any
third party, including but not limited to i) injury or
damage to any person, property or natural resource
occurring on or off of the Property, including but not
limited to the cost of demolition and rebuilding of any
improvements on real property; ii) the investigation or
remediation of any such Hazardous Material or violation
of Environmental Requirement, including but not limited
to the preparation of any feasibility studies or reports
and the performance of any cleanup, remediation, removal,
response, abatement, containment, closure, restoration,
monitoring or similar work required by any Environmental
Requirement or necessary to have full use and benefit of
the Property as contemplated by the Loan Documents
(including any of the same in connection with any
foreclosure action or transfer in lieu thereof); iii) all
liability to pay or indemnify any person or governmental
authority for costs expended in connection with any of
the foregoing; iv) the investigation and defense of any
claim, whether or not such claim is ultimately defeated;
and v) the settlement of any claim or judgment.
Provided, however, that nothing contained in this
subsection (b) shall be construed to be a prohibition of
the lawful use by Borrower of Hazardous Material in the
ordinary course of Borrower's business operations on the
Property in compliance with Environmental Requirements
and Environmental Laws.
(c) As used in this Agreement, the term "Transition
Date" means the earlier of the following two dates: i)
the date on which the indebtedness and obligations
secured by the Mortgage have been paid and performed in
full and the Mortgage has been released; or ii) the date
on which the lien of the Mortgage is fully and finally
foreclosed or a conveyance by deed in lieu of such
foreclosure is fully and finally effective and possession
of the Property has been given to and accepted by the
purchaser or grantee free of occupancy and claims to
occupancy by Borrower and Borrower's heirs, devisees,
representatives, successors and assigns; provided that,
if such payment, performance, release, foreclosure or
conveyance is challenged, in bankruptcy proceedings or
otherwise, the Transition Date shall be deemed not to
have occurred until such challenge is validly released,
dismissed with prejudice or otherwise barred by law from
further assertion.
8. Consideration; Survival; Cumulative Rights.
Borrower acknowledges that Lender has relied and will rely on
the representations, warranties, covenants and agreements
herein in closing and funding the Loan and that the execution
and delivery of this Agreement is an essential condition but
for which Lender would not close or fund the Loan. The
representations, warranties, covenants and agreements in this
Agreement shall be binding upon Borrower and Borrower's
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Environmental Indemnity Agreement 8<PAGE>
successors, assigns and legal representatives and shall inure
to the benefit of Lender and its successors, assigns and legal
representatives and participants in the Loan; and shall not
terminate upon the foreclosure of the Mortgage or conveyance
in lieu of foreclosure, the release or termination of the
Mortgage and any and all of the other Loan Documents (unless
said release or termination occurs as a result of the full
payment and performance of the indebtedness represented by the
Mortgage and other Loan Documents), any investigation by or on
behalf of Lender, any bankruptcy or other debtor relief
proceeding, and any other event whatsoever; provided, however,
said representations, warranties, covenants and agreement
(specifically excluding any indemnity obligations and
agreements) shall terminate on the Transition Date if the
Transition Date occurs as a result of the full payment and
performance of the indebtedness represented by the Mortgage
and other Loan Documents. The indemnity obligations and
agreements contained in this Agreement: shall be binding upon
Borrower and Borrower's successors, assigns and legal
representatives and shall inure to the benefit of Lender and
its successors, assigns and legal representatives and
participants in the Loan; and shall not terminate on the
Transition Date or upon the release, foreclosure or other
termination of the Mortgage, but will survive the Transition
Date, the payment in full of the indebtedness secured by the
Mortgage, foreclosure of the Mortgage or conveyance in lieu of
foreclosure, the release or termination of the Mortgage and
all of the other Loan Documents, any investigation by or on
behalf of Lender, any bankruptcy or other debtor relief
proceeding, and any other event whatsoever. Any amount to be
paid under this Agreement by Borrower shall be a demand
obligation owing by Borrower (which Borrower hereby promises
to pay). Lender's rights under this Agreement shall be in
addition to all rights of Lender under the Loan Documents or
at law or in equity, and payments by Borrower under this
Agreement shall not reduce Borrower's obligations and
liabilities under any of the Loan Documents. The liability of
Borrower or any other person under this Agreement shall not be
limited or impaired in any way by any provision in the Loan
Documents or applicable law limiting Borrower's or such other
person's liability or Lender's recourse or rights to a
deficiency judgment, or by any change, extension, release,
inaccuracy, breach or failure to perform by any party under
the Loan Documents, Borrower's (and, if applicable, such other
person's) liability hereunder being direct and primary and not
as a guarantor or surety. Nothing in this Agreement or in any
other Loan Document shall limit or impair any rights or
remedies of Lender, Trustee and/or any other Indemnified Party
against Borrower or any other person under any Environmental
Requirement or otherwise at law or in equity, including
without limitation any rights of contribution or
indemnification.
9. No Waiver. No delay or omission by Lender to
exercise any right under this Agreement shall impair any such
right nor shall it be construed to be a waiver thereof. No
waiver of any single breach or default under this Agreement
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Environmental Indemnity Agreement 9<PAGE>
shall be deemed a waiver of any other breach or default. Any
waiver, consent or approval under this Agreement must be in
writing to be effective.
10. Notices. Unless specifically provided otherwise,
any notice for purposes of this Agreement shall be given in
writing or by telex or by facsimile (fax) transmission and
shall be addressed or delivered to the respective addresses
set forth at the end of this Agreement, or to such other
address as may have been previously designated by the intended
recipient by notice given in accordance with this Section. If
sent by prepaid, registered or certified mail (return receipt
requested), the notice shall be deemed effective when the
receipt is signed or when the attempted initial delivery is
refused or cannot be made because of a change of address of
which the sending party has not been notified; if sent in any
other manner, the notice shall be effective when received. No
notice of change of address shall be effective except upon
actual receipt. This Section shall not be construed in any
way to affect or impair any waiver of notice or demand
provided in any Loan Document or to require giving of notice
or demand to or upon any person in any situation or for any
reason.
11. Invalid Provisions. A determination that any
provision of this Agreement is unenforceable or invalid shall
not affect the enforceability or validity of any other
provision and a determination that the application of any
provision of this Agreement to any person or circumstance is
illegal or unenforceable shall not affect the enforceability
or validity of such provision as it may apply to other persons
or circumstances.
12. Construction. Whenever in this Agreement the
singular number is used, the same shall include plural where
appropriate, and vice versa; and words of any gender in this
Agreement shall include each other gender where appropriate.
The headings in this Agreement are for convenience only and
shall be disregarded in the interpretation hereof. Reference
to "person" or "entity" means firms, associations,
partnerships, joint ventures, trusts, limited liability
companies, corporations and other legal entities, including
public or governmental bodies, agencies or instrumentalities,
as well as natural persons.
13. Applicable Law; Forum. This Agreement is
performable in Pinellas County, Florida, and the laws of the
State of Florida and applicable United States federal law
shall govern the rights and duties of the parties hereto and
the validity, enforcement and interpretation hereof. Borrower
hereby irrevocably submits generally and unconditionally for
itself and in respect of its property to the non-exclusive
jurisdiction of any Florida state court, or any United States
federal court, sitting in Pinellas County, Florida, and to the
non-exclusive jurisdiction of any state or United States
federal court sitting in the state in which any of the
Property is located, over any suit, action or proceeding
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Environmental Indemnity Agreement 10<PAGE>
arising out of or relating to this Agreement or the
indebtedness secured by the Mortgage.
14. Execution; Modification. This Agreement has been
executed in a number of identical counterparts, each of which
shall be deemed an original for all purposes and all of which
constitute, collectively, one agreement. This Agreement may
be amended only by an instrument in writing intended for that
purpose executed jointly by an authorized representative of
each party hereto.
15. Entire Agreement. THE WRITTEN LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT
BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
16. Mandatory Arbitration. Any controversy or claim
between or among the parties hereto including, but not limited
to, those arising out of or relating to this Agreement or any
related agreements or instruments, including any claim based
on or arising from an alleged tort, shall be determined by
binding arbitration in accordance with the Federal Arbitration
Act (or if not applicable, the applicable state law), the
Rules of Practice and Procedure for the Arbitration of
Commercial Disputes of Judicial Arbitration and Mediation
Services, Inc. (J.A.M.S.), and the "Special Rules" set forth
below. In the event of any inconsistency, the Special Rules
shall control. Judgment upon any arbitration award may be
entered in any court having jurisdiction. Any party to this
Agreement may bring an action, including a summary or
expedited proceeding, to compel arbitration of any controversy
or claim to which this Agreement applies in any court having
jurisdiction over such action.
a. Special Rules: The arbitration shall be
conducted in Tampa, Florida and administered by Endispute,
Inc. d/b/a J.A.M.S./Endispute who will appoint an arbitrator;
if J.A.M.S./Endispute is unable or legally precluded from
administering the arbitration, then the American Arbitration
Association will serve. All arbitration hearings will be
commenced within 90 days of the demand for arbitration;
further, the arbitrator shall only, upon a showing of cause,
be permitted to extend the commencement of such hearing for up
to an additional 60 days.
b. Reservations of Rights: Nothing in this
Agreement shall be deemed to (i) limit the applicability of
any otherwise applicable statutes of limitation or repose and
any waivers contained in this Agreement; or (ii) be a waiver
by the Lender of the protection afforded to it by 12 U.S.C.
Section 91 or any substantially equivalent state law; or (iii)
limit the right of the Lender hereto (A) to exercise self help
remedies such as (but not limited to) setoff, or (B) to
foreclose against any real or personal property collateral, or
(C) to obtain from a court provisional or ancillary remedies
such as (but not limited to) injunctive relief or the
appointment of a receiver. The Lender may exercise such self
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Environmental Indemnity Agreement 11<PAGE>
help rights, foreclose upon such property, or obtain such
provisional or ancillary remedies before, during or after the
pendency of any arbitration proceeding brought pursuant to
this Agreement. At Lender's option, foreclosure under a
mortgage or deed of trust may be accomplished by any of the
following: the exercise of a power of sale under the deed of
trust or mortgage, or by judicial sale under the deed of trust
or mortgage, or by judicial foreclosure. Neither this
exercise of self help remedies nor the institution or
maintenance of an action for foreclosure or provisional or
ancillary remedies shall constitute a waiver of the right of
any party, including the claimant in any such action, to
arbitrate the merits of the controversy or claim occasioning
resort to such remedies.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
Executed and dated as of the date first written above.
Signed, sealed and delivered
in the presence of:
BORROWER:
PLASMA-THERM, INC., a Florida
/s/Lisa L. Disotelle corporation
(Signature of Witness)
Lisa L. Disotelle By: /s/Ronald S. Deferrari
(Print Name of Witness) Ronald S. Deferrari
President
/s/David R. Brittain
(Signature of Witness)
David R. Brittain (CORPORATE SEAL)
(Print Name of Witness)
Address:
9509 International Court
St. Petersburg, Florida 33716
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Environmental Indemnity Agreement 12<PAGE>
LENDER:
NATIONSBANK OF FLORIDA, N.A.
By: /s/James E. Harden
/s/Catherine L. Casassa James E. Harden, Jr.
(Signature of Witness) (Print Name of Officer)
Catherine L. Casassa Its Vice President
(Print Name of Witness)
/s/Mary Jo Carney (CORPORATE SEAL)
(Signature of Witness)
Mary Jo Carney Address:
(Print Name of Witness) 400 North Ashley Drive (FL1-
010-07-01)
Tampa, Florida 33602
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me
this 14th day of August, 1995, by RONALD S. DEFERRARI, as the
President of PLASMA-THERM, INC., a Florida corporation, on
behalf of the corporation. He is personally known to me or
has produced drivers license as identification.
/s/Donna J. Landers
Donna J. Landers
(SEAL) (Print Name of Notary Public)
Notary Public
My Commission Expires:
Donna J. Landers
MY COMMISSION #CC483663 EXPIRES
August 3, 1999
BONDED THRU TROY FAIN INSURANCE, INC.
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Environmental Indemnity Agreement 13<PAGE>
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this
14th day of August, 1995, by James E. Harden, Jr., as Vice
President of NationsBank of Florida, N.A. a national banking
association, on behalf of the association. He or she is
personally known to me or has produced drivers license as
identification.
/s/Donna J. Landers
Donna J. Landers
(SEAL) (Print Name of Notary Public)
Notary Public
My Commission Expires:
Donna J. Landers
MY COMMISSION #CC483663 EXPIRES
AUGUST 3, 1999
BONDED THRU TORY FAIN INSURANCE, INC.
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Environmental Indemnity Agreement 14<PAGE>
EXHIBIT "A"
Legal Description
Lots 28, 29, 30, 31 and the Northerly 130 feet of Lot 27, all
in Block C of METROPOINTE COMMERCE PARK PHASE II, according to
the map or plat thereof recorded in Plat Book 103, pages 25
and 26, Public Records of PINELLAS County, Florida.
c:\wp50\NBPLASMA.015\95.5042\081195\NBMISC#12\MJC\MS
Environmental Indemnity Agreement<PAGE>
AMENDMENT
AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT BETWEEN PLASMA-THERM, INC., A FLORIDA CORPORATION
("BORROWER"), AND NATIONSBANK OF FLORIDA, N.A., A NATIONAL
BANKING ASSOCIATION ("LENDER"), DATED JANUARY 19, 1995
("CREDIT AGREEMENT").
WHEREAS, Borrower and Lender entered into the Credit
Agreement on January 19, 1995.
WHEREAS, on the date hereof, Lender has extended to
Borrower a real estate construction/term loan in the principal
amount of $3,375,000.00 (the "Construction Loan"). The
proceeds of the Construction Loan will be used by the Borrower
to construct a 60,639.50 square foot (MOL)
office/manufacturing facility, including leasehold
improvements, on certain property located in Pinellas County,
Florida, and more particularly described in Exhibit "1"
attached hereto and by this reference made a part hereof (the
"Property").
WHEREAS, Borrower and Lender desire to modify some of the
terms and conditions set forth in the Credit Agreement, affirm
that the terms of the Credit Agreement apply with full force
and effect to the Construction Loan, and otherwise ratify and
reaffirm the terms and conditions of the Credit Agreement.
NOW, THEREFORE, it is agreed as follows:
1. Section 1.y. of the Credit Agreement is hereby
amended to add to the definition of "Loans" that certain
Promissory Note in the original principal amount of
$3,375,000.00 dated August 14, 1995, executed by Borrower in
favor of Lender to evidence the Construction Loan.
2. Section 1.aa. of the Credit Agreement is hereby
amended to add to the definition of "Notes" that certain
Promissory Note in the original principal amount of
$3,375,000.00 dated August 14, 1995, executed by Borrower in
favor of Lender to evidence the Construction Loan.
3. Section 2 of the Credit Agreement is hereby amended
to add the following loan:
III. Construction Loan. Subject to the
terms and conditions stated herein, and in
Lender's loan commitment letter to
Borrower, dated May 1, 1995, as amended by
letter dated July 25, 1995, Lender shall
extend to Borrower a real estate construc-
tion/term loan in the principal amount of
$3,375,000.00.
4. Section 5 of the Credit Agreement is hereby amended
to add the following after letters a. and b.:
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Amendment<PAGE>
c. Construction Loan: To finance the
construction of a 60,639.50 square foot
(MOL) office/manufacturing facility,
including leasehold improvements, on
certain property located in Pinellas
County, Florida, and more particularly
described in Exhibit "1" attached hereto
and by this reference made a part hereof
(the "Property").
5. Section 6 of the Credit Agreement is hereby amended
to add the following affirmative covenants of Borrower:
x. Maintain a ratio of Total Liabilities
to Tangible Net Worth of not less than 1.0
to 1.0;
y. Maintain a consolidated Coverage
Ratio of not less than 1.50 to 1.0 at
fiscal year end November 30, 1995, and of
not less than 2.0 to 1.0 at fiscal year
end November 30, 1996 and each subsequent
fiscal year end until the Loan is paid in
full. The Coverage Ratio shall be defined
as Net Income + Depreciation + Amortiza-
tion + Interest Expense + Non-Recurring
Expenses, minus Non-Recurring Income,
divided by Current Maturities of Long Term
Debt and Capitalized Leases + Interest
Expense.
z. Maintain a Quick Ratio of not less
than 1.25 to 1.0. The Quick Ratio shall
be defined as Cash + Accounts Receivable,
divided by Current Liabilities.
6. Section 7.k. is hereby deleted in its entirety and
the following paragraph is inserted in lieu thereof:
k. Allow its Coverage Ratio to be less
than that required in Section 6.y.
7. Lender and Borrower hereby agree that all terms and
conditions set forth in the Credit Agreement, as amended by
this Amendment, shall apply with full force and effect to the
Construction Loan as if the Construction Loan had been
extended on the date of the Credit Agreement.
8. Except as otherwise set forth herein, all terms,
conditions and covenants of the Credit Agreement shall remain
the same and shall be fully binding upon and enforceable by
the Lender and Borrower pursuant to their terms.
IN WITNESS WHEREOF, Borrower and Lender have executed
this Amendment the day and year first above written.
Signed, sealed and delivered
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Amendment 2<PAGE>
in the presence of: PLASMA-THERM, INC., a Florida
corporation
By: /s/Ronald S. Deferrari
/s/Lisa L. Disotelle Ronald S. Deferrari
(Signature of Witness) President
Lisa L. Disotelle
(Print Name of Witness)
(CORPORATE SEAL)
/s/David R. Brittain
(Signature of Witness)
David R. Brittain
(Print Name of Witness)
NATIONSBANK OF FLORIDA, N.A., a
national banking association
/s/Catherine L. Cassasa By: /s/James E. Harden
(Signature of Witness) James E. Harden, Jr.
Catherine L. Cassasa (Print Name of Officer)
(Print Name of Witness) Its Vice President
President
/s/Mary Jo Carney
(Signature of Witness) (CORPORATE SEAL)
Mary Jo Carney
(Print Name of Witness)
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me
this 14th day of August, 1995, by RONALD S. DEFERRARI, as
the President of PLASMA-THERM, INC., a Florida corporation, on
behalf of the corporation. He is personally known to me
or has produced drivers license as identification.
/s/Donna J. Landers
Donna J. Landers
(SEAL) (Print Name of Notary Public)
Notary Public
My Commission Expires:
DONNA J. LANDERS
MY COMMISSION #CC483663 EXPIRES
AUGUST 3, 1999
BONDED THRU TROY FAIN INSURANCE, INC.
STATE OF FLORIDA )
COUNTY OF PINELLAS )
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Amendment 3<PAGE>
The foregoing instrument was acknowledged before me
this 14th day of August, 1995, by James E. Harden, Jr., as
the _________________________ of NATIONSBANK OF FLORIDA, N.A.,
a national banking association, on behalf of the association.
He or she is personally known to me or has
produced drivers license as identification.
/s/Donna J. Landers
Donna J. Landers
(SEAL) (Print Name of Notary Public)
Notary Public
My Commission Expires:
DONNA J. LANDERS
MY COMMISSION #CC483663 EXPIRES
AUGUST 3, 1999
BONDED THRU TROY FAIN INSURANCE, INC.
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Amendment 4<PAGE>
EXHIBIT "I"
Legal Description
Lots 28, 29, 30, 31 and the Northerly 130 feet of Lot 27, all
in Block C of METROPOINTE COMMERCE PARK PHASE II, according to
the map or plat thereof recorded in Plat Book 103, pages 25
and 26, Public Records of PINELLAS County, Florida.
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Amendment<PAGE>
CONSTRUCTION LOAN AGREEMENT
THIS CONSTRUCTION LOAN AGREEMENT ("Agreement") is made by
NationsBank of Florida, N.A. ("Lender"), and the Borrower
identified in Exhibit "B" ("Borrower"), who agree as follows:
ARTICLE 1. - THE LOAN
1.1 General Information and Purpose. The Basic
Information attached as Exhibit "B" and all other exhibits,
which are made a part of this Agreement and incorporated
herein by reference, contain definitions of certain terms used
herein, and also contain other terms, provisions, and
conditions applicable to the Loan. The proceeds of the Loan
shall be used by Borrower to pay the cost of the construction
of the Improvements on the Land, and other costs regarding the
Property if and to the extent that such costs are specifically
provided for in the Loan Allocation column in the Budget. The
Loan Documents, which must be in form, detail and substance
satisfactory to Lender, evidence the agreements of Borrower
and Lender with respect to the Loan. Borrower shall comply
with all Loan Documents.
1.2 Commitment to Lend. Lender agrees to make the Loan
to Borrower in advances subject to and in accordance with
Exhibit "F" and the other terms and conditions of this
Agreement. Lender's commitment to lend shall expire and
terminate on the date when the Final Advance for Improvements
(as defined herein) is made; automatically if the Loan is
prepaid in full; and at Lender's option in the event of a
Default. The Loan is not revolving. An amount repaid may not
be reborrowed.
1.3 Budget. The Loan funds are allocated for the costs
of the Project shown in the Loan Allocation column in the
Budget attached as Exhibit "D". The Budget has been prepared
by Borrower and Borrower represents to Lender that it includes
all costs and expenses (the "Aggregate Cost") incident to the
Loan and the Project, through the maturity date of the Loan,
after taking into account the requirements of this Agreement.
Lender shall not be required to (a) make any advance for any
cost not set forth in the Budget, (b) make any advance for any
line item in the Budget that, when added to all prior advances
for that line item, would exceed the lesser of i) the actual
cost incurred by Borrower for such line item or ii) the sum
allocated in the Loan Allocation column in the Budget for that
line item, or (c) make any advance for interest on the Loan
after commencement of operations in the Improvements if and to
the extent that there is sufficient net operating income from
the Property to cover any such advances. Lender may make
advances allocated to line items in the Budget for other
purposes or in different proportions as Lender in its sole
discretion deems necessary or advisable; provided, however,
that if Lender is requested by Borrower to make a reallocation
of a hard cost item which would require contractor and lienor
notices under Section 713.3471(2), Florida Statutes, written
notice from the owner to the applicable contractor and all
required lienors, in compliance with Section 713.3471(2),
Florida Statutes, and countersigned by the applicable
contractor and any lienors who have provided notices to owner
shall be given prior to any such reallocation. Without prior
written approval of Lender, Borrower shall not reallocate Loan
funds from one Budget line item to another or otherwise amend
the Budget.
1.4 Borrower's Deposit. If at any time Lender
determines that the sum of (i) the unadvanced portion of the
Loan to which Borrower is entitled, plus (ii) the amounts of
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Construction Loan Agreement<PAGE>
the Aggregate Cost which are scheduled to be paid by Borrower
from other funds which are available, set aside and committed,
to Lender's satisfaction, is or will be insufficient to pay
the unpaid actual Aggregate Cost, Borrower shall, within seven
(7) days after written notice from Lender, deposit with Lender
the amount of the deficiency ("Borrower's Deposit") which
Borrower's Deposit shallbe deposited in an interest-bearing
account with interest earned thereon to be part of the
Borrower's Deposit. Such Borrower's Deposit is hereby pledged
as additional collateral on the Loan, and Borrower hereby
grants and conveys to Lender a security interest in all funds
so deposited with Lender, as additional collateral on the
Loan. Upon a Default, Lender may (but shall have no
obligation to) apply all or any part of the Borrower's Deposit
against the unpaid Indebtedness in such order as Lender
determines. As long as the Loan is current and not in
default, Borrower shall have the right to elect whether the
Borrower's Deposit shall be expended before any further Loan
disbursements are made or in the alternative, whether said
Borrower's Deposit shall continue to be held in the interest-
bearing account until all Loan disbursements have been made by
Lender and the Borrower's Deposit is necessary to complete the
construction of the Project.
ARTICLE 2. - ADDITIONAL COVENANTS AND AGREEMENTS
2.1 Plans. Borrower assumes full responsibility for the
compliance of the Plans and the Property with all laws,
governmental requirements and sound building and engineering
practices. No construction shall be undertaken on the Land
except as shown in the Plans. No plans or specifications, or
any changes thereto except Permitted Changes, shall be
included as part of the Plans until consented to by Lender,
and approved by Construction Consultant, all applicable
governmental authorities, as may be necessary, and all parties
required under the Loan Documents. As to changes to the Plans
which are not Permitted Changes, Lender shall have fifteen
(15) days from the receipt of the requested change in which to
review same and communicate to Borrower its approval or
disapproval of the requested change.
2.2 Contracts. Without Lender's prior written approval
as to parties, terms, and all other matters, Borrower shall
not (a) enter into any contract for the performance of any
work or the supplying of any labor, materials, or services for
the design or construction of the Improvements which is in
excess of $50,000.00 (and to the extent such contract is less
than $50,000.00, Borrower shall promptly provide a copy of
same to Lender after such contract is fully executed), (b)
enter into any management, leasing, maintenance or other
contract pertaining to the Property not described in clause
(a) preceding that is not unconditionally terminable by
Borrower or any successor owner without penalty or payment on
not more than thirty (30) days notice to the other party
thereunder, or (c) modify, amend, or terminate any such
contracts. All such contracts shall provide that all liens of
the applicable contractor, architect, supplier, surveyor or
other party and any right to remove removable Improvements are
subordinate to Lender's rights, and shall require all
subcontracts and purchase orders to contain a provision
subordinating the subcontractors' and mechanics' and
materialmen's liens and any right to remove removable
Improvements to Lender's rights, and shall provide that no
change order shall be effective without the prior written
consent of Lender except for Permitted Changes. Borrower
shall not default under any contract, Borrower shall not
permit any contract to terminate by reason of any failure of
Borrower to perform thereunder, and Borrower shall promptly
notify Lender of any material default thereunder. Borrower
will deliver to Lender, upon request of Lender, the names of
persons or entities with whom each contractor has contracted
or intends to contract for the construction of the
Improvements or for the furnishing of labor or materials
therefor, but only to the extent such information is supplied
to Borrower by the Contractor.
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Construction Loan Agreement 2<PAGE>
2.3 Construction of the Improvements. Borrower shall
commence construction of the Improvements within 30 days of
the Loan closing date, and shall prosecute the construction of
the Improvements with diligence and continuity, in a good and
workmanlike manner, and in accordance with sound building and
engineering practices, all applicable laws and governmental
requirements, the Loan Documents, and the Plans. Borrower
shall not permit cessation of work for a period in excess of
fifteen (15) days (whether or not consecutive), except for
Excusable Delays. Borrower shall complete construction of the
Improvements, and shall obtain a permanent unconditional
certificate of occupancy and all other permits, licenses, and
approvals for the occupancy, use and operation of the
Improvements from all applicable governmental authorities on
or before the Completion Date, free and clear of all liens
except the Loan Documents. Borrower shall correct promptly
(a) any material defect in the Improvements, (b) any material
departure from the Plans, law, or governmental requirements,
or (c) any encroachment by any Improvements or structure on
any building setback line, easement, property line or
restricted area.
2.4 Changes. Without Lender's prior written consent,
Borrower shall not materially change or modify the Plans in
any manner which changes the general design, materials, size,
quality of construction or structural integrity of the
Improvements as approved by Lender, agree to any change order,
or allow any extras to any contractor or any subcontractor,
except that Borrower may make the Permitted Changes if: (a)
Borrower notifies Lender in writing of the change or extra
with appropriate supporting documentation and information; (b)
Borrower obtains the approval of the applicable contractor,
Borrower's architect, and all sureties; (c) the structural
integrity, quality and standard of workmanship of the
Improvements is not impaired; (d) no substantial change in
architectural appearance is affected; (e) no default in any
obligation to any person or violation of any law or
governmental requirement would result from such change or
extra; (f) Borrower complies with Section 1.4 of this
Agreement to cover any excess cost resulting from the change
or extra; (g) completion of the Improvements by the
Completion Date will not be affected; and (h) all requirements
of Section 713.3471(2), Florida Statutes, have been fully
satisfied. Lender shall not be obligated to review a proposed
change which Lender is entitled to approve unless it has
received all documents necessary to review such change, such
as the change order, cost estimates, plans and specifications,
and evidence that all approvals by all applicable parties have
been obtained. As to changes which are not Permitted Changes,
Lender shall have five (5) days from the receipt of any
requested change order which does not involve a change in the
Plans in which to review same and communicate to Borrower its
approval or disapproval of the requested change order.
2.5 Storage of Materials. Borrower shall cause all
materials supplied for, or intended to be utilized in the
construction of the Improvements, but not yet affixed to or
incorporated into the Improvements on the Land, to be stored
on the Land with adequate safeguards as required by Lender to
prevent loss, theft, damage or commingling with other
materials or projects. Borrower shall not purchase or order
materials for delivery more than forty-five (45) days prior to
the scheduled incorporation of such materials into the
Improvements.
2.6 Inspection. Lender may enter upon the Property to
inspect the Property and any materials at any reasonable time.
Borrower will furnish to Lender at any time for inspection and
copying all Plans, shop drawings, specifications, books and
records, and other documents and information required by
Lender.
2.7 Notice to Lender. Borrower shall promptly notify
Lender in writing of any of the following events, specifying
in each case the action Borrower has taken or will take with
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Construction Loan Agreement 3<PAGE>
respect thereto: (a) any violation of any law or governmental
requirement; (b) any litigation, arbitration or governmental
investigation or proceeding instituted or threatened against
Borrower or any Guarantor or the Property or any material
development therein; (c) any actual or threatened condemnation
of any portion of the Property, any negotiations with respect
to any such taking, or any loss of or substantial damage to
the Property; (d) any labor controversy pending or threatened
against Borrower or any contractor or any material development
in any labor controversy; (e) any notice received by Borrower
with respect to the cancellation, alteration or non-renewal of
any insurance coverage maintained with respect to the
Property; or (f) any failure by Borrower or any contractor to
perform any material obligation under any construction
contract, any event or condition which would permit
termination of a construction contract or suspension of work
thereunder, or any notice given by Borrower or any contractor
with respect to any of the foregoing.
2.8 Assignment of Contracts and Plans. As additional
security for the payment of the Loan, Borrower hereby
transfers and assigns to Lender all of Borrower's rights and
interest, but not its liability, in, under, and to all
construction, architectural and design contracts, and the
Plans, and agrees that all of the same are covered by the
security agreement provisions of the Mortgage. Borrower
represents and warrants that the copy of any contract
furnished or to be furnished to Lender is and shall be a true
and complete copy thereof, that the copies of the Plans
delivered to Lender are and shall be true and complete copies
of the Plans, that there have been no modifications thereof
which are not fully set forth in the copies delivered, and
that Borrower's interest therein is not subject to any claim,
setoff, or encumbrance. Neither this assignment nor any
action by Lender shall constitute an assumption by Lender of
any obligation under any contract or with respect to the
Plans, and Borrower shall continue to be liable for all
obligations of Borrower with respect thereto, Borrower hereby
agreeing to perform all of its obligations under any contract.
Lender shall have the right at any time (but shall have no
obligation) to take in its name or in the name of Borrower
such action Lender may determine necessary to cure any default
under any contract or with respect to the Plans or to protect
the rights of Borrower or Lender with respect thereto. Lender
shall incur no liability if any action so taken by it or on
its behalf shall prove to be inadequate or invalid. Borrower
indemnifies and holds Lender harmless against and from any
loss, cost, liability or expense (including, but not limited
to, attorneys' fees and expenses) incurred in connection with
Borrower's failure to perform such contracts or any action
taken by Lender. Lender may use the Plans for any purpose
relating to the Improvements. Borrower irrevocably
constitutes and appoints Lender as Borrower's
attorney-in-fact, which power of attorney shall be irrevocable
and coupled with an interest, in Borrower's name or in
Lender's name to enforce all rights of Borrower under any
contract or with respect to the Plans.
2.9 Advertising by Lender. At Lender's request and
expense, Borrower shall place upon the Property at a mutually
acceptable location a sign announcing that financing is being
provided by Lender. Also, Lender shall have the right to
secure printed publicity through newspapers and other media
concerning the Property and its financing. All publicity
referenced herein shall require Borrower's prior approval,
which shall not be unreasonably withheld.
2.10 Financial Statements. Borrower shall deliver to
Lender the Financial Statements and other statements and
information at the times and for the periods described in the
Basic Information, and as otherwise required by any other Loan
Documents.
2.11 Appraisal. Lender may obtain at Borrower's expense
upon request an appraisal of any part of the Property prepared
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Construction Loan Agreement 4<PAGE>
in accordance with written instructions from Lender by a
third-party appraiser engaged directly by Lender. Each such
appraiser and appraisal shall be satisfactory to Lender
(including satisfaction of applicable regulatory
requirements). The cost of each such appraisal shall be due
and payable by Borrower on demand and shall be secured by the
Loan Documents. Borrower shall cooperate fully with the
appraisal process, including, but not limited to, allowing
reasonable entry upon and into the Property. Notwithstanding
anything contained herein or in the other Loan Documents for
the Loan to the contrary, Lender shall not request updated
appraisals pursuant to this Section unless the Loan is in
Default, or if required by any governmental law or regulation,
or for good cause (i.e. Lender has reason to believe the value
of the Property has declined such that the desired Loan-to-
value ratio is no longer maintained).
2.12 Construction Consultant. Borrower shall cooperate
with Construction Consultant and will furnish Construction
Consultant whatever Construction Consultant considers
necessary or useful to perform its duties. The duties of
Construction Consultant run solely to Lender, and Construction
Consultant shall have no obligations or responsibilities
whatsoever to Borrower, Borrower's architect, engineer,
contractor or to any of their agents or employees.
Construction Consultant may, among other duties, perform
construction cost analyses, review the Plans, all proposed
changes in them, observe work in place, and review Draw
Requests. Unless prohibited by applicable law, the fees,
costs, and expenses of Construction Consultant shall be paid
by Borrower.
2.13 Reports and Vouchers. Borrower shall (a) promptly
deliver to Lender copies of all reports, studies, inspections
and tests made on the Land, the Improvements or the materials
to be incorporated into the Improvements; (b) make additional
tests Lender reasonably requires; and (c) deliver to Lender,
on demand, any contracts, bills of sale, statements, receipted
vouchers or agreements under which Borrower claims title to
any materials, fixtures or articles incorporated or to be
incorporated in the Improvements or otherwise subject to a
lien or security interest in favor of Lender. Borrower shall
immediately notify Lender of such report, study, inspection or
test that indicates any adverse condition in the Land or the
Improvements.
2.14 Payment of Withholding Taxes. Borrower shall not
use, or knowingly permit any contractor or subcontractor to
use, any portion of the proceeds of any advance to pay the
wages of employees unless a portion of the proceeds or other
funds are also used to make timely payment to or deposit with
the United States all amounts of tax required to be deducted
and withheld with respect to such wages under the Internal
Revenue Code, and to make timely payment to or deposit with
any local and/or state governmental authority or agency having
jurisdiction all amounts of tax required to be deducted and
withheld with respect to such wages under any applicable local
and/or state laws.
2.15 Representations and Warranties. To induce Lender to
make the Loan, Borrower hereby represents and warrants to
Lender that (a) prior to the recordation of the Mortgage, no
work of any kind (including the destruction or removal of any
existing improvements, site work, clearing, grading, grubbing,
draining or fencing of the Land) has been or will be commenced
or performed on the Land, no equipment or material has been or
will be delivered to or upon the Land for any purpose
whatsoever, and no contract (or memorandum or affidavit
thereof) for the supplying of labor, materials, or services
for the design or construction of the Improvements, or the
surveying of the Land or Improvements, nor any affidavit or
notice of commencement of construction of the Improvements,
has been or will be executed or recorded, which could cause a
mechanic's or materialman's lien or similar lien to have an
inception so as to achieve priority over the mortgage or the
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Construction Loan Agreement 5<PAGE>
rights of Lender thereunder; (b) to the extent required by
applicable law, Borrower and Guarantor have filed all
necessary tax returns and reports and have paid all taxes and
governmental charges thereby shown to be owing; (c) the Plans
are satisfactory to Borrower, have been approved by all
applicable governmental authorities, have been accepted by
each contractor, are complete in all material respects,
contain all detail necessary and are adequate for the
construction of the Improvements, and comply with the Loan
Documents, all applicable laws, restrictive covenants, and
governmental requirements, rules, and regulations; (d) the
Land is not part of a larger tract of land owned by Borrower
or its affiliates or any Guarantor and is not otherwise
included under any unity of title or similar covenant with
other lands not encumbered by the Mortgage, and Borrower has
obtained or will obtain prior to the issuance of the first tax
bill coming due after the date of this Agreement, a separate
tax lot or lots with a separate tax assessment or assessments
for the Land and Improvements, independent of any other lands
or improvements; (e) the Land and Improvements comply with all
laws and governmental requirements, including all subdivision
and platting requirements, without reliance on any adjoining
or neighboring property; (f) the Plans do and the Improvements
when constructed will comply with all legal requirements
regarding access and facilities for handicapped or disabled
persons; (g) Borrower has not directly or indirectly conveyed,
assigned or otherwise disposed of or transferred (or agreed to
do so) any development rights, air rights or other similar
rights, privileges or attributes with respect to the Property,
including those arising under any zoning or land use ordinance
or other law or governmental requirement; (h) the construction
schedule for the Project is realistic and the Completion Date
is a reasonable estimate of the time required to complete the
Project; and (i) the Financial Statements delivered to Lender
are true and correct, and there has been no material change of
Borrower's financial condition from the financial condition of
Borrower indicated in such Financial Statements.
ARTICLE 3. - DEFAULT AND REMEDIES
3.1 Events of Default. The occurrence of any one of the
following shall be a default under this Agreement ("Default"):
(a) any of the Indebtedness is not paid when due, whether the
due date is the scheduled due date or arises by acceleration
or otherwise; (b) any covenant, agreement or condition in any
Loan Document (other than covenants to pay any of the
Indebtedness) is not fully and timely performed, observed or
kept; (c) the cessation of the construction of the
Improvements continues for more than fifteen (15) days
(whether or not consecutive) except for Excusable Delays; (d)
the construction of the Improvements, or any materials for
which an advance has been requested, fails to comply with the
Plans, the Loan Documents, or any laws or governmental
requirements, which failure is not cured within thirty (30)
days after written notice thereof to Borrower; (e) Borrower
fails to satisfy any condition precedent to the obligation of
Lender to make an advance; (f) construction of the
Improvements is abandoned, or Borrower fails to complete
construction of the Improvements (and obtain all applicable
permits, licenses, and approvals) in accordance with this
Agreement on or before the Completion Date; (g) any required
permit, license, certificate or approval with respect to the
Property lapses or ceases to be in full force and effect; (h)
a Borrower's Deposit is not made with Lender within seven (7)
days after Lender's request therefor in accordance with
Section 1.4; (i) construction is enjoined or Borrower or
Lender is enjoined or prohibited from performing under the
Loan Documents; (j) the owner of the Property enters into any
lease of part or all of the Property which does not comply
with the Loan Documents; or (k) any claim of lien for labor or
materials or any other lien or encumbrance of any nature
whatsoever is recorded against Borrower or the Property and is
not removed by payment or transferred to substitute security
in the manner provided by law, within ten (10) days after it
is recorded in accordance with applicable law; or (l) any
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Construction Loan Agreement 6<PAGE>
federal, state or local tax lien is recorded against the
Borrower or the Property and is not removed by payment or
transferred to substitute security in the manner provided by
law within thirty (30) days after it is recorded in accordance
with applicable law; (m) Borrower shall cease to exist or to
be qualified to do or transact business in the State in which
the Property is located, or shall be dissolved or shall be a
party to a merger or consolidation, or shall sell all or
substantially all of its assets; (n) any sale, conveyance,
transfer, assignment, or other disposition of all or any part
of the Property; (o) any statement or representation of
Borrower or any Guarantor contained in the Loan application or
any financial statements or other materials furnished to
Lender or any other lender prior or subsequent to the making
of the Loan secured hereby are discovered to have been
materially false or incorrect or incomplete; (p) Borrower or
any Guarantor shall default under any obligation imposed by
any indemnity whether contained within any of the Loan
Documents, the Hazardous Waste Certification and
Indemnification, or otherwise; or (q) a default occurs under
any Loan Document other than this Agreement. The events
described in subparagraphs (e) through (j) above shall not be
deemed to be events of Default unless they continue for a
period of ten (10) days after written notice thereof from
Lender to Borrower, provided, however, if such event may not
reasonably be cured within such ten (10) day period, an event
of Default shall not be deemed to have occurred so long as
same shall be diligently and continuously endeavored to be
cured. Notwithstanding the foregoing, it shall be an event of
Default if the violation has not been cured within sixty (60)
days after notice thereof.
3.2 Remedies. Upon a Default, Lender may, at its
election, but without any obligation to do so, without further
notice, do any one or more of the following: (a) terminate its
commitment to lend and any obligation to disburse any
Borrower's Deposit hereunder; (b) reduce any claim to
judgment; (c) exercise any and all rights and remedies
afforded by this Agreement, the other Loan Documents, law,
equity or otherwise; (d) set-off and apply, to the extent
thereof and to the maximum extent permitted by law, any and
all deposits, funds, or assets at any time held and any and
all other indebtedness at any time owing by Lender to or for
the credit or account of Borrower against any Indebtedness; or
(e) in its own name or in the name of Borrower, enter into
possession of the Property, perform all work necessary to
complete the construction of the Improvements substantially in
accordance with the Plans (as modified as deemed necessary by
Lender), Loan Documents, laws, and governmental requirements,
and continue to employ Borrower's architect, engineer, and any
contractor pursuant to the applicable contracts or otherwise.
Borrower hereby appoints Lender as the attorney-in-fact of
Borrower, which power of attorney is irrevocable and coupled
with an interest, with full power of substitution and in the
name of Borrower, if Lender elects to do so, upon the
occurrence of a Default, to i) use such sums as are necessary,
including any proceeds of the Loan and any Borrower's Deposit,
make such changes or corrections in the Plans and employ such
architects, engineers, and contractors as may be required for
the purpose of completing the construction of the Improvements
substantially in accordance with the Plans (as modified as
deemed necessary by Lender), Loan Documents, laws and
governmental requirements, or as otherwise may be necessary or
desirable for purposes of completing such construction; ii)
execute all applications and certificates in the name of
Borrower which may be required for completion of construction
of the Improvements; iii) endorse the name of Borrower on any
checks or drafts representing proceeds of any insurance
policies, or other checks or instruments payable to Borrower
with respect to the Property; iv) do every act with respect to
the construction of the Improvements which Borrower may do; v)
prosecute or defend any action or proceeding incident to the
Property, vi) pay, settle, or compromise all bills and claims
so as to clear title to the Property; and vii) take over and
use all or any part of the labor, materials, supplies and
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Construction Loan Agreement 7<PAGE>
equipment contracted for, owned by, or under the control of
Borrower which relate to the construction, maintenance or
operation of the Improvements (but not any such items related
to the Borrower's business conducted in the Improvements),
whether or not previously incorporated into the Improvements.
Any amounts expended by Lender shall be a demand obligation
owing by Borrower to Lender. Lender shall have no liability
to Borrower for the sufficiency or adequacy of any such
actions taken by Lender.
ARTICLE 4. - GENERAL TERMS AND CONDITIONS
4.1 Usury Laws. Borrower, Lender and all other parties
to the Loan Documents intend to conform to and contract in
strict compliance with applicable usury law from time to time
in effect. All agreements between Borrower and Lender (or any
other party liable with respect to any Indebtedness under the
Loan Documents) are hereby limited by the provisions of this
Section which shall override and control all such agreements,
whether now existing or hereafter arising. In no way, nor in
any event or contingency (including but not limited to
prepayment, default, demand for payment, or acceleration of
the maturity of any obligation), shall the interest taken,
reserved, contracted for, charged, chargeable, or received
under this Agreement, the Note, any of the other Loan
Documents, or otherwise, exceed the maximum amount permitted
under applicable law ("Maximum Amount"). If, from any
possible construction of any document, interest would
otherwise be payable in excess of the Maximum Amount, any such
construction shall be subject to the provisions of this
Section and such document shall ipso facto be automatically
reformed and the interest payable shall be automatically
reduced to the Maximum Amount, without the necessity of
execution of any amendment or new document. If Lender shall
ever receive anything of value which is characterized as
interest under applicable law and which would apart from this
provision be in excess of the Maximum Amount, an amount equal
to the amount which would have been excessive interest shall,
without penalty, be applied to the reduction of the principal
amount owing on the Indebtedness in the inverse order of its
maturity and not to the payment of interest, or be refunded to
Borrower or the other payor thereof, at the election of Lender
in its sole discretion or as required by applicable law. The
right to accelerate maturity of the Note or any other
Indebtedness does not include the right to accelerate any
interest which has not otherwise accrued on the date of such
acceleration, and Lender does not intend to charge or receive
any unearned interest in the event of acceleration. All
interest paid or agreed to be paid to Lender shall, to the
extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full stated term
(including any renewal or extension) of such Indebtedness so
that the amount of interest on account of such Indebtedness
does not exceed the Maximum Amount. As used in this Section,
the term "applicable law" shall mean the laws of the State of
Florida or the federal laws of the United States applicable to
this transaction, whichever laws allow the greater interest,
as such laws now exist or may be changed or amended or come
into effect in the future.
4.2 Lender's Consent. Except where otherwise expressly
provided in the Loan Documents, in any instance where the
approval, consent or the exercise of judgment of Lender is
required, the granting or denial of such approval or consent
and the exercise of such judgment shall be (a) within the sole
discretion of Lender and free from any limitation or
requirement of reasonableness if the matter which gives rise
to the need for the approval, consent or exercise of judgment
relates to the construction of the Improvements, and within
the reasonable discretion of Lender if the matter which gives
rise to the need for the approval, consent or exercise of
judgment does not relate to the construction of the
Improvements; and (b) deemed to have been given only by a
specific writing intended for the purpose given and executed
by Lender. Notwithstanding any approvals or consents by
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Construction Loan Agreement 8<PAGE>
Lender, Lender has no obligation or responsibility whatsoever
for the adequacy, form or content of the Plans, the Budget,
any contract, any change order, any lease, or any other matter
incident to the Property or the construction of the
Improvements. Lender's acceptance of an assignment of the
Plans shall not constitute approval of the Plans. Any
inspection or audit of the Property or the books and records
of Borrower, or the procuring of documents and financial and
other information, by or on behalf of Lender shall be for
Lender's protection only, and shall not constitute any
assumption of responsibility to Borrower or anyone else with
regard to the condition, construction, maintenance or
operation of the Property, or relieve Borrower of any of
Borrower's obligations. Borrower or the Contractor has
selected all surveyors, architects, engineers, contractors,
materialmen and all other persons or entities furnishing
services or materials to the Project. Lender has no duty to
supervise or to inspect the Property or the construction of
the Improvements nor any duty of care to Borrower or any other
person to protect against, or inform Borrower or any other
person of, the existence of negligent, faulty, inadequate or
defective design or construction of the Improvements. Lender
shall not be liable or responsible for any defect in the
Property or the Improvements, the performance or default of
Borrower, Borrower's or Contractor's architect, engineer,
contractor, the Construction Consultant, or any other party,
or for any failure to construct, complete, protect or insure
the Improvements, or for the payment of costs of labor,
materials, or services supplied for the construction of the
Improvements, or for the performance of any obligation of
Borrower or Contractor whatsoever. Nothing, including any
advance or acceptance of any document or instrument, shall be
construed as a representation or warranty, express or implied,
to any party by Lender. Inspection shall not constitute an
acknowledgment or representation by Lender or the Construction
Consultant that there has been or will be compliance with the
Plans, Loan Documents, applicable laws and governmental
requirements or that the construction is free from defective
materials or workmanship. Inspection whether or not followed
by notice of Default shall not constitute a waiver of any
Default then existing, or a waiver of Lender's right
thereafter to insist that the Improvements be constructed in
accordance with the Plans, Loan Documents, applicable laws,
and governmental requirements. Lender's failure to inspect
shall not constitute a waiver of any of Lender's rights under
the Loan Documents or at law or in equity.
4.3 Miscellaneous. This Agreement may be executed in
several counterparts, all of which are identical, and all of
which counterparts together shall constitute one and the same
instrument. The Loan Documents are for the sole benefit of
Lender and Borrower and are not for the benefit of any third
party. A determination that any provision of this Agreement
is unenforceable or invalid shall not affect the
enforceability or validity of any other provision and the
determination that the application of any provision of this
Agreement to any person or circumstance is illegal or
unenforceable shall not affect the enforceability or validity
of such provision as it may apply to other persons or circum-
stances. Time shall be of the essence with respect to
Borrower's obligations under the Loan Documents. This
Agreement, and its validity, enforcement and interpretation,
shall be governed by the laws of the State of Florida (without
regard to any conflict of laws principles) and applicable
United States federal law.
4.4 Notices. Unless specifically provided otherwise,
any notice for purposes of this Agreement or any other Loan
Document shall be given in writing or by telex or by facsimile
(fax) transmission and shall be addressed or delivered to the
respective addresses set forth at the end of this Agreement,
or to such other address as may have been previously
designated by the intended recipient by notice given in
accordance with this Section. If sent by prepaid, registered
or certified mail (return receipt requested), the notice shall
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Construction Loan Agreement 9<PAGE>
be deemed effective when the receipt is signed or when the
attempted initial delivery is refused or cannot be made
because of a change of address of which the sending party has
not been notified; if transmitted by telex, the notice shall
be effective when transmitted (answerback confirmed); and if
transmitted by facsimile or personal delivery, the notice
shall be effective when received. No notice of change of
address shall be effective except upon actual receipt, and
service of a notice required by any applicable statute shall
be considered complete when the requirements of that statute
are met. This Section shall not be construed in any way to
affect or impair any waiver of notice or demand provided in
any Loan Document or to require giving of notice or demand to
or upon any person in any situation or for any reason.
4.5 Successors and Assigns. This Agreement shall be
binding upon Borrower, and Borrower's heirs, devisees,
representatives, successors and assigns, and shall inure to
the benefit of Lender and its successors and assigns,
provided, however, that Borrower shall not assign or encumber
any interest of Borrower hereunder without the prior written
consent of Lender. Lender may sell or offer to sell the Loan
or interests in the Loan to one or more assignees or
participants. Borrower shall execute, acknowledge, and
deliver any and all instruments reasonably requested by Lender
or such assignee or participant.
4.6 Modification or Termination. The Loan Documents may
only be modified or terminated by a written instrument or
instruments intended for that purpose and executed by the
party against which enforcement thereof is asserted. This
Agreement shall continue in full force and effect until the
Indebtedness is paid in full; and all representations and
warranties and all provisions herein for indemnity of Lender
(and any other provisions herein specified to survive) shall
survive payment in full of the Indebtedness and any release or
termination of this Agreement or of any other Loan Documents.
4.7 Costs and Expenses. Without limitation of any Loan
Document and to the extent not prohibited by applicable laws,
Borrower shall pay when due, and reimburse to Lender on
demand, and indemnify Lender from, all out-of-pocket fees,
costs, and expenses paid or incurred by Lender in connection
with the negotiation, preparation and execution of this
Agreement and the other Loan Documents (and any amendments,
approvals, consents, waivers and releases requested, required,
proposed or done from time to time), or in connection with the
disbursement, administration or collection of the Loan or the
enforcement of the obligations or the exercise of any right or
remedy of Lender (including costs of arbitration), including
(a) fees and expenses of Lender's counsel; (b) fees and
charges of each Construction Consultant or architect; (c)
appraisal, re-appraisal and survey costs; (d) title insurance
charges and premises; (e) title search or examination costs,
including abstracts, abstractors' certificates and uniform
commercial code searches; (f) judgment and tax lien searches
for Borrower and each Guarantor; (g) escrow fees; (h) fees and
costs of environmental investigations and site assessments;
(i) recordation taxes, documentary taxes, transfer taxes and
mortgage taxes, (j) filing and recording fees, and (k) loan
brokerage fees. Borrower shall pay all costs and expenses
incurred by Lender, including attorneys' fees, if the
obligations or any part thereof are sought to be collected by
or through an attorney at law, whether or not involving
probate, arbitration, appellate, administrative or bankruptcy
proceedings. Borrower shall pay all costs and expenses of
complying with the Loan Documents, whether or not such costs
and expenses are included in the Budget. Borrower's
obligations under this Section shall survive the delivery of
the Loan Documents, the making of advances, the payment in
full of the obligations, the release or determination of the
Loan Documents, the foreclosure of the Mortgage or conveyance
in lieu of foreclosure, any bankruptcy or other debtor relief
proceeding, and any other event whatsoever.
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Construction Loan Agreement 10<PAGE>
4.8 Further Assurances. Borrower will, on request of
Lender, (a) promptly correct any defect, error or omission in
any Loan Document; (b) execute, acknowledge, deliver, procure,
record or file such further instruments and do such further
acts deemed necessary, desirable or proper by Lender to carry
out the purposes of the Loan Documents and to identify and
subject to the liens and security interest of the Loan
Documents any property intended to be covered thereby,
including any renewals, additions, substitutions,
replacements, or appurtenances to the Property; (c) execute,
acknowledge, deliver, procure, file or record any document or
instrument deemed necessary, desirable, or proper by Lender to
protect the liens or the security interest under the Loan
Documents against the rights or interests of third persons;
and (d) provide such certificates, documents, reports,
information, affidavits and other instruments and do such
further acts deemed necessary, desirable or proper by Lender
to comply with the requirements of any agency having
jurisdiction over Lender.
4.9 No Assignment. Borrower shall not assign, transfer
or encumber its rights or obligations under any Loan Document
or any proceeds of the Loan without the prior written consent
of Lender.
4.10 Inducement to Lender. The representations and
warranties contained in the Loan Documents (a) are made to
induce Lender to make the Loan and Lender is relying thereon,
and (b) shall survive any bankruptcy proceedings involving
Borrower, Guarantor or the Property, foreclosure, or
conveyance in lieu of foreclosure.
4.11 Forum. Borrower hereby irrevocably submits
generally and unconditionally for itself and in respect of its
property to the jurisdiction of any state court, or any United
States federal court, sitting in the State specified in
Section 4.3 of this Agreement and to the jurisdiction of any
state court or any United States federal court, sitting in the
state in which any of the Property is located, over any suit,
action or proceeding arising out of or relating to this
Agreement or the Indebtedness. Borrower hereby irrevocably
waives, to the fullest extent permitted by law, any objection
that Borrower may now or hereafter have to the laying of venue
in any such court and any claim that any such court is an
inconvenient forum. Borrower hereby agrees and consents
that, in addition to any methods of service or process
provided for under applicable law, all service of process in
any such suit, action or proceeding in any state court, or any
United States federal court, sitting in the state specified in
Section 4.3 may be made by certified or registered mail,
return receipt requested, directed to Borrower at its address
for notice stated in the Loan Documents, or at a subsequent
address of which Lender received actual notice from Borrower
in accordance with the Loan Documents, and service so made
shall be complete five (5) days after the same shall have been
so mailed. Nothing herein shall affect the right of Lender to
serve process in any manner permitted by law or limit the
right of Lender to bring proceedings against Borrower in any
other court or jurisdiction.
4.12 Interpretation. References to "Dollars", "$",
"money", "payments" or other similar financial or monetary
terms are references to lawful money of the United States of
America. References to Articles, Sections, and Exhibits are,
unless specified otherwise, references to articles, sections
and exhibits of this Agreement. Words of any gender shall
include each other gender. Words in the singular shall
include the plural and words in the plural shall include the
singular. References to Borrower or Guarantor shall mean,
each person comprising same, jointly and severally.
References to persons shall include any legal entities,
including public or governmental bodies, agencies or
instrumentalities, and natural persons. The words "herein",
"hereof", "hereunder" and other similar compounds of the word
"here" shall refer to the entire Agreement and not to any
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Construction Loan Agreement 11<PAGE>
particular provision or section. The words "include" and
"including" shall be interpreted as if followed by the words
"without limitation". Captions and headings in the Loan
Documents are for convenience only and shall not affect the
construction of the Loan Documents.
4.13 No Partnership, etc. The relationship between
Lender and Borrower is solely that of lender and borrower.
Lender has no fiduciary or other special relationship with or
duty to Borrower and none is created by the Loan Documents.
Nothing contained in the Loan Documents, and no action taken
or omitted pursuant to the Loan Documents, is intended or
shall be construed to create any partnership, joint venture,
association, or special relationship between Borrower and
Lender or in any way make Lender a co-principal with Borrower
with reference to the Project, the Property or otherwise. In
no event shall Lender's rights and interests under the Loan
Documents be construed to give Lender the right to control, or
be deemed to indicate that Lender is in control of, the
business, properties, management or operations of Borrower.
4.14 Records. The unpaid amount of the Loan set forth on
the books and records of Lender maintained in the ordinary
course of its business shall be presumptive evidence of the
amount thereof owing and unpaid, but failure to record any
such amount on the books and records shall not limit or affect
the obligations of Borrower under the Loan Documents to make
payments on the Loan when due.
4.15 Exhibits. This Agreement includes the Exhibits
listed below which are marked by "X", all of which Exhibits
are attached hereto and made a part hereof for all purposes,
it being agreed that if any Exhibit to be executed and
delivered contains blanks, the same shall be completed
correctly and in accordance with this Agreement prior to or at
the time of the execution and delivery thereof.
X Exhibit "A" - Legal description of the Land
X Exhibit "B" - Basic Information
X Exhibit "C" - Certain Conditions Precedent
to the First Advance
X Exhibit "D" - Budget
X Exhibit "E" - Plans
X Exhibit "F" - Advances
X Exhibit "F-1" - Draw Request
X Exhibit "G" - Survey Requirements
4.16 Cross Default. A Default hereunder or under any of
the documents evidencing or securing the Loan shall constitute
an event of default under any other indebtedness (now or
hereafter existing) of Borrower to Lender. Any default under
any document evidencing or securing such other indebtedness
shall constitute a Default hereunder.
4.17 Title Endorsements. When requested by Lender during
the term of the Loan, Borrower shall provide an endorsement to
Lender's title policy which reflects that (a) the real estate
taxes for the Property have been paid; (b) no new title
matters have appeared of record to which Lender has not
consented; and (c) no liens, encumbrances or lis pendenses
have been filed against the Property, other than as
specifically approved by Lender.
4.18 Mandatory Arbitration. Any controversy or claim
between or among the parties hereto including but not limited
to those arising out of or relating to this Agreement or any
related agreements or instruments, including any claim based
on or arising from an alleged tort, shall be determined by
binding arbitration in accordance with the Federal Arbitration
Act (or if not applicable, the applicable state law), the
Rules of Practice and Procedure for the Arbitration of
Commercial Disputes of Judicial Arbitration and Mediation
Services, Inc. (J.A.M.S.), and the "Special Rules" set forth
below. In the event of any inconsistency, the Special Rules
shall control. Judgment upon any arbitration award may be
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Construction Loan Agreement 12<PAGE>
entered in any court having jurisdiction. Any party to this
Agreement may bring an action, including a summary or
expedited proceeding, to compel arbitration of any controversy
or claim to which this agreement applies in any court having
jurisdiction over such action.
(a) Special Rules. The arbitration shall be
conducted in Tampa, Florida and administered by Endispute,
Inc., d/b/a J.A.M.S./Endispute who will appoint an arbitrator;
if J.A.M.S./Endispute is unable or legally precluded from
administering the arbitration, then the American Arbitration
Association will serve. All arbitration hearings will be
commenced within 90 days of the demand for arbitration;
further, the arbitrator shall only, upon a showing of cause,
be permitted to extend the commencement of such hearing for up
to an additional 60 days.
(b) Reservations of Rights. Nothing in this
Agreement shall be deemed to i) limit the applicability of any
otherwise applicable statutes of limitation or repose and any
waivers contained in this Agreement; or ii) be a waiver by
Lender of the protection afforded to it by 12 U.S.C. Sec. 91
or any substantially equivalent state law; or (iii) limit the
right of Lender (A) to exercise self help remedies such as
(but not limited to) setoff, or (B) to foreclose against any
real or personal property collateral, or (C) to obtain from a
court provisional or ancillary remedies such as (but not
limited to) injunctive relief or the appointment of a
receiver. Lender may exercise such self help rights,
foreclose upon such property, or obtain such provisional or
ancillary remedies before, during or after the pendency of any
arbitration proceeding brought pursuant to this Agreement. At
Lender's option, foreclosure under a deed of trust or mortgage
may be accomplished by any of the following: the exercise of
a power of sale under the deed of trust or mortgage, or by
judicial sale under the deed of trust or mortgage, or by
judicial foreclosure. Neither the exercise of self help
remedies nor the institution or maintenance of an action for
foreclosure or provisional or ancillary remedies shall
constitute a waiver of the right of any party, including the
claimant in any such action, to arbitrate the merits of the
controversy or claim occasioning resort to such remedies.
No provision in the Loan Documents regarding submission to
jurisdiction and/or venue in any court is intended or shall be
construed to be in derogation of the provisions in any Loan
Document for arbitration of any controversy or claim.
4.19 Entire Agreement. The Loan Documents constitute the
entire understanding and agreement between Borrower and Lender
with respect to the transactions arising in connection with
the Loan and supersede all prior written or oral
understandings and agreements between Borrower and Lender with
respect to the matters addressed in the Loan Documents. In
particular, and without limitation, the terms of any
commitment by Lender to make the Loan are merged into the Loan
Documents. Lender has not made any commitments to extend the
term of the Loan past its stated maturity date or to provide
Borrower with financing except as set forth in the Loan
Documents. Except as incorporated in writing in the Loan
Documents, there are not, and were not, and no persons are or
were authorized by Lender to make, any representations,
understandings, stipulations, agreements or promises, oral or
written, with respect to the matters addressed in the Loan
Documents.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED and DELIVERED as of August 14, 1995.
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Construction Loan Agreement 13<PAGE>
Borrower's Address for Notices: BORROWER:
9509 International Court
St. Petersburg, Florida 33716 PLASMA-THERM, INC., a Florida
corporation
The Federal Tax Identification By: /S/Ronald S. Deferrari
Number of Borrower: Ronald S. Deferrari
President
04-2554632
(CORPORATE SEAL)
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Construction Loan Agreement 14<PAGE>
Lender's Address for Notices: LENDER:
Attn: Real Estate Loan NATIONSBANK OF FLORIDA, N.A., a
Administration national banking association
400 North Ashley Drive (FL1-
010-07-01) By: /s/James E. Harden
Tampa, FL 33602 James E. Harden
(Print Name of Officer)
Its Vice President
(CORPORATE SEAL)
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Construction Loan Agreement 15<PAGE>
EXHIBIT "A"
Legal Description
Lots 28, 29, 30, 31 and the Northerly 130 feet of
Lot 27, all in Block C of METROPOINTE COMMERCE PARK
PHASE II, according to the map or plat thereof
recorded in Plat Book 103, pages 25 and 26, Public
Records of PINELLAS County, Florida.
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Construction Loan Agreement 16<PAGE>
EXHIBIT "B"
BASIC INFORMATION
A. SPECIFIC DEFINITIONS:
1. "Appraised Value" means $4,100,000.00
2. "Borrower" means Plasma-Therm, Inc., a Florida
corporation
3. "Completion Date" means June 14, 1996
4. "Contractor" means The Perry Company, a Florida
corporation
5. "Financial Statements" means, in accordance with the
requirements of this Section, a balance sheet, income
statement, statements of cash flow and amount and sources of
contingent liabilities, and a reconciliation of changes in
equity, and, unless Lender otherwise consents, consolidated
and consolidating statements if the reporting party is a
holding company or a parent of a subsidiary entity. In this
Section, each party for whom Financial Statements are required
is a "reporting party" and a specified period to which the
required Financial Statements relate is a "reporting period".
Borrower shall provide or cause to be provided to Lender the
following:
(a) Annual unqualified audited Financial Statements
of Borrower for each fiscal year of Borrower, as soon as
reasonably practicable and in any event within one
hundred twenty (120) days after the close of each fiscal
year.
(b) Quarterly Borrower-prepared unaudited Financial
Statements (Form 10-Q) concerning Borrower's business on
a consolidated and consolidating basis for each fiscal
quarter of Borrower, as soon as reasonable practicable
and in any event within forty-five (45) days after the
close of each fiscal quarter.
(c) Copies of filed federal and state income tax
returns of Borrower for each taxable year, within twenty
(20) days after filing but in any event not later than
one hundred fifty (150) days after the close of each such
taxable year.
(d) Such additional financial statements, profit
and loss statements, and other accounting data related to
Borrower as may be reasonably requested by Lender from
time to time concerning Borrower.
All Financial Statements shall be in form and detail
satisfactory to Lender and shall contain or be attached to the
signed and dated written certification of the reporting party
in form specified by Lender to certify that the Financial
Statements are furnished to Lender in connection with the
extension of credit by Lender and constitute a true and
correct statement of the reporting party's financial position.
All certifications and signatures on behalf of corporations,
partnerships or other entities shall be by a representative of
the entity satisfactory to Lender. All fiscal year-end
Financial Statements of Borrower shall be audited and
certified, without any qualification or exception not
acceptable to Lender, by independent certified public
accountants acceptable to Lender, and shall contain all
reports and disclosures required by generally accepted
accounting principles for a fair presentation, including a
certificate of the accountant in form and substance
satisfactory to Lender to the effect that said accountant has
no knowledge that any event of Default, or any event which
with notice and/or lapse of time would become an event of
Default as set forth herein, has occurred and is continuing,
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Construction Loan Agreement 17<PAGE>
or, if he has knowledge that any such event has occurred and
is continuing, specifying the details thereof. For purposes
of this Agreement and other Loan Documents, the accounting
firm of Grant Thornton LLP shall be acceptable to Lender until
such time as Lender shall notify Borrower to the contrary.
6. "Improvements" means all on-site and off-site
improvements to the Land for a 60,639.50 square foot (MOL)
office/manufacturing facility, including leasehold improve-
ments, to be constructed on the Land, together with all
fixtures and appurtenances now or later to be located on the
Land and/or in such improvements.
7. "Initial Land Advance" means N/A.
8. "Loan" means the construction\term loan by Lender to
Borrower, in the principal amount of $3,375,000.00.
9. "Permitted Changes" means changes to the Plans or
Improvements, provided the cost of any single change or extra
does not exceed $25,000.00 and the aggregate amount of all
such changes and extras (whether positive or negative) does
not exceed $100,000.00.
10. "Project" means the acquisition of the Land, the
construction of the Improvements, and if applicable, the
operation of the Improvements.
11. "Stored Materials Advance Limit" means $ -0-
.
12. "Title Insurer" means Lawyers Title Insurance
Corporation.
B. GENERAL DEFINITIONS:
1. "Budget" means the budget and cost itemization for
the Project attached as Exhibit "D".
2. "Construction Consultant" means the construction
consultant, if any, engaged by Lender with respect to the
Project.
3. "Default" is defined in Section 3.1 of this
Agreement.
4. "Environmental Agreement" means the Environmental
Indemnity Agreement of even date herewith between Borrower and
Lender.
5. "Excusable Delays" means unusually adverse weather
conditions which have not been taken into account in the
construction schedule, fire, earthquake or other acts of God,
strike, lockout, acts of public enemy, riot or insurrection or
any unforeseen circumstances or events (except financial
circumstances or events or matters which may be resolved by
the payment of money) beyond the control of Borrower, not to
exceed a total of thirty (30) days, provided Borrower shall
notify Lender in writing within five (5) days after such
occurrence, but no Excusable Delay shall extend the Completion
Date or suspend or abate any obligation of Borrower or any
Guarantor or any other person to pay any money.
6. "Indebtedness" means any and all indebtedness to
Lender evidenced, governed or secured by, or arising under,
any of the Loan Documents, including the Loan.
7. "Land" means the real estate described in Exhibit
"A".
8. "Loan Documents" means this Agreement (including all
exhibits), the Mortgage, the Note, the Environmental
Agreement, any financing statements, the Budget, each Draw
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Construction Loan Agreement 18<PAGE>
Request and such other documents evidencing, securing or
pertaining to the Loan as shall, from time to time, be
executed and/or delivered by Borrower or any other party to
Lender pursuant to this Agreement.
9. "Mortgage" means the first Mortgage, Assignment of
Rents and Security Agreement securing repayment of the
Indebtedness.
10. "Note" means the promissory note executed by
Borrower in the amount of $3,375,000.00.
11. "Plans" means the plans and specifications listed in
Exhibit "E".
12. "Property" means the Land, the Improvements and all
other property constituting the "Mortgaged Property," as
described in the Mortgage, or subject to a right, lien or
security interest to secure the Loan pursuant to any other
Loan Document.
13. "Title Insurance" means the title insurance
described in Exhibit "C".
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Construction Loan Agreement 19<PAGE>
EXHIBIT "C"
CERTAIN CONDITIONS PRECEDENT TO THE FIRST ADVANCE
1. Fees and Expenses. Lender shall have received any
required Commitment Fee and Borrower shall have paid all other
fees, costs and expenses then required to be paid pursuant to
this Agreement and any other Loan Documents.
2. Financial Statements. Lender shall have received
and approved the Financial Statements of Borrower and
Guarantor or any other party required by any loan application
or commitment or otherwise required by Lender.
3. Appraisal. Lender shall have received and approved
a market value appraisal made within thirty (30) days of the
date of this Agreement, which appraises the Property on a
"completed value" basis at not less than the Appraised Value.
The appraiser and appraisal must be satisfactory to Lender
(including satisfaction of applicable regulatory requirements)
and the appraiser must be engaged directly by Lender.
4. Draw Schedule and Budget. Lender shall have
received and approved Borrower's proposed draw schedule, and
construction schedule, for the Project.
5. Authorization. Lender shall have received and
approved evidence Lender requires of the existence, good
standing, authority and capacity of Borrower to execute,
deliver, and perform the Loan Documents, including but not
limited to:
(a) For each corporation: i) a copy of its
articles of incorporation and by-laws, and all amendments
thereto, a certificate of incumbency of all of its officers
who will be authorized to execute or attest any of the Loan
Documents, and a copy of resolutions approving the Loan
Documents and authorizing the transactions contemplated in
this Agreement; and ii) certificates of existence, good
standing and qualification to do business in the state of its
creation and if different, in the state where the Project is
located, issued by the appropriate governmental officials.
(b) All certificates, resolutions, and consents
required by Lender applicable to the foregoing.
6. Loan Documents. Borrower, Guarantor and each other
person or entity required by Lender shall have duly executed,
acknowledged and/or sworn to as required, recorded or filed,
and delivered to Lender all Loan Documents then required by
Lender, dated the date of this Agreement, all in form and
content satisfactory to Lender.
7. Opinions. Lender shall have received the written
opinion of counsel for the Borrower addressed to Lender, dated
the date of this Agreement, which satisfies the requirements
of the loan commitment letter issued by Lender to Borrower
dated May 1, 1995, as amended by letter dated July 25, 1995.
8. Survey; No Special Flood Hazard. Lender shall have
received three (3) prints of an original survey of the Land
and improvements thereon dated not more than sixty (60) days
prior to the date of this Agreement (or dated such earlier
date, if any, as is satisfactory to the Title Insurer, but in
any event not more than one hundred eighty (180) days prior to
the date of this Agreement) satisfactory to Lender and the
Title Insurer and otherwise complying with Exhibit "G", and
otherwise in compliance with the requirements of the Loan
Documents, and containing evidence satisfactory to Lender that
none of the Land is located in a flood hazard area.
9. Title Insurance. Lender shall have received and
approved one or more title insurance policies or a title
insurance commitment marked through the Loan closing date with
all Schedule B-1 requirements deleted, as Lender may require,
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Construction Loan Agreement 20<PAGE>
issued by the Title Insurer in the maximum amount of the Loan,
on a coinsurance and/or reinsurance basis if and as required
by Lender, insuring that the Mortgage constitutes a valid lien
covering the Land and all improvements thereon, having the
priority required by Lender and subject only to those
exceptions and encumbrances (regardless of rank or priority)
Lender approves, in a form acceptable to Lender, and with all
"standard" exceptions which can be deleted, including the
exception for matters which a current survey would show,
deleted to the fullest extent authorized under applicable
title insurance rules, and Borrower shall satisfy all
requirements therefor; containing no exception for standby
fees or real estate taxes other than those for the year in
which the closing occurs to the extent the same are not then
due and payable and endorsed "not yet due and payable" and no
exception for subsequent assessments for prior years;
providing full coverage against mechanics' and materialmen's
liens to the extent authorized under applicable title
insurance rules, and Borrower shall satisfy all requirements
therefor; insuring that no restrictive covenants shown in the
Title Insurance have been violated, and that no violation of
the restrictions will result in a reversion or forfeiture of
title; insuring that fee simple indefeasible or marketable (as
coverage is available) fee simple title to the Land and
Improvements is vested in Borrower; containing such
endorsements as Lender may require and are available under
applicable title insurance rules, and Borrower shall satisfy
all requirements therefor; insuring any easements, leasehold
estates or other matters appurtenant to or benefiting the Land
and/or the Improvements as part of the insured estate;
insuring the right of access to the Land to the extent
authorized under applicable title insurance rules, and
Borrower shall satisfy all requirements therefor; and
containing provisions acceptable to Lender regarding advances
of Loan funds after closing. Borrower and Borrower's counsel
shall not have any interest, direct or indirect, in the Title
Insurer (or its agent) or any portion of the premium paid for
the Title Insurance.
10. Plans. Lender shall have received and approved two
(2) true and correct copies of all existing Plans signed and
sealed by the architect (including the site plan), together
with satisfactory evidence that all applicable governmental
authorities, Borrower, Borrower's architect, engineer, and
contractors and Construction Consultant have approved the
same, and Construction Consultant has reviewed the Plans.
11. Contracts. Lender shall have received and approved
(a) a list containing the names and addresses of all existing
contractors, architects, engineers, and other suppliers of
services and materials for the Project (but only to the extent
such information is supplied to Borrower by the Contractor),
their respective contract amounts, and a copy of their
contracts; and (b) duly executed, acknowledged and delivered
originals from each contractor, architect, engineer,
subcontractor, or supplier of services or materials required
by Lender, of i) consents or other agreements satisfactory to
Lender and ii) agreements satisfactory to Lender subordinating
all rights, liens, claims and charges they may have or acquire
against Borrower or the Property to the rights, liens and
security interests of Lender.
12. Insurance Policies. Lender shall have received and
approved insurance evidence certificates or other certificates
deemed acceptable to Lender of the insurance policies required
by Lender, pursuant to the Loan Documents, together with
evidence satisfactory to Lender that all premiums therefor
have been paid and that the policies are in full force and
effect; such insurance policies shall include the following,
and Borrower shall cause them to be maintained in full force
and effect at all times throughout the term of the Loan:
(a) Hazard insurance insuring the Improvements and
all Personal Property, which now or hereafter may constitute
part of the Property, against loss or damage by fire and other
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Construction Loan Agreement 21<PAGE>
hazards included within the term "all risk" or "extended
coverage" and against such other hazards as Lender may require
in the full insurable value thereof (or such lesser amount as
Lender may authorize in writing), with an insurer satisfactory
to Lender. Such policy shall include a Replacement Cost and
Agreed Amount/Stipulated Value Endorsement and a Sinkhole
Endorsement, if deemed necessary by Lender.
(b) a "Broad Form Comprehensive General Liability"
insurance coverage for both Borrower and any contractor
performing services to the Property in the minimum coverage
amount of One Million Dollars ($1,000,000.00) per occurrence
and combined single limit ("CSL") of Five Million Dollars
($5,000,000.00) if the Loan amount is less than $10,000,000.00
or CSL of Ten Million Dollars, ($10,000,000.00) if the Loan
amount is $10,000,000.00 or greater.
(c) if at any time the Land or any portion thereof
is located in a "Flood Hazard Area" pursuant to the Flood
Disaster Protection Act of 1973 or any successor or
supplemental act thereto, flood insurance in the maximum
amount available under the Flood Insurance Act or such other
amount as Lender may reasonably request. Lender may require
additional flood insurance from the secondary market.
(d) an "All risk", non-reporting, completed value
builder's risk insurance policy, which policy shall include
Agreed Amount, Replacement Cost, Permit to Occupy and
Vandalism/Malicious Mischief Endorsements.
(e) boiler and machinery insurance, worker's
compensation insurance, wind damage insurance, and other
insurance coverages as Lender may reasonably require.
The policy or policies of insurance shall i) be from
companies and in coverage amounts acceptable to Lender, ii)
contain a standard mortgagee clause in favor of Lender naming
Lender as a mortgagee and including a lender's loss payee
clause in such policy, as applicable, iii) not be terminable
or modified without thirty (30) days' prior written notice to
Lender, and iv) be evidenced by original policies or certified
copies of policies deposited with Lender, as Lender may elect,
to be held by Lender until the Indebtedness shall have been
fully paid and discharged. Borrower shall furnish Lender
satisfactory evidence of payment of all premiums required and
similar evidence of renewal or replacement coverage not later
than thirty (30) days prior to the date any coverage will
expire.
Each insurance policy or endorsement required herein
shall be written by an insurer having a rating not less than
"A-XII" Best's Rating according to the most current edition of
Best's Key Rating Guide as determined at the time of the
initial policy and at all times during the term hereof. All
policies shall indicate that notices related to such insurance
shall be sent to Lender at:
400 North Ashley Drive (FL1-010-07-01)
Tampa, Florida 33602
Attn: Loan Administration Section,
Real Estate Banking Group
13. Environmental Compliance/Report. Lender shall have
received and approved evidence satisfactory to Lender that no
portion of the Land is "wetlands" under any applicable law and
that the Land does not contain and is not within or near any
area designated as a hazardous waste site by any governmental
authority, that neither the Property nor any adjoining
property contains or has ever contained any substance
classified as hazardous or toxic (or otherwise regulated, such
as, without limitation, asbestos, radon and/or petroleum
products) under, and that neither the Property nor any use or
activity thereon violates or is or could be subject to any
response, remediation, clean-up or other obligation under, any
law or governmental requirement pertaining to health or the
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Construction Loan Agreement 22<PAGE>
environment, including without limitation, a written report of
an environmental assessment of the Property, made within one
hundred eighty (180) days prior to the date of this Agreement,
by an engineering firm, and of a scope and in form and content
satisfactory to Lender, complying with Lender's established
guidelines, showing that there is no evidence of any such
substance which has been generated, treated, stored, released
or disposed of in the Property, and such additional evidence
as may be required by Lender. All reports, drafts of reports,
and recommendations, whether written or oral, from such
engineering firm shall be made available and communicated to
Lender.
14. Soil Reports. Lender and Construction Consultant
shall have received and reviewed a soil composition and test
boring report and a foundation report satisfactory to Lender
regarding the Land, by a licensed professional engineer
satisfactory to Lender. Any recommendations of the engineer
in the soil report shall be incorporated into the Plans.
15. Access, Utilities, and Laws. Lender shall have
received and approved (a) satisfactory evidence that the
Property abuts and has fully adequate direct and free access
to one or more public streets, dedicated to public use, fully
installed and accepted by the appropriate governmental
authority, that all costs and expenses of the installation and
acceptance thereof have been paid in full, and that there are
no restrictions on the use and enjoyment of such streets which
would adversely affect the Project; (b) letters from the
applicable utility companies or governmental authorities
confirming that all utilities necessary for the Improvements
are available at the Land in sufficient capacity, together
with evidence satisfactory to Lender of paid impact fees or
utility reservation deposits or connection fees required to
assure the availability of such services; (c) satisfactory
evidence that all applicable zoning ordinances, restrictive
covenants and governmental requirements affecting the Property
(including those relating to the local government
Comprehensive Planning and Land Development Regulation Act,
Section 163.3161, et. seq., Florida Statutes) permit the use
for which the Property is intended and have been or will be
complied with without the necessity of variance and without
the Property being a nonconforming use; (d) evidence
satisfactory to Lender that the Land and Improvements comply
and will comply with all laws and governmental requirements
regarding subdivision and platting and would so comply if the
Land and the Improvements thereon were conveyed as a separate
parcel; (e) a true and correct copy of a valid building permit
for the Improvements, together with all other permits and
approvals necessary for construction of the Improvements; and
(f) evidence satisfactory to Lender of compliance by Borrower
and the Property, and the proposed construction, use and
occupancy of the Improvements, with such other applicable laws
and governmental requirements as Lender may request, including
all laws and governmental requirements regarding access and
facilities for handicapped or disabled persons including,
without limitation and to the extent applicable, Part V of the
Florida Building Construction Standards Act entitled
"Accessibility by Handicapped Persons", Chapter 553, Fla
Stat.; The Federal Architectural Barriers Act (42 U.S.C.
Section 4151 et seq.), The Fair Housing Amendments Act of
1988 (42 U.S.C. Section 3601 et seq.), The Americans With
Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.),
The Rehabilitation Act of 1973 (29 U.S.C. Section 794) and
any applicable state requirements.
16. Priority. Lender shall have received and approved
(a) evidence satisfactory to Lender that prior to and as of
the time the Mortgage was filed for record i) no activity or
circumstance was visible on or near the Land which would
constitute inception of a mechanic's or materialman's lien
against the Property, ii) no contract, or memorandum thereof,
for construction, design, surveying, or any other service
relating to the Project has been filed for record in the
county where the Property is located; iii) no mechanic's or
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Construction Loan Agreement 23<PAGE>
materialman's lien claim or notice, lis pendens, judgment, or
other claim or encumbrance against the Property has been filed
for record in the county where the Property is located or in
any other public record which by law provides notice of claims
or encumbrances regarding the Property; (b) a certificate or
certificates of a reporting service acceptable to Lender,
reflecting the results of searches made not earlier than ten
(10) days prior to the date of this Agreement, i) of the
central and local Uniform Commercial Code records, showing no
filings against any of the collateral for the Loan or against
Borrower otherwise except as consented to by Lender; and ii)
if required by Lender, of the appropriate judgment and tax
lien records, showing no outstanding judgment or tax lien
against Borrower or any Guarantor.
17. Bonds. Lender shall have received and approved (a)
a performance bond for the Contractor, in form and content
satisfactory to Lender and in an amount equal to 100% of the
construction price; and (b) a payment bond for the Contractor,
in form and content satisfactory to Lender and in an amount
equal to 100% of the construction contract price; and if
required by Lender duly recorded before any construction is
commenced. Each bond shall be issued by a corporate surety
acceptable to Lender and authorized and admitted to do
business and to execute bonds in the state where the Project
is located and shall name Lender as an additional obligee.
18. Paid Tax Receipts. Lender shall have received and
approved satisfactory evidence (a) that all taxes, standby
fees and any other similar charges have been paid, including
copies of receipts or statements marked "paid" by the
appropriate authority; and (b) that the Land is or will be
prior to the issuance of the first tax bill coming due after
the date of this Agreement, a separate tax lot or lots with
separate assessment or assessments of the Land and
Improvements, independent of any other land or improvements.
For purposes of this Agreement, appropriate notations of paid
taxes in the Title Insurance information described above shall
satisfy the requirements of (a) herein.
19. Notice to Contractor and Lienors of Hard Cost
Reallocation. If the Draw Request requires an amendment to
the Budget or reallocation of hard cost items which would
require contractor and lienor notice under Section
713.3471(2), Florida Statutes, Borrower, as owner, shall serve
the Contractor and all required lienors, written notice in
compliance with Section 713.3471(2), Florida Statutes, and
shall deliver such notice to Lender, countersigned by the
Contractor and any lienors who have provided notices to owner.
20. Other Documents. Borrower and any other person or
entity, shall have delivered to Lender, in form and content
satisfactory to Lender, such other documents and certificates
as Lender may reasonably request.
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Construction Loan Agreement 24<PAGE>
EXHIBIT "D"
BUDGET
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Construction Loan Agreement 25<PAGE>
EXHIBIT "E"
PLANS
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Construction Loan Agreement 26<PAGE>
EXHIBIT "F"
ADVANCES
1. Draw Request. A "Draw Request" means a properly
completed and executed written application by Borrower to
Lender in the form of Exhibit "F-1" (or in another form
approved by Lender) setting forth the amount of Loan proceeds
desired, together with such schedules, affidavits, releases,
waivers, statements, invoices, bills, and other documents,
certificates and information required by Lender. At least
five (5) business days before the requested date of each
advance, Borrower shall deliver a Draw Request to Lender.
Borrower shall be entitled to an advance only in an amount
approved by Lender in accordance with the terms of this
Agreement and the Loan Documents. Lender shall not be
required to make advances more frequently than once each
calendar month. Lender shall, only upon the satisfaction of
all applicable conditions of this Agreement and the Loan
Documents, make the requested advance to Borrower on a
business day within five (5) business days after such
satisfaction. Each Draw Request, and Borrower's acceptance of
any advance, shall be deemed to ratify and confirm that all
representations and warranties in the Loan Documents remain
true and correct as of the date of the Draw Request and the
advance, respectively. Borrower hereby designates Ronald S.
Deferrari or Diana M. DeFerrari as having authority to sign
all Draw Requests on Borrower's behalf.
2. Advances. Borrower shall disburse all advances made
to Borrower, for payments of the costs and expenses specified
in the Budget for which the advances were made, and for no
other purpose. Following receipt and approval of a Draw
Request, all supporting documentation and information, and
receipt and approval of a written or verbal report from
Construction Consultant, Lender will determine the amount of
the advance it will make in accordance with this Agreement,
the Loan Documents, the Budget, and the following standards:
(a) An initial advance in the amount of the Initial
Land Advance will be made for the acquisition of the Land.
(b) For construction work, advances will be made on
the basis of ninety percent (90%) of the costs shown on the
application for payment from the contractor reviewed and
approved by Lender and Newcomb & Boyd of the work or material
in place on the Improvements that comply with the terms of the
Loan Documents, minus all previous advances and all amounts
required to be paid by Borrower, as described in Columns (B)
and (C) of the Budget.
(c) Loan disbursements will be made for the cost of
non-construction items on the basis of one hundred percent
(100%) of the costs of all approved invoices therefor, up to
the maximum amount of such costs set forth in the Loan Budget.
(d) Advances will not be made for building
materials or furnishings that are not yet incorporated into
the Improvements ("stored materials") unless the stored
materials are in Borrower's possession and satisfactorily
stored on the Land, no materials are stored for a time period
exceeding forty-five (45) days, Lender has a lien on such
materials which is prior to the lien of any other secured
party, Lender has received and approved all invoices for the
materials to be stored on-site and the aggregate of advances
for stored materials that have not yet been incorporated into
the Improvements does not exceed the Stored Materials Advance
Limit. The advances for stored materials will be limited to
90% of the invoice cost of the materials.
(e) Lender will not make advances for any Borrower
"developer fees".
3. Conditions to the First Advance. As conditions
precedent to the first advance hereunder: (a) there shall
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Construction Loan Agreement 27<PAGE>
then exist no Default or any event which, with the giving of
notice or the lapse of time, or both, could become a Default;
(b) the representations and warranties made in the Loan
Documents shall be true and correct; (c) each contract to be
made by Borrower for any labor, materials, services and/or
other work for or in connection with construction of the
Improvements shall have been duly executed and delivered by
all parties thereto and shall be fully effective, and Lender
shall have received a true, complete executed original
counterpart of each such contract; (d) Borrower must have
satisfied the conditions required under the Loan Documents,
including those identified in Exhibit "C" and Section 4 below;
(e) Borrower must have paid all amounts required to be paid by
Borrower as described in Columns (B) and (C) of the Budget,
and (f) Borrower must have delivered to Lender a Draw Request.
4. Conditions to All Advances. As conditions precedent
to each advance made pursuant to a Draw Request in addition to
all other requirements contained in the other Loan Documents,
Borrower must satisfy the following conditions, and deliver to
Lender evidence of such satisfaction:
(a) All conditions precedent to the first advance
have been and continue to be satisfied.
(b) No Default or any event which, with the giving
of notice or the lapse of time, or both, could become a
Default exists.
(c) The representations and warranties made in the
Loan Documents must be true and correct on and as of the date
of each advance.
(d) Each subcontract or other contract for labor,
materials, services and/or other work included in a Draw
Request shall have been duly executed and delivered by all
parties thereto and shall be effective, and Lender shall have
received a true, complete copy of a fully executed copy of
each such subcontract or other contract as Lender may have
requested.
(e) No mechanics or materialmen's lien or other
encumbrance shall have been filed and remain in effect against
the Property, and releases or waivers of mechanics' liens and
receipted bills showing payment of all amounts due to all
parties who have furnished materials or services or performed
labor of any kind in connection with the Property shall have
been obtained. Additionally, Borrower shall provide an
affidavit stating that the advances made up to the date of the
signing of the affidavit have been paid to the appropriate
parties.
(f) The Title Insurance shall have been endorsed
and down-dated in a manner satisfactory to Lender to increase
the coverage by the amount of each advance through the date of
each such advance with no additional title change or exception
not approved by Lender.
(g) Lender shall have received written
certification by Borrower's Construction Consultant, and if
required by Lender by Newcomb & Boyd, that to the best of such
party's knowledge, information, and belief, construction is in
accordance with the Plans, the quality of the work for which
the advance is requested is in accordance with the applicable
contract, the amount of the advance requested represents work
in place based on onsite observations and the data
compromising the Draw Request, the work has progressed as
indicated, and the applicable contractor is entitled to
payment of the amount certified.
(h) Lender shall have received a foundation survey
made immediately after, but in no event later than fifteen
(15) days after, the laying of the foundation of each building
or structure of the Improvements satisfactory to Lender
complying with Exhibit "G", and certifying as to the absence
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Construction Loan Agreement 28<PAGE>
of encroachments from, or onto, the Property and compliance of
the Improvements, as then-constructed, with zoning laws and
other relevant restrictions.
(i) Lender shall have received within fifteen (15)
days after the pouring of concrete for any Improvements, a
report satisfactory to Lender and Construction Consultant of
the results of concrete tests made at the time the concrete is
poured. The concrete tests shall not be made by any of the
contractors working on the Improvements.
(j) Lender shall have received within fifteen (15)
days after the compaction of any soil for construction, a
report satisfactory to Lender and Construction Consultant of
the results of soil tests.
(k) As of the date of making such advance, no event
shall have occurred, nor shall any condition exist, that could
have an adverse effect on the enforceability of the Loan
Documents, be materially adverse to the financial condition of
Borrower, impair the ability of Borrower to fulfill its
material obligations under the Loan Documents, or otherwise
have any adverse effect whatsoever on the Property.
(l) The Improvements shall not have been damaged
and not repaired.
(m) Borrower shall have paid all amounts required
to be paid by Borrower under Columns (B) and (C) of the
Budget.
(n) Borrower shall have made the Borrower's Deposit
if required by Section 1.4 of this Agreement.
(o) Borrower shall have delivered to Lender such
other information, documents and supplemental legal opinions
as may be required by Lender.
(p) With respect to any advance to pay a
contractor, Lender shall have received original applications
for payments in form approved by Lender, containing a
breakdown by trade and/or other categories acceptable to
Lender, executed and certified by each contractor and Newcomb
& Boyd, accompanied by invoices, and approved by Construction
Consultant. Copies of invoices or other acceptable
documentation shall be submitted to substantiate Borrower's
requests for payment of Project-related "soft costs".
5. Final Advance for Improvements. In the case of the
final Draw Request, Lender shall have received the following
as additional conditions precedent to the requested advance:
(a) Certificates (on a form to be provided by
Lender) from Newcomb & Boyd, the Contractor and, if required
by Lender, from the Construction Consultant, certifying that
the Improvements (including any off-site improvements) have
been completed in accordance with, and as completed comply
with, the Plans and all laws and governmental requirements,
together with the AIA G704 Certificate of Substantial
Completion from each of said professionals; and Lender shall
have received two (2) sets of detailed "as built" Plans
approved in writing by Borrower, Newcomb & Boyd, and
Contractor. The Plans must include plans and specifications
for architectural, structural, mechanical, plumbing,
electrical and site development work (including storm
drainage, utility lines and landscaping).
(b) Final affidavits (in a form approved by Lender)
from Newcomb & Boyd and the Contractor certifying that each of
them and their subcontractors, laborers, and materialmen, as
applicable, have been paid in full for all labor and materials
for construction of the Improvements; and final lien releases
or waivers (in a form approved by Lender) by Newcomb & Boyd,
Contractor, and all subcontractors, materialmen, and other
parties who have supplied labor, materials, or services for
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Construction Loan Agreement 29<PAGE>
the construction of the Improvements, or who otherwise might
be entitled to claim a contractual, statutory or
constitutional lien against the Property.
(c) The Title Insurance shall be endorsed to remove
any exception for mechanics' or materialmen's liens or pending
disbursements, with no additional title change or exception
objectionable to Lender, and with such other endorsements
required by Lender.
(d) Evidence satisfactory to Lender that all laws
and governmental requirements have been satisfied, including
receipt by Borrower of all necessary governmental licenses,
certificates and permits (including certificates of occupancy)
with respect to the completion, use, occupancy and operation
of the Improvements, together with evidence satisfactory to
Lender that all such licenses, certificates, and permits are
in full force and effect and have not been revoked, canceled
or modified.
(e) Evidence satisfactory to Lender that all impact
fees for the Project have been paid.
(f) Three (3) copies of a final as-built survey of
the Property satisfactory to Lender, showing all Improvements
in place, including striping of parking areas and a statement
as to the number of parking spaces, and otherwise complying
with Exhibit "G".
(g) A certification by the surety that it has
approved the final Loan disbursement to the contractor, on an
AIA form G707 or such other form as shall be acceptable to
Lender.
(h) At such time as the Improvements are occupied,
an evidence certificate of an "all risk" permanent hazard
insurance policy must be submitted to Lender. The policy:
shall be from a company satisfactory to Lender with an A-XII
Best's Rating or better; shall be in an amount satisfactory to
Lender; shall include a Replacement Cost and Agreed
Amount/Stipulated Value Endorsement; shall include a Sinkhole
Endorsement, if appropriate; and shall include provisions for
a minimum 30-day advance written notice to Lender of any
intended policy cancellation, non-renewal or material
modifications; and shall designate Lender as mortgagee and
loss payee. Borrower shall submit satisfactory evidence that
all insurance premiums have been paid.
6. Direct Advances. Borrower hereby irrevocably
authorizes Lender (but Lender shall have no obligation) to
advance Loan funds directly to itself to pay interest due on
the Loan. Each such direct advance (except for application of
a Borrower's Deposit) shall be added to the outstanding
principal balance of the Loan and shall be secured by the Loan
Documents. Unless Borrower pays such interest from other
resources, Lender may advance Loan funds pursuant to this
Section for interest payments as and when due. Nothing
contained in this Agreement shall be construed to permit
Borrower to defer payment of interest on the Loan beyond the
date(s) due. The allocation of Loan funds in the Budget for
interest shall not affect Borrower's absolute obligation to
pay the same in accordance with the Loan Documents. Lender
may hold, use, disburse and apply the Loan and the Borrower's
Deposit for payment of any obligation of Borrower under the
Loan Documents. Borrower hereby assigns and pledges the
proceeds of the Loan and any Borrower's Deposit to Lender for
such purposes. Lender may advance and incur such expenses as
Lender deems necessary for the completion of the Improvements
and to preserve the Property and any other security for the
Loan, and such expenses, even though in excess of the amount
of the Loan, shall be secured by the Loan Documents and shall
be payable to Lender on demand. Lender may disburse any
portion of any advance at any time, and from time to time, to
persons other than Borrower for the purposes specified in this
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Construction Loan Agreement 30<PAGE>
Section and the amount of advances to which Borrower shall
thereafter be entitled shall be correspondingly reduced.
7. Conditions and Waivers. All conditions precedent to
the obligation of Lender to make any advance are imposed
hereby solely for the benefit of Lender, and no other party
may require satisfaction of any such condition precedent or be
entitled to assume that Lender will refuse to make any advance
in the absence of strict compliance with such conditions
precedent. Any requirement of this Agreement may be waived,
in whole or in part, in a specific written waiver intended for
that purpose and signed by Lender. Lender shall have the
right to approve and verify the periodic progress, costs
incurred by Borrower, and the estimated costs remaining to be
incurred, after consultation with the Construction Consultant.
No advance shall constitute an approval or acceptance by
Lender of any construction work, a waiver of any condition
precedent to any further advance, or preclude Lender from
thereafter declaring the failure of Borrower to satisfy such
condition precedent to be a Default. No waiver by Lender of
any condition precedent or obligation shall preclude Lender
from requiring such condition or obligation to be met prior to
making any other advance or from thereafter declaring the
failure to satisfy such condition or obligation to be a
Default.
8. Funding. Borrower shall establish and maintain a
special account with Lender into which advances funded
directly to Borrower (but no other funds), and excluding
direct disbursements made to or by Lender pursuant to this
Agreement, shall be deposited by Borrower, and against which
checks shall be drawn only for the payment of costs specified
in the Budget, but which special account shall not be used for
any other purpose. Borrower hereby irrevocably authorizes
Lender to deposit each advance requested by Borrower to the
credit of Borrower in that account, by wire transfer or other
deposit. Advances may also be made, in addition to other
methods contemplated herein, at Lender's option, by direct or
joint check payment to any or all persons entitled to payment
for work or services performed or material furnished in
connection with the Project or the Loan, or by having the
proceeds thereof made available to the Title Insurer (or its
agent) for disbursement. Lender shall not be required to, and
has no responsibility to, supervise the proper application or
distribution of funds to third parties.
9. Compliance with Prompt Payment Law. Borrower shall
comply with the Construction Contract Prompt Payment Law
contained in the Florida Construction Lien Law, Chapter 713,
Florida Statutes, notwithstanding Lender's failure or delay in
funding any Draw Requests or Lender's cessation of funding
Draw Requests in accordance with the terms of this Agreement.
10. Construction Lien Law Notification Requirements.
Borrower hereby authorizes Lender to provide written notices
to Contractor and lienors providing notices to owner pursuant
to Section 713.3471(1)(a), Florida Statutes, and Section
713.3471(2)(b), Florida Statutes, to the extent such notices
are required by law. Borrower hereby releases Lender and
waives all claims it may have against Lender for damages
Borrower may incur as a result of Lender's failure to deliver
said notices. Borrower hereby agrees to provide all required
notices to the Contractor and all lienors providing notices to
owner in compliance with Section 713.3471(2)(a), Florida
Statutes, in a timely fashion.
11. Post-Closing Environmental Assessments. In addition
to the environmental report required to be furnished to Lender
as a condition precedent to the Loan closing and the First
Advance, Lender may, at Lender's sole option, and at the
Borrower's expense, require an environmental assessment or
updated assessment of the Property by an engineering firm, and
of a scope and in form and content satisfactory to Lender,
complying with Lender's established guidelines, showing that
there is no evidence of any hazardous or toxic substances
which have been generated, treated, stored, released or
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Construction Loan Agreement 31<PAGE>
disposed of in the Property, except for such hazardous or
toxic substances lawfully used by the Borrower in the ordinary
course of Borrower's business operations on the Property, and
such additional evidence as may be required by Lender.
Borrower agrees at its sole expense to provide such
environmental assessments when requested by Lender. If any
environmental assessment indicates the past or present use,
handling, storage, transportation or disposal of hazardous or
toxic materials, except for such hazardous or toxic substances
lawfully used by the Borrower in the ordinary course of
Borrower's business operations on the Property, such shall
constitute a Default by the Borrower under the Loan Documents.
Notwithstanding anything contained herein to the contrary,
Lender shall not request updated environmental assessments
pursuant to this Section unless the Loan is in Default, or if
required by any governmental law or regulation or for good
cause (i.e. Lender has reason to believe the Property has been
or is presently being used for the handling, storage,
transportation or disposal of hazardous or toxic materials in
violation of any governmental law or regulation).
EXHIBIT "F-1"
DRAW REQUEST
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Construction Loan Agreement 32<PAGE>
EXHIBIT "G"
SURVEY REQUIREMENTS
Three (3) copies of a recent boundary survey of the Property
by a registered surveyor certified to Lender, the Title
Insurance company and the Borrower. The survey shall show (a)
all boundaries of the Land with courses and distances
indicated, including chord bearings and arc and chord
distances for all curves; (b) dimensions and locations of the
Improvements and of all easements, roads, encroachments,
setback lines and utility lines; (c) the distances to, and
names of, the nearest intersecting streets; (d) the location
of all parking spaces, together with a statement reflecting
the total number of spaces; (e) other facts in any way
affecting the Property; (f) such other details as Lender may
request; and (g) a certification by the surveyor that, if the
Property consists of two or more parcels having common
boundaries, those parcels are contiguous along the common
boundaries. The total Land area must also be included
together with a certification as to the location of any of the
Property within any special flood hazard area. The surveyor
must include on the survey a signed narrative statement in
certification of the existence or nonexistence of any
encroachments from, or onto, the Property and must include the
date of the survey, the surveyor's registration number and
seal.
The attached Surveyor's Report and Certification form should
be completed and submitted with the surveys.
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Construction Loan Agreement 33<PAGE>
COLLATERAL ASSIGNMENT OF GENERAL CONSTRUCTION CONTRACT,
SUBCONTRACTS, PLANS AND SPECIFICATIONS, AND PERMITS
THIS COLLATERAL ASSIGNMENT OF GENERAL CONSTRUCTION
CONTRACT, SUBCONTRACTS, PLANS AND SPECIFICATIONS, AND PERMITS
(the "Assignment") is made as of this 14th day of August,
1995, by and between PLASMA-THERM, INC., a Florida
corporation, with its principal place of business at 9509
International Court, St. Petersburg, Florida 33716
("Borrower") in favor of NATIONSBANK OF FLORIDA, N.A., with
offices at 400 N. Ashley Drive (FL1-010-07-01), Tampa, FL
33602, Attn: Real Estate Loan Administration, its successors,
nominees, and assigns ("Lender").
This Assignment is made on the basis of the following
facts and intentions of the parties:
A. Borrower has obtained a commitment from Lender for a
construction/term loan in the principal amount of THREE
MILLION THREE HUNDRED SEVENTY-FIVE THOUSAND AND NO/100 DOLLARS
($3,375,000.00) (the "Loan"), which Loan is evidenced by a
Promissory Note (the "Note") of even date herewith and secured
by, among other documents, a first Mortgage, Assignment of
Rents and Security Agreement of even date herewith, to be
recorded in the Public Records of Pinellas County, Florida,
(the "Mortgage"), encumbering the real property in Pinellas
County, Florida, described in Exhibit "A" which is attached
hereto and, by this reference, made a part hereof (the
"Property"). The Loan is subject to the provisions of that
certain Construction Loan Agreement (the "Loan Agreement") of
even date herewith. The Note, Mortgage, Loan Agreement and
any other documents executed and delivered by Borrower in
connection with the Loan or any other loans from Lender to
Borrower shall be referred to collectively as the "Loan
Documents" and singularly as "Loan Document".
B. Borrower intends to use the proceeds of the Loan to
construct a 60,639.50 square foot (MOL) office/manufacturing
facility, including leasehold improvements, upon the Property
(the "Project").
C. To further secure the Loan, Lender requires Borrower
to assign to Lender all Borrower's right, title, and interest,
as owner, in all contracts pertaining to the construction of
the improvements.
NOW, THEREFORE, in consideration of these premises, the
Loan, and other financial accommodations made or to be made by
Lender to Borrower, Borrower agrees as follows:
1. Collateral Assignment. Borrower hereby assigns to
Lender Borrower's entire right, title, interest, and position
as "Owner" in and to: (i) that certain Standard Form of
Agreement Between Owner and Contractor, executed by Borrower
and The Perry Company ("Contractor") dated August 14, 1995, a
true and correct copy of which is attached hereto as Exhibit
"B", providing for the construction of the Project, and all
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Collateral Assignment of General Construction Contract<PAGE>
addenda, modifications, and amendments (collectively, the
"Contract"); and (ii) any plans, specifications, drawings, and
design documents pertaining to the Project, if any, and all
addenda, modifications, change orders, and amendments thereto
(the "Plans and Specifications"), and grants to Lender, its
successors and assigns, a security interest in the Contract
and the Plans and Specifications and in all Borrower's rights
and remedies under the Contract, to provide additional
security for the following (the "Secured Obligations"):
(a) Payment of all sums due Lender under the
Note, together with all modifications, renewals,
extensions, and replacements thereof, and all future
advances under the Mortgage;
(b) Payment of any other sums due Lender under
the Mortgage, the Loan Agreement, or any Loan
Document; and
(c) Performance of each obligation contained
in this Assignment, the Mortgage, the Loan
Agreement, or any other Loan Document.
Although Borrower and Lender intend this to be a present
assignment of Borrower's interest in the Contract and Plans
and Specifications, Lender agrees that, so long as no default
exists under this Assignment or the Loan Documents, Borrower
may continue to exercise the rights and powers granted to
Borrower in the Contract. The security of this Assignment is
primary and on a parity with Lender's Mortgage and not
secondary.
2. Default under Loan Agreement, Etc. In the event of
the occurrence of any event of default under the Loan
Agreement, the Note, the Mortgage or any Loan Document, Lender
shall have the right and option, in its sole discretion, to
exercise the rights, benefits, and privileges in the Contract
and the Plans and Specifications under this Assignment upon
written notice to Contractor. Neither this Assignment nor any
action or actions on the part of Lender shall constitute an
assumption by Lender of any of the obligations of Borrower
under the Contract, and Borrower shall continue to be liable
for all obligations thereunder. Borrower hereby agrees to
protect, defend, indemnify, and hold Lender harmless from and
against any and all loss, cost, liability or expense,
including but not limited to attorneys' fees, costs, and
expenses (including attorneys' fees, costs, and expenses
incurred as a result of any appeal), resulting from any
failure of Borrower to perform and observe, at the time and in
the manner therein provided, each of the covenants,
agreements, and obligations of Borrower contained in the
Contract.
3. Default under Contract. Upon the occurrence of any
event of default under the Contract, Lender shall have the
right, in its sole discretion, to take in its name or in the
name of Borrower or otherwise, such action as Lender may at
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Collateral Assignment of General Construction Contract 2<PAGE>
any time or from time to time reasonably determine to be
necessary to cure any default under the Contract, but under no
circumstances shall Lender be obligated to take such action.
Lender shall incur no liability on account of any action taken
in good faith by it or on its behalf or otherwise hereunder,
whether or not the same shall prove to be improper,
inadequate, or invalid, in whole or in part, and Borrower
agrees to protect, defend, indemnify, and hold Lender harmless
from and against any and all loss, cost, liability, or
expense, including but not limited to attorneys' fees, costs,
and expenses (including attorneys' fees, costs, and expenses
incurred as a result of any appeal), in connection with any
such action or actions. This Assignment shall constitute
Borrower's irrevocable direction to and full authority for
Contractor to act at Lender's written direction, notice, or
demand and to otherwise perform on Lender's behalf under the
Contract after an event of default has occurred under the
Loan. Contractor shall be fully protected by Borrower in
Contractor's reliance upon and compliance with any written
request, notice, or demand made by Lender with respect to the
Contract and the Plans and Specifications, or for performance
of any undertaking thereunder, and shall have no right or duty
to inquire as to whether any event of default under the Loan
Agreement or any other Loan Document has actually occurred or
is then existing.
4. Attorney-in-Fact. Borrower hereby irrevocably
constitutes and appoints Lender as its true and lawful
attorney-in-fact, empowered to act in Borrower's name or in
Lender's name or otherwise, to enforce all rights of Borrower
under the Contract. This power of attorney, being coupled
with an interest, is irrevocable, but shall not become
operative except on the occurrence of an event of default
under the Loan Agreement, the Note, any Loan Document or the
Contract.
5. Additional Assignment. Borrower and Contractor (by
executing the Consent previously delivered to Lender)
additionally hereby assign to Lender all right, title, and
interest in and to any and all permits, licenses, allocations,
approvals, certificates, and consents heretofore or hereafter
issued by any governmental or private authority or agency
relating to the Project or the Plans and Specifications,
naming Borrower or Contractor, or in which either has an
interest, and all of Borrower's and Contractor's right, title,
and interest in and to any subcontracts or agreements for
services, labor, or materials pertaining to the Project, and
all claims and rights with respect to non-performance or
breach of said contracts and agreements.
6. Representations and Warranties of Borrower.
Borrower represents and warrants that it has full power and
authority to make this Assignment, that the Contract is valid,
subsisting, and in full force and effect, that it has obtained
the consent of the Contractor to assign its Contract rights to
Lender, and that no default, right of set-off, or claim for
additional payments exists thereunder. Borrower covenants to
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Collateral Assignment of General Construction Contract 3<PAGE>
make all required payments and otherwise perform its
obligations under the Contract, and to give immediate notice
to Lender of any notice of default served upon Borrower with
respect to its obligations under the Contract, and at
Borrower's sole cost and expense, to enforce or secure the
performance of each and every obligation of Contractor to be
kept or performed under the Contract. Borrower further
covenants that it shall make no changes in or amendments to
the Contract or the Plans and Specifications, including, but
not limited to, any addenda, modifications, or change orders,
without the prior written consent of Lender, except for such
change orders or extras, if any, as are specifically allowed
by the Loan Agreement, and shall not tender or accept a
surrender or cancellation of the Contract, or further assign
or create any further encumbrance or hypothecation of
Borrower's interest under the Contract, without the prior
written consent of Lender.
7. Binding Effect. This Assignment and the agreements
and undertakings of Borrower hereunder shall be binding upon
Borrower and its successors and assigns and shall inure to the
benefit of Lender and its successors, nominees, and assignees
and any purchaser of any interest in the Loan Agreement and
the other Loan Documents.
8. Further Assurances. Borrower agrees to make,
execute, and deliver all such further or additional
instruments as may be necessary to satisfy the intents and
purposes hereof and to perfect the assignment made hereby.
9. Mandatory Arbitration. Any controversy or claim
between or among the parties hereto including, but not limited
to, those arising out of or relating to this Assignment or any
related agreements or instruments, including any claim based
on or arising from an alleged tort, shall be determined by
binding arbitration in accordance with the Federal Arbitration
Act (or if not applicable, the applicable state law), the
Rules of Practice and Procedure for the Arbitration of
Commercial Disputes of Judicial Arbitration and Mediation
Services, Inc. (J.A.M.S.), and the "Special Rules" set forth
below. In the event of any inconsistency, the Special Rules
shall control. Judgment upon any arbitration award may be
entered in any court having jurisdiction. Any party to this
Assignment may bring an action, including a summary or
expedited proceeding, to compel arbitration of any controversy
or claim to which this Assignment applies in any court having
jurisdiction over such action.
a. Special Rules: The arbitration shall be
conducted in Tampa, Florida, and administered by
Endispute, Inc., d/b/a J.A.M.S./Endispute who will
appoint an arbitrator; if J.A.M.S./Endispute is unable or
legally precluded from administering the arbitration,
then the American Arbitration Association will serve.
All arbitration hearings will be commenced within 90 days
of the demand for arbitration; further, the arbitrator
shall only, upon a showing of cause, be permitted to
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Collateral Assignment of General Construction Contract 4<PAGE>
extend the commencement of such hearing for up to an
additional 60 days.
b. Reservations of Rights: Nothing in this
Assignment shall be deemed to i) limit the applicability
of any otherwise applicable statutes of limitation or
repose and any waivers contained in this Assignment; or
ii) be a waiver by the Lender of the protection afforded
to it by 12 U.S.C. Section 91 or any substantially
equivalent state law; or iii) limit the right of the
Lender hereto (A) to exercise self help remedies such as
(but not limited to) setoff, or (B) to foreclose against
any real or personal property collateral, or (C) to
obtain from a court provisional or ancillary remedies
such as (but not limited to) injunctive relief or the
appointment of a receiver. The Lender may exercise such
self help rights, foreclose upon such property, or obtain
such provisional or ancillary remedies before, during or
after the pendency of any arbitration proceeding brought
pursuant to this Assignment. At Lender's option,
foreclosure under a mortgage or deed of trust may be
accomplished by any of the following: the exercise of a
power of sale under the deed of trust or mortgage, or by
judicial sale under the deed of trust or mortgage, or by
judicial foreclosure. Neither this exercise of self help
remedies nor the institution or maintenance of an action
for foreclosure or provisional or ancillary remedies
shall constitute a waiver of the right of any party,
including the claimant in any such action, to arbitrate
the merits of the controversy or claim occasioning resort
to such remedies.
IN WITNESS WHEREOF, Borrower has executed this Assignment
this 14th day of August, 1995.
Signed, sealed and delivered
in the presence of:
PLASMA-THERM, INC., a Florida
corporation
/s/Lisa L. Disotelle By: /s/Ronald S. Deferrari
(Signature of Witness) Ronald S. Deferrari
Lisa L. Disotelle President
(Print Name of Witness)
/s/David R. Brittain (CORPORATE SEAL)
(Signature of Witness)
David R. Brittain
(Print Name of Witness) Address:
9509 International Court
St. Petersburg, Florida 33716
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Collateral Assignment of General Construction Contract 5<PAGE>
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me
this 14th day of August, 1995, by RONALD S. DEFERRARI, as
the President of PLASMA-THERM, INC., a Florida corporation, on
behalf of the corporation. He is personally known to me
or X has produced drivers license as identification.
/s/Donna J. Landers
Donna J. Landers
(SEAL) (Print Name of Notary Public)
Notary Public
My Commission Expires:
DONNA J. LANDERS
MY COMMISSION # CC483663 EXPIRES
AUGUST 3, 1999
BONDED THRU TROY FAIN INSURANCE, INC.
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Collateral Assignment of General Construction Contract 6<PAGE>
EXHIBIT "A"
Legal Description
Lots 28, 29, 30, 31 and the Northerly 130 feet of Lot 27, all
in Block C of METROPOINTE COMMERCE PARK PHASE II, according to
the map or plat thereof recorded in Plat Book 103, pages 25
and 26, Public Records of PINELLAS County, Florida.
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Collateral Assignment of General Construction Contract<PAGE>
EXHIBIT "B"
Agreement
1. Standard Form of Agreement Between Owner and Contractor,
executed by Borrower and the Perry Company dated August 14,
1995.
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Collateral Assignment of General Construction Contract<PAGE>
COLLATERAL ASSIGNMENT OF PROFESSIONAL AGREEMENTS
AND PLANS AND SPECIFICATIONS
THIS COLLATERAL ASSIGNMENT OF PROFESSIONAL AGREEMENTS AND
PLANS AND SPECIFICATIONS (the "Assignment") is made as of this
14th day of August, 1995, by and between THE PERRY COMPANY, a
Florida corporation, with its principal place of business at
1901 East 7th Avenue, Tampa, Florida 33605 ("Contractor"),
joined by PLASMA-THERM, INC., a Florida corporation, with its
principal place of business at 9509 International Court, St.
Petersburg, Florida 33716 ("Borrower'), in favor of NATIONS-
BANK OF FLORIDA, N.A., with offices at 400 N. Ashley Drive
(FL1-010-07-01), Tampa, FL 33602, Attn: Real Estate Loan
Administration, its successors, nominees, and assigns
("Lender")
This Assignment is made on the basis of the following
facts and intentions of the parties:
A. Borrower has obtained a commitment from Lender for a
construction/term loan in the principal amount of THREE
MILLION THREE HUNDRED SEVENTY-FIVE THOUSAND AND NO/100 DOLLARS
($3,375,000.00) (the "Loan"), which Loan is evidenced by a
Promissory Note (the "Note") of even date herewith and secured
by, among other documents, a first Mortgage, Assignment of
Rents and Security Agreement dated on even date herewith, to
be recorded in the Public Records of Pinellas County, Florida
(the "Mortgage"), encumbering the real property described in
Exhibit "A" which is attached hereto and, by this reference,
made a part hereof (the "Property"). The Loan is subject to
the provisions of that certain Construction Loan Agreement
(the "Loan Agreement") of even date herewith. The Note,
Mortgage, Loan Agreement and any other documents executed and
delivered by Borrower in connection with the Loan or any other
loans from Lender to Borrower shall be referred to
collectively as the "Loan Documents" and singularly as "Loan
Document".
B. Borrower intends to use the proceeds of the Loan to
construct a 60,639.50 square foot (MOL) office/manufacturing
facility, including leasehold improvements, upon the Property
(the "Project").
C. To further secure the Loan, Lender requires
Contractor and Borrower to assign to Lender all of their
respective rights, title, and interests, as owner or as a
third party beneficiary, in all contracts pertaining to the
construction of the improvements.
NOW, THEREFORE, in consideration of these premises, the
Loan, and other financial accommodations made or to be made by
Lender to Borrower, Contractor and Borrower agree as follows:
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Collateral Assignment of Architect's Agreement
(Redlined version of .017)<PAGE>
1. Collateral Assignment. Borrower and Contractor
hereby assign to Lender their respective rights, title,
interests, and positions as "Owner" or third party
beneficiary, as applicable, in and to those agreements and
proposals described in Exhibit "B", between the Contractor, or
as applicable, the Borrower and the Project architects,
engineers and consultants ("Professionals"), pertaining to the
construction of the Project, and all addenda, modifications,
and amendments thereto and all agreements referenced therein
(collectively, the "Contract"); and (ii) any plans, specifica-
tions, drawings, and design documents pertaining to the
Project, if any, and all addenda, modifications, change
orders, and amendments thereto (the "Plans and
Specifications"), and to the extent of their respective
interests under the Contract, hereby grant to Lender, its
successors and assigns, a security interest in the Contract
and the Plans and Specifications and in all Borrower's and
Contractor's respective rights and remedies under the
Contract, to provide additional security for the following
(the "Secured Obligations"):
(a) Payment of all sums due Lender under the
Note, together with all modifications, renewals,
extensions, and replacements thereof, and all future
advances under the Mortgage;
(b) Payment of any other sums due Lender under
the Mortgage, the Loan Agreement, or any Loan
Document; and
(c) Performance of each obligation contained
in this Assignment, the Mortgage, the Loan
Agreement, or any other Loan Document.
Although Borrower, Contractor and Lender intend this to be a
present assignment of their respective interests in the
Contract and the Plans and Specifications, Lender agrees that,
so long as no default exists under this Assignment or the Loan
Documents, Borrower and Contractor, as applicable, may
continue to exercise the rights and powers granted to them in
the Contract. The security of this Assignment is primary and
on a parity with Lender's Mortgage and not secondary.
2. Default under Loan Agreement, Etc. In the event of
the occurrence of any event of default under the Loan
Agreement, the Note, the Mortgage or any Loan Document, Lender
shall have the right and option, in its sole discretion, to
exercise the rights, benefits, and privileges in the Contract
and the Plans and Specifications under this Assignment upon
written notice to the Professionals. Neither this Assignment
nor any action or actions on the part of Lender shall
constitute an assumption by Lender of any of the obligations
of Borrower or Contractor under the Contract, and Borrower or
Contractor, as applicable, shall continue to be liable for all
obligations thereunder. Borrower hereby agrees to protect,
defend, indemnify, and hold Lender harmless from and against
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Collateral Assignment of Architect's Agreement
(Redlined version of .017) 2<PAGE>
any and all loss, cost, liability or expense, including but
not limited to attorneys' fees, costs, and expenses (including
attorneys' fees, costs, and expenses incurred as a result of
any appeal), resulting from any failure of Borrower to perform
and observe, at the time and in the manner therein provided,
each of the covenants, agreements, and obligations of Borrower
contained in the Contract which are binding upon the Borrower.
Contractor hereby agrees to protect, defend, indemnify and
hold Lender harmless from and against any and all loss, cost,
liability or expense, including but not limited to attorneys'
fees, costs and expenses (including attorney's fees, costs and
expenses incurred as a result of any appeal), resulting from
any failure of Contractor to perform and observe, at the time
and in the manner therein provided each of the covenants,
agreements and obligations of Contractor contained in the
Contract which are binding upon the Contractor.
3. Default under Contract. Upon the occurrence of any
event of default under the Contract, Lender shall have the
right in its sole discretion, to take in its name or in the
name of Borrower or Contractor, as applicable, or otherwise,
such action as Lender may, at any time or from time to time,
reasonably determine to be necessary to cure any default under
the Contract, but under no circumstances shall Lender be
obligated to take such action. Lender shall incur no
liability on account of any action taken in good faith by it
or on its behalf or otherwise hereunder, whether or not the
same shall prove to be improper, inadequate or invalid in
whole or in part, and Borrower or Contractor, as applicable,
agree to protect, defend, indemnify, and hold Lender harmless
from and against any and all loss, cost, liability or expense,
including but not limited to attorneys' fees, costs and
expenses (including attorneys' fees, costs and expenses
incurred as a result of any appeal), in connection with any
such action or actions. This Assignment shall constitute
Borrower's and Contractor's irrevocable direction to and full
authority for the Professionals to act at Lender's written
direction, notice or demand and to otherwise perform on
Lender's behalf under the Contract after an event of default
has occurred under the Loan. The Professionals shall be fully
protected by Borrower or Contractor as applicable, in their
reliance upon and compliance with any written request, notice
or demand made by Lender with respect to the Contract and the
Plans and Specifications, or for performance of any
undertaking thereunder, and shall have no right or duty to
inquire as to whether any event of default under the Loan
Agreement or any other Loan Document has actually occurred or
is then existing.
4. Attorney-in-Fact. Borrower and Contractor hereby
irrevocably constitute and appoint Lender as their true and
lawful attorney-in-fact, empowered to act in their names or in
Lender's name or otherwise, in order to enforce the respective
rights of Borrower or Contractor under the Contract. This
power of attorney, being coupled with an interest, is
irrevocable, but shall not become operative except on the
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Collateral Assignment of Architect's Agreement
(Redlined version of .017) 3<PAGE>
occurrence of an event of default under the Loan Agreement,
the Note, any Loan Document or the Contract.
5. Additional Assignment. Borrower and Contractor and
the Professionals (by executing the Consent previously
delivered to Lender) additionally hereby assign to Lender all
of their respective rights, title and interests in and to any
and all permits, licenses, allocations, approvals,
certificates and consents heretofore or hereafter issued by
any governmental or private authority or agency relating to
the Project or the Plans and Specifications, naming Borrower,
Contractor or the Professionals or in which any one of them
has an interest, and all of Borrower's, Contractor's and the
Professionals' respective rights, title and interests in and
to any subcontract or agreement for services, labor or
materials pertaining to the Project, and all claims and rights
with respect to non-performance or breach of said contracts
and agreements.
6. Representations and Warranties of Borrower.
Borrower and Contractor, to the extent of their interests
under the Contract, represent and warrant that they have full
power and authority to make this Assignment, that the Contract
is valid, subsisting and in full force and effect, that they
have obtained the consent of the Professionals to assign their
Contract rights to Lender, and that no default, right of
set-off or claim for additional payments exists thereunder.
Borrower and Contractor, to the extent of their interests
under the Contract, covenant to make all required payments and
otherwise perform their obligations under the Contract, and to
give immediate notice to Lender of any notice of default
served upon them with respect to their respective obligations
under the Contract, and at their sole cost and expense, to
enforce or secure the performance of each and every obligation
of the Professionals to be kept or performed under the
Contract. Borrower and Contractor, to the extent of their
interests under the Contract, further covenant that they shall
make no changes in or amendments to the Contract or the Plans
and Specifications, including but not limited to any addendum,
modification or change order, without the prior written
consent of Lender, except for such modifications or change
orders or extras, if any, as are specifically allowed by the
Loan Agreement, and shall not tender or accept a surrender or
cancellation of the Contract, or further assign or create any
further encumbrance or hypothecation of their respective
interests under the Contract, without the prior written
consent of Lender.
7. Binding Effect. This Assignment and the agreements
and undertakings of the parties hereunder shall be binding
upon the parties and their successors and assigns and shall
inure to the benefit of Lender and its successors, nominees
and assignees and any purchaser of any interest in the Loan
Agreement and the other Loan Documents.
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Collateral Assignment of Architect's Agreement
(Redlined version of .017) 4<PAGE>
8. Further Assurances. Borrower and Contractor, to the
extent of their interests under the Contract, agree to make,
execute and deliver all such further or additional instruments
as may be necessary to satisfy the intents and purposes hereof
and to perfect the assignment made hereby.
9. Mandatory Arbitration. Any controversy or claim
between or among the parties hereto including, but not limited
to, those arising out of or relating to this Assignment or any
related Assignments or instruments, including any claim based
on or arising from an alleged tort, shall be determined by
binding arbitration in accordance with the Federal Arbitration
Act (or if not applicable, the applicable state law), the
Rules of Practice and Procedure for the Arbitration of
Commercial Disputes of Judicial Arbitration and Mediation
Services, Inc. (J.A.M.S.), and the "Special Rules" set forth
below. In the event of any inconsistency, the Special Rules
shall control. Judgment upon any arbitration award may be
entered in any court having jurisdiction. Any party to this
Assignment may bring an action, including a summary or
expedited proceeding, to compel arbitration of any controversy
or claim to which this Assignment applies in any court having
jurisdiction over such action.
a. Special Rules: The arbitration shall be
conducted in Tampa, Florida, and administered by
Endispute, Inc. d/b/a J.A.M.S./Endispute who will appoint
an arbitrator; if J.A.M.S./Endispute is unable or legally
precluded from administering the arbitration, then the
American Arbitration Association will serve. All
arbitration hearings will be commenced within 90 days of
the demand for arbitration; further, the arbitrator shall
only, upon a showing of cause, be permitted to extend the
commencement of such hearing for up to an additional 60
days.
b. Reservations of Rights: Nothing in this
Assignment shall be deemed to i) limit the applicability
of any otherwise applicable statutes of limitation or
repose and any waivers contained in this Assignment; or
ii) be a waiver by the Lender of the protection afforded
to it by 12 U.S.C. Section 91 or any substantially
equivalent state law; or iii) limit the right of the
Lender hereto (A) to exercise self help remedies such as
(but not limited to) setoff, or (B) to foreclose against
any real or personal property collateral, or (C) to
obtain from a court provisional or ancillary remedies
such as (but not limited to) injunctive relief or the
appointment of a receiver. The Lender may exercise such
self help rights, foreclose upon such property, or obtain
such provisional or ancillary remedies before, during or
after the pendency of any arbitration proceeding brought
pursuant to this Assignment. At Lender's option,
foreclosure under a mortgage or deed of trust may be
accomplished by any of the following: the exercise of a
power of sale under the deed of trust or mortgage, or by
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Collateral Assignment of Architect's Agreement
(Redlined version of .017) 5<PAGE>
judicial sale under the deed of trust or mortgage, or by
judicial foreclosure. Neither this exercise of self help
remedies nor the institution or maintenance of an action
for foreclosure or provisional or ancillary remedies
shall constitute a waiver of the right of any party,
including the claimant in any such action, to arbitrate
the merits of the controversy or claim occasioning resort
to such remedies.
Balance of this page intentionally
blank
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Collateral Assignment of Architect's Agreement
(Redlined version of .017) 6<PAGE>
IN WITNESS WHEREOF, Contractor and Borrower have executed
this Assignment this 14th day of August, 1995.
Signed, sealed and delivered CONTRACTOR:
in the presence of:
THE PERRY COMPANY, a Florida
corporation
/s/Lisa L. Disotelle By: /s/Jerry N. Perry
(Signature of Witness) Jerry N. Perry
Lisa L. Disotelle President
(Print Name of Witness)
/s/Ed Ruark (CORPORATE SEAL)
(Signature of Witness)
Ed Ruark Address:
(Print Name of Witness) 1901 East 7th Avenue
Tampa, Florida 33605
BORROWER:
PLASMA-THERM, INC., a Florida
corporation
/s/Lisa L. Disotelle By: /s/Ronald S. Deferrari
(Signature of Witness) Ronald S. Deferrari
Lisa L. Disotelle President
(Print Name of Witness)
/s/David R. Brittain (CORPORATE SEAL)
(Signature of Witness)
David R. Brittain
(Print Name of Witness) Address:
9509 International Court
St. Petersburg, Florida 33716
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Collateral Assignment of Architect's Agreement
(Redlined version of .017) 7<PAGE>
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me
this 14th day of August, 1995, by JERRY N. PERRY, as the
President of THE PERRY COMPANY, a Florida corporation, on
behalf of the corporation. He X is personally known to me or
has produced -- as identification.
/s/Jill R. Street
Jill R. Street
(SEAL) (Print Name of Notary Public)
Notary Public
My Commission Expires:
"OFFICIAL SEAL"
JILL R. STREET
MY COMMISSION EXPIRES 4/26/96
COMMISSION #CC196605
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me
this 14th day of August, 1995, by RONALD S. DEFERRARI, as
the President of PLASMA-THERM, INC., a Florida corporation, on
behalf of the corporation. He is personally known to me or
has produced drivers license as identification.
/s/Donna J. Landers
Donna J. Landers
(SEAL) (Print Name of Notary Public)
Notary Public
My Commission Expires:
DONNA J. LANDERS
MY COMMISSION # CC483663
EXPIRES
AUGUST 3, 1999
BONDED THRU TROY FAIN
INSURANCE, INC.
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Collateral Assignment of Architect's Agreement
(Redlined version of .017) 8<PAGE>
EXHIBIT "A"
Legal Description
Lots 28, 29, 30, 31 and the Northerly 130 feet of
Lot 27, all in Block C of METROPOINTE COMMERCE PARK
PHASE II, according to the map or plat thereof
recorded in Plat Book 103, pages 25 and 26, Public
Records of PINELLAS County, Florida.
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Collateral Assignment of Architect's Agreement
(Redlined version of .017)<PAGE>
EXHIBIT "B"
Agreements
1. Consultant Agreement between Plasma-Therm, Inc. and
Newcomb & Boyd dated July 31, 1995
2. Agreement between The Perry Company and Whitehouse
Engineers dated January 31, 1995
3. Agreement between The Perry Company and King Engineering
Associates, Inc. dated February 23, 1995
4. Agreement between The Perry Company and Burton & Rolley,
Inc. dated February 28, 1995
5. Abbreviated Form of Agreement between Owner and Architect
between The Perry Company and Fisher and Associates, Inc.
dated March 3, 1995
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Collateral Assignment of Architect's Agreement
(Redlined version of .017)<PAGE>
AMENDMENT TO EMPLOYMENT AGREEMENT (dated 5/3/94)
Effective June 26, 1995
This shall serve as an Amendment to Ronald H. Deferrari's
Employment Agreement dated May 3, 1994. This document is hereby
amended to reflect the following change to section 5.2 of the
COMPENSATION section.
5. COMPENSATION
5.2 an annual bonus based on 3% of fiscal year net earnings
not to exceed $100,000, to be paid on a quarterly basis and
reconciled at year end.
IN WITNESS WHEREOF, the parties have executed this Agreement
the day and year first above written.
FOR PLASMA-THERM, INC.
/s/ Ronald H. Deferrari
Ronald H. Deferrari,
Chairman of the Board
/s/ A.S. Gianoplus
A.S. Gianoplus, Director
EMPLOYEE
/s/ Ronald H. Deferrari
Ronald H. Deferrari
AMENDMENT TO EMPLOYMENT AGREEMENT (dated 5/18/94)
Effective June 26, 1995
This shall serve as an Amendment to Ronald S. Deferrari's
Employment Agreement dated May 18, 1994. This document is hereby
amended to reflect the following changes to section 5 of the
Agreement:
5. COMPENSATION
5.1 a base annual salary, payable in weekly installments,
in the amount of $160,000.
5.2 an annual bonus based on 5% of fiscal year net earnings
not to exceed $150,000, to be paid on a quarterly basis and
reconciled at year end.
5.3 reimbursement for two automobiles, and other reasonable
car-related expenses including fuel, oil, maintenance and repair
items.
IN WITNESS WHEREOF, the parties have executed this Agreement
the day and year first above written.
FOR PLASMA-THERM, INC.
/s/ Ronald H. Deferrari
Ronald H. Deferrari,
CEO and Chairman of the Board
EMPLOYEE
/s/ Ronald S. Deferrari
Ronald S. Deferrari
